Lewis Fogle v. John Sokol

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 19-1066
______________

LEWIS JAMES FOGLE

v.

JOHN SOKOL, Pennsylvania State Trooper;
MICHAEL STEFFEE, Pennsylvania State Trooper;
DONALD BECHWITH, Pennsylvania State Police Trooper;
JOSEPH STEPHEN, Pennsylvania State Police Trooper;
JOHN BARDROFF, Corporal;
ANDREW MOLLURA, Corporal;
GLENN WALP, Lieutenant, in their individual capacities;
COUNTY OF INDIANA, PENNSYLVANIA;
GREGORY OLSON, Indiana County District Attorney,
in his official and individual capacity;
WILLIAM MARTIN, Indiana County Assistant District
Attorney, in his individual capacity

County of Indiana, Pennsylvania, Gregory Olson and
William Martin,
Appellants
______________

On Appeal from the United States District Court
for the Western District of Pennsylvania
 (D.C. No. 2-17-cv-00194)
District Judge: Hon. David S. Cercone
______________

Argued September 19, 2019

Before: KRAUSE, MATEY, Circuit Judges,
and QUIÑONES ALEJANDRO, * District Judge.

(Filed: April 20, 2020)

Anna Benvenutti Hoffmann, Esq.
Emma K. Freudenberger, Esq.
Mary K. McCarthy, Esq. [ARGUED]
Peter J. Neufeld, Esq.
Neufeld Scheck & Brustin
99 Hudson Street
8th Floor
New York, NY 10013

Thomas J. Farrell, Esq.
Farrell & Reisinger
300 Koppers Building
436 Seventh Avenue
Suite 300
Pittsburgh, PA 15219
Attorneys for Plaintiff-Appellee

*
Honorable Nitza I. Quiñones Alejandro, District
Judge, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.

2
Michael E. Kennedy, Esq.
Office of Attorney General of Pennsylvania
1251 Waterfront Place
Pittsburgh, PA 15222
Attorney for Defendants Donald Bechwith,
Pennsylvania State Police Trooper; John Bardroff,
Corporal; John Sokol, Pennsylvania State Police
Trooper; Andrew Molllura, Corporal; Michael Steffee,
Pennsylvania State Police Trooper; and Glenn Walp,
Lieutenant, in their individual capacities

Marie M. Jones, Esq. [ARGUED]
Maria N. Pipak, Esq.
Jones Passodelis
707 Grant Street
Gulf Tower, Suite 3410
Pittsburgh, PA 15219
Attorney for Defendants-Appellants County of Indiana;
Gregory Olson, Indiana County District Attorney, in his
official and individual capacity; and William Martin,
Indiana County Assistant District Attorney, in his
individual capacity

3
 ______________

OPINION
______________

MATEY, Circuit Judge.

Lewis James Fogle spent more than three decades in
prison for a crime he says he did not commit. Now free, he
alleges that his incarceration was no accident, sketching a
widespread conspiracy by law enforcement officials to violate
his civil rights. Implicated in this alleged scheme are former
Indiana County District Attorney Gregory Olson, former
Indiana County Assistant District Attorney William Martin,
and their one-time employer, Indiana County. They all raise
the shield of absolute immunity, a judicially created exception
to 42 U.S.C. § 1983. But the immunity from civil liability
enjoyed by prosecutors hinges on the sanctity of our judicial
process, not “any special esteem.” Kalina v. Fletcher, 522 U.S.
118, 127 (1997) (internal quotation marks omitted). And so
only truly prosecutorial functions, not investigative conduct,
justify complete protection from suit. Fogle’s complaint
alleges acts by Olson and Martin that, taken as true, fall outside
the narrow doctrine of absolute immunity and survive a motion
to dismiss. Fogle’s claims against Indiana County survive too
because there is no exception to the final judgment rule
allowing us to review municipal liability in this appeal. Thus,
we will affirm the District Court’s order denying Olson and
Martin’s motion to dismiss based on absolute immunity and
dismiss Indiana County’s appeal for lack of jurisdiction.

4
 I. BACKGROUND

We recount only the relevant history, accepting as true,
as we must, the untested allegations in the complaint.

A. The Crime and the Search

In 1976, a passerby discovered the body of fifteen-year-
old Deann “Kathy” Long in a wooded area near her home in
Indiana County, Pennsylvania. Kathy’s death was senseless
and horrific, involving a brutal assault, rape, and finally, a
gunshot to the head. Swiftly, law enforcement opened an
investigation with representatives from the Indiana County
District Attorney’s Office, including Olson and Martin (or
collectively, “the Prosecutors”), and the Pennsylvania State
Police (the “State Troopers”). The State Troopers soon learned
from Kathy’s sisters and family friends “that Kathy was last
seen getting into a blue car with an unknown man” on the day
of the crime. (App. at 44.) Two of her sisters, ages nine and
twelve, described the man “as between 20 and 30 years old,
with blue eyes, black hair that came below his ears and curled
at the ends, sideburns, heavy eyebrows, and a heavy mustache
over his upper lip.” 1 (App. at 45.)

Lewis Fogle did not match the description, having
“straight reddish-blonde hair that dropped down his back and
a matching, full beard that reached his waist.” (App. at 45.) But
Fogle’s brother Dennis owned a blue car, and rumors around
town suggested he “invited a teenage girl to spend the night

1
Kathy’s older sister, Patty, and a friend of the family
corroborated the two younger sisters’ claim that they had seen
Kathy get into the car with a man that evening.

5
with him the night after Kathy’s body was found.” (App. at 45.)
It was a thin clue, and a search of Dennis’s car “found nothing
of evidentiary value.” (App. at 46.)

