PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAMELA LYLES; JOHN EDMOND,
Plaintiffs-Appellees,

v.

DEWEY SPARKS, Inspector,
Individually and as Postal Inspector;
M. SHERWIN GREEN, Individually and
as Postal Inspector; THOMAS
KRAUTHEIM, Individually and as
Postal Inspector; WENDY ARNELL,
Individually and as U.S. Assistant
Attorney for the District of
                                               No. 93-1442
Maryland,
Defendants-Appellants,

and

UNITED STATES POSTAL SERVICE
GENERAL COUNSEL; ROGER WOLF,
Individually and as Assistant
Attorney General of the State of
Maryland; ARNOLD POPKIN; RICHARD
SPITZ, JR.; UNITED STATES OF
AMERICA,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
M. J. Garbis, District Judge.
(CA-90-1181)
(CA-92-2912)

Argued: September 27, 1995

Decided: March 19, 1996
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Wilkins and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: David Ira Salem, Assistant United States Attorney,
Greenbelt, Maryland, for Appellant. Pamela Lynne Lyles, Washing-
ton, D.C., for Appellees. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Greenbelt, Maryland, for Appellant.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Following an investigation into a contact lens mail order business,
the United States Postal Service obtained a criminal indictment charg-
ing John Edmond and his attorney, Pamela Lyles, with mail fraud.
Edmond and Lyles were arrested, detained, and released on bond.
After Edmond and Lyles filed a motion to dismiss their indictment for
prosecutorial vindictiveness, the government dismissed the indict-
ment. And this civil action followed.

In their civil complaint, Edmond and Lyles alleged that various
postal inspectors and the Assistant United States Attorney assigned to
the case violated their constitutional rights in securing their indict-
ment and arresting them. Asserting official immunity from suit, those
defendants filed a motion to dismiss or, alternatively, for summary
judgment, but the district court denied their motion. Because we hold
(1) that absolute prosecutorial immunity shields the Assistant United
States Attorney from the constitutional tort claims against her; (2) that
absolute witness immunity shields one of the postal inspectors from
the Fourth Amendment claim that he committed perjury before the
grand jury; and (3) that qualified immunity shields the postal inspec-

                     2
tors from the remaining constitutional tort claims against them, we
reverse.

I

John Edmond owned and operated Landover Contact Lens Center
("Landover Lens"), a contact lens mail order company located in
Maryland. Pamela Lyles was Edmond's counsel and, although not an
owner, was intimately involved in running Landover Lens. Prompted
by numerous customer complaints, Postal Inspector M. Sherwin
Green began an investigation of Landover Lens in early 1986.
Green's investigation led to civil administrative action against Lan-
dover Lens and a 15-count criminal indictment charging Edmond and
Lyles with mail fraud.

The criminal indictment charged that Edmond and Lyles had car-
ried out a scheme to defraud contact lens suppliers by ordering lenses
from them, paying them the minimum amount required to keep the
account open, refusing to pay the remainder of the account or paying
with checks not covered by sufficient funds, and, when further credit
was refused, moving to another supplier. The indictment also alleged
that in some instances Edmond and Lyles had used different business
names to obtain lenses from suppliers who had already cut them off.

Green and his supervisor Thomas Krautheim, accompanied by
other postal inspectors and local police officers, arrested Edmond and
Lyles at their Maryland apartment during the pre-dawn hours of Feb-
ruary 18, 1987. The officers took Edmond and Lyles to the Postal
Inspection Division Headquarters in Washington, D.C., where they
were questioned, booked, and fingerprinted. The officers then trans-
ported Edmond and Lyles to the federal courthouse in Baltimore,
Maryland, where they were held for nine hours before receiving a bail
hearing and being released on bond pending trial.

Edmond and Lyles filed a motion to dismiss their indictment for
prosecutorial vindictiveness. After a hearing on the motion had been
scheduled, the United States Attorney for the District of Maryland
dismissed the indictment.

                    3
Thereafter, in February 1988, Edmond and Lyles filed a civil action
in the United States District Court for the District of Columbia based
on their allegedly wrongful prosecution and arrest against the United
States Postal Service General Counsel; Postal Inspectors Green,
Krautheim, and Dewey Sparks; Assistant United States Attorney
Wendy Arnell; Assistant Attorney General for the State of Maryland
Roger Wolf; and two complaining witnesses, Richard Spitz, Jr., a
businessman who had leased facilities to Landover Lens, and Arnold
Popkin, Spitz' attorney. As amended, the complaint alleged various
constitutional torts under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), as well as viola-
tions of 42 U.S.C. §§ 1983 and 1985, 15 U.S.C. § 1681 (Fair Credit
Reporting Act), 12 U.S.C. § 3408 (Right to Financial Privacy Act),
and Maryland law.

