United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 27, 2022
No. 20-30406 Lyle W. Cayce
Clerk
Michael Wearry,
Plaintiff—Appellee,
versus
Paulette H. Foster, as the Personal Representative of Appellant Marlon
Kearney Foster, for substitution in the place and stead of the Appellant Marlon
Kearney Foster, deceased; Scott M. Perrilloux, in his Individual
Capacity and in his Official Capacity as District Attorney for the 21st Judicial
District of Louisiana; Kearney Matthew Foster, as the Personal
Representative of Appellant Marlon Kearney Foster, for substitution in the place
and stead of the Appellant Marlon Kearney Foster, deceased; William
Aaron Foster, as the Personal Representative of Appellant Marlon
Kearney Foster, for substitution in the place and stead of the Appellant Marlon
Kearney Foster, deceased; Annette Foster Alford, as the Personal
Representative of Appellant Marlon Kearney Foster, for substitution in the place
and stead of the Appellant Marlon Kearney Foster, deceased,
Defendants—Appellants.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:18-CV-594
ON PETITIONS FOR REHEARING EN BANC
Before King, Dennis, and Ho, Circuit Judges.
No. 20-30406
Per Curiam:
Treating the petition for rehearing en banc, as to Appellant, Scott M.
Perrilloux, as a petition for panel rehearing (5th Cir. R. 35 I.O.P.), the
petition for panel rehearing is DENIED. The petition for rehearing en banc
is DENIED because, at the request of one of its members, the court was
polled, and a majority did not vote in favor of rehearing (Fed. R. App. P.
35 and 5th Cir. R. 35).
Treating the petition for rehearing en banc, as to Appellants, Paulette
H. Foster, Kearney Matthew Foster, William Aaron Foster and Annette Fos-
ter Alford, as a petition for panel rehearing (5th Cir. R. 35 I.O.P.), the
petition for panel rehearing is DENIED. The petition for rehearing en banc
is DENIED because, at the request of one of its members, the court was
polled, and a majority did not vote in favor of rehearing (Fed. R. App. P.
35 and 5th Cir. R. 35).
In the en banc poll, seven judges voted in favor of rehearing (Judges
Richman, Jones, Smith, Southwick, Duncan, Oldham, and Wilson), and nine
voted against rehearing (Judges Stewart, Dennis, Elrod, Haynes, Graves,
Higginson, Willett, Ho, and Engelhardt).
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No. 20-30406
James C. Ho, Circuit Judge, concurring in denial of rehearing en banc:
I agree with much of the dissent, as the dissent rightly points out. Yet
I vote to deny rehearing en banc. I write to briefly explain why.
Respected judges and scholars have said that absolute prosecutorial
immunity is inconsistent with the text and original understanding of 42
U.S.C. § 1983, and I tend to agree. See Wearry v. Foster, 33 F.4th 260, 273,
279–80 (5th Cir. 2022) (Ho, J., dubitante) (discussing authorities). I’ve also
said that “we [should] decide every case faithful to the text and original
understanding of the Constitution, to the maximum extent permitted by a
faithful reading of binding precedent.” Texas v. Rettig, 993 F.3d 408, 409
(5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc).
Of course, as a three-judge panel deciding a case on the merits, we’re
required to follow governing Supreme Court and circuit precedent. That’s
why I would’ve granted prosecutorial immunity, despite my personal views.
But unlike a panel decision on the merits, the decision whether to
rehear a case en banc is entirely discretionary. Nothing in the rules of federal
appellate procedure requires us to take a case en banc—not even when a
panel decision conflicts with Supreme Court or circuit precedent. So I
exercise my discretion to maximize for the original meaning. See id.
Moreover, declining en banc rehearing here is consistent with the
conceptual framework I’ve previously set forth for cases involving qualified
immunity for public officials: When public officials are forced to make split-
second, life-and-death decisions in a good-faith effort to save innocent lives,
they deserve some measure of deference. By contrast, when public officials
make the deliberate and considered decision to trample on a citizen’s
constitutional rights, they deserve to be held accountable. See Horvath v. City
of Leander, 946 F.3d 787, 799–803 (5th Cir. 2020) (Ho, J., concurring); see
also Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J., respecting
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No. 20-30406
denial of certiorari) (“[W]hy should university officers, who have time to
make calculated choices about enacting or enforcing unconstitutional
policies, receive the same protection as a police officer who makes a split-
second decision to use force in a dangerous setting?”); Villarreal v. City of
Laredo, 44 F.4th 363, 371 (5th Cir. 2022) (“There is a big difference between
‘split-second decisions’ by police officers and ‘premeditated plans to arrest
a person for her journalism, especially by local officials who have a history of
targeting her because of her journalism.’”) (quoting the Institute for Justice).
