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U.S. District Judge Mark R. Kravitz, ruling on a nationwide issue of first impression, has decided Attorney General Richard Blumenthal deserves absolute immunity from civil rights suits challenging his decision not to defend state employees accused of on-the-job civil wrongdoing. Connecticut, by statute, provides state employees with lawyers to defend against tort suits arising from the discharge of their official duties — unless their acts are found to have been “wanton, reckless or malicious.” If the state decides not to defend, a state employee may risk financial ruin. That’s the case for prison guard Captain Sebastian Mangiafico, of Stafford Springs, Conn. Blumenthal decided Mangiafico did not deserve the state’s defense from a suit by inmate Duane Ziemba, who was forcibly extracted from his cell in August 1998. LEADING THE CHARGE Ziemba had triggered a fire sprinkler to protest guards allegedly refusing to feed him. Parts of the guards’ actions were videotaped. Blumenthal’s office investigated allegations that Mangiafico used excessive force by intentionally punching Ziemba in the face, and viewed the tape. In January 2001, Blumenthal’s office informed Mangiafico he would have to retain private counsel. By law, Mangiafico could recover reasonable attorney fees from the state if, at the conclusion of the lawsuit, he was cleared of acting wantonly, recklessly or maliciously. Mangiafico, in turn, sued Blumenthal in 2004, along with John Armstrong and Theresa Lantz, the former and present corrections commissioners. He alleged his equal protection rights were violated, and that the defendants decided to make him the lone “scapegoat” in the Ziemba matter. Kravitz reviewed U.S. Supreme Court and 2nd Circuit caselaw covering the principles behind granting government lawyers absolute immunity. He boiled it down to situations “when they function within the confines of their roles as advocates of the government in activities or functions that are intimately or integrally associated” with the judicial process. When they go outside of that core role of government advocate, Kravitz summarized, and engage in investigative or administrative duties, government lawyers are only entitled to “qualified immunity.” They can still be liable for breaking a law or constitutional provision any reasonable person should know, or for egregious incompetence. Kravitz worked through a three-step analysis for absolute immunity, which requires: historic or common-law bases; tight limitation to the most serious risks to the judicial process; and the availability of alternative remedies to redress government lawyers’ misconduct, aside from the tort system. Historically, judges have enjoyed absolute immunity for their in-court activities, as have prosecutors, including determinations of who to prosecute — and who not to prosecute. The immunity, Kravitz noted, is to avoid the harassment of unfounded litigation that could deflect their energies or shade independent judgment. By analogy, when the AG must decide whether to defend a state employee over a job-related tort, he “is acting in his traditional role as the State’s advocate,” Kravitz wrote. In the realm of absolute immunity, Kravitz said he sees “no meaningful difference between the Attorney General’s decision in this case and the decisions of prosecutors and government attorney to initiate (or not initiate) criminal, civil or administrative proceedings.” Addressing the second factor — serious risks to the judicial process — Kravitz again compared the AG to a criminal prosecutor. The U.S. Supreme Court has observed that criminal defendants, in their resentment at being prosecuted, often blame the prosecutor for improper and malicious action. Likewise, Kravitz observed, a state employee, denied representation, could transform his resentment into “improper and malicious actions against the Attorney General.” In a footnote, Kravitz cited the tortuous history of the underlying Ziemba matter, now five years old and on appeal to the 2nd Circuit, as an example of how burdensome litigation can be even for state officials enjoying qualified immunity. If Blumenthal’s decision-making were compromised by the constant threat of litigation in cases like this, Kravitz concluded, it would be “a disservice both to the State and to the judicial process itself.” As for the third condition, availability of alternate remedies, Kravitz found the provision for state-reimbursed legal fees, if Mangiafico were cleared, effectively corrects a flawed initial decision to not defend. Other alternative means of redress include professional ethics discipline, legislative impeachment, and the public’s right to vote Blumenthal out of office, Kravitz noted, adding that a vigilant press and the public official’s normal desire to be reelected militate against abuse of power. And even if all those safeguards failed, the efficient functioning of government still requires absolute immunity in this case, he reasoned. Kravitz quoted Judge Learned Hand in the 1949 2nd Circuit case of Gregoire v. Biddle, that it is “better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” APPEAL SOUGHT Mangiafico is represented by Michelle N. Holmes of the West Hartford, Conn., firm of Sack, Spector & Karsten. In an interview, Holmes said she is currently seeking permission to appeal Kravitz’s dismissal of Blumenthal from the case, and contends giving him absolute immunity is excessive. In theory, she said, the ruling gives an attorney general the ability to deny a state employee a defense for improper reasons, including race or gender discrimination, while depriving the employee of any right to sue. She denied her client struck Ziemba with an intentional, unnecessary blow to the face, and claimed other guards, filmed kicking and punching him, were granted legal defense at state expense. Antonio Ponvert III, of Bridgeport, Conn.’s Koskoff, Koskoff & Bieder, represents Ziemba. He said the state’s refusal to defend Mangiafico “cuts both ways.” Ziemba and Blumenthal agree Mangiafico used excessive force, Ponvert noted, but if brutalizing guards are rendered judgment-proof by having to exhaust their resources on lawyers, their victims lose the prospect of money damages as a remedy. Kravitz declined to throw out Mangiafico’s claims that Armstrong and Lantz violated his First Amendment rights by conspiring and retaliating against him. The guard’s “allegations of back-room deals made between high level government officials” certainly address a matter of public concern, Kravitz wrote. Reached last week, Blumenthal said simply that Kravitz granting him absolute immunity in the case was the correct decision.

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