                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-1999

Carter v. City of Philadelphia
Precedential or Non-Precedential:

Docket 98-1581




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation
"Carter v. City of Philadelphia" (1999). 1999 Decisions. Paper 112.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/112


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed April 28, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1581

RAYMOND CARTER,

       Appellant

v.

CITY OF PHILADELPHIA; THOMAS RYAN, INDIVIDUALLY
AND AS A POLICE OFFICER FOR THE CITY OF
PHILADELPHIA; JOHN DOE, AN UNKNOWN POLICE
OFFICER(S) AND OR DETECTIVE(S) FOR THE CITY OF
PHILADELPHIA; LYNNE ABRAHAM, PHILADELPHIA
DISTRICT ATTORNEY IN HER OFFICIAL CAPACITY;
RICHARD ROE, POLICE OFFICER REPRESENTING
UNKNOWN EMPLOYEES OF THE PHILADELPHIA
DISTRICT ATTORNEY'S OFFICE, IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITY; WAYNE SETTLE,
INDIVIDUALLY AND AS A POLICE OFFICER FOR
THE CITY OF PHILADELPHIA; MICHAEL DUFFY,
INDIVIDUALLY AND AS A POLICE OFFICER FOR
THE CITY OF PHILADELPHIA

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 97-cv-04499)
Before: Honorable Bruce W. Kauffman

Argued
March 10, 1999

Before: MANSMANN, SCIRICA and NYGAARD,
Circuit Judges.

(Filed April 28, 1999)
Robert W. Small, Esquire (ARGUED)
Berlinger & Small
1494 Old York Road
Suite 200
Abington, PA 19001

 Of Counsel:
 Susan F. Burt, Esquire
 Berlinger & Small
 North American Building,
  11th Floor
 121 South Broad Street
 Philadelphia, PA 19102

 COUNSEL FOR APPELLANT

Marcia Berman, Esquire
City of Philadelphia Law Department
1515 Arch Street
One Parkway Building, 17th Floor
Philadelphia, PA 19102

 COUNSEL FOR APPELLEE
 CITY OF PHILADELPHIA

R. David Walk, Jr., Esquire
 (ARGUED)
Bebe H. Kivitz, Esquire
Kevin J. Kotch, Esquire
Chonda Jordan Nwamu, Esquire
Hoyle, Morris & Kerr
1650 Market Street
4900 One Liberty Place
Philadelphia, PA 19103

Emily Zimmerman
Chief, Civil Litigation Unit
District Attorney's Office
1421 Arch Street
Philadelphia, PA 19201

 COUNSEL FOR APPELLEE
 RICHARD ROE

                         2
       Calvin R. Koons, Esquire
       Office of the Attorney General
        of Pennsylvania
       Strawberry Square, 15th Floor
       Harrisburg, PA 17120

        COUNSEL FOR COMMONWEALTH
        OF PENNSYLVANIA AMICUS
        APPELLEE

       Stuard B. Suss
       Deputy District Attorney
       Ralph A. Germak
       President, Pennsylvania
        District Attorneys Association
       PDAA/PDAI Headquarters
       2929 North Front Street
       Harrisburg, PA 17110

        COUNSEL FOR PENNSYLVANIA
        DISTRICT ATTORNEYS
        ASSOCIATION AMICUS CURIAE

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal we must first determine whether our
requirement that a district court provide a brief statement
of reasons in certifying a judgment for appeal pursuant to
Fed. R. Civ. P. 54(b) precludes our exercise of jurisdiction
to hear the appeal where we are otherwise able to ascertain
the propriety of the certification from the record. Exercise of
jurisdiction and consideration on the merits in turn require
that we decide, as a matter of first impression, whether
Pennsylvania's Eleventh Amendment immunity extends to
Philadelphia District Attorneys for claims arising from
administrative and policymaking - rather than
prosecutorial - functions. We must also determine whether,
if sovereign immunity does not apply, the official capacity
claims are alternatively barred by absolute prosecutorial
immunity. Finally, we must consider whether claims
against unknown policymakers in the Philadelphia District

                               3
Attorney's Office in their personal capacity have been
adequately pled.

The Philadelphia District Attorney's Office contends that
because the DA's Office acts in the name of the
Commonwealth and carries out a sovereign function, it is
entitled to share in the Commonwealth's sovereign
immunity as an arm of the state. The District Court
accepted this contention, holding that application of the
factors by which we determine Eleventh Amendment
immunity weighed "strongly in favor of finding that the
District Attorney's Office, when performing its historic
functions of investigating and prosecuting crimes on behalf
of the Commonwealth, is an `arm of the state' not subject
to suit in federal court without its consent." 1 The District
Court further dismissed claims against unknown
policymakers in the DA's Office in their personal capacity
for failure to state a cause of action under 42 U.S.C.
S 1983.

Because we find that the consequences of the District
Court's failure to provide a statement of reasons need not
be visited on the parties by delaying resolution of their case
when the ripeness of the appeal is apparent, we will
exercise jurisdiction. On the merits, we find that (1) the
performance of an essential sovereign function does not of
itself give rise to state surrogate status under Pennsylvania
law; (2) a correct application of the factors we set forth in
Fitchik v. New Jersey Transit Rail Operations, 873 F.2d 655
(3d Cir. en banc), cert. denied, 493 U.S. 850 (1989),
compels a finding that the Commonwealth's sovereign
immunity does not encompass the DA's Office; and (3) even
if the DA's Office were entitled to sovereign immunity as a
state actor during the performance of its prosecutorial
functions, such immunity would not extend to the local
office administrative, investigative and management
functions which underlie this action. We will, therefore,
reverse the District Court's holding that the DA's Office is
entitled to sovereign immunity for purposes of the claims at
hand. We reject the alternative assertion of absolute
prosecutorial immunity as lacking merit where the cause of
_________________________________________________________________

1. Carter v. City of Philadelphia, 4 F. Supp. 2d 386, 393 (E.D. Pa. 1998).

                               4
action lies on administrative and investigative, rather than
prosecutorial, conduct. Finally, because we find that the
section 1983 claims against unknown policymakers in the
DA's Office in their personal capacities have been
adequately pled and Carter should be allowed to pursue
discovery, we will also reverse the District Court's dismissal
of those claims.2

I. FACTUAL BACKGROUND

Raymond Carter had been convicted of murder and had
served ten (10) years of a life sentence without possibility of
parole before his conviction was overturned and the case
against him nol prossed following disclosures of long-
standing corruption within Philadelphia's 39th Police
District.3 Carter then brought an action against the City of
Philadelphia, named police officers,4 unknown employees of
the Philadelphia Police Department, and unknown
policymakers within the Philadelphia DA's Office.5

Carter's action against individuals in the DA's Office was
premised on their failure as administrators to establish
training, supervision and discipline policies which would
_________________________________________________________________

2. The District Court declined to exercise supplemental jurisdiction over
Carter's state law claims when factually related federal claims remained
pending against other defendants. Because we will reverse the District
Court's dismissal of Carter's federal claims against the DA's Office, we
need not address whether this was consistent with the sound exercise of
judicial discretion.

3. During disclosures of police misconduct uncovered during an
investigation of that district, it came to light that the single
eyewitness's
testimony placing Carter at the murder scene - the testimony on which
his conviction rested - was purchased by a 39th District officer, Thomas
Ryan, from a prostitute-informant (Ms. Jenkins) with whom Ryan was
intimate. In subsequent proceedings, Ryan was convicted of obstruction
of justice and Jenkins admitted her perjured testimony. There was no
forensic evidence linking Carter to the crime scene and Carter maintains
his innocence.

4. Carter names Thomas Ryan, Wayne Settle, and Michael Duffy
individually and as police officers for the City of Philadelphia.