Specifically regarding the federal defendants, Edmond and Lyles
claimed, inter alia, (1) that Arnell had threatened to indict Edmond
if he filed a bankruptcy petition; (2) that Arnell had secured their
indictment by suborning perjured testimony from Spitz; (3) that
Arnell and Green had made false statements before the grand jury; (4)
that Arnell and Green had conspired to make, and made, false repre-
sentations about Edmond and Lyles in other judicial proceedings; (5)
that Sparks had failed to take any action to stop Green's wrongful
conduct; and (6) that Arnell had sent a defamatory letter to the D.C.
Bar Counsel informing him of Lyles' indictment in Maryland and,
thereafter, had failed to notify the Bar Counsel of the indictment's
dismissal. Edmond and Lyles also claimed as abuses during their
arrest and processing: (1) that the officers had removed Edmond from
his apartment in his bedclothes; (2) that Green had attempted to pre-
vent Edmond from wearing shoes as they left the apartment; (3) that
Green and Krautheim had declined to produce an arrest warrant upon
Lyles' inquiry; (4) that the arresting officers had verbally abused and
humiliated them; and (5) that the officers had transported Edmond
and Lyles to the Postal Inspection Division Headquarters in Washing-
ton, D.C., for questioning, fingerprinting, and booking and then to
Baltimore, where they were held for nine hours before receiving a bail
hearing. Finally, Edmond and Lyles claimed that Arnell and Green
had falsely named Lyles as an owner of Landover Lens and sought
her indictment and arrest to deny Edmond his counsel of choice.

                    4
The federal defendants filed a motion to dismiss the complaint, or,
in the alternative, for summary judgment on several grounds. In
November 1989, the D.C. district court dismissed the entire action
"save plaintiff Edmond's claim against defendant Green in his indi-
vidual capacity for alleged violations of the Fair Credit Reporting
Act." Edmond v. United States Postal Serv. , 727 F. Supp. 7, 12
(D.D.C. 1989).1

While their appeal of the D.C. district court's dismissal order was
pending before the U.S. Court of Appeals for the District of Colum-
bia, Edmond and Lyles filed a separate action in the district court in
Maryland against the United States, Green, Popkin, and Spitz. In their
Maryland complaint--which contained claims under the Federal Tort
Claims Act, 28 U.S.C. §§ 2671-2680, and state law--Edmond and
Lyles alleged that Green, Popkin, and Spitz had conspired to bring
criminal prosecutions against them by presenting false information to
both the United States Attorney's office and the grand jury impanel-
led in Maryland.

Then, on November 22, 1991, the D.C. Circuit handed down its
decision reversing in part the district court's ruling dismissing
Edmond's and Lyles' D.C. action. Edmond v. United States Postal
Serv. Gen. Counsel, 949 F.2d 415, 417 (D.C. Cir. 1991). The court
of appeals concluded that the D.C. district court had "totally ignored"
two of Edmond's and Lyles' constitutional tort theories, "Perjurer's
Liability"--which "asserts that someone who causes an indictment
and consequent arrest by perjuring himself or arranging for the sub-
mission of perjured testimony before the grand jury violates the
Fourth Amendment"--against Arnell and Green and"Detour-and-
Delay"--which "rests on an assertion that the manner in which an
arrest was accomplished was unlawful"--against Green and Kraut-
heim. Id. at 419.2 The D.C. Circuit also ruled that the lower court had
_________________________________________________________________
1 Green was subsequently granted summary judgment on the Fair
Credit Reporting Act claim in January 1990. Defendants Spitz, Popkin,
and Wolf had been dismissed earlier for lack of personal jurisdiction.
Although Edmond and Lyles later moved to rename Spitz and Popkin,
the district court never explicitly ruled on that motion. See Edmond v.
United States Postal Serv. Gen. Counsel, 949 F.2d 415, 418-19 (D.C.
Cir. 1991).
2 The D.C. Circuit explained that while Edmond's and Lyles' Detour-
and-Delay theory "is arguably cognizable under the Fourth Amendment,

