concurring:
I concur in the judgment because I think that the district court was plainly correct in sustaining the defendant’s plea of limitations. I write separately, not only to articulate my views on this point, but also to express my disapproval of the basis of the majority’s ground of decision and my doubts about its correctness.
I.
Plaintiff’s suit alleging violations of 42 U.S.C. §§ 1983 and 1985 arose out of events which occurred on July 25 or 26,1972. The suit was filed on October 16, 1975, more than three years after the events which allegedly constituted a violation of plaintiff’s civil rights. The alleged causes of action all arose in Virginia.
With respect to Virginia causes of action arising under § 1983, we held them time-barred under Virginia’s then two-year statute of limitations in Almond v. Kent, 459 F.2d 200 (4 Cir. 1972). Subsequent to Almond, Virginia has not extended the period of limitations. Indeed, Virginia has sought to contract it. See Va. Code § 8-24 (1975 Repl. Vol.) repealed Ch. 617,1977 Va. Acts. I perceive no basis on which it may be said that the running of the Virginia statute was tolled. It follows that the district court correctly ruled that defendant’s plea of limitations with respect to plaintiff’s alleged § 1983 cause of action was time-barred.
I think that plaintiff’s alleged § 1985 cause of action was similarly time-barred. I agree with the district court that “the considerations which persuaded the court in Almond v. Kent ... to apply the Virginia two-year limitation period to § 1983 actions are equally applicable to plaintiff’s conspiracy [§ 1985] claim,” and again I can find no basis on which to think that the running of the statute was tolled.
Even if I am incorrect in concluding that plaintiff’s § 1985 claim was time-barred, that claim was so patently frivolous that it should be disregarded. Plaintiff alleged that defendant, a state medical examiner who testified for the prosecution at the trial in which plaintiff was convicted of murder, conspired with the prosecuting attorney to give perjured testimony which deprived him of a fair trial. He did not allege, however, a denial of equal protection of the laws.
Plaintiff’s reference to § 1985 was general; he did not specify the subsection or subsections on which he relied. To my mind, §§ 1985(2) and 1985(3) are the only subsections which could conceivably apply to this case. But I cannot read the proscription in § 1985(2) against a conspiracy to “influence the verdict ... of any *111. juror,” to mean other than by “force, intimidation, or threat” and thus to exclude influence by perjury. See Brawer v. Horowitz, 535 F.2d 830, 840 (3 Cir. 1976). To the extent that § 1985(2) and § 1985(3) proscribe conspiracies to impede “the due course of justice” and “equal protection of the laws,” respectively, plaintiff’s failure to allege a denial of equal protection is fatal; he therefore had no cause of action under them. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
II.
While statutes of limitations , are not jurisdictional, i. e. they bar suit, if pleaded as defense, but do not destroy the original cause of action, I think that it behooves a court not to make substantive pronouncements on what was correctly asserted to be a stale claim.* That the instant case is stale belies the majority’s assertion that decision of the question of the immunity of a witness from civil suit in the instant context is “imperative presently.” While decision may be “imperative . . . prospectively,” it is axiomatic that courts do not give advisory opinions.
But since the majority explicitly declines to rule on the issue of limitations and persists in deciding the immunity issue, I state my doubts about the correctness of its decision. In my view, under the facts alleged by plaintiff, defendant would be liable under § 1983 unless he has absolute immunity as a witness. Of course a witness is generally afforded absolute immunity in ordinary litigation, as the majority documents. But should the rule of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), establishing the absolute immunity of a prosecutor from liability under § 1983, be extended to a state employee who is a witness in a state prosecution and who allegedly perjures himself to achieve improperly a conviction? I lack the certainty with which the majority responds affirmatively.
In Briggs v. Goodwin, 186 U.S.App.D.C. 179, 569 F.2d 10 (1977), cert. denied, - U.S. -, 98 S.Ct. 3089, 56 L.Ed.2d 1133 (1978), our sister circuit had occasion to touch on this question in a case in which the witness, who was one of the prosecutors, falsely testified before the district court that there were no government informers among potential witnesses who had been subpoenaed to appear before an existing grand jury. The prosecutor had been called as a witness by the court, asked the single question by the court and not permitted to be cross-examined.
When the prosecutor was later sued for his part in violating plaintiff’s civil rights by reason of his false testimony, he pleaded absolute immunity as a prosecutor under Imbler. The court rejected this claim. It held that he had only qualified immunity; Imbler established absolute immunity only so far as necessary to protect a prosecutor’s discretion with respect to the initiation and conduct of particular cases but did not protect a prosecutor absolutely with regard to other “wide-ranging law enforcement investigations or general fact-finding expeditions.” 186 U.S.App.D.C. at 189, 569 F.2d at 20.
Because the dissent in Briggs argued that the prosecutor should be afforded absolute immunity as a witness, the majority also dealt with this point. First, it stated that under the circumstances under which the prosecutor was called to testify and the manner in which he was examined, it thought that the record raised no issue of witness immunity; and moreover the district court had certified no question of witness immunity when it certified the question of prosecutorial immunity. But it went on to say that a question of witness immunity in an action under § 1983 raised a question of federal common law and that:
[I]t is far from clear that . ' . .a witness should enjoy the same measure of immunity, regardless of whether the wrong of which he is accused rises to *112constitutional dimension. Whatever the precise nature of the immunity accorded to witnesses at common law, that immunity applies without distinction to any individual serving as a witness in a judicial proceeding. On the other hand, where a constitutional infringement is alleged, the defendant-witness will almost invariably be a Government official. (At minimum, the “under color of law” requirement will assure some direct government involvement in the challenged testimony.) This is a crucial difference. Policy considerations counselling the insulation of private citizens from civil liability arising from their performance as witnesses do not apply with equal force when a complaint charges that constitutional rights have been violated by a public employee operating from the witness stand. (Emphasis in original.)
186 U.S.App.D.C. at 197, 569 F.2d at 28. See Hilliard v. Williams, 516 F.2d 1344, 1349 (6 Cir. 1975), vacated on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 41 L.Ed.2d 729 (1976), affirmed, 540 F.2d 220 (6 Cir. 1976) (police officer held liable under § 1983 for giving misleading testimony in homicide trial).
The quoted comments identify a relevant and pertinent consideration not even mentioned in the majority’s opinion. It may well be that, in balancing the inhibiting effect of possible harassment of civil suits on the performance of official duties by a government witness against a private citizen’s right to redress a denial of constitutional right, the fact that the plaintiff seeks to redress a constitutional tort may tip the balance against absolute witness immunity. For it may well be concluded that the criminal penalties for perjury should not alone be deemed a sufficient safeguard to prevent the constitutional tort resulting from perjury by a witness testifying in a governmental capacity. And I question whether a witness willing to commit perjury and to risk prosecution would actually be deterred by the threat of a civil suit. These are problems that I find difficult to resolve. Certainly the majority does not persuade me that they are resolved correctly.
For the same reason, I regret that counsel were required to file supplemental briefs on the question of the immunity of a witness to civil suit and to reargue their case, when they correctly perceived that the sole issue before us was one of whether the claims were stale.