This framework explains my votes on a number of recent en banc
rehearing petitions that have sharply divided our court. Compare Winzer v.
Kaufmann County, 940 F.3d 900 (5th Cir. 2019); Ramirez v. Guaddarama, 2
F.4th 506 (5th Cir. 2021), with Oliver v. Arnold, 19 F.4th 843 (5th Cir. 2021).
I voted in favor of the police officers in Winzer and Ramirez—and
against the officials here and in Oliver (and Villarreal too). What explains my
divergent votes is the divergent factual allegations presented in those cases,
which we of course must accept as true at this stage of the proceedings.
In Winzer, police officers were engaged in a split-second, good-faith
effort to protect innocent lives against an active shooter. So too in Ramirez,
where police officers made a split-second, good-faith decision to protect
innocent lives from a man who threatened to set his home and family on fire.
The present case, by contrast, falls squarely in the deliberate violation
bucket. It involves an effort to deliberately coerce false witness testimony in
order to secure a capital murder conviction. So too in Oliver, where a public
school teacher was engaged in the deliberate decision to punish a student
whose political or religious views he personally disagreed with.
I see no compelling need for the extraordinary remedy of rehearing en
banc in light of the troubling allegations of deliberate misconduct presented
in this case. Accordingly, I concur in the denial of rehearing en banc.
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No. 20-30406
Edith H. Jones, Circuit Judge, joined by Smith and Duncan, Circuit
Judges, dissenting from denial of en banc rehearing:
Wearry v. Foster should easily have garnered en banc reconsideration
because it dramatically recharacterizes, and thus confuses, the scope of
absolute prosecutorial immunity in the Fifth Circuit. The opinion fatally
conflicts with this court’s two-decade old opinion in Cousin v. Small,
325 F.3d 627 (5th Cir. 2003), a conflict that should alone have engendered en
banc review. 1 But the opinion also conflicts with significant sister circuit
decisions. And the opinion will provoke substantial litigation that otherwise
wouldn’t have happened. Pity the district court judges and counsel who must
steer between the Scylla of Wearry and the Charybdis of Cousin. I respectfully
dissent from denial of rehearing en banc.
Judge Ho’s “dubitante” opinion explains why he saw “no principled
basis that the panel majority could possibly invoke to distinguish Cousin.”
Wearry v. Foster, 33 F.4th 260, 276 (5th Cir. 2022) (Ho, J., dubitante). I agree.
The majority opinion is on point factually with Cousin but unjustifiably casts
the earlier case aside in its analysis.
A. Facts
First, the facts. In 1998, sixteen-year old Eric Walber was delivering
pizza when he was kidnapped by Michael Wearry and his friends, brutally
beaten, and then run over by them with a car (several times). Louisiana has
since convicted Wearry twice for his role in killing Walber. The Supreme
Court reversed Wearry’s first capital conviction on review of a state habeas
decision, concluding that the prosecution had withheld Brady material.
See Wearry v. Cain, 577 U.S. 385, 136 S. Ct. 1002 (2016). Facing a retrial,
1
“It is a firm rule of this circuit that in the absence of an intervening contrary or
superseding decision by this court sitting en banc or by the United States Supreme Court,
a panel cannot overrule a prior panel’s decision.” Burge v. Parish of St. Tammany, 187 F.3d
452, 466 (5th Cir. 1999).
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No. 20-30406
however, Wearry pled guilty to manslaughter in 2019 and received a 25-year
imprisonment sentence. 2
Wearry filed the instant § 1983 action in 2018 in the Middle District
of Louisiana. His complaint alleges that Scott Perrilloux, the DA at the time,
and Marlon Foster, a detective, fabricated a story that Jeffrey Ashton, on the
night of the murder, saw Wearry driving Walber’s car and saw him toss a
bottle of Walber’s cologne into a ditch. Perrilloux and Foster then allegedly
coerced Ashton to testify to this entirely false story at Wearry’s capital
murder trial. Wearry alleged that the misdeeds of Perrilloux and Foster took
place after Wearry was indicted and in preparation for that trial.
Now compare the facts before the court in Cousin. Simply put, the
prosecutor in that case was alleged to have caused the witness to “give false
trial testimony that would implicate Cousin,” 325 F.3d at 632, “told him to
lie about Cousin to avoid a lengthy sentence for armed robbery” for himself,
id. at 634, and instructed the witness “what to say.” id. The prosecutor
elicited assistance from the witness’s counsel. Id. All this was done post-
indictment and while the prosecutor was preparing the witness for trial. Id.
at 634–35.