5. Carter brings a section 1983 action, together with various state causes
of action, against the defendants.

                               5
have (a) prevented or discouraged Philadelphia police
officers from procuring perjurious "eyewitnesses" and (b)
alerted assistant district attorneys to the falsity of such
information and prevented its introduction as evidence.6
The District Court dismissed all claims against the DA's
Office, concluding that those defendants were"state
officials" and therefore immune from suit for acts in their
professional capacity by virtue of the Eleventh Amendment.7
It further concluded that Carter had failed to state a cause
of action against those defendants in their personal
capacities. Finally, it declined to exercise supplemental
jurisdiction over Carter's state law claims. The District
Court subsequently entered a revised order rendering the
judgment final pursuant to Rule 54(b),8 but neglected to set
forth specific findings in support of its decision to grant
54(b) certification, despite our express direction in previous
cases that district courts do so.

II. JURISDICTION

Ordinarily, an order which terminates fewer than all
claims, or claims against fewer than all parties, does not
constitute a "final" order for purposes of appeal under 28
U.S.C. S 1291. Fed. R. Civ. P. 54(b), however, provides that
such an order may be final and immediately appealable
under S 1291 when the district court makes an express
determination that there is no just cause for delay and
expressly directs entry of final judgment.9 We consistently
_________________________________________________________________

6. Carter also alleges that the DA's Office failed to disclose exculpatory
evidence found in its post-conviction investigation.

7. The District Court framed the question before it as "[w]hether the
District Attorney's Office, when performing its investigatory and
prosecutorial functions, is an `arm of the state' under the Eleventh
Amendment." Carter, 4 F. Supp. 2d at 390.

8. The order states that "[p]ursuant to Rule 54(b) . . . , the Court finds
that there is no just reason for delay and, accordingly, directs that
final
judgment be entered in favor of [the DA's Office] and against Carter on
all claims . . . ."

9. When more than one claim for relief is presented in an action, . . .,
       or when multiple parties are involved, the court may direct the
       entry of a final judgment as to one or more but fewer than all of
the

                               6
require that district courts provide a statement of reasons
when entering final judgment under Rule 54(b). See, e.g.,
Waldorf v. Shuta, 142 F.3d 601, 610-11 (3d Cir. 1998);
Anthius v. Colt Industries Operating Corp., 971 F.2d 999,
1003 (3d Cir. 1992); Metro Transportation Co. v. North Star
Reinsurance Co., 912 F.2d 672, 677 (3d Cir. 1990); Cemar,
Inc. v. Nissan Motor Corp., 897 F.2d 120, 123 (3d Cir. 1990).10
We have remanded cases in which a district court's failure
to provide the reasons supporting its exercise of discretion
renders us "unable to conclude that the granting of the
Rule 54(b) certification was proper."11 We have not had
occasion to address the result when, notwithstanding the
absence of the required explanation, the propriety of appeal
under 54(b) is apparent to the reviewing court on the
record.
_________________________________________________________________

       claims or parties only upon an express determination that there is
       no just reason for delay and upon an express direction for entry of
       judgment . . . .

       Fed. R. Civ. P. 54(b).

10. Our requirement that a district court accompany a Rule 54(b)
certification with a statement of the reasons comes from our
"endorse[ment]" and "incorporati[on]", in Allis-Chalmers Corp. v.
Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975), of the Second
Circuit's

       suggest[ion] to the district courts that . . . it would be helpful
to [the
       appellate court] in reviewing the exercise of discretion in
granting a
       Rule 54(b) certification if the court . . . would make a brief
reasoned
       statement in support of its determination that `there is no just
       reason for delay' and its express direction for`the entry of a
final
       judgment . . .' where the justification for the certification is
not
       apparent.

Gumer v. Shearson, Hammill & Co., 516 F.2d 283 (2d Cir. 1974) (quoted
in Allis-Chalmers, 521 F.2d at 364) (emphasis added).

11. Allis-Chalmers, 521 F.2d at 357; see also Cemar, 897 F.2d at 122
(noting that "[b]ecause the reason for the Rule 54(b) certification [was]
not
apparent from the record", we required "a statement of reasons by the
district court in order to determine the juridical concerns [were] met by
its determination that no just reason remains for delay") (emphasis
added).
7
Other courts of appeals have held that a district court's
failure to state the reasons for its Rule 54(b) certification
does not pose a jurisdictional barrier to appeal. The
prevailing rule is perhaps best expressed in Bank of
Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944 (7th Cir.
1980):

       [Articulation of the considerations underlying the
       district court's discretionary certification] constitutes
       the "better practice," and the failure to provide a
       written statement of reasons may in an appropriate
       case lead to a remand for such a statement.

       The statement is, however, primarily an aid to the
       appellate court to permit it to review the exercise of the
       trial court's discretion. The failure of the district court
       to make a written statement at the time it makes a
       54(b) certification is not a jurisdictional defect, . . . and
       need not occasion even a remand if the basis for the
       district court's determination is otherwise apparent.

Id. at 948-49.12
_________________________________________________________________

12. See also, e.g., Feinstein v. Resolution Trust Corp., 942 F.2d 32 (1st
Cir. 1991) (holding that appellate jurisdiction attached notwithstanding
district court's failure to state reasons for certification where
justification
was apparent and sufficient); Pension Ben. Guar. Corp. v. LTV Corp., 875
F.2d 1008 (2d Cir. 1989) (holding court of appeals had jurisdiction
although district court did not provide reasoned explanation for
certification where it was clear explanation could easily be provided and
interest of sound judicial administration favored expeditious resolution
of conflict); Kelly v. Lee's Old Fashioned Hamburgers, Inc., 908 F.2d
1218 (5th Cir. 1990) (holding appropriate certification of order
dismissing all claims against one defendant where order and record
taken together signaled district court's conclusion that requirements of
the rule had been met); Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir.
1991) (holding that 54(b) certification did not have "jurisdictional
defect"
merely because district court did not include specific findings regarding
appropriateness of certification); Ebrahimi v. City of Huntsville Bd. of
Educ., 114 F.3d 162 (11th Cir. 1997) (explaining that where reasons for
entry of separate judgment for fewer than all parties or claims are
obvious, and remand would result only in unnecessary delay in appeal
process, the court of appeals will not require explanation; but when the
sound basis for certification is not obvious, the court must dismiss the
appeal for lack of final judgment). Cf. Corrosioneering, Inc. v. Thyssen
Environmental Sys., 807 F.2d 1279 (6th Cir. 1986) (stating that in
absence of reasons for certification no deference will be given to
decision
to certify and reviewing propriety of certification de novo).
8
Although we have not yet addressed whether an appeal
may go forward when, notwithstanding the absence of the
required explanation, the propriety of certification under
Rule 54(b) is apparent on the record, we have previously
indicated that we share the prevailing view. See supra note
11. In our recent decision in Waldorf, however, we indicated
that we had dismissed an earlier appeal "for want of
jurisdiction" because the district court failed to "provide a
written opinion outlining its reasons for certification". 142
F.3d at 611. See also Anthius v. Colt Industries Operating
Corp., 971 F.2d 999 (3d Cir. 1992) (indicating that
certification without explanation is not "competent" and we
were therefore "obliged to dismiss").13

Assuming that sufficient justification for certification may
be discerned from the record in the present case, the Allis-
Chalmers, Waldorf and Anthius cases are distinguishable
because due to their complexities we were unable to
conclude that certification was proper absent explication by
the district court.14 In none of these cases was there any
_________________________________________________________________

13. This interpretation may follow from Allis-Chalmers's holding that the
54(b) certification "must be vacated because of the failure of the court
to
articulate reasons for the certification," 521 F.2d at 361, and from its
statements that "[a] proper exercise of discretion under Rule 54(b)
requires the district court to do more than just recite the 54(b)
formula,"
and that "we incorporate [the giving of a brief reasoned statement] as a
requirement for all Rule 54(b) certifications," id. at 364. But see Bank
of
Lincolnwood, 622 F.2d at 949 (citing Allis-Chalmers, 521 F.2d at 367 n.
16 "(remanding case for a statement of reasons)" for the proposition that
failure to provide a written explanation with certification is not a
jurisdictional defect).

14. See Allis-Chalmers, 521 F.2d at 365 (concluding that absent
petitioner's demonstration of unusual or harsh circumstances, the
presence of a counterclaim "weighed heavily" against the district court's
grant of certification); Waldorf, 142 F.3d at 611-612 (discussing
complexity of case and potential interrelationship of claims and cross-
claims); Anthius, 971 F.2d at 1003 n.3 (stating that court's "familiarity
with the issues and arguments" makes it "question whether there could
ever be a proper exercise of judicial discretion which would result in an
`entry of final judgment' certification under Fed. R. Civ. P. 54(b)").