                    5
given inadequate consideration to Edmond's Sixth Amendment
Interference-with-Counsel claim against Arnell, Green, and Kraut-
heim, which was based on the allegation that Lyles' wrongful arrest
infringed upon Edmond's right to retain her as his counsel. Id. at 423-
24. In remanding those three constitutional tort theories, the court
noted that Edmond and Lyles had "conceded at oral argument that no
other constitutional claims and no statutory or common law claims
[had been] raised for review." Id. at 419.3

Following remand, the D.C. district court granted the Postal Ser-
vice's motion to transfer Edmond's and Lyles' case to the District of
Maryland, where it was consolidated with their Maryland action. The
federal defendants filed a motion for partial dismissal of the com-
plaint or, alternatively, for partial summary judgment, contending that
they enjoyed "absolute and/or qualified immunity" from the surviving
Bivens-type claims that had been transferred from the District of
Columbia. The district court denied the motion, and this interlocutory
appeal followed.

II

Appellants first contend that the district court erred in refusing to
dismiss the constitutional tort claims against federal prosecutor Arnell
on absolute immunity grounds. They maintain that Arnell enjoys
absolute immunity from the surviving Bivens-type claims against her
because the alleged conduct that underlies those claims qualifies as
"quasi-judicial." We agree.
_________________________________________________________________
. . . in a case of this sort, it may be better articulated under the Fifth
Amendment (because Edmond and Lyles already had been indicted at the
time of alleged wrongdoing)." Edmond, 949 F.2d at 423.
3 After the D.C. Circuit's opinion, therefore, Edmond and Lyles no lon-
ger had any constitutional tort claims against Postal Inspector Sparks.
Edmond's and Lyles' complaint does not allege that Sparks committed
or suborned perjury or that Sparks was even present at their arrest. The
D.C. Circuit's opinion also overturned the lower court's ruling that it
lacked personal jurisdiction over Arnell, Spitz, and Popkin and permitted
jurisdictional discovery against those defendants. Edmond, 949 F.2d at
425-26. The court of appeals did, however, affirm the district court's dis-
missal of Wolf. Id. at 427.

                    6
In Bivens-type actions, as at common law, prosecutors enjoy abso-
lute immunity for conduct "intimately associated with the judicial
phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409,
430 (1976).4 Absolute immunity prevents vexatious litigation from
deflecting prosecutors' energies and shading their judgment. Id. at
423. Because absolute immunity "contravenes the basic tenet that
individuals be held accountable for their wrongful conduct," however,
it is available only when its "`contributions . . . to effective govern-
ment . . . outweigh the perhaps recurring harm to individual citizens.'"
Westfall v. Erwin, 484 U.S. 292, 295-96 (1988) (quoting Doe v.
McMillan, 412 U.S. 306, 320 (1973)). The focus of immunity analy-
sis, therefore, is "on the conduct for which immunity is claimed, not
on the harm that the conduct may have caused or the question whether
it was lawful." Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2615 (1993)
(emphasis added).

To determine whether Arnell is absolutely immune from Edmond's
Sixth Amendment claim that she sought Lyles' indictment to deny
Edmond his counsel of choice, we need look no farther than Imbler
v. Pachtman. In Imbler, the Supreme Court accorded absolute immu-
nity to a prosecutor who was accused of maliciously and unlawfully
charging the plaintiff with murder. 424 U.S. at 415-16. While recog-
nizing that "[a]t some point . . . the prosecutor no doubt functions as
an administrator rather than as an officer of the court" and that
"[d]rawing a proper line between these functions may present difficult
questions," the Imbler Court specified that absolute immunity protects
prosecutors' decisions "whether and when to prosecute." Id. at 431
n.33; see also Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981)
(recognizing that decision to initiate prosecution is immunized under
Imbler). Edmond's Sixth Amendment claim against Arnell for prose-
cuting Lyles, therefore, implicates conduct that Imbler expressly
found to be shielded by absolute immunity.
_________________________________________________________________

4 Although Imbler and several of the other immunity cases cited herein
were decided in the context of suits against state officers under 42 U.S.C.
§ 1983, their analysis extends to Bivens -type suits brought directly under
the Constitution against federal officials. See Butz v. Economou, 438
U.S. 478, 504 (1978); Ehrlich v. Giuliani, 910 F.2d 1220, 1222 n.2 (4th
Cir. 1990).

