Keko v. Hingle , 318 F.3d 639 ( 2003 )

REVISED JANUARY 28, 2003
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-30622
_______________________
ANTHONY G. KEKO,
Plaintiff-Appellee-Appellant,
versus
I. F. HINGLE, ET AL.;
Appellants,
I. F. HINGLE; CHARLES BOWLES; CHARLES GUEY;
DON ENGLISH; SADIE WILLIAMS GUEY; ERNEST WOOTON;
COREGIS INSURANCE COMPANY,
Defendants-Appellees,
and
MICHAEL H. WEST, Dr.; ST. PAUL FIRE AND MARINE INSURANCE COMPANY,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
January 8, 2003
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Two interlocutory appeals have been brought from the
district court’s decisions in this 42 U.S.C. § 1983 action filed by
Tony Keko to redress his overturned conviction of the 1991 murder
of his estranged wife Louise. Keko appeals the court’s rendition
of a Rule 54(b)-certified summary judgment in favor of two sheriffs
and several law enforcement and prosecutorial personnel involved in
obtaining the conviction. Dr. Michael H. West, whose tainted
expert testimony led to the overturning of Keko’s conviction,
appeals from the denial of absolute immunity. We affirm the former
judgment and dismiss the appeal of the latter judgment.
The first judgement is readily analyzed. Keko argues on
appeal only that the appellees — Plaquemines Parish Sheriff Hingle,
former Sheriff Wooten,1 Sheriff’s Officers Bowles, English, and
Charles Guey, and District Attorney Investigator Sadie Guey —
contributed to a constitutionally defective search warrant that,
when approved by a state court judge, authorized inter alia the
taking of dental impressions from Keko.2 Keko asserts that some
information was knowingly omitted from the search warrant
application and that some information included in the warrant
application was either false or was incorrectly skewed against him.
He urges, in short, that the search warrant was so lacking in
probable cause as to overcome the appellees’ qualified immunity
1
Wooten’s name is misspelled in the caption of this case as
“Wooton.” It is not clear that Keko has even briefed his appeal
against Wooten’s favorable judgment, but we address the issue as
a convenience.
2
The dental impressions, according to Dr. West, then a
forensic odontologist, corresponded with bite marks found on
Louise’s exhumed body. Dr. West’s evidence provided the only
direct evidentiary link at trial connecting Keko to the crime.
2
defense. See Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct.
1092, 1098 (1986). We disagree, but will not belabor this opinion
by repeating the thorough analysis of the affidavit undertaken by
the district court in a summary judgment hearing. Keko raises no
arguments here that were not fully and dispositively addressed at
that time by the district court, and he advances few if any
authorities remotely supporting his legal position. The district
court concluded that probable cause existed on the face of the
affidavit, that any omissions were either neutral regarding
probable cause or were helpful to Keko, and that, alternatively,
the officers were shielded by qualified immunity for their
objectively reasonable conduct in framing the affidavit. Finding
no error of law or fact, we affirm.
Dr. West’s appeal of the denial of absolute immunity is
more problematic.3 First, he is not an employee of Plaquemines
Parish or of any state or local government agency. Keko’s
allegations under § 1983 are viable against this private individual
only because they include claims of conspiracy by Dr. West with
state actors to commit malicious prosecution and to procure a
falsely grounded arrest warrant. As the Supreme Court has held, a
3
The denial of an immunity defense may be subject to
interlocutory appeal. While this court has jurisdiction to rule
on legal issues raised in such an appeal, we lack jurisdiction
and must dismiss if the appeal turns on disputed material fact
issues. Johnson v. Jones, 515 U.S. 304, 314, 115 S.Ct. 2151,
2157 (1995); Cantu v. Rocha, 77 F.3d 795, 802-803 (5th Cir.
1996).
3
private party may be liable for conspiring with state actors to
violate civil rights. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183(1980). Second, while the existence of a constitutional tort of
malicious prosecution has been questioned, the claim currently
remains cognizable in this circuit. See, e.g., Kerr v. Lyford, 171
F.3d 330, 340 (5th Cir. 1999); see also Castellano v. Fragozo, 311
F.3d 689, 712 (5th Cir. 2002) (Barksdale, J., dissenting). Dr.