It should be noted that the holding of Allis-Chalmers as to the
significance of counterclaims was rejected by the Supreme Court in
Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1 (1980).

                               9
indication that the majority believed the propriety of the
certification was apparent but that the appeal must
nonetheless be dismissed.15 Consequently, any suggestion
in the language of these cases that the Allis-Chalmers
statement-of-reasons requirement deprives us of appellate
jurisdiction where the propriety of the district court's
certification is determinable from the record is, at most,
dicta. That question remains open for our decision.

A rule requiring remand or dismissal even when the
propriety of immediate appeal is apparent would not
optimally balance the competing concerns that must inform
our interpretation of Rule 54(b). See Curtiss-Wright, 446
U.S. at 2, 100 S. Ct. at 1462 (explaining that decision to
certify must take into account the interests of sound
judicial administration and the equities involved); Allis-
Chalmers, 521 F.2d at 363 ("The rule attempts to strike a
balance between the undesirability of piecemeal appeals
and the need for making review available at a time that best
serves the needs of the parties."); see also Waldorf, 142
F.3d at 608 (observing that question in certification is
whether the issue was "ready for appeal . . . tak[ing] into
account judicial administrative interests as well as the
equities involved").

In view of these concerns, Allis-Chalmers's requirement of
a statement of reasons in every case stands not as a
jurisdictional prerequisite but as a prophylactic means of
enabling the appellate court to ensure that immediate
appeal will advance the purposes of the rule.16 It follows
_________________________________________________________________

15. Cf. Curtiss-Wright Corp. v. General Elec. Co., 599 F.2d 1259, 1261 (3d
Cir. 1979) (Gibbons, J., dissenting) (noting that his dissent in Allis-
Chalmers was directed to the majority's "unprecedented and
unwarranted imposition of a `statement of reasons' requirement in a case
where the justification for certification was[in J. Gibbons's opinion]
glaringly apparent on the face of the record").

16. Indeed, as we acknowledged in Allis-Chalmers in "endors[ing]" Gumer,
the purpose of the appellate courts' first suggestion - in 1974 - that
district courts provide an explanation "where the justification for the
certification is not apparent" was to facilitate appellate review in its
threshold jurisdictional inquiry. See Gumer, 516 F.2d at 284, 286; Allis-
Chalmers, 521 F.2d at 364 ("It is essential .. . that a reviewing court
have some basis for distinguishing between well-reasoned conclusions
. . . and . . . approval . . . unsupported by evaluation of the facts or
analysis of the law . . . .") (quoting Protective Committee v. Anderson,
390
U.S. 414, 434 (1968)).

                                10
that the absence of an explanation by the district court
does not pose a jurisdictional bar when the propriety of the
appeal may be discerned from the record.

Therefore, to the extent Allis-Chalmers or a subsequent
case may be read to have suggested (in dicta) that our
mandatory statement-of-reasons requirement in Rule 54(b)
certifications stands as a jurisdictional bar prohibiting
appellate review even where the propriety of the certification
is apparent from the record, we now clarify that the better
reading of Allis-Chalmers is that although it is always the
best practice for district courts to explain a decision to
certify a judgment for appeal and we require them to do so,
their failure to meet this directive need not result in
dismissal or remand where judicial economy - which is the
purpose of the finality requirement of S1291, as
implemented in Rule 54(b)17 - would not be served.18
Accordingly, we will proceed to reach the merits on appeal
when a sufficient basis for a district court's certification is
otherwise apparent.19

Here, despite the District Court's inadvertence, the
requirements of Rule 54(b) are clearly met. This case
_________________________________________________________________

17. See, e.g., Curtiss-Wright, 446 U.S. at 10 (identifying the "interest
of
sound judicial administration" as the standard against which a district
court's 54(b) certification is to be judged).

18. Cf. Kelly, 908 F.2d at 1220 ("[r]ejecting a `form-over-substance'
approach that `would not significantly advance the purposes of Rule
54(b) . . .' " in holding sufficient certification based on record)
(quoting
Crowley Maritime Corp. v. Panama Canal Comm'n, 849 F.2d 951, 953
(5th Cir. 1988)); St. Paul Fire and Marine Ins. Co. v. Pepsico, Inc., 884
F.2d 688, 694 (2d Cir. 1989) (noting that purpose of Rule 54(b) is served
by exercise of jurisdiction where justification for certification is clear
on
record). As the Court of Appeals observed in Kelly, Fed. R. Civ. P. 1
directs that the rules be "construed to secure the just, speedy and
inexpensive determination of every action." 908 F.2d at 1221.

19. This interpretation of Allis-Chalmers is consistent with the approach
to Rule 54(b) certifications directed by the Supreme Court in Curtiss-
Wright. As discussed supra note 14, Curtiss-Wright rejected our previous
conclusion that the existence of a counterclaim will ordinarily defeat
certification. That decision reflects the Supreme Court's general
disapproval of inappropriately restrictive views of Rule 54(b)
certification,
and it counsels us to remain mindful of the competing concerns.
11
unquestionably involves multiple claims and parties; the
decision below was a "final judgment" in the sense that it
was an "ultimate disposition" of Carter's claims against the
DA's office. See Curtiss-Wright, 446 U.S. at 7. The only real
question is whether there is any just reason for delaying
appeal until disposition of Carter's claims against the
remaining defendants. The Supreme Court has interpreted
this requirement as balancing considerations of judicial
administrative interests (preservation of the federal policy
against piecemeal appeals) and equities (justice to the
litigants). See id., 446 U.S. at 8. Factors to be considered
therefore include "whether the claims under review [are]
separable from the others remaining to be adjudicated and
whether the nature of the claims already determined[is]
such that no appellate court would have to decide the same
issues more than once even if there were subsequent
appeals." Id. Here, the issue presented is plainly separable
and there is no real risk of duplicative appeals, as the
Eleventh Amendment defense which was the basis of the
District Court's dismissal of claims against the DA's Office
is not asserted to be applicable to any of the remaining
defendants.20 On the other hand, denial of an immediate
appeal may pose a substantial risk that the District Court
and the parties will be forced to undergo duplicative trials.
Thus, on balance, the interests of judicial economy favor
hearing the appeal. Finally, the importance of the issue
presented by this appeal also militates in favor of our
prompt consideration. Remand to the District Court for
technical compliance at this time, when justification is
already apparent, would unduly delay the proceedings.

Therefore, although we adhere to our consistent
requirement that the district courts provide a brief
statement of reasons in certifying a judgment for appeal
pursuant to Rule 54(b) in this and in every case, we
nevertheless hold that we have jurisdiction to hear this
_________________________________________________________________

20. Although there may be some factual overlap between the issues in
this appeal and those in a potential future appeal concerning qualified
immunity of the remaining defendants, the same issues are not likely to
be presented. It is generally recognized that complete legal or factual
distinction is not necessary to 54(b) certification. See 10 C. Wright & A.
Miller, Federal Practice and Procedure,S 2657 at 50-54.

                               12
appeal because we are able to ascertain the propriety of the
Rule 54(b) certification from the record. To hold otherwise
would undermine the policies which Rule 54(b) seeks to
advance.

III. ELEVENTH AMENDMENT IMMUNITY

The Eleventh Amendment provides:

       The judicial power of the United States shall not be
       construed to extend to any suit in law or equity,
       commenced or prosecuted against one of the United
       States by Citizens of another State, or by Citizens or
       Subjects of any Foreign State.

Despite its language, the Supreme Court has consistently
interpreted the Amendment to immunize an unconsenting
state "from suits brought in federal courts by her own
citizens as well as by citizens of another state." Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89, 100
(1984) (quoting Employees v. Missouri Dept. Of Public Health
and Welfare, 411 U.S. 279, 180 (1973)). In addition, a suit
may be barred "even though the state is not named a party
to the action, as long as the state is the real party in
interest." Fitchik, 873 F.2d at 658 (citing Edelman v.
Jordan, 415 U.S. 651, 663 (1974)) (emphasis added).

