810 F.

2d 358

Sheldon BARR, Plaintiff-Appellant,

v.
Robert ABRAMS, Orestes J. Mihaly, Mark A. Tepper, Rebecca
Mullane, William Bottiglieri, and Janey Renee
O'Connor, Defendants-Appellees.
No. 541, Docket 86-7757.

United States Court of Appeals,

Second Circuit.
Argued Dec. 10, 1986.
Decided Jan. 28, 1987.

Howard L. Jacobs, New York City, for plaintiff-appellant.

Frank J. Wenick, Asst. Atty. Gen., of New York (Robert Abrams, Atty.
Gen., Lawrence S. Kahn, Deputy Sol. Gen., Christopher Keith Hall and
Richard G. Liskov, Asst. Attys. Gen., of counsel), for defendantsappellees.
Before KAUFMAN, TIMBERS and MAHONEY, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
It is an indispensable foundation of our system of justice that no man,
however exalted the position he holds, is above the law. At the same time,
because public officials entrusted with discretionary responsibilities must
have breathing space within which to perform their functions for the
common good, doctrines of immunity protect them against many claims of
wrongdoing. In this case, we find ourselves between these lofty principles,
in a small clearing that has been left unilluminated.
Specifically, we are called upon to decide what, if any, degree of
immunity should be enjoyed by state prosecutors who are charged with
violating constitutional rights while proceeding in excess of their
jurisdiction.
FACTS

In March, 1983, Assistant Attorneys General Orestes J. Mihaly, Mark A.

Tepper, and Rebecca Mullane commenced an investigation pursuant to
Article 23-A of the New York General Business Law into alleged
violations of state securities laws. Subsequently, on April 10, 1984, the
Attorney General's office moved ex parte for an order requiring fifty-nine
persons, including Sheldon Barr, an attorney, to appear for an examination
under oath and to produce papers, books and records pertaining to the
offer and sale of equipment leasing tax shelters. On April 11, 1984,
Supreme Court Justice Thomas J. Hughes granted the relief requested.

Barr refused to abide by the court's order to appear. Instead, on April 27, 1984,
he moved the New York Supreme Court for an order vacating so much of the
April 11, 1984 order as applied to him, on the ground that his testimony would
not in any way be relevant to the investigation and taking it would thus be an
unwarranted invasion into his affairs. On June 5, 1984, Justice Hughes denied
the motion. On February 5, 1985, the Appellate Division, First Department,
unanimously affirmed that decision, and on June 11, 1985, the New York Court
of Appeals denied Barr's motion for leave to appeal.

On August 7, 1985, Barr appeared with counsel at the office of the Attorney
General. At the commencment of the inquiry, Assistant Attorney General
Tepper advised Barr that he had the right to remain silent, that anything he said
would be used against him, and that he could stop the examination at any time
he wished not to answer a question. On the advice of his counsel, Barr then
refused to produce any documents or answer any questions, invoking his fifth
amendment privilege.

On August 14, 1985, Assistant Attorney General Tepper filed a criminal

information charging Barr with criminal contempt in violation of Section
215.50 of the New York Penal Law for his failure to comply with Justice
Hughes's order. On the basis of the information, Criminal Court Judge Murray
Mogel signed an arrest warrant for Barr's apprehension. The same day, William
Bottiglieri and Jane Renee O'Connor, investigators on the staff of the Attorney
General, executed the warrant by arresting Barr at his office.

At the initial hearing following his arrest, Barr contended that the criminal
charges had been filed for improper purposes and that the Attorney General had
no authority to commence such a criminal proceeding. In addition, Barr argued
that the contempt charges were without substance. On October 21, 1985, by
order and opinion, Criminal Court Judge Max Sayah dismissed the information
on the ground that Barr had a fifth amendment right to refuse to answer the

questions posed by Assistant Attorney General Tepper and to produce the

requested documents.
5

Following his vindication in the New York court, Barr filed an action under 42
U.S.C. Secs. 1983 and 1985 against Attorney General Robert Abrams,
Assistant Attorneys General Mihaly, Tepper and Mullane, and Investigators
Bottiglieri and O'Connor. Claiming to have suffered financial, mental and
physical harm, Barr sought compensatory damages of $30 million plus punitive
damages of $30 million. Barr also sought to enjoin the prosecutors from
utilizing any evidence obtained in violation of his constitutional rights.

Specifically, Barr alleged that the defendants had maliciously, without

jurisdiction, and for the improper purpose of punishing him for exercising his
fifth amendment rights, instigated criminal contempt proceedings against him
and obtained an arrest warrant leading to his unlawful arrest. Barr further
alleged that the prosecuting attorneys, acting in concert with their staff
investigators, had unlawfully effected his arrest and imprisonment. Finally,
Barr alleged that the prosecutors had threatened and harassed prospective
witnesses, unlawfully seized property, submitted false statements to the courts,
slandered Barr, and illegally conspired with the Internal Revenue Service.