West has not contested the legal sufficiency of the claims against
him. Nor has Dr. West challenged the district court’s ruling that
he might be entitled to qualified immunity, but fact issues
preclude its being granted at this time.
Instead, and more boldly, Dr. West asserts that he is
entitled to absolute immunity (a) for the expert witness report he
authored, which was offered at a probable cause hearing to obtain
an arrest warrant for Keko,4 and (b) for the research and
investigative work that led to preparation of the expert report.
Although West has not been sued for his testimony at Keko’s
criminal trial, he bases his claim on the Supreme Court’s decision
in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108 (1983), holding
that witnesses, like judges and prosecutors, are shielded by
absolute immunity from § 1983 liability arising from their
4
The ex parte probable cause hearing was a separate
proceeding from the search warrant hearing that is the current
basis for Keko’s appeal against the sheriffs and law enforcement
personnel.
4
participation in judicial proceedings. Dr. West argues, not
without force, that the protection of absolute immunity is lost if
an expert witness, whose testimonial competence derives solely from
the application of his expertise to an investigation conducted by
the state,5 may be sued for the activity that spawned his
testimony. Or, as Judge Easterbrook put it,
It would be a hollow immunity if the aggrieved party
could turn around and say, in effect: “True, your
delivery of bad testimony is immunized, but preparing to
deliver that testimony is not, so I can litigate the
substance of your testimony.” Substance is exactly what
Briscoe puts off limits.
Buckley v. Fitzsimmons, 919 F.2d 1230, 1245 (7th Cir. 1990)
(emphasis in original), rev’d on other grounds, 509 U.S. 259, 113
S.Ct. 2606 (1993) (affirming grant of absolute immunity to expert
witnesses in criminal prosecution).
Unfortunately for Dr. West, the Supreme Court not only
perpetuated absolute immunity for witnesses in judicial proceed-
ings, based on an historical analysis of the law as it stood when
§ 1983 was enacted, but the Court has subsequently bounded absolute
immunity within the precise confines of adversarial judicial
proceedings. Thus, when either a police officer or a prosecutor
becomes a “complaining witness” in a probable cause hearing,
neither official may claim absolute immunity. Malley v. Briggs,
supra (police officers); Kalina v. Fletcher, 522 U.S. 118, 118
5
There is no allegation here that Dr. West participated in
Keko’s prosecution in any other way than by his role as an expert
consultant and witness.
5
S.Ct. 502 (1997) (prosecutors). The action of applying for a
warrant, the Court held, “while a vital part of the administration
of criminal justice, is further removed from the judicial phase of
criminal proceedings than the act of a prosecutor in seeking an
indictment.” Malley, 475 U.S. at 342-43, 106 S.Ct. at 1097; see
also Kalina, 522 U.S. at 129-30, 118 S.Ct. at 509 (distinguishing
a prosecutor’s preparation of an information and motion for warrant
from executing the certification of underlying facts under penalty
of perjury; the prosecutor in the latter capacity performed an act
“any competent witness might have performed”). These decisions
suggest that an informal, ex parte probable cause hearing is not
the type of judicial proceeding for which a witness’s testimony
would require the full shield of absolute immunity.6 The only
“testimony” now at issue is his report submitted in such a probable
6
In the wake of Briscoe, in contrast, cases have extended
absolute testimonial immunity to testimony before the grand jury,
post-indictment adversarial suppression hearings, and other
adversarial criminal proceedings. See, e.g., Jones v. Cannon, 174
F.3d 1271, 1286 (11th Cir. 1999); Kincaid v. Eberle, 712 F.2d
1023, 1024 (7th Cir. 1983); Holt v. Castaneda, 832 F.2d 123, 125
(9th Cir. 1987), cert. denied, 485 U.S. 979 (1988); Strength v.
Hubert, 854 F.2d 421, 423-25 (11th Cir. 1988); Macko v. Byron,
760 F.2d 95, 97 (6th Cir. 1985); Williams v. Hepting, 844 F.2d
138, 142 (3d Cir.), cert. denied 488 U.S. 851 (1988); see
generally Martin A. Schwartz & John E. Kirklin, Section 1983
Litigation: Claims, Defenses, and Fees § 9:10, at 296-98 (3d ed.
