Complaining witness - no prosecutorial immunity... (9th cir.)

Cervantes v. Jones, 188 F.3d 805 (7th Cir. 1999)

"The common law made a subtle but crucial distinction between two categories of witnesses with respect to their immunity for false testimony. Those whose role was limited to providing testimony enjoyed immunity; those who played a role in initiating a prosecution-- complaining witnesses--did not enjoy immunity." White v. Frank, 855 F.2d 956, 958-59 (2d Cir. 1988). To qualify as a complaining witness (and thereby be disqualified from absolute immunity), a witness must play a sufficient role in initiating the prosecution.5 Id. at 962. Of course, merely providing false testimony to a grand jury is not enough. Id. at 961. Rather, as we stated in Curtis, a complaining witness is one "'who actively instigated or encouraged the prosecution of the plaintiff.'" 48 F.3d at 286 (quoting Anthony, 955 F.2d at 1399 n.2); see Ireland v. Tunis, 113 F.3d 1435, 1447 (6th Cir. 1997) (no immunity for a "complaining witness who set the wheels of government in motion by instigating a legal action"); Enlow, 962 F.2d at 511 (a complaining witness is one who actively instigated, encouraged, or perpetrated the prosecution). Thus, the term "complaining witness" is something of a misnomer, as the complainant need not testify as a witness so long as he played a significant role in initiating or procuring the prosecution. Kalina v. Fletcher, 118 S. Ct. 502, 512 (1997) (Scalia, J., concurring); Malley, 475 U.S. at 340; Harris v. Roderick,