Grand Jury Immunity and Section 1983 Actions

The principle of grand jury secrecy, which is entrenched in U.S. jurisprudence, stems from the dual policy considerations of preventing the intimidation of those who testify before a grand jury who might later appear as trial witnesses, and protecting grand jury witnesses from retaliatory litigation. Witness immunity from civil liability is a corollary to the secrecy principle, and further ensures that the tribunal is not deprived of testimony. Two recent decisions addressed the scope of grand jury witness civil immunity in the context of 42 U.S.C. ' 1983 actions. In Rehberg v. Paulk, 132 S.Ct. 1497 (2012), the Supreme Court held that grand jury witnesses, like trial witnesses, are absolutely immune from liability from a ' 1983 suit. Meanwhile, an important decision out of the Southern District of New York, Frederick v. N.Y.C., 11 Civ. 469 (S.D.N.Y. Oct. 11, 2012), addressed grand jury witness immunity in a ' 1983 suit against a third party (as opposed to the witness).

Rehberg v. Paulk

The question in Rehberg v. Paulk was “whether a 'complaining witness' in a grand jury proceeding is entitled to the same immunity in an action under 42 U.S.C. ' 1983 as a witness who testifies at trial.” Charles A. Rehberg, an accountant, allegedly sent anonymous faxes to a hospital in Albany, NY, criticizing the management and the hospital's billing practices. James P. Paulk, the lead investigator in the local prosecutor's office, investigated the incident. This probe lead to Rehberg's being indicted for aggravated assault, burglary and six counts of making a harassing phone call. There were certain allegations that Rehberg assaulted a doctor by unlawfully entering his house. The indictment was dismissed after Rehberg challenged its sufficiency. Rehberg was indicted two more times, and both indictments were ultimately dismissed. Paulk later admitted that he did not conduct interviews in the matter and had no evidence to support the claims against Rehberg.

Rehberg brought an action pursuant to 42 U.S.C. ' 1983 against Paulk for malicious prosecution. Specifically, Rehberg alleged that Paulk made false statements that Rehberg harassed doctors. Paulk filed a motion to dismiss, arguing that he had absolute immunity from suit as a grand jury witnesses. The U.S. District Court denied the motion, and the Court of Appeals for the Eleventh Circuit reversed.

The Supreme Court Ruling

The Supreme Court first noted that ' 1983 “creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States.” The Court recognized that ' 1983 should be read in connection with common law and tort immunities, and therefore applied a “functional approach” to determine what immunities were available in a ' 1983 action.

The Court looked to comparable immunities and, in particular, discussed the absolute immunity from civil liability granted to trial witnesses discussed in Briscoe v. LaHue, 460 U.S. 325 (1983). The policy reasons underlying this immunity were: 1) to assuage a witness who “might be reluctant to come forward to testify,” therefore preventing the potential deprivation of testimony before the tribunal; and 2) to protect a witness who is concerned about subsequent liability. The Court in Rehberg found that these justifications for immunity of trial witnesses applied with “equal force” to grand jury witnesses. The Court rejected the argument that the immunity was improper because witnesses needed a deterrent against testifying falsely, instead concluding that the already existing deterrence attendant to a criminal perjury prosecution was deterrence enough. Therefore, the Court held that immunity from civil liability in a ' 1983 action is appropriate for grand jury witnesses.

Frederick v. New York City

In Frederick v. New York City, the court was confronted with the question of “whether Plaintiff has met the legal standard for ordering the unsealing of grand jury testimony in the underlying criminal proceeding.” In that criminal proceeding, Plaintiff Kelby Frederick was charged with attempted murder in the second degree for allegedly shooting Anthony Clarke. The victim's 15-year-old brother, A.C., witnessed the shooting. Two detectives arrived at the scene and questioned A.C., who stated that he saw a dark-colored car containing two black men, and the driver fired a handgun. A.C. could not identify either of the two men in the car. The day after the shooting, A.C. identified Frederick in a photo array compiled by one of the detectives. Two weeks later, A.C. again identified Frederick, this time in a lineup. Frederick was indicted by a grand jury, before which A.C. testified. After Frederick spent over a year in prison, the District Attorney of Queens County dismissed the charges because of the presence of conflicting evidence gathered while the charges were pending against Frederick.

