## Facts

- Cathy Burns reported that an unknown assailant attacked her and shot her two sons; police investigators increasingly treated Burns as the primary suspect.
- Police officers consulted Chief Deputy Prosecutor Richard Reed about using hypnosis as an investigative technique; Reed advised that they could proceed.
- During hypnosis, Burns referred to the assailant as “Katie” and also used that name for herself; officers treated this as support for a multiple-personality theory.
- Officers again consulted Reed, who advised they “probably had probable cause” to arrest Burns; officers arrested her.
- Reed and an officer appeared before a judge at a probable-cause hearing to obtain a search warrant for Burns’s house and car.
- At the hearing, the officer testified (in response to Reed’s questioning) that Burns had “confessed” to shooting her children; neither the officer nor Reed disclosed that the statement was obtained under hypnosis or that Burns had otherwise denied involvement.
- A search warrant issued; Burns was charged with attempted murder; her home and car were searched.
- A court later suppressed the hypnotically induced statements, and the charges were dropped.
- Burns sued Reed under 42 U.S.C. § 1983 for damages, alleging constitutional violations based on (1) Reed’s advice to police and (2) Reed’s role in the warrant probable-cause hearing.

## Issues

1. Whether a prosecutor is absolutely immune under § 1983 for giving legal advice to police during the investigative phase (including advice about hypnosis and probable cause to arrest).
2. Whether a prosecutor is absolutely immune under § 1983 for conduct as an advocate in a judicial probable-cause hearing to obtain a search warrant.

## Decision

- The Court held that absolute immunity protected Reed’s participation in the probable-cause hearing supporting the search-warrant application.
- The Court held that absolute immunity did not protect Reed’s out-of-court legal advice to police during the investigation; that conduct is subject at most to qualified immunity.
- The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings consistent with these immunity rulings.

## Legal Principles

- Prosecutorial immunity under § 1983 turns on the function performed, not the prosecutor’s title.
- A prosecutor has absolute immunity for acts “intimately associated with the judicial phase of the criminal process,” including advocacy in court in support of a warrant at a probable-cause hearing.
- Absolute immunity may apply even when the plaintiff alleges the prosecutor presented misleading evidence in a judicial proceeding, so long as the challenged conduct is advocacy within that proceeding.
- A prosecutor is not absolutely immune for giving legal advice to police about investigative techniques or probable cause during the investigative phase; such conduct is treated as executive/investigative and receives only qualified immunity.
- The official seeking absolute immunity bears the burden of showing that absolute immunity is justified for the specific function at issue.

## Conclusion

The Court drew a functional line between protected courtroom advocacy and unprotected investigative counseling: prosecutors are absolutely immune for advocacy in a search-warrant probable-cause hearing, but not for advising police on investigative steps and arrest decisions, which is governed by qualified immunity.


Burns v. Reed, 500 U.S. 478 (1991)