Eleventh Amendment immunity is an affirmative defense
and the burden is thus on the DA's Office to establish its
immunity from suit. See Christy v. Pennsylvania Turnpike
Commission, 54 F.3d 1140, 1144 (3d Cir. 1985) ("[T]he
party asserting Eleventh Amendment immunity (and
standing to benefit from its acceptance) bears the burden of
proving its applicability."). We determine Eleventh
Amendment immunity by examining the evidence on three
factors: (1) the source of funding - i.e., whether payment of
any judgment would come from the state's treasury, (2) the
status of the agency/individual under state law, and (3) the
degree of autonomy from state regulation.21 See Fitchik, 873
_________________________________________________________________

21. The DA's Office asserts that a fourth factor was later added by the
Supreme Court in Hess v. Port Authority Trans-Hudson Corp., 513 U.S.
30 (1994) - viz., whether the functions at issue are "typically state or
unquestionably local". The Hess Court did not adopt this distinction as
a criterion for determining state status: it did not adopt or formulate
any
test. Indeed, the Court concluded that this purported "fourth factor" did
not advance its inquiry. See Hess, 513 U.S. at 45. Moreover, to the
extent that the distinction may be relevant, it appears to be subsumed
within Fitchik's "status under state law" test.
13
F.2d 655.22

Although the District Court applied the appropriate three
factors, it erred both in its analysis of the individual
factors, and in their balancing:

(1) Funding - The DA's Office acknowl edges that it is
funded by the City of Philadelphia and that the funds for
any judgment against it would come from the City. 23 We
have twice held en banc that the three Fitchik factors are
not weighed evenly and that the "most important" question
in determining Eleventh Amendment immunity is "whether
any judgment would be paid from the state treasury."
Bolden v. Southeastern Pennsylvania Transportation
Authority, 953 F.2d 807, 816 (3d Cir. 1991); Fitchik, 873
F.2d at 659. As we explained in Christy,"[t]he special
emphasis we place upon the funding factor is supported by
the Eleventh Amendment's central goal: the prevention of
federal court judgments that must be paid out of the state's
treasury." 54 F.3d at 1145.24

We are not alone in emphasizing the importance of the
funding factor. The Supreme Court recognized in Hess that
_________________________________________________________________

22. Fitchik reformatted our test for Eleventh Amendment immunity from
the nine questions identified in Urbano v. Board of Managers, 415 F.2d
247 (3d Cir. 1969), cert. denied, 397 U.S. 948 (1970). Funding
encompasses the Urbano inquiry into whether satisfaction of a judgment
would come from the state treasury, whether the agency had funds to
satisfy the judgment, and whether the sovereign was immunized from
responsibility for the agency's debt. Status encompasses the Urbano
inquiry into how state law treated the agency generally, whether it was
separately incorporated, could sue or be sued in its own right, or was
immune from state taxation. Autonomy continues to address the Urbano
inquiry into the degree of autonomy from state control. Fitchik
specifically rejected the ninth Urbano factor, inquiry into whether the
individual performed a governmental or proprietary function, as no
longer relevant. See 873 F.2d at 659 n.2.

23. See Carter, 4 F. Supp. 2d at 390. Cf. 16 Pa. Stat. Ann. S 1403
(district attorney's expenses to be paid by county from its general
funds).

24. See also Hess, 513 U.S. at 50 (describing "prevention of federal-court
judgments that must be paid out of a State's treasury" as "the impetus
for the Eleventh Amendment" and explaining that if the state is not
obligated to pay any indebtedness, "then the Eleventh Amendment's core
concern is not implicated").

                               14
the vulnerability of the state's purse is considered "the most
salient factor" in Eleventh Amendment determinations. See
513 U.S. at 48 (citing courts of appeals cases at length).
Indeed, the "vast majority of [courts of appeals] . . . have
concluded that the state treasury factor is the most
important factor to be considered . . . and, in practice, have
generally accorded it dispositive weight." Id. at 49 (ellipses
in original) (quoted in Christy, 54 F.3d at 1145).

In Fitchik we concluded that non-applicability of state
funds provides an "extremely strong" indication that an
agency is not the alter-ego of the state, so that the first
factor weighed heavily against a finding of immunity. 873
F.2d at 664. The funding factor weighs even more heavily
against immunity in this case than it did in Fitchik and
Bolden, where approximately one-third and one-fourth,
respectively, of the agencies' funds were provided by the
states. See Bolden, 953 F.2d at 819. Here, despite the DA's
efforts to elevate a statutory funding mandate to the status
of "indirect" funding, it appears that no portion of the DA's
funds are provided by the state and no portion of any
judgment will be paid directly or indirectly by the state.25 As
we reasoned in Bolden, "this most important fact weighs
more heavily" against immunity as the proportion of state
funding decreases. Id.

(2) Status under State Law - The status of the DA's Office
under state law is necessarily derived from Pennsylvania's
Constitution, statutory and decisional law.26 As we defined
this second question in Fitchik, it is whether state law
treats an agency as an independent entity or as a surrogate
for (i.e., as an arm of) the state. See 873 F.2d at 662;
Christy, 54 F.3d at 1148 (same).
_________________________________________________________________

25. Cf. Christy, 54 F.3d at 1145-1146 (rejecting arguments regarding
state regulation of agency funding as irrelevant to the funding inquiry
and reiterating that "under our case law" question is simply one of
state's "affirmative obligation to pay").

26. See, e.g., Regents v. Doe, 519 U.S. 425 (1997) (explaining that
federal
question of whether state instrumentality has "independent status . . .
or is instead . . . `one of the United States' within the meaning of the
Eleventh Amendment . . . . . can only be answered after considering the
provisions of state law that define the agency's character").

                               15
Pennsylvania's Constitution expressly defines District
Attorneys as county rather than state officers. See Pa.
Const., Article IX, Section 4 ("County officers shall consist
of . . . district attorneys . . . and such others as may from
time to time be provided by law."). The Pennsylvania
Supreme Court has held equivalent language from a prior
version of the Pennsylvania Constitution to be "crystal
clear": the court explained that "[the Pennsylvania
Constitution] states in the clearest imaginable language
that district attorneys are county - not state- officers, and
in Philadelphia, by virtue of [its Charter and a
Constitutional amendment making county officers into
officers of the city], are City - not State- officers, and no
Procrustean stretch can alter or change or nullify this clear
language." Chalfin v. Specter, 233 A.2d 562, 565 (Pa. 1967).27
The DA's Office attempts to minimize this apparently
controlling authority by arguing that "the only proposition
with which four Justices agreed was that the Philadelphia
District Attorney is subject to the Philadelphia Home Rule
Charter for election purposes." As those four Justices
clearly recognized, however, the Philadelphia Home Rule
Charter by its terms applied only to Philadelphia officials,
rather than state officials; and their opinions did not in any
way differentiate between the District Attorney's status for
election purposes or any other purposes.

Pennsylvania's statutes also reflect the local status of the
DA's Office. Under the Commonwealth Attorney's Act of
1850, 71 P.S. SS 732-101, et seq., district attorneys were
redefined as the "chief law enforcement officer[s] for the
_________________________________________________________________

27. The foregoing language is from the opinion of Chief Justice Bell,
which was not joined by any other Justice. As the Chief Justice noted,
however, "the majority of this 7 Judge Court agree . . . on this point and
are convinced that under the Constitution of Pennsylvania . . . the
District Attorney of Philadelphia is a City officer . . . ." Id. See also
id. at
578 (Musmanno, J., dissenting) ("[I]n the present decision . . . FOUR
Justices declare mathematically, specifically, and without equivocation
that [the district attorney] is a CITY OFFICER.") (capitals in original);
id.
(Cohen, J., dissenting) ("The only position that enlists a majority of
this
Court determines that the District Attorney is a City Officer."); id.
(Eagan, J., dissenting) ("Four of the seven members of this Court,
including myself, are convinced that [the district attorney] is subject to
the provisions of the Philadelphia Home Rule Charter. . .").