Once Frederick was released, A.C. told Frederick's investigator that the detectives influenced his identification during the photo array, and consequently the lineup, by signaling the person they believed to be the shooter. Frederick then brought a 42 U.S.C. ' 1983 suit against the City and the detectives, alleging malicious prosecution.

The court first discussed the threshold question of whether Rehberg “barred the use of grand jury witness testimony in a malicious prosecution.” Looking to the language used by the Court, as well as the principles behind Rehberg's extension of absolute immunity to grand jury witnesses, the court held that Rehberg “does not create a categorical bar to the use of grand jury testimony as evidence against defendants in malicious prosecution suits brought pursuant to ' 1983,” but bars the use of “a witness's own grand jury testimony against that witness if he or she subsequently becomes a ' 1983 defendant.”

After discussing the limits of Rehberg, the court reviewed the motion to unseal the grand jury records. Noting the concerns of grand jury secrecy and comity, the court ultimately found that the plaintiffs' compelling interest in avoiding injustice mandated the unsealing of the grand jury records. The court advised caution in the unsealing of grand jury records, however, as “malicious prosecution claims are bountiful,” but “decisions to unseal grand jury records are rare.” The court granted Frederick's motion to unseal the grand jury records, but directed the District Attorney of Queens County to submit the grand jury minutes to the court for in-camera review.

Reconciling the Opinions

The Frederick court effectively clarifies the reach of Rehberg by analyzing “an interpretation of Rehberg that precludes the use of any grand jury evidence against any ' 1983 defendant.” The Frederick court narrowed in on Rehberg's statement that parties bringing suit cannot evade the absolute-immunity rule by claiming that the witness presented false testimony, or by “using evidence of the [grand jury] witness' testimony to support any other ' 1983 claim concerning the initiation or maintenance of a prosecution.” The court declined to read the language “any other ' 1983 claim” so broadly as to bar any use of grand jury testimony. It also drew on the principles in Briscoe, cited by the Rehberg Court, and on policy reasons for the grant of absolute immunity, and found that none of them applied to bar the use of testimony in ' 1983 claims against third parties. Stated the court, Rehberg “does not create a categorical bar to the use of grand jury testimony as evidence against defendants in malicious prosecution suits brought pursuant to ' 1983,” but bars only the use of “a witness's own grand jury testimony against that witness if he or she subsequently becomes a
' 1983 defendant.”

Considering the Significance

These two decisions raise implications for subsequent grand jury cases, especially in the context of access to grand jury testimony. Will there be an increase in motions requesting, or courts allowing, the unsealing of grand jury records? Frederick recognized that, pursuant to the Federal Rule of Criminal Procedure 6(e)(3)(E)(i), courts may authorize the disclosure of grand jury records. However, there is a “delicate balance” between concerns of justice and secrecy. The Frederick court highlighted the “critically important” principles of grand jury secrecy and warned against a rush of disclosures for malicious prosecution suits. While that court allowed for in-camera review of the grand jury testimony, plaintiffs still have to meet the strict requirements to disclosure: that “the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.”

Another question raised by these cases is whether there will be a decrease in ' 1983 malicious-prosecution suits, given the fact that, in most cases, the grand jury witness is a law enforcement official. The Rehberg Court specifically stated that the immunity should apply to law enforcement officials in the same way that it applies to lay persons. Drawing on principles of Briscoe, the Court first noted that law enforcement officials testify frequently; not allowing immunity for their testimony would lead to a large amount of retaliation suits by resentful defendants. Second, cases on appellate review should not be influenced by a law enforcement official's potential liability. With this settled law, ' 1983 plaintiffs might be hesitant to bring suit if the witnesses are immune.

Howard W. Goldstein ([email protected]), a member of this newsletter's Board of Editors, is a partner at Fried, Frank, Harris, Shriver & Jacobson LLP in New York and a former federal prosecutor. Margaret E. Hirce, an associate at the firm, assisted in the preparation of this article.