On August 7, 1986, 641 F.Supp. 547, the district court granted the defendants'
motion for summary judgment. In a comprehensive opinion, Judge Leval ruled
that pursuant to Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d
128 (1976), absolute immunity protected the prosecutors from a civil rights suit
based on their actions in filing the criminal information and applying to the
New York court for an arrest warrant. In any event, Judge Leval held, the
prosecutors enjoyed qualified immunity for these actions pursuant to Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), because their
conduct did not violate clearly established statutory or constitutional rights of
which a reasonable person would have known. Judge Leval further decided that
Barr's remaining claims were vague and conclusory and subject to dismissal for
failure to state a cause of action, on the ground of prosecutorial immunity, or
both. Finally, Judge Leval ruled that even if any of the claims surmounted all of
these hurdles, Barr's action still would have to be dismissed or stayed based on
the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971), which requires that a federal court ordinarily abstain from entertaining a
lawsuit that interferes with a state's conduct of a criminal proceeding.

DISCUSSION
8

* In Imbler the Supreme Court held that there is absolute immunity from Sec.

1983 liability for those prosecutorial activities "intimately associated with the
judicial phase of the criminal process." Imbler, supra, 424 U.S. at 430, 96 S.Ct.
at 995. In Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981), adopting the
Imbler holding, we stated that the protected "quasi-judicial" activities include
the initiation of a prosecution and the presentation of the government's case. On
the other hand, we pointed out where the prosecutors act in an "investigative"
or "administrative" capacity, only qualified immunity operates. Kavanagh,
supra, 640 F.2d at 452; See also Powers v. Coe, 728 F.2d 97, 103 (2d
Cir.1984).

Barr concedes that in filing the information charging him with contempt and in
applying to the New York court for an arrest warrant based on that charge, the
Attorney General and his deputy prosecutors were acting in their core courtrelated role within the meaning of Imbler. Barr seeks to avoid absolute
immunity, however, by arguing that a prosecutor initiating a prosecution loses
the protection of Imbler where state law did not empower the prosecutor to
bring the charges.

10

The question thus raised was not specifically decided by the Supreme Court in
Imbler. On the contrary, the court took pains in that case to note that the
challenged acts of the state prosecutor were "within the scope of his duties."
Imbler, 424 U.S. at 410, 420, 96 S.Ct. at 985, 990. Nor can we construe Taylor
or Powers as foreclosing Barr's contention. For in those cases, we simply
adopted and applied Imbler. See Kavanagh, supra, 640 F.2d at 452, 453; Coe,
supra, 728 F.2d at 103, 104.

11

We are persuaded, however, that a crabbed reading of Imbler, and a holding

that a prosecutor is without absolute immunity the moment he strays beyond his
jurisdictional limits, would do violence to its spirit. The purpose of the
immunity rule is to give to public officials entrusted with sensitive tasks a
protected area of discretion within which to carry out their responsibilities.
Because we believe that the rule Barr proposes would "cause a deflection of the
prosecutor's energies from his public duties," Imbler, 424 U.S. at 423, 96 S.Ct.
at 991, and force him to "shade his decisions instead of exercising the
independence of judgment required by his public trust," Imbler, 424 U.S. at
423, 96 S.Ct. at 991, we reject it.

12

It does not follow that the issue whether a prosecutor is acting within his
jurisdiction has no relevance to the type of immunity he enjoys. In Stump v.
Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978), the
Supreme Court stated that judges are absolutely immune from Sec. 1983
actions only for judicial acts for which they have at least a semblance of

jurisdiction. Where a judge proceeded in "the clear absence of all jurisdiction,"

the Court ruled, a different result would be in order.
13

We believe the same rule should apply here. Since it is well settled that the
immunity of prosecutors is based on the same considerations that underlie the
immunity of judges, Imbler, 424 U.S. at 422, 96 S.Ct. at 991, and since there is
no functional basis for according a greater degree of protection to prosecutors
than to judges, a dissimilar standard would be incongruous. See Lerwill v.
Joslin, 712 F.2d 435, 438 (10th Cir.1983).