                    7
The Supreme Court also held in Imbler that absolute immunity pro-
tected the prosecutor from allegations that he had knowingly used
perjured testimony and suppressed material evidence at the plaintiff's
trial. 424 U.S. at 431 ("[I]n presenting the State's case, the prosecutor
is immune . . ."). While the Court did not address whether prosecutors
are immune from civil suits for damages stemming from their presen-
tation of the government's case before the grand jury, the rationale
behind Imbler persuades us that such immunity exists. The presenta-
tion of testimony and other evidence before an indicting grand jury
is a prosecutorial activity "intimately associated with the judicial
phase of the criminal process." Id. at 430; accord Morrison v. City of
Baton Rouge, 761 F.2d 242, 248 (5th Cir. 1985) (per curiam);
Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984); Gray v. Bell,
712 F.2d 490, 502 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 1593
(1984). Accordingly, we hold that Arnell enjoys absolute immunity
from claims that she made false representations and suborned perjury
before the grand jury that indicted Edmond and Lyles.

The district court in this case focused on the claim that Arnell had
threatened to indict Edmond if he filed for bankruptcy. While
acknowledging that a prosecutor's pre-indictment conduct is not
investigatory per se, the court refused to hold "that an alleged threat
to obtain an indictment if an individual declares bankruptcy is `inti-
mately associated with the judicial phase' as a matter of law."
Accordingly, it denied the federal defendants' motion to dismiss the
surviving Bivens-type claims against Arnell.

In declining to dismiss Arnell, the district court relied on a claim
that no longer remained in the present action. After the D.C. district
court had dismissed all of Edmond's and Lyles' Bivens-type claims,
the D.C. Circuit remanded three constitutional tort theories of liabil-
ity, only two of which apply to Arnell: Perjurer's Liability and
Interference-with-Counsel. Because Arnell's alleged threat to indict
Edmond was not part of either of those claims, the district court erred
in considering arguments on it and in refusing to dismiss the claims
against Arnell. In rejecting the Threat-to-Indict claim on the basis that
it was no longer part of this action, we express no opinion on whether
Arnell's alleged threat to indict Edmond might support a viable con-
stitutional claim or whether Arnell's absolute immunity would shield
her from such a claim.

                     8
III

We also agree with Appellants that the district court erred in failing
to dismiss the Perjurer's Liability claim against Green for his alleg-
edly false testimony before the federal grand jury that indicted
Edmond and Lyles.

In Briscoe v. LaHue, 460 U.S. 325, 326 (1983), the Supreme Court
held that government officials who testify at criminal trials are abso-
lutely immune from damages liability based on their testimony. The
Court explained that absolute immunity for testimony in judicial pro-
ceedings had been "well established" at common law before the
enactment of 42 U.S.C. § 1983 to prevent witnesses from engaging in
"self-censorship" by refusing to testify or, after taking the stand, by
distorting their testimony to reduce the possibility of subsequent lia-
bility. Id. at 330-33. Granting immunity to official witnesses also pre-
vents interference with the performance of their public duties by
avoiding costly and time-consuming litigation. Id. at 343-44.

Because the reasoning behind Briscoe is equally applicable to gov-
ernment officials' grand jury testimony, we hold that Green enjoys
absolute immunity from the Perjurer's Liability claim against him
based on his testimony before the grand jury. Our holding follows a
fortiori from our decisions in Mangold v. Analytic Services, Inc., No.
94-1307, slip op. at 7-13 (4th Cir. Mar. 12, 1996) (applying absolute
immunity to government contractor for statements made to govern-
ment investigators during official investigation), and Holmes v. Eddy,
341 F.2d 477, 480 (4th Cir.) (per curiam) (applying absolute immu-
nity to witness for statements made to SEC during SEC investiga-
tion), cert. denied, 382 U.S. 892 (1965)). And, in extending absolute
immunity to government witnesses for their grand jury testimony, we
join the majority of circuits that have addressed the issue. See San
Filippo v. U.S. Trust Co., 737 F.2d 246, 254 (2d Cir. 1984), cert.
denied, 470 U.S. 1035 (1985); Macko v. Byron , 760 F.2d 95, 97 (6th
Cir. 1985) (per curiam); Kincaid v. Eberle, 712 F.2d 1023, 1023-24
(7th Cir.) (per curiam), cert. denied, 464 U.S. 1018 (1983); Anthony
v. Baker, 955 F.2d 1395, 1400-01 (10th Cir. 1992); Strength v.
Hubert, 854 F.2d 421, 423-25 (11th Cir. 1988) (per curiam); cf.
Williams v. Hepting, 844 F.2d 138, 141-43 (3d Cir.) (immunizing tes-
timony given in adversarial pretrial proceeding), cert. denied, 488

                    9
U.S. 851 (1988); Holt v. Castaneda, 832 F.2d 123, 124-27 (9th Cir.
1987) (same), cert. denied, 485 U.S. 979 (1988); Briggs v. Goodwin,
712 F.2d 1444, 1448-49 (D.C. Cir. 1983) (immunizing sworn state-
ment made at hearing on motion during grand jury phase of investiga-
tion), cert. denied, 464 U.S. 1040 (1984); but see Wheeler v. Cosden
Oil and Chem. Co., 734 F.2d 254, 261 n.16, modified on other
grounds, 744 F.2d 1131 (5th Cir. 1984).

