Prosecutorial Immunity Revisited: The Pottawattamie County Case (UPDATED)
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.
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.
The prosecutors responded by making three major arguments. First, they maintained that they did not violate the plaintiffs’ due process rights in allegedly manufacturing evidence before trial because there was no deprivation of liberty at that point. The deprivation of liberty, if any, occurred at trial when the allegedly false testimony was used by the prosecutors at trial to convict, and as to this the prosecutors contended that they were protected by absolute prosecutorial immunity under Imbler v. Pachtman.
Second, even if the prosecutors violated the plaintiffs’ due process rights before probable cause existed, they were protected by prosecutorial immunity with respect to that conduct because it was part of their trial preparation and hence prosecutorial in nature, not investigative. Thus, Buckley v. Fitzsimmons did not control.
Finally, even if these pre-probable cause acts were investigative in nature under the functional approach, the prosecutors argued that they were not liable for any damages resulting from the trial, conviction and imprisonment of the plaintiffs because those damages were not proximately caused by their pre-probable cause conduct but were rather the result of their trial-related conduct which was protected by absolute immunity.
1. The first major issue, a constitutional one, is whether the prosecutors violated the plaintiffs’ due process rights even before, and apart from, the trial itself and its outcome. Compare the Court’s decision in Chavez v. Martinez, 123 S. Ct. 1994 (2003), where it held that use at trial is required for a section 1983 Fifth Amendment Miranda violation cause of action. Several of justices asked during oral argument just when a due process violation could have occurred during the investigative stage.
This issue cannot be end-run by relying on the Fourth Amendment and section 1983 malicious prosecution because the plaintiffs did not plead the Fourth Amendment. And Albright v. Oliver made clear that substantive due process cannot be the basis of a section 1983 malicious prosecution claim. See my post of 9-11-09 on section 1983 malicious prosecution.
2. The second major issue, that of absolute prosecutorial immunity under section 1983, arises if it turns out that plaintiffs do in fact make out a due process claim. Pottawattamie County may call into question the Buckley line between investigative conduct by prosecutors before probable cause and subsequent advocative conduct. Is Buckley still good law? If so, how is this line to be determined as a practical matter? During oral argument, several justices were quite concerned with how one draws the Buckley line when interviewing witnesses.
3. The third major issue, also related to prosecutorial immunity and also arising if it turns out that plaintiffs do in fact make out a due process claim, is really one of proximate causation and damages. The prosecutors’ argument here is that they cannot be liable for damages resulting from the trial, conviction and imprisonment of the plaintiffs because absolute immunity covers those events.
What makes this argument especially intriguing is that if it had been police officers who had manufactured evidence in order to create probable cause, with the result that the plaintiffs were tried, convicted and imprisoned after that evidence was used at trial, the police officers would be liable for the resulting damages because those damages were not only reasonably foreseeable but intended by the police officers. Compare Malley v. Briggs, 475 U.S. 335 (1986). Several of the justices asked during oral argument about proximate cause and damages.
However this case turns out, I will be very surprised if there is not a strong dissent.
AS NOTED ABOVE, THE PARTIES SETTLED THIS CASE AND THE PETITION FOR CERTIORARI WAS DISMISSED ON JANUARY 4, 2010.