A frustrating year passed with little progress. With no
fresh leads, the investigation turned to Earl Elderkin, known in
town as “‘Spaceman,’ because he claimed that he and his kids
were from outer space.” (App. at 46.) Elderkin had drawn
attention from law enforcement in the days after the murder
because he fit the description of the unknown man in the blue
car. Though Elderkin first denied any connection to the crime,
he eventually claimed to have been present during the attack.
He offered an alleged eyewitness account, one short on details,
perhaps owing to his use of drugs and alcohol. He confessed to
being in the car that picked up a girl at the Long residence and
witnessing an unidentified man shoot her with a rifle. But soon
enough, Elderkin failed a polygraph examination, and the
investigation slowed to a halt.

B. Fogle Becomes the Focus

More than three years passed with no leads. Then,
Elderkin reappeared, checking himself into a hospital for a
psychiatric evaluation. There, he asked to speak with police
about Kathy and offered two more accounts. In one of these
versions, he implicated sixteen unidentified men; in the other,
he named two specific individuals, but neither was Lewis
Fogle. And these new contradictory statements only
diminished Elderkin’s credibility. His stories included
variations on the number of people involved in the murder and
consistently referenced passengers in the blue car, a detail
Kathy’s sisters never mentioned. Even Elderkin agreed he was

6
unreliable, stating he was not sure whether he had witnessed a
murder, or merely imagined the whole thing.

But the investigation pressed on. Olson, working with
the State Troopers, turned to hypnosis to try to clarify
Elderkin’s stories. Olson’s choice of expert was unusual: an
English teacher with no formal hypnosis training. Unusual too
was the actual hypnosis session, with the “hypnotist” acting
“[a]t the behest of Defendants” to use “undue suggestion to
obtain a statement from Elderkin.” (App. at 48). But even that
direction proved insufficient, as Elderkin waffled between
versions of his earlier statements and a new story implicating,
for the first time, both Dennis and Lewis Fogle. Following the
hypnosis sessions, Olson and the State Troopers again
interviewed Elderkin. And this time, he at last provided a firm
statement naming the Fogle brothers as two of four attackers.
That statement became the cornerstone of the investigation.

C. The Scramble to Bolster the Case Against Fogle

Elderkin’s latest statement provided both a new theory
and obvious challenges. For example, Elderkin’s timeline of
the crime did not fit the chronology provided by Kathy’s sisters
and friends. To advance their case, the State Troopers brought
in Kathy’s older sister, Patty, and one of Patty’s friends, for a
long interview. Eventually, under intimidation and threats of
arrest by the State Troopers, they altered their story to align
with Elderkin’s latest story. At least for a time, as Patty’s friend
recanted her statement soon after leaving the station.

By using the combined statements of Elderkin and Patty
Long, and without disclosing the wide-ranging inconsistencies,
the State Troopers obtained criminal complaints against the

7
Fogle brothers and two others. Then, following hours of
interrogation, threats, and a steady stream of suggestion in the
form of details from Elderkin’s statement, Dennis Fogle
confessed and implicated his brother Lewis. The next day, after
even more examination by Olson and the State Troopers,
Dennis Fogle shaped his statement to fit with Elderkin’s most
recent account.

The case quickly began to unravel as the defendants
discovered Elderkin’s wandering and inconsistent theories had
largely powered the criminal complaints. Timely support soon
arrived from jailhouse informants recruited and counseled by
the State Troopers. Working collaboratively with law
enforcement, and pursuing promises of leniency, two of Lewis
Fogle’s cellmates claimed Fogle confessed to Kathy’s murder.
Olson and Martin “either knew about, encouraged, or
permitted” this strategy. (App. at 54.) While the State Troopers
characterized these statements as voluntary, they and the
Prosecutors “hid” their role in pursuing the witnesses and their
offers of favorable treatment. (App. at 54.)

In the meantime, the evidence continued to dissolve. A
judge barred Elderkin from testifying and suppressed Dennis
Fogle’s confession. Quickly, the State Troopers obtained a new
statement from yet another jailhouse witness, again by feeding
him details and offering leniency. And as before, while Olson
and Martin “knew about, encouraged, or permitted” this
strategy, neither the defendants nor the court knew anything
about their actions. (App. at 56.)

8
D. Fogle’s Conviction is Vacated

Without Elderkin’s testimony or Dennis Fogle’s
confession, only the charges against Lewis Fogle proceeded to
trial, some six years after Kathy’s murder. A jury found Fogle
guilty of second-degree murder, leading to a sentence of life
imprisonment without the possibility of parole. In 2015, Lewis
Fogle obtained DNA evidence excluding both himself and his
brother Dennis as the source of semen collected from Kathy.
On that basis, Lewis Fogle successfully vacated his conviction.
Soon after, the Commonwealth declined to pursue new
charges, describing the case as lacking “prosecutorial merit.”
(App. at 60.) Regrettably, no one has been convicted of the
tragic rape and murder of Kathy Long.

E. Fogle Brings a Civil Action

Following his release, Fogle sued a host of individuals
and entities including the State Troopers, 2 Olson and Martin,
and Indiana County. Fogle alleges that Olson and Martin
violated his due process rights by fabricating inculpatory
evidence and withholding exculpatory evidence, conspired to
prosecute him without probable cause, and failed to intervene
when others were violating his due process rights, all in
violation of 42 U.S.C. § 1983. Separately, Fogle alleges that
Indiana County’s policies, practices, and customs amount to
municipal liability under § 1983. Olson and Martin moved to
dismiss, arguing prosecutorial immunity insulated their
conduct from review. Indiana County moved to dismiss as
well, arguing that it is not liable for Olson’s alleged misconduct

2
Fogle’s claims against the State Troopers are not part
of this appeal.

9
because the allegations do not stem from his role as a
policymaker for the County, merely his work as a prosecutor.

