Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1990)

Gary KESSELMAN, Plaintiff-Appellant,v.COUNTY OF LOS ANGELES, Gilbert Garcetti, Richard Hecht, LeaD'Agostino, and Ira Reiner, Defendants-Appellees.

No. 88-6237.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1990.Decided Jan. 31, 1990.

Before GOODWIN, Chief Judge, and FARRIS and NOONAN, Circuit Judges.


Gary Kesselman appeals the district court's dismissal of his suit for failure to state a claim for which relief could be granted. We review the district court's dismissal de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). We remand.


Kesselman brought this action against Los Angeles County, and several district attorneys and supervisors in the Los Angeles County District Attorney's Office based on his allegation that the defendants made defamatory statements and harassed him in retaliation for his refusal to corroborate a trial witness' testimony. He also claims that he was discharged from his position as deputy district attorney in retaliation for filing this action.

Kesselman's allegations stem from his removal from an assignment to prosecute the highly visible "Twilight Zone" manslaughter case. Defendant D'Agostino was assigned to replace Kesselman. In addition to the controversy over the reasons for his replacement, a new controversy emerged when D'Agostino's first witness testified that she had previously disclosed certain information to Kesselman, and that Kesselman had stated that he planned to conceal the information and spring it on the defense "as a surprise." Kesselman denied the charge and testified that he did not recall, nor did his notes of the meeting reflect, that the witness had ever given him the disputed information. Kesselman alleges that the defendants thereafter began a concerted effort to discredit him and to harass him for refusing to corroborate the witness' testimony.

Kesselman's nine count petition alleged six federal causes of action based on deprivation of property and liberty without due process. The complaint also alleged the pendent claims of defamation, intentional infliction of emotional distress, and wrongful discharge.

The district court dismissed the federal counts with prejudice under the theory that the defendants were protected by absolute prosecutorial immunity. Count Five was also dismissed for failure to allege race or class-based bias. The defamation count was dismissed because the court held that the statements were privileged under state law. The remaining pendent counts were dismissed for failure to exhaust administrative remedies.


The prosecutor enjoys absolute immunity for quasi-judicial acts done in the scope of his or her authority. Gobel v. Maricopa County, 867 F.2d 1201, 1204 (9th Cir. 1989). A quasi-judicial prosecutorial activity is one that is "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The immunity applies whenever the prosecutor "acts as an advocate" in initiating or presenting the state's case. Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986). Further, actions and utterances related to presenting the case, (i.e., as a part of the judicial proceeding) are also protected by absolute immunity.

The trial court erred in dismissing the action on a theory of absolute immunity. In Gobel v. Maricopa County, 867 F.2d at 1204, 1205 we held that a prosecutor's public statements regarding criminal proceedings are not protected by absolute immunity. There may be reasons for prosecutors to try cases on the courthouse steps but those reasons have nothing to do with the orderly judicial resolution of a criminal proceeding. See Marx v. Gumbinner, 855 F.2d 783, 791 (11th Cir. 1988); Powers v. Coe, 728 F.2d 97, 103 (2d Cir. 1984) (finding it "beyond cavil" that statements to the press are not part of quasi-judicial role of prosecutor); Helstoski v. Goldstein, 552 F.2d 564, 566 (3d Cir. 1977) (leaks by prosecutor of false information not protected by absolute immunity); Borucki v. Ryan, 827 F.2d 836, 837-39 (1st Cir. 1987) (applying qualified immunity to prosecutor's disclosure of psychiatric report).

Kesselman's complaint relies on several statements that were 1) made to the public and 2) outside of any judicial proceeding. They include the statements of defendant Hecht, and those of defendant D'Agostino made to the media outside the courtroom. We make no ruling on whether those statements were in fact defamatory. We hold only that the district court erred in ruling that absolute immunity applied.

Further, the Supreme Court recently held that hiring and firing decisions of a judge are not protected by absolute immunity. Forrester v. White, 108 S. Ct. 538 (1988). Forrester applies equally to prosecutorial immunity. See 108 S. Ct. at 545; Ashelman, 793 F.2d at 1076; See also Windsor v. The Tennessean, 719 F.2d 155, 164 (1983) (United States Attorney's "duty of recommending the hiring or firing of assistant United States attorneys is a classic example of an administrative function.").

The decision to discharge Kesselman should not have been given absolute prosecutorial immunity. In reversing the dismissal of that portion of Kesselman's complaint that is based on defendants' personnel decisions and public statements, we make no comment on other possible grounds for summary action. Since no other grounds were considered by the court, we will not now introduce such grounds as a basis to affirm.

As to the alternative ground for the dismissal of Count Five, we recognize that conspiracies premised on 42 U.S.C. §§ 1985(2) (second clause) and 1985(3) (first clause) require allegations of race or class based discrimination. Bretz v. Kelman, 773 F.2d 1026, 1029 (9th Cir. 1985). But Count Five expressly relies on Section 1983.

Conspiracies premised on Section 1983 are not limited to class based claims. See Klingele v. Eikenberry, 849 F.2d 409, 413 (1988); Hewitt v. Grabicki, 794 F.2d 1373, 1381 n. 5 (1986); cf. Richardson v. Fleming, 651 F.2d 366, 369 n. 5 (5th Cir. 1981) (identifying longstanding rule that section 1983 permits conspiracy claim "regardless of a class-based animus"). The alternative basis for dismissing Count Five was improper.

Since we must remand for further proceedings we alert the district court to Sanborn v. Chronicle Pub. Co., 18 Cal. 3d 406, 134 Cal. Rptr. 402, 556 P.2d 764, 767 (1976) where the court held that Section 47(1) was inapplicable to a county clerk that had allegedly made defamatory statements to the media. The court noted that this provision had only been extended to "high ranking state and federal officials, such as the President of the United States, the governor of any state or territory, cabinet officers of the United States and the corresponding officers of any state or territory." Id. The purpose of the section is to protect policy-making. The Court held that even though the county clerk may have had discretion to discuss matters with the press a "governmental officer's discussions with the public or press regarding the functioning of his office would seem, instead, to fall within the category of those routine, ministerial duties incident to the normal operations of that office." Id. at 769.

We recognize that California courts have expressly extended absolute privilege under Section 47(1) to lower state officials "so long as the publication was made while the official was exercising his policy-making function and was acting within the scope of his official duties." Neary v. Regents of University of California, 230 Cal. Rptr. 281 (Cal.App.1986) (relying on Sanborn in determining that disclosure of research report was not clearly protected as "policy-making"); Royer v. Steinberg, 90 Cal. App. 3d 490, 153 Cal. Rptr. 499 (1979).

We emphasize that we did not consider the sufficiency of the complaint or whether the complaint adequately states a cause of action. We hold only that the district court erred in dismissing the complaint on the basis of absolute immunity.

We recognize that pleading questions and other legal issues may arise at later stages of this litigation.

REMANDED. Each side shall pay its own costs.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3