14

Thus, unless a prosecutor proceeds in the clear absence of all jurisdiction,

absolute immunity exists for those prosecutorial activities intimately associated
with the judicial phase of the criminal process. Conversely, where a prosecutor
acts without any colorable claim of authority, he loses the absolute immunity he
would otherwise enjoy. In such a case, however, he remains protected by the
shield of qualified immunity recognized by Harlow.1

15

Here, we are convinced that Barr fails to meet the threshold test required to
overcome the bar of absolute immunity: a showing that the state prosecutors
proceeded against him in the clear absence of jurisdiction. Section 358 of New
York's General Business Law empowers the Attorney General to "prosecute
every person charged with the commission of a criminal offense in violation of
the laws of this state, applicable to or in respect of the practices or transactions
which in this article are referred to as fraudulent practices." The contempt
information was founded on Sec. 215.50(3) of the New York Penal Law, which
authorizes prosecution for contempt for "intentional disobedience or resistance
to the lawful process or other mandate of a court."

16

In dismissing the criminal charge against Barr, Judge Sayah explicitly ruled that

17
contempt,
if properly charged, in the context of the facts of this case is an underlying
act of continuous concealment directly related to the securities fraud investigation,
and therefore is within the jurisdiction of the Attorney General.
18

People v. Barr, No. 5N071972, slip op. at 12 (N.Y.Crim.Ct., Oct. 21, 1985).
Without expressing any view as to whether this ruling would have been
sustained by the New York Court of Appeals, we believe that Barr has failed to
demonstrate that Judge Sayah's decision was unequivocally erroneous. See
People v. Tomasello, 21 N.Y.2d 143, 151, 287 N.Y.S.2d 1, 6-7, 234 N.E.2d
190, 194 (1967); People v. Stern, 86 Misc.2d 101, 103, 381 N.Y.S.2d 951, 953
(Sup.Ct.N.Y.Co.1976); People v. Sommer, 77 Misc.2d 840, 846-47, 353

N.Y.S.2d 892, 898-99 (Co.Ct.Nassau Co.1974). Accordingly, we conclude that

the state prosecutors are immune from suit based on their actions in filing the
criminal information and procuring Barr's arrest warrant.
B
19

Barr further charges that the Assistant Attorneys General instructed and acted
in concert with Investigators Bottiglieri and O'Connor to effect his arrest and
imprisonment pursuant to a warrant which was found to have been obtained
without probable cause. Barr insists that in this activity the prosecutors were
acting beyond their role in initiating a prosecution and therefore are not
protected by absolute immunity. Barr further contends that the prosecutors do
not have Harlow immunity for this conduct, because they knowingly violated
clearly established constitutional rights.

20

The distinction Barr urges between filing the criminal information and
procuring an arrest warrant, on the one hand, and executing the arrest warrant,
on the other, is meaningful, and generally would carry the prosecutors out of
the realm of Imbler and into Harlow. In this case, however, Barr's complaint
does not in fact challenge the latter type of conduct on the part of the
prosecutors. Barr does not allege any impropriety in the manner in which he
was arrested. Rather, he merely attempts to recharacterize his claim that the
decision to charge and arrest him was malicious and unlawful. As we have
already explained, the prosecutors are shielded from these allegations by the
absolute immunity of Imbler.

21

The investigators are also immune. As Judge Leval ruled, Bottiglieri and
O'Connor were empowered as "police officers" under New York Criminal
Procedure Law Secs. 1.20(32) and 1.20(34)(g) and acted pursuant to a courtissued arrest warrant which was facially valid. Thus, their actions are protected
by Harlow immunity.

22

Malley v. Briggs, --- U.S. ----, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), does not
require a different result. In that case, the Supreme Court held that,
notwithstanding an intervening judicial order approving the arrest warrant,
police officers could not avail themselves of immunity where they procured the
warrant based on facts that they must have known would not justify it. Here,
the investigators did not apply for the warrant but simply executed it in a
concededly proper manner.

23

Finally, Barr charges that the Assistant Attorneys General violated his rights in
that they threatened witnesses, unlawfully seized property, submitted false
statements to courts, told persons that he had engaged in fraud and sham, and
illegally conspired with the Internal Revenue Service. These claims were
properly dismissed for vagueness. As we have repeatedly held, complaints
relying on the civil rights statutes are insufficient unless they contain some
specific allegations of fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning. See Ostrer v.
Aronwald, 567 F.2d 551, 553 (2d Cir.1977); Koch v. Yunich, 533 F.2d 80, 85
(2d Cir.1976); Powell v. Jarvis, 460 F.2d 551, 553 (2d Cir.1972). Accordingly,
we need not reach any of the alternative grounds relied on by the district court
in rejecting these claims.

CONCLUSION
24

Having determined that each of the charges raised by Barr's complaint was
properly dismissed, we affirm the judgment of the district court.

The difference between the two forms of immunity in these contexts has been
helpfully explicated by the United States Court of Appeals for the 10th Circuit
in Lerwill v. Joslin, 712 F.2d 435, 440-41 n. 7 (10th Cir.1983)