1997); compare Moore v. McDonald, 30 F.3d 616, 619-20 (5th Cir.
1994) (absolute immunity for officer’s testimony in adversarial
pretrial suppression hearing) with Enlow v. Tishomingo County,
Miss., 962 F.2d 501 (5th Cir. 1992) (false arrest distinguished
from malicious prosecution claims; police officer not necessarily
immune for perjurious grand jury testimony leading to
constitutional malicious prosecution claim).
6
cause hearing. We decline to extend absolute witness immunity into
an arena where the Supreme Court has not found factual testimony to
justify such heightened protection. See also Wheeler v. Cosden Oil
& Chem. Co., 734 F.2d 254, 261 (5th Cir.), modified on other
grounds, 744 F.2d 1131 (police officer not absolutely immune from
§ 1983 malicious prosecution claim for false testimony at ex parte
probable cause hearing).
To reinforce his reliance on Briscoe, Dr. West draws a
distinction between Malley and Briscoe based on the role of the
witness in the prosecution. Under Malley, he urges, a “complaining
witness” — one who instigates, encourages, or continues the
prosecution — is only entitled to qualified immunity, while a “lay”
witness (West’s expression) must always be immune under Briscoe.
For present purposes, West’s use of the distinction is misplaced.
He may be a complaining witness; in any event, this case presents
a question of fact as to the degree of his participation in the
prosecution that, on this record, cannot be resolved on summary
judgment. See Cervantes v. Jones, 188 F.3d 805, 810 n.5 (7th Cir.
1999).7 West may not have been a formal member of the
prosecutorial team or responsible for final prosecutorial
decisions, but his report stated that “indeed and without doubt”
the bite marks he observed on the exhumed body of Louise Keko
7
See also Enlow, supra, at 511 (fact issues preclude grant
of absolute or qualified immunity).
7
matched Tony ’s dental impressions. Further, according to the
state court, his report was critical to obtaining probable cause to
arrest, he examined only Tony Keno’s dental impressions and not
those of any other potential suspect, and he performed his function
at the behest of the sheriff’s office to assist in “identifying”
the attacker. The complaining witness doctrine thus offers no
defense as a matter of law to Dr. West.
The doctor also seeks absolute immunity for his pre-
testimonial activities in examining Mrs. Keno’s body, obtaining and
examining Keko’s dental impressions and writing a report. He cites
only policy statements enunciated in Briscoe and what he asserts
are comparable policies surrounding absolute prosecutorial immunity
to justify broadening the concept of testimonial immunity beyond
what is introduced in the courtroom. While we have some sympathy
for the policy views he espouses, there is virtually no authority
to support them.8 Further, to the extent Dr. West’s pre-
testimonial activities were investigative, his immunity ought to
correlate with the merely qualified immunity granted to the police
for comparable activities. Thus, if, as alleged, Dr. West used
shoddy and unscientific research techniques that resulted in a
report critical to a baseless murder prosecution of Keko, there is
8
The expert witnesses were granted absolute immunity in
Buckley, supra, but as the court’s opinion granting absolute
immunity to the prosecutors in that case was overturned by the
Supreme Court, the status of his comparable decision for the
experts seems uncertain.
8
no obvious reason why Dr. West should enjoy immunity greater than
that of other investigators.
By holding that absolute immunity does not shield Dr.
West, we do not imply any opinion on the strength of his qualified
immunity defense or the ultimate validity of Keko’s conspiracy
allegations.9
CONCLUSION
For the foregoing reasons, we conclude that the summary
judgment in favor of Sheriffs Hingle and Wooten, Officers Bowles,
Charles Guey, and English, and Investigator Sadie Guey must be
affirmed. Dr. West’s appeal of the district court’s denial of
absolute immunity must be dismissed.
AFFIRMED in Part, DISMISSED in Part.
9
Dr. West also raises on appeal the district court’s denial
of summary judgment on Keko’s federal and state law malicious
prosecution claims. Since this ruling is not germane to his
absolute immunity claim, and since Dr. West did not appeal the
court’s denial of qualified immunity, we lack jurisdiction over
this issue.
9