Van De Kamp and the Shift in Prosecutorial Immunity
In 2009, the Court handed down Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), a significant decision that expanded the scope of prosecutorial immunity to cover supervisory prosecutors in certain circumstances.
Van De Kamp dealt with the applicability of prosecutorial immunity to a former district attorney and a former deputy district attorney who were sued for allegedly failing to develop policies and procedures, and failing to adequately train and supervise their subordinates, as to their constitutional obligation under Brady v. Maryland and Giglio v. United States to ensure that information on jailhouse informants was shared among prosecutors. The plaintiff, after imprisonment for twenty-four years for murder, succeeded in obtaining habeas corpus relief and was released. Thereafter, he claimed that a jailhouse informant testified falsely at his murder trial regarding (1) the plaintiff’s supposed confession to the murder and (2) the informant’s not having received benefits in exchange for his testimony against plaintiff. He further alleged that the fact that this witness was an informant who received benefits in exchange for his testimony was never shared with the deputy district attorneys prosecuting the plaintiff. The Ninth Circuit ruled that the challenged conduct was administrative in nature and not intimately associated with the judicial phase of the criminal process. Rather, it was related only to the management of the district attorney’s office. Hence, it was not protected by prosecutorial immunity.
The Supreme Court, in an opinion by Justice Breyer, reversed for a unanimous court, holding that absolute immunity protected the defendants’ failure properly to train and supervise prosecutors and their failure to establish an information system containing potential impeachment material about informants, all of which allegedly led to the failure to disclose impeachment material at plaintiff’s criminal trial. After discussing the policy considerations underlying prosecutorial immunity and noting that Imbler v. Pachtman had expressly left open the scope of immunity with regard to the prosecutor’s administrative role, the Court conceded that the challenged acts here were administrative in nature. Nevertheless, absolute immunity applied because the administrative obligation involved here was of
a kind that itself is directly connected to the conduct of a trial. Here … an individual prosecutor’s error in the plaintiff’s specific 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. Moreover, the types of activities on which [plaintiff’s] claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management.
The Court then went on to address the anomaly of holding supervisors liable in situations in which trial prosecutors themselves would be absolutely immune for their advocative conduct. This would not make sense for several reasons. First, decisions about indictments and trial prosecutions were often made by more than one prosecutor in an office. Second, a major policy consideration underlying prosecutorial immunity was protecting the proper functioning of the office itself. It was not significant for these purposes that the defendants’ general methods of supervision were at issue here: there was still “an intimate connection between prosecutorial activity and the trial process.” Moreover, it would be difficult in many cases to distinguish between general office supervision and training and specific supervision and training for a particular case. Finally, the Court separately addressed the plaintiff’s claim that the defendants should have created an information management system, which plaintiff argued was even more purely administrative in nature and could be done by non-lawyers. The Court responded that creating such a system still involved legal expertise because of the criteria necessary for inclusion and exclusion of information. The Court concluded: “Consequently, where a § 1983 plaintiff claims that a prosecutor’s management of a trial-related information system is responsible for an error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”
The Functional Approach Revised
Van De Kamp represents a blurring (elimination?) of the distinction between advocative and administrative conduct, at least in situations in which the supervisory administrative conduct is intimately related to, and directly responsible for, advocative conduct that results in a constitutional deprivation. What Van De Kamp does as a matter of policy—notice that there was no discussion of the common law immunity of supervisors–is give supervisors the same absolute immunity that protects trial prosecutors for their advocative conduct. It is thus a kind of (reverse?) proximate cause decision, but one in which the absolute immunity of the trial prosecutor (whose conduct was the intervening cause that directly brought about the underlying constitutional deprivation) also covers the initial cause, the supervisory failures. In any event, Van De Kamp could turn out to be a narrow decision if it is limited, as the Court seems to insist it should be, to training, supervision and information systems intimately related to the advocative acts of trial prosecutors. However, even though supervisory prosecutors are now protected by absolute immunity in Van De Kamp situations, note they may still be policymakers whose unconstitutional conduct can render local governments liable under § 1983.
Relation to Iqbal
Finally, it’s interesting to observe that this prosecutorial immunity case also raises a supervisory liability issue, and may therefore, apart from the absolute immunity issue in Van De Kamp, be usefully compared with the later decision in Ashcroft v. Iqbal–see the post 0f 8-19-09–which effectively immunized John Ashcroft and Robert Mueller from damages liability by means of a sua sponte change in supervisory liability doctrine. Suppose one applies Iqbal to the supervisors in Van De Kamp: if the underlying constitutional violations-–of Brady and Giglio–require particular states of mind by the subordinates (and thus, under Iqbal, of their supervisors as well), then were the supervisory prosecutor defendants in Van De Kamp charged with a lesser state of mind so that Iqbal would have protected them from damages liability on this ground as well?