The District Court granted the motion in part. 3 In a
Memorandum Opinion, the District Court explained that Olson
and Martin were not immune because the conduct alleged by
Fogle was investigative, centered on building a case that
consistently lacked probable cause. The District Court also
found Fogle’s allegations against the Prosecutors sufficiently
grounded in official policymaking to state a claim against
Indiana County under Monell v. Department of Social Services
of the City of New York, 436 U.S. 658 (1978). Olson, Martin,
and Indiana County appeal that decision.

II. OUR LIMITED JURISDICTION TO REVIEW DENIALS OF
IMMUNITY

As a court of limited review, we begin by confirming
our jurisdiction. The District Court had jurisdiction under 28
U.S.C. §§ 1331 and 1343. We have jurisdiction under 28
U.S.C. § 1291 to review “final decisions of the district courts.”
A final decision “does not necessarily mean the last order
possible to be made in a case,” and can include interlocutory

3
Fogle also brought federal and state malicious
prosecution claims (later withdrawn) and a respondeat
superior claim (later dismissed).

10
appeals falling within the “collateral order” doctrine. Mitchell
v. Forsyth, 472 U.S. 511, 524–25 (1985).

A. Fogle’s § 1983 Claims Against Olson and Martin

The parties agree that we have jurisdiction over Olson
and Martin’s appeal. They are correct, and we may review an
“interlocutory appeal of the District Court’s order denying
absolute . . . immunity . . . to the extent that the order turns on
issues of law.” Yarris v. County of Delaware, 465 F.3d 129,
134 (3d Cir. 2006); see also Oliver v. Roquet, 858 F.3d 180,
187–88 (3d Cir. 2017). Review of a district court’s order
denying a motion to dismiss on absolute immunity grounds is
plenary. 4 Yarris, 465 F.3d at 134.

B. Fogle’s Municipal Liability Claim Against Indiana
County

But the collateral order exception does not reach
Indiana County’s appeal. Unlike the claims against Olson and
Martin, the County may not raise absolute immunity as a
defense to a claim of municipal liability. See Owen v. City of
Independence, 445 U.S. 622, 638 (1980). That is because a

4
“We apply the same standard that district courts apply
at the motion-to-dismiss stage, and our review is limited to the
contents of the complaint and any attached exhibits. We are
thus concerned with neither the accuracy of the facts alleged
nor the merits of [Fogle’s] underlying claims.” Yarris, 465
F.3d at 134 (internal citation omitted). We also “construe the
facts in the manner most favorable to [Fogle], in order to
determine whether the state officials are entitled to absolute . . .
immunity from any claims based on their alleged conduct.” Id.

11
“municipality may not assert the good faith of its officers or
agents as a defense to liability under § 1983.” Id. So Indiana
County cannot rely on the Prosecutors’ alleged absolute
immunity to defend against its own alleged violations of
§ 1983. So too, it cannot satisfy the exception to the final
judgment rule for interlocutory review of an order denying
absolute immunity. Swint v. Chambers Cty. Comm’n, 514 U.S.
35, 37–38, 41–43 (1995); see also In re Montgomery County,
215 F.3d 367, 375–76 (3d Cir. 2000).

No other jurisdictional hook applies. As Indiana
County’s appeal does not arise from a final judgment or fall
into the collateral order exception, it is premature, and we will
dismiss.

III. THE NARROW DOCTRINE OF ABSOLUTE IMMUNITY

Olson and Martin do not just deny Fogle’s allegations.
They argue that the truth of Fogle’s claims does not matter,
because as prosecutors they enjoy absolute immunity from the
defense of civil actions and the “right not to stand trial.” In re
Montgomery County, 215 F.3d at 373. Fogle argues that the
specific path Olson and Martin allegedly pursued during the
investigation of Kathy’s murder—characterized by
investigation, not advocacy—lifts the veil of immunity at this
stage. Parsing precedent in the fact-specific context of absolute
immunity is notoriously tricky and turns not on black-letter
rules, but on a “meticulous analysis” of the Prosecutors’
actions. Light v. Haws, 472 F.3d 74, 79 (3d Cir. 2007). So we
begin with the basics, looking to the history, purpose, and
scope of the doctrine of absolute immunity. And with that
context established, we conclude that Fogle has alleged claims
based on actions by Olson and Martin outside the traditional

12
policy limitations that define absolute immunity. As a result,
his complaint survives a motion to dismiss.

A. Absolute Immunity and § 1983

1. The Legislative Background

The law now codified as 42 U.S.C. § 1983 was first
passed by Congress in the Civil Rights Act of 1871. 5 The 1871
Act created a federal cause of action allowing citizens to sue a
state or local official in federal court for violating
“constitutional rights, privileges and immunities” through an
“abuse of his position.” Monroe v. Pape, 365 U.S. 167, 172
(1961); see also Mitchum v. Foster, 407 U.S. 225, 242 (1972).
This new private right of action flowed from earlier attempts
by Congress to use the powers granted by the Fourteenth
Amendment to eradicate the lingering damage caused by
slavery. 6 Monroe, 365 U.S. at 171. It targeted organized

5
An Act to Enforce the Provisions of the Fourteenth
Amendment to the Constitution of the United States, and for
Other Purposes, 17 Stat. 13 (1871) (codified as amended at 42
U.S.C. § 1983 (1996)); see Briscoe v. LaHue, 460 U.S. 325,
336–37 (1983); see also Cass R. Sunstein, Section 1983 and
the Private Enforcement of Federal Law, 49 U. Chi. L. Rev.
394, 398–400 (1982). Congress amended the law and
reenacted it as Section 1979 of the Revised Statutes of 1874.
Rev. Stat. § 1979 (1874). See Chapman v. Hous. Welfare
Rights Org., 441 U.S. 600, 608 (1979).
6
The 1871 Act built on the foundations of the
Enforcement Act of May 31, 1870, 16 Stat. 140, which, in turn,
built upon the Civil Rights Act of 1866, 14 Stat. 27. Sunstein,