IV

Finally, Appellants contend that the district court erred in refusing
to dismiss, on the basis of qualified immunity, the Detour-and-Delay
and Interference-with-Counsel claims against Krautheim and Green.5
They argue that neither of those claims allege violations of rights that
were clearly established at the time of Krautheim's and Green's
alleged conduct. Again, we agree.

To survive summary judgment on qualified immunity grounds, a
constitutional tort claim against a federal law enforcement official
must rest on a violation not only of currently applicable federal law,
but also of federal law that was "clearly established" at the time the
alleged conduct occurred. Harlow v. Fitzgerald , 457 U.S. 800, 818
(1982). Qualified immunity provides law enforcement officials with
"the necessary latitude to pursue their investigations without having
to anticipate, on the pain of civil liability, future refinements or clari-
fications of constitutional law." Tarantino v. Baker, 825 F.2d 772,
775 (4th Cir. 1987).

To determine whether a specific federal right was clearly estab-
lished, we focus "not upon the right at its most general or abstract
level, but at the level of its application to the specific conduct being
challenged." Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992).
Qualified immunity thus protects "all but the plainly incompetent or
those who knowingly violate the law." Malley v. Briggs, 475 U.S.
335, 341 (1986).
_________________________________________________________________
5 Because we conclude that Arnell is absolutely immune from all of the
constitutional tort claims against her, we need not address Appellants'
alternative argument that she enjoys qualified immunity from those
claims.

                     10
Edmond and Lyles had the burden of establishing a"prima facie
case of [Appellants'] knowledge of impropriety, actual or construc-
tive." Krohn v. United States, 742 F.2d 24, 31 (1st Cir. 1984). Yet
they have failed to provide any authority indicating that their Detour-
and-Delay and Interference-with-Counsel claims implicate constitu-
tional rights that were clearly established at the time of Appellants'
alleged conduct.

The Detour-and-Delay claim--which appears to have been first
articulated, not by Edmond and Lyles, but by Judge Edwards in the
D.C. Circuit's opinion, see Edmond, 949 F.2d at 419 ("The second
theory, which might be called Detour-and-Delay, rests on an assertion
that the manner in which an arrest was accomplished was unlawful")
--is based on the post-arrest procedures employed by Postal Inspec-
tors Krautheim and Green. Edmond and Lyles contend that after their
arrest, the postal inspectors transported them for questioning, finger-
printing, and booking to the Postal Inspection Division Headquarters
in Washington, D.C., and then delivered them to the U.S. Marshal in
Baltimore, where they were held for nine hours before receiving a bail
hearing. We have found no legal support for the proposition that these
allegations make out a violation of a clearly established constitutional
right, and neither the D.C. Circuit nor counsel in this case have pro-
vided any.

The same is true for Edmond's and Lyles' Interference-with-
Counsel claim. They contend that Arnell, Krautheim, and Green
denied Edmond's right to the counsel of his choice by seeking Lyles'
indictment, even though the federal grand jury determined that there
was probable cause to charge her. Again, we can find no authority for
the theory that the government improperly interferes with the consti-
tutional right to counsel of an attorney's clients by seeking or obtain-
ing that attorney's indictment.

Because Edmond's and Lyles' Detour-and-Delay and Interference-
with-Counsel claims assert constitutional rights that were not, and are
not, clearly established, the district court erred in declining to afford
Green and Krautheim qualified immunity from the surviving constitu-
tional tort claims against them.

                     11
V

Accordingly, we reverse and remand this case with the direction to
the district court to dismiss all of Edmond's and Lyles' surviving
Bivens-type claims.6

REVERSED AND REMANDED
_________________________________________________________________
6 In light of our ruling that the district court should have dismissed all
of Edmond's and Lyles' surviving constitutional tort claims, we do not
reach Appellants' argument that the court erred in declining to rule on
their motion for summary judgment on the ground that they had refused
to permit discovery.

                    12
