Crime & Federalism

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.  

"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.

"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.

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.

[Editor: In Pottawattamie County v. McGhee, the most interesting Section 1983 case this Term, the Supreme Court will determine whether a prosecutor who manufactured evidence should be held liable for money damages.  An amicus brief, filed on behalf of state and federal prosecutors, is unpersuasive.  In three separate posts, we'll examine why.  Below is the first post.  Click her for the second; here for the third.]

[T]he remedy sought by respondents in this case necessary to deter prosecutorial misconduct. To the contrary, prosecutors who engage in misconduct are already subject to discipline by a variety of institutions, including the prosecutors' offices themselves, state bar associations, and the judges before whom they appear. In the most extreme cases, prosecutors may face criminal sanctions for their misconduct.

Kalina's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school [that had been burglarized, Kalina] stated that [the defendant] had "never been associated with the school in any manner and did not have permission to enter the school or to take any property." In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school. In fact, the employee did not identify respondent.

Because District Attorney Offices typically do not keep statistics on the number of prosecutorial misconduct complaints filed against their office, we surveyed all California Court of Appeal decisions (published and unpublished) to determine the nature of prosecutorial misconduct problems and which jurisdictions were most affected. Appendix D contains a full report of those cases.

Research identified 347 of the prosecutors and 30 of them were found to have committed misconduct more than once. Two of them actually did it three times. So what happened to them? In only one case was there a sanction - the prosecutor was disciplined by the State Bar.

Drexel also raised hackles in the law enforcement community by going after several well-known prosecutors for misconduct, including Santa Clara County prosecutor Benjamin Field. Accused of offenses including withholding exculpatory evidence, which Field's supporters were quick to point out involved cases more than a decade old, Field ended up having his license suspended for four years.

The trial process itself also functions as a significant check on prosecutorial misconduct, because the adversarial system ensures that a prosecutor’s allegations and conduct are contested. Reversal on appeal acts as an additional sanction, and an effective one. See James S. Liebman et al., A Broken System: Error Rates in Capital Cases (2000) (finding that sixteen percent of all capital cases are reversed on appeal due to prosecutorial misconduct).

There is no evidence that the further prospect of civil liability is necessary to deter prosecutorial misconduct. To the contrary, evidence suggests that civil liability will not be an effective remedy for would-be plaintiffs. The most thorough study of constitutional tort claims found that "constitutional tort plaintiffs do significantly worse than non-civil rights litigants in every measurable way." Eisenberg & Schwab, supra, at 677. 

[The footnote reads]: "Overall, plaintiffs prevailed in only fourteen percent of constitutional claims, compared to fifty-nine percent in all other civil claims (excluding default judgments). Eisenberg & Schwab, supra, at 677."

We are about to soon find out.  There can be no more telling of a case than Pottawattamie County v. McGhee.  In McGhee, prosecutors who fabricated evidence were denied absolute immunity from suit under Section 1983.  

Yesterday's Supreme Court decision in Scott v. Harris gives constitutional support to decisions by law enforcement officers to ram the cars of motorists engaged in flight. It also changes the norms for Supreme Court practice. The court essentially conducted de novo review of factual questions considered by both the District Court and the Eleventh Circuit Court of Appeals.

The facts of the case are simple: In March 2001, a Georgia dputy saw Victor Harris speeding. The deputy gave chase, at speeds sometimes in excess of 85 miles per hour over a 10 mile course. Other officers participated in the chase. At one point, the deputy radioed for permission to use stop the car by using the Precision Intervention Technique. He was given permission to "[g]o ahead and take him out." The officer rammed the back of the fleeing vehicle, causing the driver to crash. Mr. Harris is now a quadriplegic.

In a suit filed under 42 U.S.C. Section 1983, Mr. Harris claimed the deputy used excessive force. The defendants moved for summary judgment, and lost. The Eleventh Circuit heard an interlocutory appeal on qualified immunity, and the defendant again lost. Certiorari was granted limited to whether an officer "can, consistent with the Fourth Amendment, attempt to stop a fleeing motorists from continuing his public-endangering flight by ramming the motorist's car from behind?" The answer is now unequivocally "yes."