13
terrorism against African Americans, including growing
concerns that “Klan members and sympathizers controlled or
influenced the administration of state criminal justice.” 7
Briscoe v. LaHue, 460 U.S. 325, 337 (1983). Despite these
legislative efforts, obstacles to the protections the Act offered
to citizens quickly emerged. 8 But by the 1960s, the Supreme

supra, at 398–99. The 1871 Act authorized individual suits
alleging deprivation of constitutional rights. Chapman, 441
U.S. at 608. Congress expanded the remedy to include
violations of federal law in 1874. Id. at 608–09.
7
The 1871 Act earned the name “the Ku Klux Klan
Act.” See Chapman, 441 U.S. at 628 (Powell, J., concurring);
see also Wilson v. Garcia, 471 U.S. 261, 276 (1985) (“The
specific historical catalyst for the Civil Rights Act of 1871 was
the campaign of violence and deception in the South, fomented
by the Ku Klux Klan, which was denying decent citizens their
civil and political rights.”); Cong. Globe, 42d Cong., 1st Sess.
244 (1871) (reprinting message from President Ulysses S.
Grant to Congress seeking legislation to protect civil rights).
8
One year after the 1871 Act’s adoption, the Supreme
Court narrowly confined the rights protected by the Fourteenth
Amendment to those “which owe their existence to the Federal
government, its National character, its Constitution, or its
laws.” Slaughter-House Cases, 83 U.S. 36, 79 (1872). Soon
after, the Court held that “members of a white militia who had
brutally murdered as many as 165 black Louisianans
congregating outside a courthouse had not deprived the victims
of their privileges as American citizens.” McDonald v. City of
Chicago, 561 U.S. 742, 808–09 (2010) (Thomas, J.,
concurring) (discussing United States v. Cruikshank, 92 U.S.
542 (1876)). And in 1883, the Court held that criminal

14
Court’s incorporation of much of the Bill of Rights against the
states meant that § 1983 again provided a federal remedy
against state officials who abused their office by acting “under
color of” state law. 9 42 U.S.C. § 1983; see David Rittgers,
Connick v. Thompson, An Immunity that Admits of (Almost)
No Liabilities, 2011 Cato Sup. Ct. Rev. 203, 209–10 (2011).
Along the way, a new barrier arrived in the form of judicially
created immunities from suit.

conspiracy penalties in the 1871 Act could not apply against an
individual participating in a lynching leading to one death and
the beating of four men in state custody. United States v.
Harris, 106 U.S. 629, 640 (1883). “The effect of such a narrow
judicial construction of state action and ‘privileges and
immunities’ on section 1983 was devastating.” Developments
in the Law: Section 1983 and Federalism, 90 Harv. L. Rev.
1133, 1161 (1977). Indeed, “[d]espite continuing infringement
of the civil liberties of the freedmen and their descendants,
virtually no actions were brought under the statute.” Id.; see
also Comment, The Civil Rights Act: Emergence of an
Adequate Federal Civil Remedy?, 26 Ind. L. J. 361, 363 (1951)
(noting only twenty-one cases brought under the relevant
portions of the Third Civil Rights Act between 1871 and 1920).
9
The phrase “by color of” dates to at least the thirteenth
century and refers to an abuse of authority by a governmental
official exceeding, rather than conforming to, the law. Steven
L. Winter, The Meaning of “Under Color of” Law, 91 Mich.
L. Rev. 323, 325 (1992).

15
 2. The Extra-Textual Origins of Immunity in
§ 1983 Actions

The text of § 1983 does not provide any immunities
from suit. Malley v. Briggs, 475 U.S. 335, 342 (1986). Rather,
“[i]t purports to subject ‘[e]very person’ acting under color of
state law to liability for depriving any other person in the
United States of ‘rights, privileges, or immunities secured by
the Constitution and laws.’” 10 Burns v. Reed, 500 U.S. 478, 484
(1991) (second alteration in original) (quoting 42 U.S.C.
§ 1983). Yet in a line of cases dating back more than half a
century, the Supreme Court “has consistently recognized . . .
that § 1983 was not meant ‘to abolish wholesale all common-
law immunities.’” Id. (quoting Pierson v. Ray, 386 U.S. 547,
554 (1967)). Instead, the Court held that “[c]ertain immunities
were so well established in 1871, when § 1983 was enacted,
that ‘we presume that Congress would have specifically so
provided had it wished to abolish’ them.” Buckley v.
Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting Pierson, 386
U.S. at 554–55). As a result, “§ 1983 is to be read in harmony
with general principles of tort immunities and defenses rather
than in derogation of them.” Imbler v. Pachtman, 424 U.S. 409,
418 (1976). “To that end, the Court has identified two kinds of
immunities under § 1983: qualified immunity and absolute
immunity.” Yarris, 465 F.3d at 135. “Most public officials are
entitled only to qualified immunity.” Buckley, 509 U.S. at 268
(citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). Under

10
The clarity of the text prompted Justice Douglas to
remark “[t]o most, ‘every person’ would mean every person,
not every person except judges.” Pierson v. Ray, 386 U.S. 547,
559 (1967) (Douglas, J., dissenting).

16
qualified immunity, “government officials are not subject to
damages liability for the performance of their discretionary
functions when ‘their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” 11 Id. (quoting Harlow,
457 U.S. at 818).

