Nahmod Law

Pottawattamie County Case in Supreme Court: Argued November 4, 2009

The Supreme Court heard argument in Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009)(granting certiorari), on November 4, 2009. What follows is a description of the important section 1983 prosecutorial immunity issues raised.

[Full disclosure: I consulted with defense counsel and my name appears on their merits brief in the Supreme Court].

IMPORTANT UPDATE: AFTER ORAL ARGUMENT THE PARTIES SETTLED THE CASE AND MOVED TO DISMISS THE PETITION FOR CERTIORARI. THE PETITION WAS DISMISSED PURSUANT TO RULE 46 ON JANUARY 4, 2010.

Doctrinal Background

The Supreme Court held some time ago in Imbler v. Pachtman , 424 U.S. 409 (1976), that prosecutors are absolutely immune from damages liability for their advocative conduct in connection with trials. This immunity was based on the common law immunity background in 1871 (when section 1983 was enacted) and the important policy consideration of promoting  independent decision-making by prosecutors. The Court later elaborated on prosecutorial immunity doctrine in Buckley v. Fitzsimmons , 509 U.S. 259 (1993), where it held that such immunity does not extend to a prosecutor’s conduct that is investigative in nature and that precedes the existence of probable cause; such conduct is protected only by qualified immunity. In so ruling, the Court applied what has come to be known as the functional approach to immunities under which it is not the person who is protected by absolute or qualified immunity but rather the function performed.

The Pottawattamie County Case

In this case, prosecutors were accused of manufacturing evidence in a murder case in order to falsely arrest, prosecute, try and convict the plaintiffs. The evidence allegedly manufactured included providing a coerced witness with false information, with the result that the witness’s testimony was later used at trial to convict the plaintiffs who were consequently imprisoned for several decades. Their convictions were eventually overturned because they were not informed about a possible alternate suspect. Plaintiffs then sued the prosecutors for damages under section 1983, alleging that their due process (and not Fourth Amendment) rights were violated in connection with their arrest, prosecution, conviction and imprisonment. Read the rest of this entry »