A Father's Death
Head of North Carolina Innocence Commission Supports Mike Nifong

Mike Nifong and Prosecutorial Immunity

Although Michael Nifong has been disbarred for violating his duties as a prosecutor, there is virtually no realistic prospect of a successful suit against him arising under 42 U.S.C. Section 1983. The result is counterintuitive. Didn't the prosecutor abuse his authority under color of law?

1983 claims are based on a flimsy foundation. Consider the case that ushered 1983 litigation into the modern era. In Monroe v. Pape, 365 U.S. 167 (1961) rogue Chicago police officers illegally entered a dwelling. When they were sued under 42 U.S.C. 1983, the city defended by saying that since the acts were ultra vires, they could not have been done under color of law. The cops could perhaps be sued in state fora for ordinary torts, but not for a constitutional violation. The court held, perhaps inelegantly, otherwise.

The practice today is that defendants can be sued in their individual capacity for acts done under color of law. Municipalities or states are not obliged to indemnify for damages in these cases. However, at least in New England, most public bodies underwrite all but the most egregious constitutional torts. Thus, a cop sued for breaking an arrestee's jaw might be found liable for excessive force, but pay nothing in damages. His employer pays.

Prosecutors enjoy special immunities. In the leading cases on prosecutorial immunity, the Supreme Court performs a functional analysis. If the prosecutor's acts and omissions arose in the context of his or her function as an advocate, the prosecutor is immune from suit, even if acting under color of law. Imbler v. Pachtman, 424 U.S. 409 (1976); Kalina v. Fletcher, 522 U.S. 118 (1997).

In Mr. Nifong's case, it will not do simply to say that he acted outside the scope of what the law authorized. That is the failed defense of the defendants in Monroe v. Pape. Mr. Nifong was acting under color of his authority as a prosecutor, even if he crossed the line of what the law permitted him to do by engaging in fraud, deceit and other acts prejudicial to the administration of justice.

Will he enjoy the full protection of prosecutorial immunity? That is a closer question. In Kalina, the Court permitted a claim against a prosecutor to advance when it was clear that the prosecutor behaved as an investigator, rather than as an advocate. In that case, the prosecutor signed an affidavit attesting to the truth of certain facts that turned out to be untrue. In signing the affidavit, he became a witness, not an advocate.

Parsing the potential claims against Mr. Nifong is exacting work. The odds are overwhelmingly in his favor insofar as immunities are concerned. An unprincipled advocate is immune from suit under Section 1983. But a lying ivestigator is not.

Of course, counsel need to determine whether all the work is worth the risk of no return. In the end, should prosecutorial immunity be penetrated, it is inconceivable that Mr. Nifong's employer will indemnify him for damages. Thus, the only source of damages will be Mr. Nifong's assets. Odds are those are meager.

The disbarment of Mr. Nifong may be the only justice members of the Duke lacrosse team ever get. That seems a shame. Perhaps the team's supporters will make this a test case designed to frame the issue of whether prosecutors who engage in egregious misconduct as advocates should forfeit immunity from suit. That would be a welcome development in the law.