3. The Functional Approach to Absolute Immunity
for Prosecutorial Conduct

The absolute immunity extended to official actions was,
for a time, grounded by a historical approach. Under this view,
“some officials perform ‘special functions’ which, because of
their similarity to functions that would have been immune
when Congress enacted § 1983, deserve absolute protection
from damages liability.” Buckley, 509 U.S. at 268–69 (quoting
Butz v. Economou, 438 U.S. 478, 508 (1978)). So courts looked
for public officials shielded from civil suits at common law.
Judges were an easy fit, as the Court found records of complete
immunity dating back centuries. See Bradley v. Fisher, 80 U.S.
335, 346–48 (1871) (“The principle, therefore, which exempts
judges of courts of superior or general authority from liability
in a civil action for acts done by them in the exercise of their

11
There is growing concern that the doctrine of
qualified immunity has likewise “diverged from the historical
inquiry mandated by the statute.” Ziglar v. Abassi, 137 S. Ct.
1843, 1871–72 (2017) (Thomas, J., concurring); see also
Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor,
J., dissenting); Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir.
2019) (Willett, J., concurring in part and dissenting in part)
(concluding “qualified immunity smacks of unqualified
impunity”).

17
judicial functions, obtains in all countries where there is any
wellordered system of jurisprudence.”); see also Yates v.
Lansing, 5 Johns. 282, 291–92 (N.Y. Sup. Ct. 1810)
(discussing judicial immunity in English common law);
Russell v. Richardson, 905 F.3d 239, 248 (3d Cir. 2018).
Jurors, too, had long been immune. Imbler, 424 U.S. at 423
n.20 (“The immunity of grand jurors, an almost equally
venerable common-law tenet . . . also has been adopted in this
country.”); Butz, 438 U.S. at 509–10 (describing immunity
extended to both grand and petit jurors). But prosecutors were
a different story, as the modern office of a public prosecutor
was uncommon in 1871. 12 Kalina, 522 U.S. at 124 n.11. So
instead, courts departed from the historical approach, noting
both the post-1871 “American cases addressing the availability
of malicious prosecution actions against public prosecutors”
and “the policy considerations underlying the firmly
established common-law rules providing absolute immunity
for judges and jurors.” Id. At its core, absolute prosecutorial
immunity was not born out of pre-§1983 tradition, but evolved

12
See also Kalina, 522 U.S. at 132 (Scalia, J.,
concurring) (“There was, of course, no such thing as absolute
prosecutorial immunity when § 1983 was enacted.”). Rather,
as scholars have found, the first judicial decision granting
absolute prosecutorial immunity appeared more than twenty-
five years after the passage of § 1983. See Margaret Z. Johns,
Reconsidering Absolute Prosecutorial Immunity, 2005 BYU L.
Rev. 53, 113–16 (2005) (citing Parker v. Huntington, 68 Mass.
124 (Mass. 1854); Griffith v. Slinkard, 44 N.E. 1001 (Ind.
1896)); see also Kalina, 522 U.S. at 123–24 (acknowledging
prosecutorial immunity only relies “in part on common-law
precedent”).

18
as new common law reflecting “‘a balance’ of ‘evils.’” 13 Van
de Kamp v. Goldstein, 555 U.S. 335, 340 (2009) (quoting
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).

But there are limits placed on that balance scale. While
the Supreme Court has extended the defense of absolute
immunity to certain prosecutorial functions, it has not
blanketed “the actions of a prosecutor . . . merely because they
are performed by a prosecutor.” Buckley, 509 U.S. at 273.
Instead, courts must “focus upon the functional nature of the
activities rather than [the prosecutor’s] status” to determine
whether absolute immunity is warranted. Imbler, 424 U.S. at
430; accord Burns, 500 U.S. at 486. Applying this functional
approach, the Supreme Court has “emphasized that the official
seeking absolute immunity bears the burden of showing that
such immunity is justified for the function in question.” Burns,
500 U.S. at 486. Indeed, “[t]he presumption is that qualified
rather than absolute immunity is sufficient to protect
government officials in the exercise of their duties.” Id. at 486–
87.

That functional test separates advocacy from everything
else, entitling a prosecutor to absolute immunity only for work
“intimately associated with the judicial phase of the criminal
process.” Id. (quoting Imbler, 424 U.S. at 430). In that regard,
the Court has found, for instance, that prosecutors are immune

13
See, e.g., Yaselli v. Goff, 12 F.2d 396, 406 (2d Cir.
1926) (holding prosecutors “should be no more liable to private
suits for what they say and do in the discharge of their duties
than are the judges and jurors”). The Supreme Court affirmed
the decision in Yaselli in a per curiam opinion citing two cases
on judicial immunity. Yaselli v. Goff, 275 U.S. 503 (1927).

19
from claims arising from their conduct in beginning a
prosecution, Imbler, 424 U.S. at 431, including “soliciting false
testimony from witnesses in grand jury proceedings and
probable cause hearings,” Kulwicki v. Dawson, 969 F.2d 1454,
1465 (3d Cir. 1992), presenting a state’s case at trial, Imbler,
424 U.S. at 431, and appearing before a judge to present
evidence, Burns, 500 U.S. at 491–92. See also Van de Kamp,
555 U.S. at 344 (finding prosecutors absolutely immune from
claims arising from conduct “directly connected with the
conduct of a trial” that “necessarily require[d] legal knowledge
and the exercise of related discretion”).

