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Former San Francisco District Attorney Terence Hallinan got some good news Tuesday when a federal judge threw out a malicious prosecution suit filed against him by ex-Police Chief Earl Sanders and another high-ranking police official in the wake of the fajitagate scandal. But the victory was bittersweet. Though U.S. District Judge Charles Breyer found Hallinan was protected by prosecutorial immunity, Breyer closed his opinion with stern language suggesting that — if the plaintiffs’ allegations are true — Hallinan’s conduct would have been unethical. “This court is constrained to follow the law awarding absolute prosecutorial immunity, no matter how egregious the alleged conduct � the court has no choice,” wrote Breyer, an ex-prosecutor who once served as chief assistant DA under one of Hallinan’s predecessors, Joe Freitas. In February 2003, a grand jury indicted three off-duty cops who had been involved in a street fracas with two men over a bag of steak fajitas. Seven of the cops’ superiors were charged with conspiring to block a police investigation of the fight. About two weeks later, Hallinan dropped the conspiracy charges against Sanders and an assistant chief. But the DA pressed on with cases against the other police brass, including Deputy Chief David Robinson, until a superior court judge dismissed those charges for lack of evidence less than two months later. Sanders and Robinson, plus their wives, sued in U.S. District Court for the Northern District of California in September, accusing Hallinan of orchestrating a media campaign to defame the police department’s command staff, and inciting the grand jury to indict them although he knew there was no evidence of a conspiracy. The defendants, including Hallinan, the city and its Board of Supervisors, asked Breyer to dismiss all of the plaintiffs’ federal and state claims. In agreeing to toss the case Tuesday, Breyer concluded Hallinan was entitled to “absolute prosecutorial immunity.” The judge said the plaintiffs cannot amend their federal claims, but he left open the door to a suit in state court. Though shielding a prosecutor from financial liability for his official actions leaves a wronged defendant without civil redress, “the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest,” Breyer wrote, citing a 2001 Ninth Circuit U.S. Court of Appeals case, Milstein v. Cooley, 257 F.3d 1004. Breyer also noted that Milstein points out there are other deterrents to misconduct, such as the threat of criminal prosecution, professional discipline and accountability to the electorate. “You have to have this rule so that all prosecutors can act zealously when they need to,” Deputy City Attorney Jonathan Lee, who argued for the city and Hallinan, said Tuesday. The judge already appeared to be taking a dim view of the federal claims at a hearing on Friday, Lee said, when he quoted the city’s cited case law more extensively than the city had. “I have to admit, I wasn’t aware of all the passages he pointed out,” Lee said. But the judge didn’t let Hallinan completely off the hook. “Such prosecutorial misconduct, if it occurred as alleged, can injure the innocent and discredit the criminal justice system,” Breyer wrote. “A district attorney, in the discharge of his public responsibilities, cannot justify this unethical conduct.” In a footnote, he cited one of the State Bar’s Rules of Professional Conduct, which says a lawyer in government service “shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause.” Hallinan maintains that — regardless of immunity — there was no malicious prosecution. “I didn’t ask for [Sanders'] indictment. The grand jury did it. And then the only way to get rid of it is to go ahead and file on it and get it dismissed, which is what I did,” he said. In the suit, the plaintiffs accused Hallinan of violating the State Bar rule on probable cause. However, it was not immediately clear Tuesday if anyone had filed a formal complaint with the State Bar. Hallinan, who has a law office in San Francisco, said he wasn’t aware of any. The Bar can initiate an investigation on its own or in response to a complaint from a client, attorney or judge. But it typically keeps such complaints and investigations confidential unless the Bar’s chief trial counsel files disciplinary charges against an attorney, said Russell Weiner, the Bar’s acting chief trial counsel. He would only confirm Tuesday that the Bar has not filed any charges against Hallinan. Lawyers for Sanders and Robinson could not be reached for comment. It was not clear if they intend to try their luck in state court, or appeal Breyer’s ruling. Hallinan’s successor as DA, Kamala Harris, has pursued cases against the three police officers involved in the 2002 fight. In November, a jury acquitted David Lee of all charges against him, and acquitted or deadlocked on the charges against Matthew Tonsing. Alex Fagan Jr., who got a change of venue, is expected to be tried soon in Sacramento.

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