                               16
county in which [they were] elected." Id. at S 732-206(a).28
Since that time, local district attorneys have been elected29
and funded30 by their counties. Other provisions of
Pennsylvania statutory law similarly treat district attorneys
as county officials.31 The DA's Office, which has the burden
of proving its affirmative defense, does not identify any
Pennsylvania statutes treating local district attorneys as
state, rather than county, officials. Finally, Pennsylvania's
statute defining the scope of sovereign immunity does not
encompass district attorneys within its detailed definitions
of the agencies and employees protected from suit. 32

Consistent with its constitutional and statutory law,
Pennsylvania's case law defines district attorneys-
Philadelphia District Attorneys in particular - as local, and
expressly not state, officials. See Chalfin, 233 A.2d at 565.
See also, e.g., Schroeck v. Pennsylvania State Police, 362
A.2d 486, 490 (Pa. Cmwlth. 1976) ("District Attorneys and
their assistants are officers of the counties in which they
are elected and not officers of the Commonwealth.") (citing
_________________________________________________________________

28. Prior to 1850, district attorneys had been appointed by the Attorney
General, a state executive, and were subject to his direct supervision and
control.

29. See Chalfin, 233 A.2d at 565 ("[I]t is important to further note that
. . . the District Attorney of Philadelphia . . . is Elected in municipal
[and
not] State-wide elections . . . .").

30. See note 23, supra.

31. For example, the Attorney General participates as a "state employee"
in the state's retirement program, while district attorneys participate in
their County Retirement System pursuant to County Pension Law. See
16 P.S. SS11651-11682.

The Pennsylvania Supreme Court has found it significant that "the
powers and functions of the [district attorneys'] office are found in
Title
16, Counties, of Purdon's Statutes." Duggan v. 807 Liberty Ave. Inc., 288
A.2d 750, 752 n.6. (Pa. 1972) (declining to hold district attorney as
"officer of the Commonwealth" under jurisdiction of Commonwealth
Court). See also Cross v. Meisel, 720 F. Supp. 486, 488 n.3 (E.D. Pa.
1989) (explaining that case regarding "state officials" was irrelevant to
suit against district attorney because, besides constitutional definition
as
county officers, district attorneys' duties are defined in the County Code
and their expenses are paid by the county from its general funds).

32. See 42 Pa.C.S.A. SS 102, 8501-8528.
17
Section 401(a)(11) of the County Code, as amended 16 P.S.
S 401(1)(11)).33

The DA's Office argues that the various authorities
holding district attorneys to be local officials are
inapplicable because they did not involve prosecutorial
conduct. In the "law enforcement and prosecutorial"
context, according to the DA's Office, "courts have
uniformly held that the District Attorney is an arm of the
state". None of the Pennsylvania authorities cited, however,
actually holds that a district attorney is a state officer or
arm of the state in any context. Rather, these authorities
relied upon by the DA's Office merely hold that district
attorneys act on behalf of and in the name of the
Commonwealth in investigating and prosecuting crimes
within their district.34 See, e.g. Commonwealth v. Bauer,
261 A.2d 573 (Pa. 1970) (finding only that district attorney
has power and duty to represent the Commonwealth's
interests in law enforcement).

The District Court similarly equated simply acting in the
name of the state with being an arm of the state entitled to
share in its sovereign immunity. The District Court deemed
the Pennsylvania authorities designating district attorneys
as local officials irrelevant, because it erroneously believed
performance of a sovereign function, such as investigation
and prosecution of crime, was alone sufficient to accord
local prosecutors sovereign immunity.35 This approach,
_________________________________________________________________

33. The Commonwealth has similarly declined to hold assistant district
attorneys to be state officials. See Specter v. Moak, 307 A.2d 884 (Pa.
1973) (refusing to classify Philadelphia assistant district attorneys as
state officers simply because they enforce Commonwealth penal laws of
state-wide application "in the name of the Commonwealth").

34. In Chalfin, Chief Justice Bell pointedly noted that "the essential and
principal and most important powers, functions, duties, limitations and
boundaries of the District Attorney of Philadelphia involve only crimes
committed - not throughout the Commonwealth but- only in the City of
Philadelphia." 233 A.2d at 565.

35. See Carter, 4 F. Supp. 2d at 390, 392 n.8 (dismissing constitutional
provisions as "not in any way affect[ing] the District Attorney's function
of investigating and prosecuting crimes in the name of the
Commonwealth" and emphasizing that "[i]t would be hard to imagine
functions more essential to the sovereignty of state government").

                               18
however, clearly proves too much; many local officials act in
the name of the state and carry out delegated sovereign
functions. Under such an expansive theory, every police
officer, for example, would be entitled to Eleventh
Amendment immunity. See Lake Country Estates, Inc. v.
Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1979)
("[T]he Court has consistently refused to construe the
[Eleventh] Amendment to afford protection to political
subdivisions such as counties and municipalities even
though such entities exercise a `slice of state power.' ").36

Pennsylvania case law makes it clear that performance of
an essential sovereign function on behalf of or in the name
of the state does not give rise to state surrogate status
under state law. See Specter v. Commonwealth, 341 A.2d
481, 485-88 (Pa. 1975) (declaring Turnpike Commission
unentitled to sovereign immunity although it was
constituted as an "instrument of the Commonwealth" and
performed "an essential government function of the
Commonwealth"); Pennsylvania Gamefowl Breeders Ass'n.
v. Commonwealth, 551 A.2d 361, 363 (Pa. Cmwlth. 1988)
(finding district attorneys county officers, not state officers,
although they are "charged with conducting criminal
prosecutions in the name of the Commonwealth" and thus
"perform sovereign functions of state government"); Specter
v. Moak, 307 A.2d at 886 (rejecting Philadelphia Assistant
District Attorneys' contention that "since they perform
functions primarily on behalf of the Commonwealth they
should be classified as state employees", reasoning that
"[m]any officials" - such as the Mayor, Sheriff, Police
Commissioner and City Solicitor - "perform state
functions") (internal quotations omitted).37 Cf. Cross, 720 F.
Supp. at 488 n.3 ("Although it is true that certain sovereign
powers of the Commonwealth are delegated to a district
_________________________________________________________________

36. The Lake Country Court observed that"some agencies exercising
state power have been permitted to invoke the Amendment in order to
protect the state treasury from liability" but rejected a more "expansive
reading" that would effectively immunize every agency, unless it were
expressly waived. Id. at 400-401 (emphasis added).

37. The Moak Court further observed that it could not be argued that
one is a state officer "merely because he has the duty to `cause . . . the
laws of the State to be executed and enforced.' " Id.

                               19
attorney, this is true generally of county and local officials
. . . .").

Moreover, even if it were true that district attorneys act
as an arm of the state, entitled to its sovereign immunity,
whenever they perform prosecutorial functions in the name
of the Commonwealth, it would not follow that the Eleventh
Amendment immunizes the conduct at issue here.38 The
District Court mischaracterized the basis of Carter's claim
as a prosecutorial function and declined to distinguish the
Philadelphia DA's training/supervision/administrative
activities from its core state function of prosecution. In
dismissing the possibility of a meaningful analytical
distinction between a district attorney's prosecutorial and
policy-making functions,39 the District Court adopted a
position which would inappropriately pull all functions of
the office within the scope of its (purportedly sovereign)
prosecutorial function. Other federal courts have taken a
different view. They have acknowledged the obvious basis
for distinction: making and applying county-wide policy
differs from carrying out state-wide policy and they have,
therefore, repeatedly differentiated between administrative
and prosecutorial functions, generally finding the former to
be local and the latter to be state.

The most instructive (and analogous) case is Walker v.
City of New York, 974 F.2d 293 (2d Cir. 1992) from our
sister court of appeals. Walker spent 19 years in prison
after police officers and prosecutors covered up exculpatory
evidence and committed perjury to secure his conviction.
_________________________________________________________________

38. Carter argues that the nature of the function should not be
considered because the Eleventh Amendment focuses on the status of
the entity as a whole, and the functional analysis is erroneously
borrowed from section 1983 decisions. As the DA's Office observes, the
propriety of the functional analysis has been reserved by the Supreme
Court. See Regents v. Doe, 117 S. Ct. 900, 902 n.2 ("Nor is it necessary
to decide whether there may be some state instrumentalities that qualify
as `arms of the State' for some purposes but not others.") In the present
case it is similarly unnecessary to reach this issue, as application of
our
Fitchik factors compels us to find that in Pennsylvania the prosecutor's
office is not an arm of the state either generally or with respect to the
managerial functions in question.