By contrast, a prosecutor’s “investigatory functions that
do not relate to an advocate’s preparation for the initiation of a
prosecution or for judicial proceedings are not entitled to
absolute immunity.” Buckley, 509 U.S. at 273. Determining the
precise function that a prosecutor is performing is a fact-
specific analysis. For instance, “[a] prosecutor neither is, nor
should consider himself to be, an advocate before he has
probable cause to have anyone arrested.” Id. at 274. Before
probable cause for an arrest, a prosecutor’s “mission at that
time [i]s entirely investigative in character.” Id. “Of course, a
determination of probable cause does not guarantee a
prosecutor absolute immunity from liability for all actions
taken afterwards. Even after that determination, . . . a
prosecutor may engage in ‘police investigative work’ that is
entitled to only qualified immunity.” Id. at 274 n.5. It follows
that when prosecutors function as investigators, rather than
advocates, they enjoy no right to absolute immunity. Id. at
275–76; see also Burns, 500 U.S. at 495 (observing that
absolute immunity is not so “expansive” as to protect all
“direct participation in purely investigative activity”); Kalina,
522 U.S. at 129–31 (declining to extend absolute immunity

20
where a prosecutor makes a false statement of fact in an
affidavit supporting an arrest warrant).

So to determine whether Olson and Martin may invoke
absolute immunity as a complete bar to civil liability, we must
parse these fine lines between advocacy and investigation. And
while “[i]t is tempting to derive bright-line rules” from the
Supreme Court’s jurisprudence, we have “cautioned against
such categorical reasoning” to “preserve the fact-based nature
of the inquiry.” Odd v. Malone, 538 F.3d 202, 210 (3d Cir.
2008); see also Imbler, 424 U.S. at 431 n.33. As a result, “our
prosecutorial immunity analysis focuses on the unique facts of
each case and requires careful dissection of the prosecutor’s
actions.” Odd, 538 F.3d at 210. Although the fair distance from
the ordinary language of § 1983 and “the ‘functional
categories’ approach to immunity questions . . . make faithful
adherence to the common law embodied in [it] very difficult,”
that is the path we must follow. Kalina, 522 U.S. at 135 (Scalia,
J., concurring).

But it should not be easy travel. Once asserted, the onus
is on the prosecutor to demonstrate “that absolute immunity
should attach to each act he allegedly committed that gave rise
to a cause of action.” Light, 472 F.3d at 80. And that burden is
uniquely heavy. Odd, 538 F.3d at 207 (quoting Light, 472 F.3d
at 80–81). Indeed, “[a]sserting a[n] . . . immunity defense via a
Rule 12(b)(6) motion subjects the defendant to a more
challenging standard of review than would apply on summary
judgment.’’ Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir.
2004). That is because in a motion to dismiss, “it is the
defendant’s conduct as alleged in the complaint that is
scrutinized.” Behrens v. Pelletier, 516 U.S. 299, 309 (1996).
Meaning to earn the protections of absolute immunity, a

21
defendant must show that the conduct triggering absolute
immunity “clearly appear[s] on the face of the complaint.”
Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989).

Immunity, therefore, is neither one-size-fits-all, nor a
one-way street. Our analysis “has two basic steps, though they
tend to overlap.” Schneyder v. Smith, 653 F.3d 313, 332 (3d
Cir. 2011). First, we “ascertain just what conduct forms the
basis for the plaintiff’s cause of action.” Id. Then, we
“determine what function (prosecutorial, administrative,
investigative, or something else entirely) that act served,” id.,
to determine whether the Prosecutors have carried their
“burden of showing that such immunity is justified for the
function in question,” Burns, 500 U.S. at 486. Thus, while we
tend to discuss prosecutorial immunity based on alleged acts,
our ultimate analysis is whether a defendant has established
absolute prosecutorial immunity from a given claim.

Using this framework, we conclude that Olson and
Martin are not, at this stage, entitled to absolute immunity from
Fogle’s § 1983 claims if they relate to investigative, not
prosecutorial, activity.

B. Applying the Functional Test to Olson and Martin’s
Absolute Immunity Defense

Does absolute immunity bar each of Fogle’s § 1983
claims? The answer requires a “careful dissection of the
prosecutor[s’] actions” that support Fogle’s claims. Odd, 653
F.3d at 210.

Fogle raises several claims against Olson and Martin:
violation of Fogle’s due process rights by fabricating evidence

22
and withholding material exculpatory and impeachment
evidence; civil rights conspiracy; and failure to intervene. All
of these claims hinge on the same conduct: Olson and Martin’s
roles in obtaining statements from Elderkin, Patty Long,
Dennis Fogle, and the jailhouse informants; their initiation of
the prosecution against Lewis Fogle; and their concealment of
their tactics from the court and from the defense. We will
“carefully defin[e] [each] act that gave rise to [Fogle’s] suit” in
turn. Odd, 538 F.3d at 202.

1. Olson and Martin’s Conduct in Procuring
Elderkin’s Statements

We start with the saga of Elderkin. Olson allegedly
“arranged for an English teacher with no formal training in
hypnosis to ‘hypnotize’ Elderkin.” (App. at 48.) Then, Olson
and the State Troopers directed “the ‘hypnotist’ [to use] undue
suggestion to obtain a statement from Elderkin implicating”
Fogle. (App. at 48.) Immediately afterward, working alongside
the State Troopers, Olson took another statement from
Elderkin and this time, “there were no longer large gaps in
Elderkin’s memory, the account was no longer hazy, and he
expressed little uncertainty about what had occurred.” (App. at
48.) It was this post-hypnosis statement that provided the
probable cause to arrest Fogle.

