EXTENSIVE CRIMINAL HISTORY and/or HISPANIC

The Scope of Absolute Immunity for Prosecutors

Hello everyone. My inaugural Substack post is in regard to this story in the Our Tallahasse newspaper. The short version of the story is that a newly hired prosecutor discovered an office culture discriminating against Hispanic defendants. The most notable evidence of this discrimination was a written memorandum laying out the resolutions offered to defendants in misdemeanor prosecution.

Unsurprisingly, this policy is not constitutional. But this post is about whether a plaintiff in a federal civil rights lawsuit could overcome the prosecutor’s abolute immunity for proscutorial actions. Prosecutorial immunity was recognized as an immunity to suit in Imbler v. Pachtman. In Imbler, a defendant was convicted of murder during a robbery. After the trial, the prosecuting attorney attorney discovered new evidence corroborating Imbler’s alibi. After approximately eight years of litigation, Imbler’s conviction was overturned and the State of California chose not to retry him. Imbler, still a bit miffed about the whole eight-years-in-prison thing, sued the prosecutor under 42 U.S.C. § 1983 alleging that the prosecutor violated his civil rights under color of law. The Supreme Court concluded that under common law, prosecutors were civilly immune for “prosecutorial activities” which are “integral part[s] of the judicial process.”¹

So what are prosecutorial activities? “A prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). In Buckley, the plaintiff alleged the prosecutor fabricated evidence to charge the plaintiff with murder in a high-profile case. The Court held that these pre-indictment investigatory activities were not prosecutorial functions and therefore there was no absolute immunity. Part of the reasoning in the case is that it would be incongruous for a prosecutor to receive absolute immunity for fabricating evidence when a law enforcement officer would only have qualified immunity.

This sounds good for our putative Florida plaintiffs, right? A policy of giving Hispanic defendants worse deals sounds like an administrative function and isn’t directly related to prosecutorial actions in a specific case, right? Well, this brings us to Van de Kamp v. Goldstein, 555 U.S. 335 (2009). In Van de Kamp, the plaintiff sued the Los Angeles County District Attorney on the theory that the DA failed to adequately “train and to supervise the prosecutors who worked for them as well as their failure to establish an information system about informants,” systematically depriving defendants of exculpatory Giglio evidence.² Training and supervising sounds like administrative duties, or at least that is what our friends at the Ninth Circuit thought.

The Supreme Court disagreed, concluding that administrative duties did not include policies regarding how prosecutors should prosecute cases.

[W]e conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here. Those claims focus upon a certain kind of administrative obligation—a kind that itself is directly connected with the conduct of a trial. Here, unlike with other claims related to administrative decisions, an individual prosecutor's error in the plaintiff's specific criminal trial constitutes an essential element of the plaintiff's claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like.

Van de Kamp, 555 U.S. at 344. “That is true, in part, for the practical reason that it will often prove difficult to draw a line between general office supervision or office training (say, related to Giglio) and specific supervision or training related to a particular case.” Id. at 346 “To permit claims based upon the former is almost inevitably to permit the bringing of claims that include the latter.” Id. As a result, the Court concluded that training and supervising related to how prosecution functions are subject to absolute immunity.

So yeah…. not looking great for any of our civil rights attorney friends in Florida. Maybe someone can find a case that helps distinguish away from Van de Kamp, but I think the starting deck is stacked against them.

I hope you enjoyed this post. I’m not intending to make this a regular thing at this point, but we shall see. Substack says I should tell you to subscribe, and give you a nice easy button to do so. So I will do so, but you’re an adult, you can make your own button pushing decisions.

1. Prosecutors remain subject to criminal liability for willful civil rights violations under 18 U. S. C. § 242. Imbler, 424 U.S. at 429.

2. Not to be confused with Gigolo evidence, which is generally considered dispostitive evidence that you should never watch a Rob Schneider movie.