39. See Carter, 4 F. Supp. 2d at 393.

                               20
Id. at 294. In his section 1983 action, Walker alleged that
the district attorney's office failed adequately to train and
supervise police with respect to the obligation to avoid use
of perjury and suppression of exculpatory evidence. Id. at
295, 298. In holding that Walker stated a proper claim
against the district attorney's office, the Court of Appeals
determined that "the district attorney's management of the
office -- in particular the decision not to supervise or train
[assistant district attorneys] on Brady40 and perjury issues"
-- constituted policymaking for the county, rather than the
state. Id. at 301. The Court observed that an earlier case
holding that the district attorney is a state official41 was
limited to "specific decisions . . . to prosecute." Id. (citing
Gentile v. County of Suffolk, 926 F.2d 142, 152 n.5 (2d Cir.
1991)). See also Gan v. City of New York, 996 F.2d 522,
536 (2d Cir. 1993) ("With respect . . . to claims centering
not on decisions whether or not, and on what charges, to
prosecute but rather on the administration of the district
attorney's office, the district attorney has been treated not
as a state official but rather as an official of the
municipality to which he is assigned.") (citing Walker and
Gentile).42 As recently as last year, the Court of Appeals for
the Second Circuit applied the Walker and Gentile holdings
in finding a county liable under section 1983 for its district
attorney's implementation of a policy regarding investigative
procedures. See Myers v. County of Orange, 157 F.3d 66,
77 (2d Cir. 1998).

Other courts of appeals have similarly recognized the
hybrid nature of the district attorney's office-
distinguishing between a DA's prosecutorial function and
his role as elected county policymaker. See, e.g., Esteves v.
Brock, 106 F.3d 674, 678 (5th Cir. 1997) ("A county official
_________________________________________________________________

40. Brady v. Maryland, 373 U.S. 83 (1963) recognized that prosecutorial
suppression of exculpatory evidence violates due process.

41. See Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988) ("[W]hen
prosecuting a criminal matter, a district attorney in New York State . . .
represents the State, not the county.").

42. The Gan court's parenthetical descriptions of Walker and Gentile
indicate that it considered "administration" to include "office policy
governing . . . subornation of perjury" and "office policy as to
disciplining
of law enforcement personnel". Id.

                               21
`pursues his duties as a state agent when he is enforcing
state law or policy' " by conducting trials; but "[f]or those
[remaining] duties that are administrative or managerial in
nature, . . . a district attorney . . . functions as a final
policymaker for the county.") (quoting Echols v. Parker, 909
F.2d 795, 801 (5th Cir. 1990);43Pusey v. City of
Youngstown, 142 F.3d 435 (6th Cir. 1998) (prosecutor is
city official but acts as state agent when enforcing state law
or policy); Owens v. Fulton County, 877 F.2d 947, 952 (11th
Cir. 1989) ("[A]n official may simultaneously exercise county
authority over some matters and state authority over
others. . . . [A]n administrative function . .. might be
characterized as an exercise of county power. However, . . .
the district attorney's authority over prosecutorial decisions
. . . is vested . . . pursuant to state authority."). Cf. Franklin
v. Zaruba, 150 F.3d 682 (7th Cir. 1998) (sheriff is acting as
county official, and not acting as agent of state, at time of
alleged failure to properly train subordinates or establish
policies to protect arrestees); Scott v. O'Grady, 975 F.2d
366, 370 (7th Cir. 1992) (sheriff is local official when
serving as "chief law enforcement officer" of county, but
arm of state when enforcing state court order).44

The recurring theme that emerges from these cases is
that county or municipal law enforcement officials may be
State officials when they prosecute crimes or otherwise
carry out policies established by the State, but serve as
local policy makers when they manage or administer their
own offices. Indeed, we ourselves concluded in Coleman v.
Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996), that county
prosecutors can have "a dual or hybrid status." When
"enforcing their sworn duties to enforce the law . . . they act
as agents of the State [but] when county prosecutors are
called upon to perform administrative tasks unrelated to
their strictly prosecutorial functions . . . the county
prosecutor in effect acts on behalf of the county that is the
_________________________________________________________________

43. See also Davis v. Ector County, Texas, 40 F.3d 777 (5th Cir. 1995)
(DA is local policy maker for purposes of personnel decision (firing),
even
though state official when enforcing state law).

44. Cf. Commonwealth Attorney's Act of 1850, 71 P.S. SS 732-206(a),
defining district attorneys as the "chief law enforcement officer[s] for
the
county in which [they were] elected."

                               22
situs of his or her office." Id. Absent direct intervention by
the state, county prosecutors act as county officials when
they are called upon to make administrative decisions on a
local level. See Coleman, 87 F.3d at 1504 (applying New
Jersey law).45

Reading the Complaint in the light most favorable to
Carter, it appears that the function complained of here is
not prosecutorial, but administrative: it involves local
policies relating to training, supervision and discipline,
rather than decisions about whether and how to prosecute
violations of state law. Therefore, even if a member of the
Philadelphia DA's Office were deemed a state actor with
respect to prosecutorial functions, she would nevertheless
be a local policymaker with respect to the conduct at issue
here.

(3) Autonomy - When the District Court considered
autonomy from the Commonwealth, it concluded that factor
weighed strongly in favor of immunity.46 This finding is
contrary to Pennsylvania's consciously and deliberately
designed autonomous role for its district attorneys; it is
also contrary to our prior decisions. In Pennsylvania, the
Attorney General (the "AG") is without authority to replace
a district attorney (who must be impeached, like other
locally elected officials) and in Pennsylvania, unlike many
other jurisdictions, the AG has no inherent authority to
supersede a district attorney's decisions generally. 47 The
_________________________________________________________________

45. In Coleman we distinguished between the "day-to-day management of
the prosecutor's office" - a function in which the DA acts as a county
official - and the use of a "grossly erroneous" search warrant - an
investigatory and prosecutorial function in which he acts as a state
official. Id. at 1502, 1505.

46. The District Court initially focused on the political autonomy of the
DA's Office from the City of Philadelphia. Autonomy is measured,
however, by the DA's Office's relationship with the Commonwealth (i.e.,
the more autonomous, the less an "alter ego" of the state). Moreover, the
asserted autonomy from the City actually supports Carter's position with
respect to the "failure to state a claim" argument addressed infra Section
V, as it underscores the DA's role as final policymaker on law
enforcement issues for the City. Cf. Degenova v. Sheriff of DuPage
County, 18 F. Supp. 2d 848, 852 (N.D. Ill. 1998).

47. See Commonwealth v. Lawson, 658 A.2d 801, 803 (Pa. Super. 1995)
(describing Commonwealth v. Khorey/Trputec, 555 A.2d 100 (1989), as

                               23
Pennsylvania AG is permitted only a narrowly
circumscribed power to supersede a district attorney in a
particular criminal prosecution subject to court
authorization under an abuse of discretion standard (or at
the district attorney's own invitation).48 The mere possibility
of supersession by the AG through cumbersome court
proceedings is insufficient to support the District Court's
conclusion that lack of autonomy weighed in favor of
holding the DA's Office an arm of the state.

To the contrary, in Coleman we concluded that "[d]espite
the Attorney General's statutory power of supersession,
` . . . the [county] prosecutors are largely independent of
control by the attorney general . . . .' " 87 F.3d at 1504
(quoting Morss v. Forbes, 132 A.2d 1, 16 (N.J. 1957)).49 As
_________________________________________________________________

"establish[ing] categorically that the Attorney General, pursuant to
statute which supplanted common law, has no authority to supersede
the District Attorney"); Commonwealth v. Carsia, 491 A.2d 237, 251 (Pa.
Super. 1985) (explaining that limited criminal jurisdiction extended to
AG in Commonwealth Attorney's Act reflected legislature's concerns that
it not "imping[e] upon the jurisdiction and duties of the constitutionally
created office of county-elected district attorney").