One of the oddest things about the rulings is that the majority engaged in de novo review of the underlying record. The chase was videotaped from within the defendant's cruiser. Both the District Court and Circuit court made factual findings about the chase. The Supreme Court disagreed with the Circuit after watching the tape for itself. As Justice Scalia notes: "The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals." When chastised by Justice Stevens in dissent for this, Scalia invited the public at large to review the videotape, noting in a footnote that the tape can be found at the following site: http://www.supremecourtus.gov/opinions/video.scott_v_harris.rmvb.

Prior to this decision, it never occurred to me that the Supreme Court would engage in the finding of facts. What's become of remand for new factual determinations? What's more, why no hue and cry about this unseemly form of judicial activism?

The decision is frightening on substantive grounds as well. It seemingly ignores the state-created danger doctrine. It is elementary that a chase requires at least two components: a chaser and the chasee. This decision blurs that distinction and holds, in effect, that if a chase creates danger to others police can use what amounts to deadly force to end the chase. The wild rest returns: "Go ahead and run, sucker," the law enforcement officer drawls, as he removes his six-shooter from his holster. "I'll be watching."

I watched the video of the chase at the Georgetown Law Center's seminar on police misconduct this year. It is not a shocking chase. I've seen far worse. Scalia's histrionic rendition of it suggests he's been too far removed from fact-bound inquiry for far too long. Certainly, there is danger and there is risk, but the danger arises from the chase.

As the decision notes, Mr. Harris was traveling 73 miles per hour in a 55-mile-per-hour zone. That is not uncommon on the roadways. And it does not in and of itself create the risk of harm to others.

What created the risk of harm to others was the chase. Clearly, Harris was wrong to flee. It is a crime. But is the creation of "public endagering flight" really necessary here? Doesn't reasonableness require law enforcement officers to make intelligent decisions about risk? It does not strain reason to require officers to do what many local high-speed chase policies require -- disengage from a chase when it yields risk to third parties.

The Supreme Court has effectively held that it is reasonable for officers to use deadly force when trying to stop someone for speeding. If the speeder flees, chase. And if the chase creates danger, ram him off the road.

The decision is now law. Begin the body count and call tham Nino's Corpses.

Sadoski v. Mosley (here) is the only case I've seen where everyone involved seems morally blameworthy - the defense lawyer, the prosecutor, the state trial judge, and the federal trial and appellate judges.  It is, as they say, that bad.  Here's what happened...

A criminal defendant was charged with attempted theft.  The trial court had the discretion to sentence the defendant as a misdemeanant or felon.  The trial court, based on what he read in the pre-sentening report, sentenced the defendant as a misdemeanant.

Unknown to the judge, because it wasn't in the pre-sentencing report, was this: When the case against her was pending, the defendant was arrested for a drug offense.  If the judge had known of the defendant's recent arrest, he would have sentenced the defendant as a felon. The defense lawyer did not inform the judge of the recent arrest, though he should have.

The client's recent arrest was not privileged information. Moreover, a defense lawyer owes a duty of candor to the trial court. This duty requires the defense lawyer to prevent the trial court from relying on material omissions.  A defense lawyer need not volunteer information, but he must not knowingly allow the trial court to rely on mistaken impressions and material omissions. The omission of the arrest from the pre-sentencing report was material, and the defense lawyer knew the judge would sentence the defendant based on that material omission.  The defense lawyer thus violated his duty of candor to the court. 

What did the judge do?  Contrary to clearly-established state law, the trial court re-opened the defendant's case and re-sentenced her as a felon.  It was not a close call that the judge lacked the authority to do this.  Yet he did it anyway.  This was unethical.

What did the prosecutor do?  The prosecutor went right along with the judge's unethical act, never "seeking justice," but instead, seeking a longer sentence.  The prosecutor never entered into a joint objection to the judges act, and thus violated his oath to enforce the law.

The defendant sued the trial judge for re-opening her sentence since the judge lacked jurisdiction over her case.  Judges enjoy absolute immunity from suit for acts undertaken within their jurisdiction.  But here, the judge did not have jurisdiction, as clearly-established state law denied the judge jurisdiction to re-open cases where the defendant received the benefit of mistakes like the trial court made.  Thus, under established law, the judge could be sued.