Notwithstanding these parallel circumstances, the panel majority
asserts that the prosecutors in Wearry did “‘not simply . . . elicit false
testimony’—they ‘invented a false narrative.’” 33 F.4th at 276 (Ho, J.,
dubitante). With due respect, these distinctions are the product of
wordsmithing, not reality.
B. The Law of Prosecutorial Immunity
Moving on to the law, the holding of Cousin is crisp and clear: If a
prosecutor conducts a witness interview that is “intended to secure evidence
2
“Man accused in Louisiana teen’s death enters plea deal,” Associated Press.
March 10, 2019. https://www.tuscaloosanews.com/story/news/state/2019/03/11/man-
accused-in-louisiana-teens-death-enters-plea-deal/5746510007/
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that would be used in the presentation of the state’s case at [trial], not to
identify a suspect or establish probable cause . . . [the prosecutor] is therefore
entitled to absolute immunity.” 325 F.3d at 635 (footnote omitted). After
discussing the principal Supreme Court cases dealing with prosecutorial
immunity, the Cousin court concluded, “the question of absolute immunity
turns on whether Cousin had been identified as a suspect at the time [the
witness] was interviewed and whether the interview related to testimony to
be presented at trial.” Id. at 633. Accordingly, a prosecutor who fabricates
evidence by coercing a witness to testify falsely at trial is acting in an
“advocacy” capacity (not in an “investigative” role) and is entitled to
absolute immunity when those activities occur post-indictment. As Judge Ho
observes, commentators have interpreted Cousin to so hold. 3 Wearry,
33 F.4th at 275 (Ho, J., dubitante).
The analysis in Cousin flows directly from governing Supreme Court
precedent. When a prosecutor is accused of misconduct, courts apply a
functional test to determine whether his actions merit absolute immunity.
See Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2601, 2613 (1993).
The basic question is “whether particular actions of government officials fit
within a common-law tradition of absolute immunity, or only the more
general standard of qualified immunity.” Id. The test involves “the nature
of the function performed, not the identity of the actor who performed it.”
Id. (citation omitted). If the action is post-indictment and in the nature of
advocacy, absolute immunity applies. Id. at 272–73, 113 S. Ct. at 2615. If the
3
See William S. Helfand & Ryan Cantrella, Individual Governmental Immunities in
Federal Court: The Supreme Court Strengthens and Already Potent Defense, 47 The Advoc.
(Texas) 21, 22 (2009); Margaret Z. Johns, Reconsidering Absolute Prosecutorial Immunity,
2005 B.Y.U. L. REV. 53, 104 (2005); When is prosecutor entitled to absolute immunity from
civil suit for damages under 42 U.S.C.A. § 1983: post-Imbler cases, 63 A.L.R.6th 255 (2011).
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challenged violation is pre-indictment or investigatory, then the prosecutor
may claim at best qualified immunity. Id. at 273–74, 113 S. Ct. at 2616. 4
Quoting Buckley and Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984
(1976), the Fifth Circuit in Cousin accurately described the functional
distinction:
[P]rosecutors are absolutely immune with respect to activities that
are intimately associated with the judicial phase of the criminal
process. Conduct falling within this category is not limited only
to the act of initiation itself and to conduct occurring in the
courtroom, but instead includes all actions which occur in the
course of the prosecutor’s role as an advocate for the State.
Cousin, 325 F.3d at 631–32. (internal citations, brackets, and quotation marks
omitted) (emphasis added). Cousin rejects any narrowing of absolute
immunity that carves out of the scope of advocacy vaguely defined
subcategories, such as “evidence gathering.” Wearry, 33 F.4th at 272.
Specifically, Cousin rejects the D.C. Circuit’s holding in Moore v. Valder,
65 F.3d 189 (D.C. Cir. 1995), “that the collection of information for use in a
prosecution is necessarily investigative rather than advocatory conduct.”
Cousin, 325 F.3d at 633 n.6. As the court explains, such a narrowing violates
Imbler, which “explicitly recognized that ‘[p]reparation, both for the
initiation of the criminal process and for a trial, may require the obtaining,
reviewing, and evaluating of evidence.” Id. (quoting Imbler, 424 U.S. at 431
n. 33, 96 S. Ct. at 995 n.33). To repeat, Cousin held that interviewing and
prepping witnesses post-indictment for trial is part of advocacy under Imbler.