The principle of grand jury secrecy, which is entrenched in U.S. jurisprudence, stems from the dual policy considerations of preventing the intimidation of those who testify before a grand jury who might later appear as trial witnesses, and protecting grand jury witnesses from retaliatory litigation. Witness immunity from civil liability is a corollary to the secrecy principle, and further ensures that the tribunal is not deprived of testimony. Two recent decisions addressed the scope of grand jury witness civil immunity in the context of 42 U.S.C. ' 1983 actions. In Rehberg v. Paulk , 132 S.Ct. 1497 (2012), the Supreme Court held that grand jury witnesses, like trial witnesses, are absolutely immune from liability from a ' 1983 suit. Meanwhile, an important decision out of the Southern District of New York, Frederick v. N.Y.C., 11 Civ. 469 (S.D.N.Y. Oct. 11, 2012), addressed grand jury witness immunity in a ' 1983 suit against a third party (as opposed to the witness).

Rehberg v. Paulk

The question in Rehberg v. Paulk was “whether a 'complaining witness' in a grand jury proceeding is entitled to the same immunity in an action under 42 U.S.C. ' 1983 as a witness who testifies at trial.” Charles A. Rehberg, an accountant, allegedly sent anonymous faxes to a hospital in Albany, NY, criticizing the management and the hospital's billing practices. James P. Paulk, the lead investigator in the local prosecutor's office, investigated the incident. This probe lead to Rehberg's being indicted for aggravated assault, burglary and six counts of making a harassing phone call. There were certain allegations that Rehberg assaulted a doctor by unlawfully entering his house. The indictment was dismissed after Rehberg challenged its sufficiency. Rehberg was indicted two more times, and both indictments were ultimately dismissed. Paulk later admitted that he did not conduct interviews in the matter and had no evidence to support the claims against Rehberg.

Rehberg brought an action pursuant to 42 U.S.C. ' 1983 against Paulk for malicious prosecution. Specifically, Rehberg alleged that Paulk made false statements that Rehberg harassed doctors. Paulk filed a motion to dismiss, arguing that he had absolute immunity from suit as a grand jury witnesses. The U.S. District Court denied the motion, and the Court of Appeals for the Eleventh Circuit reversed.

The Supreme Court Ruling

The Supreme Court first noted that ' 1983 “creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States.” The Court recognized that ' 1983 should be read in connection with common law and tort immunities, and therefore applied a “functional approach” to determine what immunities were available in a ' 1983 action.

The Court looked to comparable immunities and, in particular, discussed the absolute immunity from civil liability granted to trial witnesses discussed in Briscoe v. LaHue , 460 U.S. 325 (1983). The policy reasons underlying this immunity were: 1) to assuage a witness who “might be reluctant to come forward to testify,” therefore preventing the potential deprivation of testimony before the tribunal; and 2) to protect a witness who is concerned about subsequent liability. The Court in Rehberg found that these justifications for immunity of trial witnesses applied with “equal force” to grand jury witnesses. The Court rejected the argument that the immunity was improper because witnesses needed a deterrent against testifying falsely, instead concluding that the already existing deterrence attendant to a criminal perjury prosecution was deterrence enough. Therefore, the Court held that immunity from civil liability in a ' 1983 action is appropriate for grand jury witnesses.

Frederick v. New York City

In Frederick v. New York City, the court was confronted with the question of “whether Plaintiff has met the legal standard for ordering the unsealing of grand jury testimony in the underlying criminal proceeding.” In that criminal proceeding, Plaintiff Kelby Frederick was charged with attempted murder in the second degree for allegedly shooting Anthony Clarke. The victim's 15-year-old brother, A.C., witnessed the shooting. Two detectives arrived at the scene and questioned A.C., who stated that he saw a dark-colored car containing two black men, and the driver fired a handgun. A.C. could not identify either of the two men in the car. The day after the shooting, A.C. identified Frederick in a photo array compiled by one of the detectives. Two weeks later, A.C. again identified Frederick, this time in a lineup. Frederick was indicted by a grand jury, before which A.C. testified. After Frederick spent over a year in prison, the District Attorney of Queens County dismissed the charges because of the presence of conflicting evidence gathered while the charges were pending against Frederick.

