Burns v. Reed

Decided on May 30, 1991; 500 US 478


A. Issues Discussed:  Civil Rights (race), prosecutorial immunity, 4th Amendment, 5th Amendment, 14th Amendment 

B. Legal Question Presented: 

Is a state prosecuting attorney absolutely immune from liability for damages under 42 U.S.C. 1983 for giving legal advice to police officers and for conduct while participating in a probable cause hearing?


A. Background:

Cathy Burns (Petitioner) was suspected of shooting her sons as they slept.  She was believed to have been battling multiple personality disorder.  During the police investigation of the case, Rick Reed (Respondent), the state prosecuting attorney, advised the Indiana police that they could question Burns under hypnosis.  After the questioning, Reed advised Indiana police that they had probable cause for her arrest for attempted murder.  Reed also conducted a hearing as to whether there was probable cause to issue a search warrant to search her home and car.  During that hearing, Reed elicited police testimony that Burns had “confessed” to the shooting, without informing the judge that the supposed confession had been obtained during hypnosis. All charges against Burns were later dropped when she won a motion to suppress the statements given under hypnosis.

Burns then sued Reed for damages for violations of various constitutional rights.  The District Court granted Reed a directed verdict (dismissing the case), and the Court of Appeals agreed, holding that Reed, as a prosecutor, was absolutely immune from liability for giving legal advice to the officers, and for his conduct at the probable cause hearing.  Burns then brought the matter to the Supreme Court, asking for reversal so that she could go forward with her suit against Reed.
B. Counsel of Record:
Opposing Side
Michael K. Sutherlin argued the cause and filed a brief for petitioner. Robert S. Spear argued the cause for respondent.  With him on the brief were Linley E. Pearson, Attorney General of Indiana, and David A. Nowak, Deputy Assistant Attorney General.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Louis M. Bograd, Steven R. Shapiro, and Richard A. Waples filed a brief for the American Civil Liberties Union, et al., as amici curiae, urging reversal. Michael R. Lazerwitz argued the cause for the United States as amicus curiae, urging affirmance.  With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, and Barbara L. Herwig.

Briefs of amici curiae urging affirmance were filed for the State of Wyoming, et al., by Joseph B. Meyer, Attorney General of Wyoming; Sylvia Lee Hackl, Senior Assistant Attorney General; Don Siegelman, Attorney General of Alabama; Douglas B. Baily, Attorney General of Alaska; Steve Clark, Attorney General of Arkansas; John K. Van de Kamp, Attorney General of California; Duane Woodard, Attorney General of Colorado; John J. Kelly, Chief State’s Attorney of Connecticut; Herbert O. Reid, Sr., Corporation Counsel of the District of Columbia; Robert A. Butterworth, Attorney General
of Florida; Warren Price III, Attorney General of Hawaii; Jim Jones, Attorney General of Idaho; Neil F. Hartigan, Attorney General of Illinois; Thomas J. Miller, Attorney General of Iowa; Frederic J. Cowan, Attorney General of Kentucky;  James E. Tierney, Attorney General of Maine; Joseph Curran, Jr., Attorney General of Maryland; Frank J. Kelley, Attorney General of Michigan; Hubert H. Humphrey III, Attorney General of Minnesota; Mike Moore, Attorney General of Mississippi; William L. Webster, Attorney General of Missouri; Marc Racicot, Attorney General of Montana;  Brian McKay, Attorney General of Nevada; John P. Arnold, Attorney General of New Hampshire;  Robert J. Del Tufo, Attorney General of New Jersey; Lacy H. Thornburg, Attorney General of North Carolina; Robert H. Henry, Attorney General of Oklahoma; Ernest D. Preate, Jr., Attorney General of Pennsylvania; James E. O’Neil, Attorney General of Rhode Island; T. Travis Medlock, Attorney General of South Carolina; Roger A. Tellinghuisen, Attorney General of South Dakota; Charles W. Burson, Attorney General of Tennessee; Jim Mattox, Attorney General of Texas, and Paul Van Dam, Attorney General of Utah; and for the California District Attorney Association by Edwin L. Miller, Jr. and Thomas F. McArdle.

“[P]rosecutors are absolutely immune from liability under 1983 for their conduct in 'initiating a prosecution and in presenting the State’s case…' insofar as that conduct is ‘intimately associated with the judicial phase of the criminal process…' Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceeding), and also for eliciting any defamatory testimony from witnesses… This immunity extended to ‘any hearing before a tribunal which performed[ed] a judicial function.’

In addition to finding support in the common law, we believe that absolute immunity for a prosecutor’s actions in a probable-cause hearing is justified by the policy concerns articulated in Imbler v. Pachtman...  The prosecutor’s actions at issue here – appearing before a judge and presenting evidence in support of a motion for a search warrant – clearly involve the prosecutor’s ‘role as advocate for the State,’ rather than his role as ‘administrator or investigative officer...'  As this and other cases indicate, pretrial court appearances by the prosecutor in support of taking criminal action against a suspect present a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor.  Therefore, absolute immunity for this function serves the policy of protecting the judicial process…

Accordingly, we hold that respondent’s appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing are protected by absolute immunity...

We do not believe, however, that advising the police in the investigative phase of a criminal case is so ‘intimately associated with the judicial phase of the criminal process…' that it qualifies for absolute immunity... That concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation - inducing conduct... Although the absence of absolute immunity for the act of giving legal advice may cause prosecutors to consider their advice more carefully... '[w]here an official could be expected to know that this conduct would violate statutory or constitutional rights, he should be made to hesitate...'  Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice…  Ironically, it would mean that the police, who do not ordinarily hold law degrees, would be required to know the clearly established law, but prosecutors would not...

In sum, we conclude that respondent has not met his burden of showing that the relevant factors justify an extension of absolute immunity to the prosecutorial function of giving legal advice to the police.

For the foregoing reasons, we affirm in part and reverse in part the judgment of the Court of Appeals."
Justice Vote: 9 Pro vs. 0 Con

  • White, B. Pro (Wrote the majority opinion)
  • Rehnquist, W. Pro (Joined majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • O'Connor, S. Pro (Joined majority opinion)
  • Kennedy, A. Pro (Joined majority opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Scalia, A. Pro (Wrote opinion concurring in part and dissenting in part, voted with the majority)
  • Blackmun, H. Pro (Joined Scalia's opinion, voted with the majority)
  • Marshall, T. Pro (Joined part III of Scalia's opinion, voted with the majority)

The ACLU filed as amicus, urging reversal of the Court of Appeals for the Seventh Circuit decision giving absolute immunity to the respondent. The United States Supreme Court affirmed the lower court's ruling in part and reversed in part with a 9-0 vote, deciding that the respondent had not met the requirements to be granted absolute immunity, giving the ACLU an apparent win