8.2.A.2. Prosecutorial Immunity

JUDICIAL & PROSECUTOR IMMUNITY IS FUNCTIONAL
1. ATTACHES ONLY TO ACTS INTIMATELY RELATED TO INITIATION & PROSECUTION OF A CRIMINAL CASE
  1. Struggling to define the boundaries of prosecutorial immunity , the Court held that a prosecutor who advised police officers on Fourth Amendment considerations in an ongoing criminal investigation performed an investigatory rather than a prosecutorial function and was, therefore, not entitled to absolute immunity. That same prosecutor, however, was entitled to absolute immunity for eliciting misleading testimony from those officers at a hearing on an application for a search warrant. Burns v. Reed, 500 U.S. 47 8 (1991 ). Burns expressly declined to decide whether a prosecutor would be absolutely immune for maliciously seeking a warrant without probable cause; the Court limited its holding to conduct as an advocate during the probable-cause hearing.
    1. DISTINGUISH PURPOSE OF INDIVIDUAL ACTS CAPACITY
      1. In a significant Ninth Circuit decision, the court distinguished between purposes for obtaining a material witness warrant: "when a prosecutor seeks a material witness warrant in order to investigate or peremptorily detain a suspect, rather than to secure his testimony at another's trial, the prosecutor is entitled at most to qualified, rather than absolute immunity ." Because conducting a press conference is not intimately associated with the judicial process, a prosecutor is not absolutely immune for statements made during a press conference. al-Kidd v. Ashcroft, 580 F.3d 949, 963 (9th Cir. 2009).
      2. See also Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 686-87 (D.C. Cir. 2009) (Assistant United States Attorney not immune for participating in removal of grand jurors).
      3. Imbler and Kalina v. Fletcher extended absolute immunity to the initiation of a prosecution, and Imbler noted that “[p]reparation, both for the initiation of the criminal process and for a trial, may require the obtaining ... of evidence.” Imbler, 424 U.S. at 431 n. 33; Kalina v. Fletcher, 522 U.S. 118 (1997).
      4. Relying on that language, several courts of appeals have further ex tended absolute immunity to the prosecutor’s investigation and collection of evidence once probable cause is established. Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003); Herb Hallman Chevrolet Incorporated v. Nash-Holmes, 169 F.3d 636, 643 (9th Cir. 1999). Other courts have held that, before probable cause is established, an investigating prosecutor performs the role of police officer and is, therefore, not entitled to absolute immunity. Mitchell v. Forsyth, 472 U.S. 511 , 524 (1985) (attorney general not entitled to absolute immunity for ordering wiretaps as part of national security investigation since he was not acting in prosecutorial capacity ); Powers v. Coe, 728 F.2d 97 , 103 (2d Cir. 1984) (prosecutor not entitled to absolute immunity “when a prosecutor engages in or authorizes and directs illegal wiretaps” and “the wiretapping is ... investigative in nature...”).
      5. Post conviction work performed by prosecutors is generally subject to absolute immunity, particularly when the prosecutor continues her work as an advocate. Warney v. Monroe County, 587 F.3d 1 1 3 (2d Cir. 2009) (absolute immunity extends to failure by prosecutor to disclose post conviction DNA test results promptly); Hart v. Hodges, 587 F.3d 1288, 1296 (11 th Cir. 2009). The Supreme Court's recent decision in Van de Kamp v. Goldstein explained the boundary between prosecutorial and administrative functions and, in a sense, blurred them. In Goldstein, the plaintiff alleged that the district attorney and his chief assistant failed to adequately train line prosecutors on their duties to provide impeachment related information about prosecution witnesses to defense attorneys. Van de Kamp v. Goldstein, 1 29 S. Ct. 855 (2009).
      6. Although the claim was framed as a challenge to administrative procedure, the Court viewed it as dealing with the disclosure of information prior to trial which is "directly connected with the prosecutor's basic trial advocacy duties." The Court was unwilling to distinguish between cases of prosecutorial error at trial (to which absolute immunity attaches) and claims that such error was caused by inadequate training or insufficient information management systems, worried that claims of the former type could be easily recast as claims of the latter and usher in waves of litigation.
