Crime & Federalism

One of the most challenging aspects of dealing with absolute immunity is answering this question: What's the function?  For example, prosecutorial immunity does not apply to all prosecutorial conduct.  Rather, the reviewing court looks to "the nature of the function performed, not the identity of the actor who performed it."  Forrester v. White.  In Imbler v. Pachtman, the Court noted the significant difference between "those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate [ ]."  In practice, courts really mean is Ms. Prosecutor is participating in the investigative phase of the proceeding. 

This is called the "functional test" to immunities.  And like all common law rules, it seems simple enough.  But things get hazy. 

Determing when someone is an "administrator" is pretty easy.  Hiring and firing decisions, for example, easily fit the definition of "administrative" ("of or relating to administration or an administration.")   Forrester v. White. 

But what about giving legal advice to police officers?  That's not advocative, since one isn't an advocate until, by definition, there's an adversarial proceeding.  Is it administraive?

What about testifying as a complaining witness?  Kalina v. Fletcher.  That's not administrative, but it's also not investigative.  A witness doesn't investigate crimes, but rather, provides relevant information.

I think the better approach is to not look at the supposed function performed, but instead, to look at the phase of the proceeding.  If charges haven't been filed, or if there is not yet probable cause to charge, then the case is in its investigative phase.  Under this view, every act understand before probable cause has been establishment would be protected by qualified, not absolute, immunity.