Herman K. Burke v. Jerry Miller, M.D.

Fourth Circuit

Herman K. Burke v. Jerry Miller, M.D.

580 F.2d 108, 1978 U.S. App. LEXIS 10308

CourtCourt of Appeals for the Fourth Circuit

DecidedJuly 6, 1978

Docket76-1154

StatusPublished

Cited by38 cases

This text of 580 F.2d 108 (Herman K. Burke v. Jerry Miller, M.D.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Herman K. Burke v. Jerry Miller, M.D., 580 F.2d 108, 1978 U.S. App. LEXIS 10308 (4th Cir. 1978).

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ALBERT V. BRYAN, Senior Circuit Judge:

Following his conviction in Virginia for murder, Herman K. Burke sued Dr. Jerry Miller, the State Medical Examiner for the county, in the District Court charging him with violating his civil rights by falsely testifying at the trial and thereby entitling him to damages under 42 U.S.C. § 1983. A claim was also pressed under 42 U.S.C. § 1985, averring a conspiracy by the doctor with the prosecuting attorney to deprive Burke of a fair trial.¹ Defendant moved under F.R.Civ.P. 12(b)(6) to dismiss the action as barred by the State statute of limitations as well as by his immunity from [109]*109civil suit seeking damages for acts done in his official capacity. The Court, without passing on the claim of immunity, held the action to be barred by the statute. Burke v. Miller, Civil Action No. 750868 (W.D. Va. Jan. 9, 1976).

On Burke’s appeal we heard argument upon the limitations question but, without deciding it, thereafter requested counsel to brief the issue of the immunity, for we believed decision of that question imperative presently and prospectively.

Taking the stand as a witness at the instance of the prosecution, Dr. Miller told of his driving on the highway and meeting by chance with Burke in a car with his wife. A previous acquaintance, Burke stopped, came to the doctor’s car window and said he had “just shot a man and he is up at my mail box. Would you see what you could do for him?” He observed Burke to be in quite an anxious and nervous state, very pale. Whereupon Dr. Miller turned his car and drove to where Burke had asked him to go. There he saw the victim of the shooting, Walter Ferguson, lying on the road dead. Examination of the body disclosed that death had resulted from a gun shot through his chest.

Our theorem is that any witness in a State judicial proceeding enjoys an absolute immunity — not qualified in any degree— from liability under the pleaded Civil Rights Acts. In this conclusion our lodestar is Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Fundamentally, it reaffirms “that § 1983 [and, we believe, § 1985 as well]² is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them.” 424 U.S. at 418, 96 S.Ct. at 989. From there the opinion tracks the previous applications of this concept: the absolute immunity of judges acting within their realms, exampled in Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646 (1872); Pier-son v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), and the unconditional exemption of legislators, confirmed in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Imbler itself clothed a State prosecutor with entire and unrestrained freedom from liability under § 1983 when acting within his official sphere. In this the Court’s standard of determination was “the immunity historically accorded the relevant official at common law and the interests behind it.” 424 U.S. at 421, 96 S.Ct. at 990.

Still adhering to the chart of Imbler, we next look for the common law doctrine. That under it inviolable immunity is accorded witnesses is attested by a plethora of precedent. So familiar to the bar are these authorities, that in the interest of time we believe citations, without quotations, will suffice: Brawer v. Horowitz, supra, 535 F.2d at 836 et seq.; Briggs v. Goodwin, 186 U.S.App.D.C. 179, 569 F.2d 10 (1977), cert. denied - U.S. -, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978), in both the majority and dissenting opinions;³ and Blevins v. Ford, 572 F.2d 1336, 1338 (9 Cir. 1978).

With this background we, to borrow from Imbler again, “must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983. We think they do.” 424 U.S. at 424, 96 S.Ct. at 992. The reason is that the participation of the defendant doctor in our case was an “ ‘integral part of the judicial process.’ ” 424 U.S. at 430, 96 S.Ct. at 995. Again, his “activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.” Id. (footnote omitted).

[110]*110Ample safeguards exist against abuse of this witness privilege. The restraints upon witnesses are precisely those outlined in Imbler with regard to prosecutors, and is aptly put in the opinion:

“We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. § 242, the criminal analog of § 1983. O'Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); cf. Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). . These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.” 424 U.S. at 428-29, 96 S.Ct. at 994 (footnote omitted).