Yet the federal district court hearing the case dismissed on absolute immunity grounds.  The federal appellate court affirmed the judgment in a very short opinion.  The panel's opinion should not have been published, as its reasoning is rather embarrassing.  Here is the panel's analysis on the absolute immunity issue (cites omitted):

Although judges usually are immune from suits for damages based on their judicial conduct, a judge who acts “in the ‘clear absence of all jurisdiction’ ” is not entitled to absolute immunity.  Sadoski contends that Judge Mosley acted in the clear absence of all jurisdiction when he modified her sentence to extend the term of her incarceration. We disagree.

Judge Mosley retained subject matter jurisdiction over Sadoski’s conviction for attempted theft after she began serving her sentence. Under Nevada law, Judge Mosley had jurisdiction to modify Sadoski’s sentence, even after she had begun serving it, if the sentence was “based on mistaken assumptions about a defendant’s criminal record which work[ed] to the defendant’s extreme detriment.”  Here, however, the mistaken assumption on which Judge Mosley relied did not work to Sadoski’s detriment, but to the State’s.

Let's pause here for a moment.  Didn't the panel just recognize that the trial court only retained jurisdiction over cases involving "mistaken assumptions about a defendant’s criminal record which worked to the defendant’s extreme detriment."  Clearly the mistake did not work to the defendant's detriment.  And so, the judge must have acted outside of his jurisdiction.  Right?  Right?  Wrong:

Accordingly, as the Nevada Supreme Court later ruled, Judge Mosley did not have jurisdiction to extend the term of Sadoski’s incarceration. Because we are reviewing a district court’s order pursuant to Fed. R. Civ. P. 12(b)(6), we credit Sadoski’s allegation that Judge Mosley knew the limits of his jurisdiction when he modified Sadoski’s sentence. But the United States Supreme Court has stated clearly that “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority . . . .”  Although we assume for purposes here that Judge Mosley acted in excess of his jurisdiction when he modified Sadoski’s sentence to impose a longer term of incarceration, we conclude that he did not act in the clear absence of all jurisdiction.

Let's pause here again.  How is it that the judge did not act in clear excess of his jurisdiction?  Nevada law clearly states that a trial court retains jurisdiction when he makes "mistaken assumptions about a defendant’s criminal record which worked to the defendant’s extreme detriment."  Again, no such mistake was made.

It could be that there's a legal distinction between acts done merely in excess of one's jurisdiction, and acts done clearly in excess of one's jurisdiction.  It seems to me that when a judge does something that state law explicitly tells him he lacks jurisdiction to do, then the judge clearly acts in excess of his jurisdiction.  Perhaps the Ninth Circuit disagrees, though if they do, it's hard to tell from the conclusory opinion.

More likely, Sadoski v. Mosley is yet another example of foxes guarding the hen house.

Szabla v. City of Brooklyn Park, No. 04-2538 (8th Cir. Dec. 1, 2005) is a sad tale.  In Szabla the plaintiff wanted to work, but he had no place to live.  He thus went to sleep at a local park that was across the street from a day-labor company.  Mr. Szabla was going to wake up at 5:30 a.m. and look for a job.  Unfortunately, he was attacked by a police dog.

While investigating a nearby automobile accident, Steven Baker told the police dog to "track."  A dog told to "track" looks for a person, and then bites the person without warning.  A dog told to "search" looks for a person, but waits until told to "bite," to bite the person found. 

After being told to "track," the dog pulled the police officer towards Mr. Szabla, and without provocation, the dog bit him - leaving 23 puncture wounds in Mr. Szabla's legs. Mr. Szabla sued the officers and the city.  And who can blame him.  All he wanted to do was work; police officers prevented that.  Mr. Szabla sued under an excessive force theory.  (Predicated on the Fourth Amendment, to state a claim under an excessive force theory, the plaintiff has to show that the police officer used objectively unreasonable force when searching or seizing a person.)  Recent caselaw supported Szabla's claim.

In Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2004), a three-judge panel of the Eight Circuit held that the police had to give a warning before sending the dogs after a suspect.   Id.  at 598 (holding that "a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender.")  Mr. Szabla was injured a couple of years before Kuha was decided, and thus the panel held that the officers had qualified immunity.

The panel properly held that although the officers were entitled to qualified immunity, the city was not.  (Although municipalities are not entitled to qualified immunity, it is so difficult to state a claim against them that they have protection almost equal to qualified immunity.)  Here, the panel noted that the in the city's dog-handling policy manual, there was no mention of the need for officers to give suspects a warning before siccing a 75-lb. German Shepherd on someone. A jury could infer from the absence of this warning that the city was deliberately indifferent to citizens' Fourth Amendment rights.

Judge Colloton dissented because he thought the deliberate-indifference standard the panel applied wasn't strict enough.  Whether or not a judge applies the deliberate-indifferent standard used by the majority or the dissent will literally "make or break" a municipal liability case.  Someone could write a great law review by analyzing the way in which courts define and apply deliberate indifference in municipal liability cases.

Are social workers entitled to absolute immunity when they decide to initiate custodial termination proceedings against a parent?  This is a fascinating question, and it's an issue the Supreme Court has not squarely addressed.  Today the Eighth Circuit joined several other circuits in holding that social workers, when they seek to terminate custodial rights, are acting like prosecutors, and therefore are entitled to absolute immunity.  Wrote the court:

[T]he district court correctly applied absolute immunity to shield the defendants from liability for initiating or maintaining judicial proceedings.  To the extent a state authorized child welfare agency and its worker are sued for initiating judicial proceedings, the welfare worker’s role was functionally comparable to that of a prosecutor.  Accordingly the decision to file charges is protected, even in the face of accusations of: vindictive prosecution, or reckless prosecution without jurisdiction, or conspiracy to prosecute for a crime that never occurred.

Abdouch v. Burger, No. 04-3966, slip op. at 10 (8th Cir. Oct. 20, 2005). UPDATE:  In his briefs, Abdouch's lawyer wrote: plaintiff "does not question the initiation of the abuse and neglect proceeding."  The panel, although ultimately deciding for the social worker because the plaintiff did not state a prima facie case, thus inserted the quoted language to clarify the law.  (It's dicta, but it's dicta that will remain.)  Although the briefs for the plaintiff were generally excellent, they missed the important issue of social worker immunity, and they do not argue for a historical inquiry under Justice Thomas' theory noted below.  Indeed, in two briefs (appellant, reply) the plaintiffs only spent 2 pages discussing absolute immunity at all, and even those two pages only peripherally touch the issue.  Whether the social worker would have been entitled to absolute immunity is an issue that someone well versed in this area of law would have immediately spotted.  This is yet another example where even very good lawyers (and the plaintiff's lawyers, judging by their writing abilities, were excellent) miss issues in Section 1983 cases.

I'm not sure any members of the Supreme Court care to hear the case, so I'm not filing this under "Cert. Watch," but over ten years ago Justices Thomas and Scalia had this to say about absolute immunity for social workers:

Consideration of the function performed by an official seeking absolute immunity plays an important role in our immunity analysis. Function, however, becomes significant only when evaluated in historical context. A related inquiry precedes the functional analysis: Our initial inquiry is whether an official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts. Although § 1983 on its face admits of no defense of official immunity, certain immunities were so well established in 1871, when § 1983 was enacted, that 'we presume that Congress would have specifically so provided had it wished to abolish' them.  We therefore have held that some officials are, under certain circumstances, entitled to absolute immunity. An official seeking such immunity, however, must at the outset show that a counterpart to the privilege he asserts was recognized at common law in 1871, for where we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under § 1983.

The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under § 1983.  This all assumes, of course, that "social workers" (at least as we now understand the term) even existed in 1871. If that assumption is false, the argument for granting absolute immunity becomes (at least) more difficult to maintain.

Hoffman v. Harris, 114 S. Ct. 1631 (1994) (Thomas, J., dissenting from denial of cert.)

If you want to learn more about prosecutorial immunity generally, or to learn about some specific Second Circuit cases, you can download this summary I wrote.

Download prosecutorial_immunity_in_the_second_circuit.pdf