In Pottawattamie County v. McGhee, the Supreme Court will decide whether a prosecutor should be entitled to absolute immunity from suit for "obtaining, manufacturing, coercing and fabricating evidence before filing formal charges." Absolute immunity from suit, in the context of civil rights cases means this: Even if the prosecutor fabricated evidence, he may not be sued.
Pottawattamie County has not received the attention is deserves, primarily because it involves intricate questions of Section 1983 law.
In one Law.com article, however, we get to hear a prosecutor's take on
Pottawattamie County.
"Every prosecutor makes decisions every day that somebody could just go ahead and file a lawsuit over. If there is no immunity…anyone with a filing fee can sue, whether their case is meritorious or not," said James Fox, chairman of the National District Attorneys Association.
This is one of those things we call lawyer's lies. Fox's words are literally true; but in context, they are false. Here's why: Pottawattamie County does not present a binanary choice of immunity-or-no-immunity.
In Section 1983 cases, a prosecutor may be entitled to two types of immunity - absolute, and qualified. Under absolute immunity (the issue in Pottawattamie County), a prosecutor cannot be sued, even if her conduct was immoral, unethical, and unlawful. However, a prosecutor who is not entitled to absolute immunity may still (always) assert qualified immunity.
Under qualified immunity, a prosecutor will escape a lawsuit if she can show that she did not violate a clearly-established right.
Qualified immunity provides a lot of protection from lawsuits. Qualified immunity would not protect a prosecutor who obtains, manufactures, coerces, and fabricates evidence. Nor should it. In even debately close cases, though, qualified immunity will protect a prosecutor who acted in good faith.
Thus, even if the Supreme Court holds (as it should), that a prosecutor is not entitled to absolute immunity for manufacturing evidence, the prosecutor will still be entitled to qualified immunity from suit. Thus, the good prosecutor fibbed. He also revealed a heart of darkness.
The prosecutor continued:
"Clearly, from my perspective, absolute immunity is critical because, otherwise, why would anyone want to be a prosecutor if they're going to end up with personal liability for doing their job?," Fox said.
How is manufacturing and fabricating evidence part of a prosecutor's job duties? Seriously: How is it?
How can any ethical prosecutor argue in favor of absolute immunity? Here is what the Eighth Circuit Court of Appeals (no oasis of liberal activism) held:
We find immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not “distinctly prosecutorial function.” The district court was correct in denying qualified immunity to Hrvol and Richter for their acts before the filing of formal charges.
According to Prosecutor Fox, prosecutors accused of "obtaining, manufacturing, coercing and fabricating evidence" are just "doing their job." Let's hope that the United States Supreme Court disagrees.