The judgment of the District Court dismissing the present case will be sustained on the ground of the defendant-appellee’s immunity from suit. No ruling is made on the limitations defense.

Affirmed.

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ALBERT V. BRYAN, Senior Circuit Judge:

Following his conviction in Virginia for murder, Herman K. Burke sued Dr. Jerry Miller, the State Medical Examiner for the county, in the District Court charging him with violating his civil rights by falsely testifying at the trial and thereby entitling him to damages under 42 U.S.C. § 1983. A claim was also pressed under 42 U.S.C. § 1985, averring a conspiracy by the doctor with the prosecuting attorney to deprive Burke of a fair trial.¹ Defendant moved under F.R.Civ.P. 12(b)(6) to dismiss the action as barred by the State statute of limitations as well as by his immunity from [109]*109civil suit seeking damages for acts done in his official capacity. The Court, without passing on the claim of immunity, held the action to be barred by the statute. Burke v. Miller, Civil Action No. 750868 (W.D. Va. Jan. 9, 1976).

On Burke’s appeal we heard argument upon the limitations question but, without deciding it, thereafter requested counsel to brief the issue of the immunity, for we believed decision of that question imperative presently and prospectively.

Taking the stand as a witness at the instance of the prosecution, Dr. Miller told of his driving on the highway and meeting by chance with Burke in a car with his wife. A previous acquaintance, Burke stopped, came to the doctor’s car window and said he had “just shot a man and he is up at my mail box. Would you see what you could do for him?” He observed Burke to be in quite an anxious and nervous state, very pale. Whereupon Dr. Miller turned his car and drove to where Burke had asked him to go. There he saw the victim of the shooting, Walter Ferguson, lying on the road dead. Examination of the body disclosed that death had resulted from a gun shot through his chest.

Our theorem is that any witness in a State judicial proceeding enjoys an absolute immunity — not qualified in any degree— from liability under the pleaded Civil Rights Acts. In this conclusion our lodestar is Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Fundamentally, it reaffirms “that § 1983 [and, we believe, § 1985 as well]² is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them.” 424 U.S. at 418, 96 S.Ct. at 989. From there the opinion tracks the previous applications of this concept: the absolute immunity of judges acting within their realms, exampled in Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646 (1872); Pier-son v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), and the unconditional exemption of legislators, confirmed in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Imbler itself clothed a State prosecutor with entire and unrestrained freedom from liability under § 1983 when acting within his official sphere. In this the Court’s standard of determination was “the immunity historically accorded the relevant official at common law and the interests behind it.” 424 U.S. at 421, 96 S.Ct. at 990.

Still adhering to the chart of Imbler, we next look for the common law doctrine. That under it inviolable immunity is accorded witnesses is attested by a plethora of precedent. So familiar to the bar are these authorities, that in the interest of time we believe citations, without quotations, will suffice: Brawer v. Horowitz, supra, 535 F.2d at 836 et seq.; Briggs v. Goodwin, 186 U.S.App.D.C. 179, 569 F.2d 10 (1977), cert. denied - U.S. -, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978), in both the majority and dissenting opinions;³ and Blevins v. Ford, 572 F.2d 1336, 1338 (9 Cir. 1978).

With this background we, to borrow from Imbler again, “must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983. We think they do.” 424 U.S. at 424, 96 S.Ct. at 992. The reason is that the participation of the defendant doctor in our case was an “ ‘integral part of the judicial process.’ ” 424 U.S. at 430, 96 S.Ct. at 995. Again, his “activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.” Id. (footnote omitted).

[110]*110Ample safeguards exist against abuse of this witness privilege. The restraints upon witnesses are precisely those outlined in Imbler with regard to prosecutors, and is aptly put in the opinion:

“We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. § 242, the criminal analog of § 1983. O'Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); cf. Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). . These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.” 424 U.S. at 428-29, 96 S.Ct. at 994 (footnote omitted).

The judgment of the District Court dismissing the present case will be sustained on the ground of the defendant-appellee’s immunity from suit. No ruling is made on the limitations defense.

Affirmed.

¹

. “§ 1983.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” “§ 1985.

(2) If . . . two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, . . .;

(3) . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.”

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580 F.2d 108, 1978 U.S. App. LEXIS 10308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herman-k-burke-v-jerry-miller-md-ca4-1978.

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