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Tuesday, July 17, 2018

Fourth Circuit on prosecutorial immunity

Prosecutorial immunity presents a problem. Immunity applies to all functions intimately associated with the judicial phase of the criminal-justice process, broadly defined. And it includes general office-wide policies relating to the judicial process, even if not to a specific prosecution. Courts have sought to draw a line between immune prosecutorial functions and non-immune administrative functions, namely employment decisions. But that distinction could collapse, because employment decisions may have some connection to a judicial proceeding or to judicial proceedings generally--for example, how to staff a case is an employment decision that implicates a prosecution and involves discretionary legal judgment. One way to avoid that collapse is to ask whether the § 1983 action requires that court to reconsider an underlying investigation or prosecution, a question that functionally turns on the identity of the plaintiff--immunity applies when the suit is brought by the target of the underlying prosecution, but it does not apply when the suit is brought by a non-target, such as an employee.

To take a simple example: Imagine the DA refuses to assign an African-American line prosecutor to a case because he believes the white prosecutor will be tougher on the African-American criminal defendant and push for a harsher sentence. If the defendant brings some sort of wrongful prosecution claim, immunity applies. If the passed-over line prosecutor brings a race-discrimination claim, immunity does not apply.

But the Fourth Circuit declined to accept that distinction. The plaintiff was a police officer who alleged that the state's attorney 1) subjected him to racial harassment by (gratuitously) reading aloud at a trial-preparation meeting letters and statements (that would be used as evidence) containing racial epithets and 2) retaliated against him for complaining about that conduct by refusing to call that officer as a witness at any future proceedings. The court held that trial prep and decisions about who to call as witness are immune prosecutorial functions, as they are intimately connected to the judicial phase of the criminal process, done while the attorney was acting as an advocate for the state. That this occurred in the employment context was irrelevant--"[t]hat a judgment about witness credibility or which cases to try has negative employment consequences - even readily foreseeable ones - does not change the underlying nature of that judgment."

This reasoning could broaden prosecutorial immunity in a way that swallows many employment claims. If discussing evidence and deciding what witnesses to call is prosecutorial, then it seems that an attorney could: sprinkle his trial-prep discussions with racial epithets; decide never to call any African-American police officer as a witness; decide never to prosecute a case in which the arresting officer is African-American; decide never to have an African-American police officer in the trial-prep meeting; decide never to assign a female attorney to work his cases or agree to work with a female attorney on his cases. There is no difference between creating a racially hostile environment and treating someone more poorly because of race or sex or whatever; all (if proved) violate Title VII and the Fourteenth Amendment. If they occur in the judicial phase, immunity should apply.

The court tried to avoid that end, insisting "it is only 'a certain kind of administrative obligation - a kind that itself is directly connected with the conduct of a trial.'" And "even in that context, if a prosecutor's alleged conduct cannot be connected to discretionary judgments about which witnesses to call and which cases to prosecute, then absolute immunity will not apply." But it is easy to connect employment acts to those immune discretionary judgments. The state's attorney can decide not to prosecute a case because the complaining officer is African-American or because the line prosecutor working the case is a woman. Either involves protected discretionary judgments. And the point of absolute immunity is that courts cannot look beneath the function and examine motive--if it is a prosecutorial decision (reviewing evidence, calling witnesses, pursuing cases), it is immune, even if the function is performed for no reason other than racial animus.

Posted by Howard Wasserman on July 17, 2018 at 01:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Very interesting ruling and post indeed . But one may question here some :

The Supreme court ruling , doesn't really exclude malicious conduct of a prosecutor from immunity . All it did is to assert , just to quote the circuit :

The Supreme Court recognized that this immunity would leave the “genuinely wronged” without a remedy against prosecutors acting for malicious or unlawful purposes. Imbler, 424 U.S. at 427. But the importance of shielding prosecutorial decision-making from the influence of personal liability concerns, the Court concluded, outweighed that harm.

End of quotation :

That is to say , that malicious conduct , is surly excluded . What it claims , is that the harm must be considered V. the state of mind and calmness of the prosecutor while fulfilling his duty . Not that immunity meant for shielding malicious conduct , but , this is collateral damage in fact . But one may argue , that if proven , and prima facie proven , that it is prima facie reasonable I mean by showing , that the prosecutor acted with malicious intent , it can't be then covered or shielded in accordance . This is precisely what has been presented in that post , imaginary cases of arbitrary and malicious conduct , that prima facie , may be proven so in court . For immunity , can never shield everything including everything . The issue , is an issue of burden of proof , and prima facie so. The calmness and function of a prosecutor , have nothing to do , with malicious acts . Not for it , immunity meant . But for , reasonable and legal actions , even if wrong discretion is involved . But , good faith , doesn't exclude mistakes , but certainly malice .

But concerning the case of that police officer . I am not so sure , that one can suggest , that excluding the police officer , in every future criminal phase , meets in fact that criteria of :

" Intimately associated with the judicial phase of the criminal process "

It looks more administrative , over prosecutorial one . How is it discretionary , if , future unknown yet cases , are included and blindly so , and determined in advance as such . For that is what the attorney of the state did . Excluding him in advance , from any future case , blindly so . This is not a kind of discretion it seems , has to do with that assertion of : " intimately associated with the judicial phase " for it is neither " phase " nor : " intimately associated " with then .

One may reach the ruling , in pdf format , here :



Posted by: El roam | Jul 17, 2018 5:33:20 PM

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