48. See 72 P.S. S 732-205(a)(3)-(5).

The Pennsylvania Supreme Court has explained that although the AG
"had the common law power to replace his own deputies," that "does not
justify the conclusion that he now has the right to supersede an elected
district attorney." Commonwealth v. Schab, 383 A.2d 819 (Pa. 1978). In
refusing to require at the AG's request prosecution of a homicide the
district attorney deemed excusable, the Court observed that "[i]t would
be incongruous to place a district attorney in the position of being
responsible to the electorate for the performance of his duties while
actual control over his performance was, in effect, in the attorney
general." Id.

49. Moreover, the supersedure authority provided by New Jersey law is
much more extensive than the limited supersedure under Pennsylvania
law, in that it permits the AG broadly to supersede county prosecutors,
leaving the prosecutors to "exercise only such powers and perform such
duties as are required of them by the Attorney General." N.J. Stat. Ann.
S 52:17(b)-106, quoted in Coleman. We held that even such a broad
statutory supersedure scheme "provides county prosecutors . . . with a
substantial degree of autonomy from the state government" in non-
prosecutorial matters. Coleman, 87 F.3d at 1502.

                               24
we concluded in Coleman, "[i]t would be an unwarranted
extension of the implications of the Attorney General's
supersedure authority to conclude that the mere possibility
of its exercise can somehow serve to bring [issues of "day-
to-day management of the county prosecutor's office"]
within the purview of the Attorney General's control." 87
F.3d at 1502.

In addition to the AG's power to supersede a particular
failure to prosecute (with court approval), the District Court
cited one other source of State control over district
attorneys: the courts' power to supervise court proceedings.50
This power, however, is equally applicable to all persons
who appear in court; and it is plainly limited to the district
attorney's prosecution function. The other potential means
of "control" cited by the DA's Office - e.g., impeachment,
legislative acts, funding mandate, reporting requirement -
similarly do not represent any meaningful practical
restraint on the district attorney's autonomy from the
Commonwealth. Cf. Hess, 513 U.S. at 61-62 (O'Connor, J.,
dissenting) ("The critical inquiry . . . should be whether and
to what extent the elected state government exercises
oversight over the entity. . . . . The inquiry should turn on
real, immediate control and oversight rather than on the
potentiality of a state taking action to seize the reins.");51
Fitchik, 873 F.2d 663 (evaluating autonomy in terms of
independence from "supervision or control").

The limited state powers52 relied upon by the District
Court and the DA's Office clearly do not extend to control
over the district attorney's office administration in general,
or over training, supervision and discipline of assistant
_________________________________________________________________

50. See Carter, 4 F. Supp. 2d at 392.

51. Justice O'Connor viewed the state's   power to appoint and remove an
agency's officers, to veto its actions,   to receive its annual reports, and
to
approve or disapprove each of its rules   and projects as evidence of the
type of authority which would support a   finding of immunity. Id. at 63.

52. The power of the legislature (and to a lesser extent the courts) over
the DA's Office is of course not narrowly limited; but "autonomy" would
be a meaningless concept if it were rendered inapplicable by subjection
to the (unexercised) legislative and judicial powers, to which all persons
are subject.

                               25
district attorneys and police officers in particular. If we
should focus on the particular function at issue in
determining status under state law, we should do so in
determining autonomy as well. Moreover, even a
substantial degree of control by the state would cause the
autonomy factor to weigh only slightly in favor of according
immunity. See Fitchik, 873 F.2d at 664 ("Since the degree
of control . . . is fairly substantial, we think that this factor
counsels slightly in favor of according immunity . . . .")
(emphasis added). See also Christy, 54 F.3d at 1149 ("[T]he
significant control the Commonwealth exercises through
the power to appoint all the members of the Commission
weighs slightly in favor of Commission immunity. . . .")
(emphasis added).

Balancing - In balancing the Fitchik factors, the District
Court concluded that although the first factor weighed
against immunity, the remaining factors weighed "strongly
in favor of finding that the District Attorney's Office, when
performing its historic functions of investigating and
prosecuting crimes on behalf of the Commonwealth, is an
`arm of the state' not subject to suit in federal court without
its consent." See Carter, 4 F. Supp. 2d at 393. Because, as
explained above, the District Court misapplied the second
and third factors, it erred in the balancing as well.53

In Fitchik, we found that the non-applicability of state
funds outweighed the combination of an ambiguous status
under state law that balanced slightly in favor of immunity
together with "fairly substantial" state control over the
agency. See also Christy 54 F.3d at 1150 (finding that
balance is "clearly struck" against immunity where funding
_________________________________________________________________

53. Cf. Hess, 513 U.S. at 47 (stating that when indicators of immunity
point in different directions, the court is guided primarily by the
Eleventh Amendment's twin reasons for being: the States' dignity and
their financial solvency). A suit for damages against a district
attorney's
office does not implicate the dignity of the state. The federal courts'
consideration of status and autonomy under state law preserves the
state's dignity by making its chosen structures controlling. Here, even if
there is some doubt as to the entity's status under the law, and even if
there is some degree of control by the state, the status and control do
not rise to the level at which the exercise of judicial power over the
DA's
Office would offend the dignity of the State.

                               26
factor weighed against, and only one factor - autonomy -
weighed slightly in favor).54 Here the funding factor weighs
more heavily against immunity than in Fitchik and Bolden;
the claim of state entity status under state law appears
substantially weaker than in those cases in view of the
express designation as a county official under
constitutional, statutory and case law; and, at least for
practical purposes, the autonomy of the DA's Office is
greater than that of the transit authorities in those cases.
Accordingly, as in Bolden, "[s]ince we are not prepared to
overrule Fitchik, it follows that [the DA's Office] is not
protected by the Eleventh Amendment." 953 F.2d at 821.55

IV. PROSECUTORIAL IMMUNITY

We must begin with "[t]he presumption . . . that qualified
rather than absolute immunity is sufficient to protect
_________________________________________________________________

54. An illuminating comparison of circumstances in which we have
found extension of immunity and those in which we have not appears in
Bolden, 953 F.2d 815-16. We there observed that we found immunity
where we concluded that the state intended the agency be considered a
state agency for Eleventh Amendment purposes, the state was obligated
to meet the agency's liabilities, the agency's commissioners were
appointed by the state, and the state retained substantial power over the
agency's actions. Port Auth. Police Benevolent Assoc. v. Port Auth. of
N.Y.
and N.J., 819 F.2d 413 (3d Cir. 1987). On the other hand, we refused to
find immunity where an agency was state-created and largely state-
funded but was "independent" and "direct[ed] its own actions" and was
"responsible on its own for judgments resulting from [its] actions."
Kovats v. Rutgers, 822 F.2d 1303, 1312 (3d Cir. 1987).

55. We note that the DA's Office provides an impressive-looking list of
cases to support the proposition that "Judges across the country have
agreed, virtually without exception, that district attorneys are state
officials protected by Eleventh Amendment immunity." It must be
remembered, however, that the determinative factors of funding, state
law status and autonomy will vary from state to state, so that decisions
concerning other states' district attorneys provide very little guidance
absent a comparison of those factors. The cited cases do not withstand
such a comparison because they involved state funding, state
supervision, and/or a state court determination that prosecutors were
state officials. The DA's Office omits to mention cases in which the same
courts of appeals have held district attorneys in other states within
their
jurisdiction to be local officials.

                               27
government officials in the exercise of their duties" and the
observation that the Supreme Court has been "quite
sparing" in its recognition of absolute immunity. Burns v.
Reed, 500 U.S. 478, 486-87 (1991).56 We also note that the
Supreme Court directs a "functional" approach to immunity
issues, id., and requires the official seeking absolute
immunity to bear the burden of showing it is justified for
the function in question, see Buckley v. Fitzsimmons, 509
U.S. 259 (1993).