Now compare Wearry’s approach to the law. In spite of Cousin’s
clarity, the Wearry panel essentially adopts the Moore distinction, effectively
4
Cousin and both Wearry opinions note Buckley’s caveat that “a determination of
probable cause does not guarantee a prosecutor absolute immunity” for all actions
occurring thereafter. Buckley, 509 U.S. at 274 n.5, 113 S. Ct. at 2616 n.5. One can readily
envision circumstances post-indictment that would not constitute “advocacy” or
preparation for trial. But this case embodies no such circumstance.
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overruling Cousin. See Wearry, 33 F.4th at 266. The Wearry panel relies on
Barbera v. Smith, 836 F.2d 96 (2d Cir. 1987), the same Second Circuit opinion
that Moore relies upon for the holding expressly rejected by Cousin. Wearry
consequently asserts that “[t]he bare labels ‘advocatory’ and ‘investigatory,’
however, are of limited utility.” 5 Wearry, 33 F.4th at 266. The majority goes
on to say, “[a] distinction more sensitive to the facts of this case is that
between the advocatory function of organizing, evaluating, and presenting
evidence, and the separate investigatory function of gathering or acquiring
evidence.” Id. (citing Barbera, 836 F.2d at 101). The majority places
Perrilloux’s and Foster’s actions within the “investigatory” category
because, they assert, fabricating evidence is analogous to gathering evidence.
Id. at 271–72. This holding simply flouts Cousin. 6
5
Cousin aside, the Wearry panel’s reliance on Barbera is itself misplaced. First,
Barbera involves the conduct of prosecutors before a charging decision was made, and the
court specifically denied absolute immunity only for such pre-charge investigatory activity.
See Barbera, 836 F.2d at 98. The Barbera panel held that pre-indictment actions in that
case were investigatory and not absolutely immune, but it expressed “no view” on whether
the preparation of evidence that would enable the prosecutor to seek a warrant or
indictment would be absolutely immune. Id. at 100. Second, the panel majority’s use of
Barbera implies that the Second Circuit holds that post-indictment fabrication and coercion
of testimonial evidence is investigatory in nature. This is simply incorrect. The Second
Circuit’s precedent generally aligns with Cousin and applies absolute immunity to the
fabrication of testimony by the prosecutor to prepare for a grand jury determination
whether to indict. See Hill v. City of New York, 45 F.3d 653, 662 (2d Cir. 1995).
6
Interestingly, the Ninth Circuit was more faithful to Cousin than our brethren:
In Cousin, the Fifth Circuit held that a declaration by a witness who was
allegedly coerced and intimidated into lying “eliminate[d]” any
“ambiguity” about whether the prosecutor was engaged in an
investigatory or quasi-judicial function when he interviewed that witness.
[Cousin], 325 F.3d at 633. The declaration clearly showed that when the
prosecutor met with the witness, “he did so to tell [the witness] how he
should testify.” Id.
Genzler v. Longanbach, 410 F.3d 630, 642–43 (9th Cir. 2005) (Fletcher, J.) (Genzler then
explains that the interview fabricating evidence in Cousin involved absolutely immune
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No. 20-30406
Wearry purports to draw additional support for its dichotomy between
“gathering” evidence and “presenting evidence” from a series of Supreme
Court and lower court cases in which absolute prosecutorial immunity was
denied for activities in the former category. 7 In each of these, however, the
alleged misconduct occurred before any probable cause determination or
indictment of the defendant. None involved post-indictment witness trial
preparation.
For these reasons, Wearry created an irreconcilable conflict with
Cousin that this court should have addressed. 8
Compounding the intra-circuit conflict is the conflict between Wearry
and other circuits. See, e.g., Annappereddy v. Pascale, 996 F.3d 120 (4th Cir.
2021) (citing Cousin, fabricating evidence while coaching a witness post-
indictment is advocatory, and absolutely immune); Fields v. Wharrie,
740 F.3d 1107, 1115 (7th Cir. 2014) (“Once prosecution begins, bifurcating a
advocacy, while the police-style interrogation that was the subject of Genzler was found to
be investigatory.).
7
See Buckley, 509 U.S. 259, 113 S. Ct. 2606; Burns v. Reed, 500 U.S. 478, 111 S. Ct.
1934 (1991); Singleton v. Cannizzaro, 956 F.3d 773 (5th Cir. 2020); Wooten v. Roach,
964 F.3d 395 (5th Cir. 2020); Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014); Milstein v.
Cooley, 257 F.3d 1004 (9th Cir. 2001).