PERJURY IS FINE..
1. Although a prosecutor who suborns perjury at a criminal trial is absolutely immune, a prosecutor who manufactures false evidence does not enjoy absolute immunity. The former performs a prosecutorial function by presenting evidence, while the latter performs a police investigatory function by gathering evidence. Buckley v. Fitzsimmons, 509 U.S. 259, 27 3 (1 993).
  1. BUT NOT MANUFACTURING FALSE EVIDENCE
    1. The prosecutor who prepares and files an information and application for an arrest warrant enjoys absolute immunity for those actions . See Waggy v. Spokane County, 594 F.3d 707 (9th Cir. 2010).
      1. But if the prosecutor swears under oath to false statements of fact in the information, he becomes a complaining witness rather than a prosecutor and, like a complaining witness at common law, is not entitled to absolute immunity . Kalina v. Fletcher, 522 U.S. 118 (1997). Justice Scalia concurred but argued that the Court’s prosecutorial immunity decisions could not be grounded in the common law of 1871 and that the result, though correct, rested upon a meaningless distinction between preparing an information and swearing to its truthfulness.
      2. The Court’s decisions do not draw the line between performance of the investigatory function and the prosecutorial function with absolute clarity . Imbler v. Pachtman suggested that the inquiry begins with determining whether the prosecutor is performing a quasi-judicial function. A prosecutor obviously performs that function by trying a criminal case; hence, absolute immunity extended to the presentation of perjured testimony and the withholding of exculpatory evidence. Imbler v. Pachtman, 424 U.S. 409, 431 n.34 (1976); Long v. Satz, 181 F.3d 1275, 1279 (11 th Cir. 1999) (per curiam) (extending absolute immunity to prosecutor who fails to turn over exculpatory evidence discovered after sentencing); Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1 94) (prosecutor’s absolute immunity for withholding exculpatory evidence begins with arrest and continues through appeals); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 679 (9th Cir. 1984) (failure to preserve exculpatory evidence subject to absolute immunity ).
PUBLIC DEFENDERS
1. Because public defenders do not act under color of law in representing individual clients, they may not be sued under Section 1 983; hence, the issue of absolute immunity never arises. Polk County v. Dodson, 454 U.S. 312, 324-25 (1981).
CAPACITY
When a public defender acts in an administrative capacity rather than as representative of a client, she acts under color of law but is not performing a quasi-judicial function and is, therefore, entitled only to qualified immunity.
1. Miranda v. Clark County, 319 F.3d 465, 469- 0 (9th Cir. 2003) (en banc) (holding that public defender acted in administrative capacity and therefore was subject to suit for policy of withholding investigatory and legal resources from defendants who failed polygraph test and for policy of assigning inadequately trained, inexperienced attorneys to capital cases).
A.J.
1. ...NOW WRAP YOUR MIND AROUND THAT...
  1. This mind map was created 03.06.2012 by Lisa Stinocher O'Hanlon using XMind software. http://www.xmind.net/share/hennalady/ http://angryjeweler.wix.com/write
    1. 8.2 Suits Against Public Officials in Their Individual Capacity.odt
      1. 8.2 SUITS AGAINST PUBLIC OFFICIALS.pdf
      2. http://federalpracticemanual.org/node/46
Prosecutors enjoy absolute immunity from damage liability for the initiation and prosecution of a criminal case.
1. The Supreme Court, relying heavily on considerations of policy , reasoned that initiating a prosecution and presenting a case are activities that are “intimately associated with the judicial phase of criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.”
  1. Imbler v. Pachtman, 424 U.S. 409, 423-24 (1976). Absolute immunity may also extend to government attorneys in non-criminal contexts. See Mangiafico v. Blumenthal, 471 F.3d 391, 396-97 (2d Cir. 2006) (absolute immunity for state attorney general who declined to represent state employee in civil litigation against him).