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interrogatories, and affidavits established that the defendants acted in good faith and therefore had established the qualified good faith immunity available under Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), and Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706 (3d Cir. 1978).

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Public defenders have the same judicial immunity as prosecutors, but where private counsel are involved, the courts generally do not reach the immunity issue since private counsel are not recognized as state actors within the meaning of section 1983.

In both Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950, 93 S. Ct. 3015, 37 L.Ed.2d 1003, and Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975), the Third Circuit held that public defenders are immune from liability under section 1983. In Waits, supra, the court further held that an investigator employed by the public defender was also immune from suit. Similarly, Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977), and Robinson2 Bergstrom, 579 F.2d 401 (7th Cir. 1978),272 held that a public defender is entitled to absolute immunity from section 1983 damage claims for acts done in the performance of his judicial function as a public defender.

V.

The district court had properly dismissed plaintiff's claim against the defendant public defender for his activities as a public defender in Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978), since he was not acting under color of state law. However, the district court had erred in dismissing plaintiff's claim that the public defender participated in a conspiracy by assisting in the alteration of the transcript of plaintiff's

271. See Nakles, Criminal Defense Lawyer, The Case for Absolute Immunity from Civil Liability, 81 Dick. L. Rev. 229 (1977).

272. Counsel failed to file appellate brief until five and one-half years after conviction.

trial to reflect a stronger case for the prosecution and to delete testimony in favor of plaintiff. The court stated: "He would not be immune from liability for his vicarious responsibility for the actions of other conspirators. The district court should have determined whether Gandy had participated in any conspiracy." 574 F.2d at 1265.

Court-appointed attorneys were entitled to absolute immunity in Minns v. Paul, 542 F.2d 899, 902 (4th Cir. 1976), cert. denied, 429 U.S. 1102, 97 S.Ct. 1127, 51 L.Ed.2d 552. To some extent this decision was based on the absolute immunity granted to prosecutors by Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The Fifth Circuit took a somewhat different approach in United States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cir. 1976), and held that appointed counsel does not act under color of state law and therefore is not liable under section 1983. The court noted that the court-appointed attorney serves his client rather than the state. The fact that the court makes the appointment does not alter the attorney-client relationship. 554 F.2d at 261. Similarly, Thomas v. Howard, 455 F.2d 228, 229 (3d Cir. 1972) held that an attorney representing a defendant voluntarily by assignment from a pool of attorneys of the county legal aid--criminal division was not acting under color of state law.

Blevins v. Ford, 572 F.2d 1336 (9th Cir. 1978), Deas v. Potts, 547 F.2d 800 (4th Cir. 1976), and Steward v. Meeker, 459 F.2d 669 (3d Cir. 1972) held that private counsel representing a defendant in a criminal case does not act under color of state law and therefore is not subjected to liability under section 1983. Hill v. McClellan, 490 F.2d 859 (5th Cir. 1974) held that a private attorney who represented plaintiff's wife in a divorce, child custody, and property settlement action against him was not acting under color of state law and therefore was not subjected to liability under section 1983.

The Ninth Circuit has held that a public defender is absolutely immune from section 1983 liability in Miller v. Barilla, 549 F.2d 648, 649 (9th Cir. 1977). The court held that a public defender acts in a manner similar to that of a prosecutor representing the state and should therefore be absolutely immune.

d. Immunity of Witnesses

Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976) held that witnesses are immune from liability in a Bivens action. 273 In Brawer, the court noted that several courts had shielded witnesses from liability under section 1983 by finding that they had not acted under color of state law. Although it was not clear that a Bivens action would lie against a witness at a federal trial, the court assumed that such an action would lie and proceeded to the immunity issue. 535 F.2d at 836. The witnesses and the prosecutor were alleged to have conspired to use perjured testimony and to have exculpatory evidence concealed in order to convict plaintiff. Plaintiff objected to the United States attorney's representation of the witness in the action. The court found representation by the government to be proper since the interests of the United States were at stake. The witness had cooperated with the government in obtaining plaintiff's conviction and the government had relocated him and given him a new identity. The witness had expressed his opinion that the action was instituted in order to obtain his new identity and to seek revenge upon him by the use of physical violence. The court concluded that in these circumstances the interests of the United States were involved and the United States attorney properly represented the witness. 535 F.2d at 836. Similarly, Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978) held that witnesses are absolutely immune from civil suits based upon their words, whether they are perjurious or not.

