Prosecutorial Immunity is NOT Absolute

There is a myth often circulated….that state and local prosecutors enjoy an impenetrable and absolute immunity against liability for wrongdoing in their work as prosecutors.  It’s a myth.  While prosecutorial immunity is broad, it is not absolute, at least, not until a certain juncture in the criminal investigation is reached.  In short, the cloak of prosecutorial immunity does not even attach unless and until the prosecutor has probable cause to proceed with a criminal prosecution.

This limit was well-delineated by the Supreme Court in Kalina v. Fletcher, 522 U.S. 118 (1997). As the Court explained:

In Burns, the provision of legal advice to the police during their pretrial investigation of the facts was protected only by qualified, rather than absolute, immunity. 500 U. S., at 492-496. Similarly, in Buckley, the prosecutor was not acting as an advocate either when he held a press conference, 509 U. S., at 276-278, or when he allegedly fabricated evidence concerning an unsolved crime. With reference to the latter holding, we explained:

“There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’  Hamptonv. Chicago, 484 F.2d 602, 608 (CA7 1973) (internal quotation marks omitted), cert. denied, 415 U.S. 917 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he ‘has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.’ 484 F.2d, at 608—609.” Id., at 273—274.

These cases make it clear that the absolute immunity that protects the prosecutor’s role as an advocate is not grounded in any special “esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself.” Malley, 475 U.S., at 342. Thus, in determining immunity, we examine “the nature of the function performed, not the identity of the actor who performed it.”  Forrester v. White, 484 U.S. 219, 229 (1988).

Kalina, 522 U.S. at 126-27 (emphases added).

I have written rather extensively on the limits on prosecutorial immunity and do not want to bore the reader with a lengthy brief.  It is sufficient to say that Kalina is alive and well.  As recognized by the United States District Court for the Eastern District of Louisiana, the prosecutor who “sought out an arrest warrant against Boyle and acted as an affiant before the justice of the peace” to obtain the arrest warrant and ultimate seizure of Boyle, is NOT entitled to a dismissal of the Section 1983 lawsuit brought against him in his individual capacity for wrongful seizure in violation of the Fourth Amendment of the United States Constitution.  Boyle v. Reed, Docket No. 14-855, Eastern District of Louisiana (Dec. 31, 2014).

I discuss prosecutorial immunity and other aspects of prosecutorial misconduct in another post.

Kathryn S. Bloomfield


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