Olson’s role in obtaining Elderkin’s statement
constitutes investigatory conduct, a conclusion flowing from
the Supreme Court’s decision in Burns v. Reed. In Burns, a
prosecutor claimed absolute immunity for providing police
officers guidance on how to use hypnosis to obtain a witness
statement. 500 U.S. at 482–83. The Supreme Court held that a
prosecutor “advising the police in the investigative phase of a

23
criminal case” did not warrant absolute immunity. Id. at 493.
Olson’s conduct goes beyond advice, and allegedly included
finding the hypnotist, encouraging undue suggestion, and
participating in Elderkin’s post-hypnosis questioning. By
choreographing and securing Elderkin’s statement, Olson
played “the detective’s role” to “search[] for the clues and
corroboration,” Buckley, 509 U.S. at 273, and establish
probable cause to arrest Fogle. Those acts do not enjoy
absolute immunity.

While Martin’s alleged conduct stands in a different
light, it leads to the same conclusion. The complaint alleges
that “Defendants knew that Elderkin’s post-hypnosis
statement, like his previous statements, was wholly unreliable,
untrustworthy, and entirely false” and “knew it was
contradicted by evidence obtained earlier during the
investigation.” (App. at 49.) That could mean Martin was just
as involved as Olson in shaping Elderkin’s testimony. Or it
might mean Martin learned of the discrepancies later, well into
his preparation for trial. But recall that for Martin to succeed
on a motion to dismiss based on absolute immunity, “the
defense must clearly appear on the face of the complaint.”
Wilson, 878 F.2d at 776. While more scrutiny, and additional

24
facts, may produce a different result, Martin has not yet carried
his burden. 14

2. Patty Long’s Statement

Fogle also alleges that “Defendants used improper
tactics to obtain false evidence that would eliminate
inconsistencies, corroborate Elderkin’s statement and help
them close the case.” (App. at 50.) To accomplish that goal,
Fogle claims, the State Troopers questioned Patty Long until
she “adopted a new, false story, fed to [her].” (App. at 50.)

14
We have recognized that where “a lack of factual
specificity in a complaint prevents the defendant from framing
a fact-specific qualified immunity defense, which, in turn,
precludes the district court from engaging in a meaningful
qualified immunity analysis[,] [t]he appropriate remedy is the
granting of a defense motion for a more definite statement
under Federal Rule 12(e).” Thomas v. Independence Township,
463 F.3d 285, 289 (3d Cir. 2006); see also Weiland v. Palm
Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321 n.10 (11th
Cir. 2015). This rings equally true for invocations of absolute
immunity. Courts should be mindful that where the allegations
in a complaint do not require a more definite statement,
immunity defenses will often require the benefit of discovery.
Russell, 905 F.3d at 253 (quoting Thomas, 463 F.3d at 301)
(noting “summary judgment remains a useful tool for
precluding insubstantial claims from proceeding to trial”); see
also Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir.
2000) (Easterbrook, J., concurring in part and concurring in the
judgment) (“Rule 12(b)(6) is a mismatch for immunity and
almost always a bad ground for dismissal.”). We defer to the
District Court to determine the best path.

25
Fogle then alleges that “[i]n the probable cause affidavit they
presented to the magistrate judge,” Olson and Martin failed to
report the “past inconsistent statements of Patty Long.” (App.
at 51–52.) But failing to report the alleged inconsistencies
while “appearing before a judge and presenting evidence”
involves the Prosecutors’ conduct as advocates, where they
enjoy absolute immunity. Burns, 500 U.S. at 491. So the
Prosecutors are entitled to absolute immunity for this conduct.

3. Dennis Fogle’s Statement

Next, Lewis Fogle alleges that the State Troopers
interrogated his brother Dennis twice in the twenty-four-hour
period after his arrest. During the first interrogation, the State
Troopers “worked to coerce a confession from Dennis” by
“using threats, intimidation, and . . . feeding him non-public
details from Elderkin’s statement about the way the crimes
supposedly had occurred.” (App. at 52.) By the next day, Olson
joined the fray and “used the same improper tactics to obtain
another false and fabricated” statement from Dennis. (App. at
52.) And to cover up their misconduct, the Prosecutors
collectively “misrepresented in written and oral reports that
Dennis Fogle had volunteered the ‘confession’ and subsequent
statement without coercion or suggestion.” (App. at 52.)

Olson’s claim of immunity for this conduct is temporal:
he argues that since Dennis’s interrogation occurred after
arrest, the “judicial process was clearly in motion” entitling
him to immunity. (Opening Br. at 20.) But “[w]e have rejected
bright-line rules that would treat the timing of the prosecutor’s
action (e.g. pre- or postindictment), or its location (i.e. in- or
out-of-court), as dispositive.” Odd, 538 F.3d at 210. That
approach sensibly counsels that we “not view the filing of a

26
complaint as a foolproof measure of the commencement of
‘quasi-judicial’ activity.” Kulwicki, 969 F.2d at 1466. Instead,
the “key to the absolute immunity determination is not the
timing of the investigation relative to a judicial proceeding, but
rather the underlying function that the investigation serves and
the role the [prosecutor] occupies in carrying it out.” B.S. v.
Somerset County, 704 F.3d 250, 270 (3d Cir. 2013).

As alleged, Olson’s conduct in interviewing Dennis
Fogle was not that of an advocate. Rather, the interview
occurred at the end of a long chain of investigative events led,
or supervised, by Olson. Recall that without Elderkin’s
hypnotic recollections, there may have been no probable cause
for Dennis Fogle’s arrest. Allegedly, Olson knew this; indeed,
Lewis Fogle claims Olson’s active participation fueled the
entire investigation. For that reason, Olson was not acting as
an advocate “interviewing witnesses as he prepare[d] for trial”;
instead, he was investigating the theory of his case by
“searching for . . . clues.” Buckley, 509 U.S. at 273. On that
basis, and at this stage, Olson does not receive absolute
immunity for his role in obtaining Dennis Fogle’s statement or
concealing the methods leading to his confession.