Dictum in Briggs v. Goodwin, 569 F.2d 12 (D.C. Cir. 1977) stated that the prosecuting attorney, who allegedly committed perjury when called to the witness stand by the court to state whether any of the subpoenaed witnesses were informants of the United States, was not entitled to the common law witness immunity since he was functioning as a prosecutor rather than as a witness. 569 F.2d at 26. In response to the dissent's argument that the prosecutor should be entitled to absolute immunity, the court criticized the opinion in Brawer, supra, commenting that in Brawer the court merely applied the state common law

273. See Section X supra.

274. Accord, Burke v. Miller, 580 F.2d 108 (4th Cir. 1978).

immunity and failed to determine whether witness immunity should be different under federal common law. 569 F.2d at 28 n. 15. Dictum in Triplett v. Azordegan, 570 F.2d 819 (8th Cir. 1978) appears to be contrary to Briggs.

Subse

In Triplett, the defendant, a county prosecuting attorney, had learned that plaintiff's tape-recorded confession to murder had been obtained while he was under the influence of drugs. The prosecutor obtained the taped confession by means of a court order. quently it was learned that the murder had taken place in another county and responsibility for the prosecution was transferred to the other county. Plaintiff was tried and convicted in the other county. During the trial, in which defendant was not involved, the taperecorded confession was introduced into evidence. Plaintiff's habeas corpus action was successful and, after his release, the charges against him were dismissed, the prosecuting attorney for the county in which the case was tried having stated that charges would have not been brought if he had known the confession had been obtained while plaintiff was under the influence of drugs. Plaintiff then brought an action against defendant, the prosecuting attorney in the first county, together with other individuals, alleging that he had violated plaintiff's constitutional rights in concealing his knowledge of the facts surrounding plaintiff's confession. Dismissal of the claim was proper since the defendant had not been personally involved in the use of the confession at trial, and further, since his failure to take affirmative action after the case had been transferred to another county did not constitute state action. dictum the court stated that even if the defendant had been called as a witness and perjured himself concerning his knowledge of plaintiff's confession, his act of perjury would not have been performed under color of state law. 570 F.2d at 823.

In

Bennett v. Passic, 545 F.2d 1260 (10th Cir. 1976) held that the district court had properly denied plaintiff's motion to proceed in forma pauperis on the ground that the action was frivolous. Plaintiff complained that police officers testified at his trial concerning a confession he had given without having been advised of his Miranda rights. The court noted that witnesses who testify at trial are not acting under color of state law. 545 F.2d at 1264. Similarly, in Taylor v. Nichols, 558 F.2d 561, 564 (10th Cir. 1977), the court commented that testifying at trial does not constitute state action which can be a basis

for a claim under section 1983.

Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978) commented that broadside unspecific allegations of inducing perjury by numerous witnesses are insufficent to state a claim, even under Haines v. Kerner, 404 U.S. 519, reh. denied, 405 U.S. 948 (1972). However, in that case the court directed that the plaintiff be given an opportunity to file an amended pleading specifically setting forth any alleged perjurious statements which he contended were made by a witness and any conduct by the defendant, the captain of the sheriff's police, which induced such statements. The court noted that if the issue had been disposed of adversely to plaintiff in the state criminal proceedings, the defendant may be entitled to invoke the doctrine of collateral estoppel. However, this could not be determined until the state court records were produced and examined.

2. Qualified Good Faith Immunity of Officials

a.

General Discussion

In six recent cases, the Supreme Court has defined the qualified good faith immunity available to officials in actions under section 1983. The first case, Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), held that the defense of good faith and probable cause is available to police officers in actions under section 1983.275 The Court stated:

Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of that suspect is later proved. . . . A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty

275. See Section VIII, H, 1, f, supra, for cases discussing the good faith immunity of police officers. See also the recent case of Foley v. Connelie, L.Ed.2d

U.S.

98 S.Ct. 1067,

(1978) for a discussion of police exercise of judgment and discretion.

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