Affirming a district court judgment on the pleadings holding that absolute immunity barred a suit concerning allegedly false testimony given at arbitration, the Second Circuit Court of Appeals has extended common law absolute immunity granted to witnesses in judicial proceedings to those testifying at arbitration.

In Rolon v. Henneman, No. 06-3890-CV, 2008 WL 482468 (2nd Cir. Feb. 25, 2008), the Acting Police Chief for the Town of Wallkill Police Department suspended police officer Rolon for various disciplinary violations. Rolon responded by suing the police department arguing, among other things, that Henneman had violated his constitutional right to due process. The parties settled the suit except for the issue of back pay, which they voluntarily submitted to arbitration.

The arbitrator found that Henneman had not provided truthful or credible testimony and that Henneman's personal hostility had motivated many of his actions against Rolon. The arbitrator ordered the department to reinstate Rolon, award back pay, and restore benefits.

Rolon then sued in federal court alleging that Henneman falsely testified against him, causing Rolon humiliation and emotional distress. Henneman moved for judgment on the pleadings claiming that his witness testimony at the arbitration hearing entitled him to absolute immunity. The district court agreed and Rolon appealed.

The Court held that Henneman was entitled to absolute immunity because the arbitral forum is analogous to a judicial forum. Absolute immunity exists for witnesses giving testimony at judicial proceedings to prevent witnesses from self-censoring or distorting their testimony for fear of subsequent liability. Moreover, absolute immunity facilitates the fact-finding process by encouraging witnesses to provide candid, objective, and undistorted information.

In Austern v. Chicago Board of Options Exchange, Inc. 898 F.2d 882 (2nd Cir. 1990), the Court extended to arbitrators the common law immunity accorded to judges because "the nature of the function of arbitrators necessitates protection analogous to that traditionally accorded to judges." Similarly, the function of a witness in arbitration is virtually identical to that of a judicial witness.

In arbitration, Henneman took an oath, offered testimony, responded to questions on direct and cross-examination, and was subject to possible perjury prosecution for giving false testimony. Therefore, "because the nature of this arbitration was materially indistinguishable to that of formal judicial proceedings, and because Henneman performed the same function as his judicial witness counterpart, absolute immunity should attach to Henneman as a testifying witness at the arbitration hearings."