Once Frederick was released, A.C. told Frederick's investigator that the detectives influenced his identification during the photo array, and consequently the lineup, by signaling the person they believed to be the shooter. Frederick then brought a 42 U.S.C. ' 1983 suit against the City and the detectives, alleging malicious prosecution.

The court first discussed the threshold question of whether Rehberg “barred the use of grand jury witness testimony in a malicious prosecution.” Looking to the language used by the Court, as well as the principles behind Rehberg's extension of absolute immunity to grand jury witnesses, the court held that Rehberg “does not create a categorical bar to the use of grand jury testimony as evidence against defendants in malicious prosecution suits brought pursuant to ' 1983,” but bars the use of “a witness's own grand jury testimony against that witness if he or she subsequently becomes a ' 1983 defendant.”

After discussing the limits of Rehberg, the court reviewed the motion to unseal the grand jury records. Noting the concerns of grand jury secrecy and comity, the court ultimately found that the plaintiffs' compelling interest in avoiding injustice mandated the unsealing of the grand jury records. The court advised caution in the unsealing of grand jury records, however, as “malicious prosecution claims are bountiful,” but “decisions to unseal grand jury records are rare.” The court granted Frederick's motion to unseal the grand jury records, but directed the District Attorney of Queens County to submit the grand jury minutes to the court for in-camera review.

Reconciling the Opinions

The Frederick court effectively clarifies the reach of Rehberg by analyzing “an interpretation of Rehberg that precludes the use of any grand jury evidence against any ' 1983 defendant.” The Frederick court narrowed in on Rehberg's statement that parties bringing suit cannot evade the absolute-immunity rule by claiming that the witness presented false testimony, or by “using evidence of the [grand jury] witness' testimony to support any other ' 1983 claim concerning the initiation or maintenance of a prosecution.” The court declined to read the language “any other ' 1983 claim” so broadly as to bar any use of grand jury testimony. It also drew on the principles in Briscoe, cited by the Rehberg Court, and on policy reasons for the grant of absolute immunity, and found that none of them applied to bar the use of testimony in ' 1983 claims against third parties. Stated the court, Rehberg “does not create a categorical bar to the use of grand jury testimony as evidence against defendants in malicious prosecution suits brought pursuant to ' 1983,” but bars only the use of “a witness's own grand jury testimony against that witness if he or she subsequently becomes a
' 1983 defendant.”

Considering the Significance

These two decisions raise implications for subsequent grand jury cases, especially in the context of access to grand jury testimony. Will there be an increase in motions requesting, or courts allowing, the unsealing of grand jury records? Frederick recognized that, pursuant to the Federal Rule of Criminal Procedure 6(e)(3)(E)(i), courts may authorize the disclosure of grand jury records. However, there is a “delicate balance” between concerns of justice and secrecy. The Frederick court highlighted the “critically important” principles of grand jury secrecy and warned against a rush of disclosures for malicious prosecution suits. While that court allowed for in-camera review of the grand jury testimony, plaintiffs still have to meet the strict requirements to disclosure: that “the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.”

Another question raised by these cases is whether there will be a decrease in ' 1983 malicious-prosecution suits, given the fact that, in most cases, the grand jury witness is a law enforcement official. The Rehberg Court specifically stated that the immunity should apply to law enforcement officials in the same way that it applies to lay persons. Drawing on principles of Briscoe, the Court first noted that law enforcement officials testify frequently; not allowing immunity for their testimony would lead to a large amount of retaliation suits by resentful defendants. Second, cases on appellate review should not be influenced by a law enforcement official's potential liability. With this settled law, ' 1983 plaintiffs might be hesitant to bring suit if the witnesses are immune.

Howard W. Goldstein ([email protected]), a member of this newsletter's Board of Editors, is a partner at Fried, Frank, Harris, Shriver & Jacobson LLP in New York and a former federal prosecutor. Margaret E. Hirce, an associate at the firm, assisted in the preparation of this article.