Less clear are Martin’s interactions with Dennis Fogle.
The complaint alleges that “Defendants misrepresented in
written and oral reports that Dennis Fogle had volunteered the
‘confession’ and subsequent statement without coercion or
suggestion, and otherwise hid their misconduct with respect to
Dennis Fogle’s statements.” (App. at 52–53.) Based on this
assertion, Martin may have functioned as an advocate, an
investigator, or played no role at all. While discovery may
produce a different result, at this stage, Martin has not carried
his burden to enjoy the protections of absolute immunity for

27
his conduct related to Dennis Fogle’s confession. See Yarris,
465 F.3d at 138 (holding that, where it is not clear from a
complaint whether a prosecutor’s action was investigative or
quasi-judicial, a motion to dismiss based on absolute immunity
is properly denied).

4. Statements by the Jailhouse Informants

Fogle alleges that Olson and Martin “knew about,
encouraged, or permitted” the State Troopers to fabricate
statements from three jailhouse informants, each describing
Fogle’s purported confession to the crime. (App. at 54, 56.)
Again, Olson and Martin assert that absolute immunity protects
this conduct because it “occurred after the initiation of criminal
charges.” (Opening Br. at 18.) And again, relying on our
decision in Yarris, the Prosecutors call for a bright line
extending absolute immunity to all conduct surrounding
informants after the filing of charges. But once again, that line
is unsupported by our precedent.

Our role is not to look at the “timing of the prosecutor’s
action (e.g. pre- or postindictment),” but at the function being
performed. Odd, 538 F.3d at 210. In Yarris, after closely
reviewing the facts, we held that the prosecutors were entitled
to absolute immunity from a claim that they had obtained a
false statement from a jailhouse informant. 465 F.3d at 139.
Our conclusion turned on the attorneys’ work in preparation
for trial with the prosecutors acting as “advocates rather than
investigators.” Id. In contrast, Fogle alleges that the
Prosecutors not only solicited false statements from jailhouse
informants, but deliberately encouraged the State Troopers to
do the same “[k]nowing their evidence was weak” (App. at 53),
given the fabricated (Elderkin), inconsistent (Kathy’s sister

28
and friend), and coerced (Dennis Fogle) witness statements.
Thus, the Prosecutors were functioning not as advocates, but
as investigators seeking to generate evidence in support of a
prosecution. This illustrates why “a determination of probable
cause does not guarantee a prosecutor absolute immunity from
liability for all actions taken afterwards,” because “[w]hen the
functions of prosecutors and detectives are the same, as they
were here, the immunity that protects them is also the same.”
Buckley, 509 U.S. at 274 n.5, 276. Accepting the facts alleged
as true and drawing all inferences in favor of Fogle, neither
Olson nor Martin have carried their burden to demonstrate that
they are entitled to absolute immunity for this conduct at this
stage.

5. The Prosecutors’ Conduct at Hearings and Trial

Finally, some of Fogle’s claims rest on a host of actions
within the Prosecutors’ duties as advocates during the judicial
process. He alleges that at hearings and at trial the Prosecutors
withheld material exculpatory evidence from defense counsel,
the court, and the jury; filed a criminal complaint without
probable cause; and committed perjury before and during trial.
These activities are “intimately associated with the judicial
phase of the criminal process.” Burns, 500 U.S. at 486 (quoting
Imbler, 424 U.S. at 430). And all enjoy absolute immunity. See
id. at 487–92 (wrongful prosecution); Imbler, 424 U.S. at 431
(beginning prosecution and presenting the state’s case); Smith
v. Holtz, 210 F.3d 186, 199 n.18 (3d Cir. 2000) (withholding
evidence); Davis v. Grusemeyer, 996 F.2d 617, 630 n.28 (3d
Cir. 1993) (perjury), overruled on other grounds by Rolo v.

29
City Investing Co. Liquidating Tr., 155 F.3d 644 (3d Cir.
1998).

IV. CONCLUSION

In sum, Olson and Martin are absolutely immune only
for their alleged conduct in launching the prosecution against
Fogle, failing to include information about Patty Long’s
previous statements in their probable cause affidavit,
withholding material exculpatory and impeachment evidence,
and making misrepresentations to the court. But Olson and
Martin are not, at this stage, entitled to absolute immunity for
their alleged conduct in procuring Elderkin’s statements,
Dennis Fogle’s confession, or the jailhouse informant
statements. As these actions implicate all of Fogle’s claims, we
will affirm the District Court’s decision to deny dismissal
based on absolute immunity. We leave for the District Court
on remand to determine which of Fogle’s claims against Olson
and Martin survive on the merits. And, of course, Olson and
Martin are still entitled to seek qualified immunity.

Our decision offers little to celebrate. Lewis Fogle can
move forward with some, but not all, of the allegations in his
complaint against the Prosecutors. The Prosecutors must
explain some, but not all, of their choices. And decades later,
answers and earthly peace still elude Deann “Kathy” Long and
her grieving family. But the doctrine of absolute immunity is
fact-bound, seeking to pinpoint the moments when
investigation becomes advocacy, with the curtain of immunity
raising and lowering in response. Although absolute
prosecutorial immunity exceeds both the doctrine’s historic
scope and the statutory text, we cannot use the original
meaning of a statute as a “makeweight” against precedent,

30
United States v. Johnson, 921 F.3d 991, 1002 (11th Cir. 2019),
nor hand-pick binding decisions to follow. Bosse v. Oklahoma,
137 S. Ct. 1, 2 (2016). So we will affirm the District Court’s
order denying Olson and Martin’s motion to dismiss based on
absolute immunity as far as the claims depend on non-
prosecutorial activities and dismiss Indiana County’s appeal
for lack of jurisdiction.

31