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Roberts v. Lau, 2024 U.S. App. LEXIS 764, 2024 WL 120177 (3d Cir. January 11, 2024) (Montgomery-Reeves, C.J.).

Larry Trent Roberts spent 13 years in prison for a murder that he did not commit. After being exonerated, Roberts sued several state actors involved in obtaining his wrongful conviction, including Assistant District Attorney John C. Baer.

According to the complaint, a hole developed in the prosecution’s already weak case after a detective tried and failed to fabricate evidence of a conflict between Roberts and the victim. In response, the Assistant District Attorney took matters into his own hands by joining the police investigation and looking for a new witness to establish a motive for the killing. That search led Baer to Layton Potter, a known jailhouse snitch who had been convicted for making false reports to law enforcement in the past. Baer approached Potter and got him to concoct a story that Roberts had a dispute with the victim over unpaid drug debts. Potter repeated that story at trial, and his false testimony was integral to Roberts’s conviction.

Baer moved to dismiss the claims against him, arguing that he was absolutely immune from liability under 42 U.S.C. § 1983 because his alleged conduct, locating a new jailhouse snitch, occurred post-charge and was designed to produce inculpatory evidence for trial. The District Court denied the motion, explaining that the doctrine of absolute immunity for prosecutors did not apply because Baer’s search for a new witness served an investigatory function. Baer appealed.

The Third Circuit agreed with the District Court. When deciding whether absolute immunity applies, “we examine ‘the nature of the function performed, not the identity of the actor who performed it.'” Kalina v. Fletcher, 522 U.S. 118, 127, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997) (quoting Forrester v. White, 484 U.S. 219, 229, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988)). Thus, prosecutors are not entitled to absolute immunity when they “perform[] the investigative functions normally performed by a detective or police officer.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993). Taking the complaint’s well-pleaded factual allegations as true, which we must do at the motion-to-dismiss stage, Baer engaged in quintessential “police investigative work” when he affirmatively searched for and approached a new witness to establish motive. Id. at 274 n.5. Discovery may reveal that these allegations are false and that Baer’s role was limited to interviewing a witness in preparation for trial. If so, he may yet be entitled to absolute immunity. But those are not things that we can say at this early stage of the proceedings when we must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of Roberts. Thus, we will affirm because Baer has failed to show that he is entitled to absolute immunity on the face of the complaint.

SHWARTZ, J., dissenting

My colleagues have concluded that the Assistant District Attorney’s (“ADA”) interview of a potential trial witness constituted an investigative act that is not shielded by absolute prosecutorial immunity. Because the ADA was acting as an advocate rather than an investigator when he allegedly solicited false testimony one month before trial, I would reverse the District Court’s order denying him absolute immunity and direct that the Court dismiss the complaint against him.