With this guidance, we conclude that the alternative
argument of the DA's Office that Carter's section 1983
claims should have been dismissed due to absolute
prosecutorial immunity lacks merit, because Carter does
not complain about conduct on the part of the DA's Office
in the course of his prosecution. See Imbler v. Pachtman,
424 U.S. 409, 430-31 (1976) (prosecutors are immune from
suit under section 1983 for "initiating and pursuing a
criminal prosecution"). None of the cases cited by the DA's
Office extends this prosecutorial immunity to
administrative, rather than prosecutorial, conduct.

Rather, as we have previously explained, "prosecutors are
subject to varying levels of official immunity" and absolute
prosecutorial immunity attaches only to "actions performed
in a `quasi-judicial' role", such as participation in court
proceedings and other conduct "intimately associated with
the judicial phases" of litigation. Guiffre v. Bissell, 31 F.3d
1241, 1251 (3d Cir. 1994) (quoting Imbler, 424 U.S. at 430).57
"By contrast, a prosecutor acting in an investigative or
administrative capacity is protected only by qualified
immunity." Id. (citing Imbler, 424 U.S. at 430-31; Burns,
500 U.S. at 483-84 n.2, 111 S. Ct. at 1938 n.2). 58
_________________________________________________________________

56. See also Schrob v. Catterson, 948 F.2d 1402, 1409 (3d Cir. 1991).
57. In Imbler, the Supreme Court held "only that in initiating a
prosecution and in presenting the State's case, the prosecutor is immune
from a civil suit for damages under S 1983" and left open the question
of whether absolute immunity would apply to "those aspects of the
prosecutor's responsibility that cast him in the role of an administrator
or investigative officer rather than that of advocate" for the state. 424
U.S. at 430-31.

58. In Guiffre, we followed the Supreme Court's holding in Burns that a
prosecutor is not absolutely immunized for advice given to police during

                               28
Qualified immunity protects official action "if the officer's
behavior was `objectively reasonable' in light of the
constitutional rights affected." Id. If Carter succeeds in
establishing that the DA's Office defendants acted with
deliberate indifference to constitutional rights- as Carter
must in order to recover under section 1983, then a fortiori
their conduct was not objectively reasonable.

V. FAILURE TO STATE A CLAIM UNDER SECTION 1983

As the District Court observed, the standard for personal
liability under section 1983 is the same as that for
municipal liability. See Sample v. Diecks, 885 F.2d 1099,
1118 (3d Cir. 1989). That standard was enunciated in
Monell v. New York City Dept. of Social Services, 436 U.S.
658, 694 (1978): "when execution of a government's policy
or custom, whether made by its lawmakers or by those
whose edicts and acts may fairly be said to represent
official policy, inflicts the injury . . . the government as an
entity is responsible under S 1983." Where, as here, the
policy in question concerns a failure to train or supervise
municipal employees, liability under section 1983 requires
a showing that the failure amounts to "deliberate
indifference" to the rights of persons with whom those
_________________________________________________________________

the investigative stages of a criminal proceeding. See 31 F.3d at 1253,
citing Burns, 500 U.S. at 496.

In addressing the question left open in Imbler, and resolving a
subsequent split among the courts of appeals, the Burns Court expressly
rejected argument that a prosecutor's directory role in police
investigations is sufficiently related to her advocate function. The
Supreme Court explained that "[a]lmost any action by a prosecutor . . .
could be said to be in some way related to the ultimate decision whether
to prosecute, but we have never indicated that absolute immunity is that
expansive." Burns, 500 U.S. at 495. The Court also rejected the
government's argument that adequate checks on prosecutorial
misconduct in this context exist, observing that "one of the most
important . . . checks, the judicial process, will not necessarily
restrain
a prosecutor's out-of-court activities that occur prior to the initiation
of
a prosecution." Id. Thus it concluded that neither common law nor policy
considerations support an extension of absolute immunity, which applies
"only for actions that are connected with the prosecutor's role in
judicial
proceedings, not for every litigation-inducing conduct." Id. at 494.

                               29
employees will come into contact. City of Canton v. Harris,
489 U.S. 378, 388 (1989).

The Court in Canton observed that failure to train may
amount to deliberate indifference where the need for more
or different training is obvious, and inadequacy very likely
to result in violation of constitutional rights. See id. at 389.
For example, if the police often violate rights, a need for
further training might be obvious. See id. at 390 n.10. See
also Sample, 885 F.2d at 1118 (deliberate indifference may
be established where harm occurred on numerous previous
occasions and officials failed to respond appropriately, or
where risk of harm is great and obvious).

Once again, the factually similar Walker case is
instructive. The Walker court analyzed Canton's discussion
of the deliberate indifference requirement and formulated a
three-part test: in order for a municipality's failure to train
or supervise to amount to deliberate indifference, it must be
shown that (1) municipal policymakers know that
employees will confront a particular situation; 59 (2) the
situation involves a difficult choice or a history of
employees mishandling; and (3) the wrong choice by an
employee will frequently cause deprivation of constitutional
rights. See Walker, 974 F.2d at 297-98.

In the present case, as in Walker, elements (1) and (3) are
plainly met: "city policymakers know to a moral certainty
that police officers will be presented with opportunities to
commit perjury or proceed against the innocent. Moreover,
a failure by police officers to resist these opportunities will
almost certainly result in deprivations of constitutional
rights." Id. at 299. As for element (2), although it may
usually be appropriate to assume employees will obey their
oaths and the perjury laws, "where there is a history of
conduct rendering this assumption untenable, city
policymakers may display deliberate indifference by doing
so." Id. at 300.
_________________________________________________________________

59. Although the Walker Court, adopting language from Canton,
indicated that the policymaker's knowledge should be"to a moral
certainty", it does not appear that this qualifying phrase adds anything
other than emphasis to the requirement of ordinary knowledge.

                               30
The Court of Appeals concluded that "Walker should be
allowed to pursue discovery in order to determine whether
there was a practice of condoning perjury (evidenced
perhaps by a failure to discipline for perjury) 60 or a pattern
of police misconduct sufficient to require the police
department to train and supervise police officers to assure
they tell the truth." Id. The same result should apply to
Carter.61

The District Court's insistence that Carter must identify
a particular policy and attribute it to a policymaker, at the
pleading stage without benefit of discovery, is unduly harsh.62
Carter is not engaged in a mere fishing expedition. Carter
alleges that he spent ten years in prison as a result of a
pervasive pattern of egregious, unconstitutional conduct by
Philadelphia's police. He surmises, reasonably, that such
misconduct reflects inadequate training and supervision.
He cannot be expected to know, without discovery, exactly
what training policies were in place or how they were
adopted.63
_________________________________________________________________

60. Cf. Gentile, 926 F.2d at 152 n.5 (predicating liability on "long
history
of negligent disciplinary practices regarding law enforcement personnel
. . . .").

61. If Carter is able to demonstrate that the DA's failure to adopt a
policy
amounts to deliberate indifference, he must of course then establish that
his conviction was "actually caused" by that failure. Canton, 489 U.S. at
391; see also Sample, 885 F.2d at 1118 (requiring plaintiff to prove his
injury "resulted from" the failure to adopt a policy). The Canton Court
explained that actual causation turns on whether "the injury [would]
have been avoided had the employee been trained under a program that
was not deficient in the identified respect." 489 U.S. at 391.

62. The District Court read the Complaint as asserting only passive
adoption by the DA's Office defendants of a policy imposed by the City.
See Carter, 4 F. Supp. 2d at 394-95. Nonetheless, an appropriately
generous reading would indicate that the DA's Office defendants were
the policymakers who adopted the inadequate training, supervision and
discipline policies on behalf of the City.

63. Cf. Gentile 926 F.2d at 152 ("Plaintiffs were not obliged to produce
particular evidence that defendants had specific knowledge of a declared
policy of the County . . . .").

                               31
VI.

We hold that (1) the Philadelphia District Attorney's
Office is a local agency not within the Commonwealth's
Eleventh Amendment immunity for purposes of claims
arising from administrative and policymaking - rather than
prosecutorial - functions; (2) the official capacity claims are
not alternatively barred by absolute prosecutorial
immunity; and (3) the personal capacity claims have been
adequately pled. Accordingly, we will reverse the District
Court's dismissal of Carter's claims against the DA's Office
and remand for further proceedings.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               32