8
In yet another breach with the rule of orderliness, Wearry flatly contradicts several
opinions of this court in determining that detectives can avail themselves of qualified
immunity only, regardless of the functional approach to immunity dictated by the Supreme
Court. Morgan v. Chapman, 969 F.3d 238 (5th Cir. 2020) and other Fifth Circuit cases lend
strong support to Detective Foster’s claim for functional immunity on the facts pled here.
See O’Neal v. Miss. Bd. of Nursing, 113 F.3d 62 (5th Cir. 1997); Mays v. Sudderth, 97 F.3d
107 (5th Cir. 1996). But see Wearry, 33 F.4th at 273 (“[t]he Supreme Court has made clear
that police officers, even when working in concert with prosecutors, are not entitled to
absolute immunity”) (citing no post-Buckley authority). Indeed, the majority opinion
contradicts Buckley, which stated that “[w]hen the functions of prosecutors and detectives
are the same . . . the immunity that protects them is also the same.” Buckley, 509 U.S. at
276, 113 S. Ct. at 2617. Buckley, in turn, reproduces the functional approach applied in Butz
v. Economou, 438 U.S. 478, 511–12, 516, 98 S. Ct. 2894, 2913–14, 2916 (1978).
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No. 20-30406
prosecutor’s role between investigation and prosecution is no longer
feasible”); Hill v. City of New York, 45 F.3d 653, 662–63 (2d Cir. 1995)
(if prosecutor’s efforts that resulted in false testimony were undertaken for
presentation before a grand jury, absolute immunity would apply).
C. Conclusion
In voting against rehearing en banc, we display a lack of understanding
of the full consequences of the Wearry decision. Suppose a prosecutor is
interviewing a coroner in preparation for trial and says, “We AGREE,
DON’T WE, that the cause of death was a gunshot and not a heart attack?”
After Wearry, a mere allegation that the prosecutor knew the cause of death
was a heart attack may well defeat absolute immunity. But take it a step
further. Suppose a prosecutor is preparing a witness for trial and says, with
a wink of the eye or a lift of the eyebrow, “ISN’T THERE MORE you can
tell us about the defendant?”, prompting the witness to incriminate the
defendant further. In that situation, the plausible allegation that the
prosecutor invited the witness to commit perjury could lift the prosecutor’s
immunity. Wearry unabashedly holds that a prosecutor never acts in his role
as advocate when “fabricating” evidence. See 33 F.4th at 273. Whether the
fabrication occurs pre-indictment or in preparation for trial, this new
categorical rule applies in full force. Wearry, in sum, creates difficulties that
we will be sorting out over years of litigation.
Further, it undermines the principal goals of absolute prosecutorial
immunity, which are to shield those who serve the public trust from
“harassment by unfounded litigation.” Imbler, 424 U.S. at 423, 96 S. Ct. at
991. As Imbler recognizes and carefully explains, 9 even honest prosecutors,
beset by sizable dockets, limited time to prepare and strategize cases, and
9
This discussion explains the Court’s decision in Imbler to reject mere qualified
immunity for prosecutorial advocacy activities in favor of common law absolute immunity.
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No. 20-30406
even limited knowledge, may make questionable judgments that could be
subject to second-guessing years later in civil suits. Id. at 426, 96 S. Ct. at
993. Additionally, Imbler recognizes that questions of witness veracity that
pervade criminal cases can be tested in the adversarial process if the
prosecutor does not shy from presenting testimony for which he could be
later sued. Likewise, post-trial procedures are intended to ensure the
system’s fairness. Id. at 427, 96 S. Ct. at 993. “Th[e] [courts’] focus [on a
fair trial] should not be blurred by even the subconscious knowledge that a
post-trial decision in favor of the accused might result in the prosecutor’s
being called upon to respond in damages for his error or mistaken judgment.”
Id. And obviously, a prosecutor should not be deterred by the prospect of a
damages suit from bringing to attention after conviction significant evidence
of mitigation or innocence. Id. at n.25. Or from not prosecuting in the first
place without air-tight guarantees of the perfection of evidence and
testimony.
My emphasis on the goal of immunity is not a defense of deplorable
and unethical prosecutorial conduct. But we must not let a bad case make
bad law. And the stakes here are high for those in the business of prosecuting
crime as well as for the public. It is possible that in the future the Supreme
Court will reconsider the proper scope of prosecutorial immunity, or
Congress will legislate on the subject. Until those events occur, however,
judges’ proper role is to interpret governing precedent as well as possible,
and that includes abiding by our rule of orderliness for changing our circuit
law by en banc review. In supporting en banc review here, I offered our court
majority an opportunity to overrule Cousin, but they declined. In sum, we
are left with a mishmash, and these issues will recur, to the detriment of clear
law, of honest prosecutors, and the public interest.
12