Ilann Margalit Maazel ()
Wrongful convictions are in the news these days. We know about the Central Park Five, the Bronx Six (some represented by this author’s law firm), and the allegedly corrupt Brooklyn detective whose cases are now under review by the Brooklyn district attorney. But what happens after the exoneration? Federal civil rights cases arising out of wrongful convictions can be tricky. Cases against prosecutors are a legal minefield. Why? The doctrine of prosecutorial immunity.
Under 42 U.S.C. §1983, “[e]very person” who, “under color” of state law, deprives any person of any “rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” Section 1983 was intended to create “a species of tort liability” in favor of persons deprived of “rights, privileges, or immunities secured” to them by the Constitution.1
A Section 1983 plaintiff must satisfy two basic elements. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person acted under color of state law. State actors at the center of the criminal justice system are unsurprisingly the most common defendants in Section 1983 cases. Police officers, prison guards, prosecutors all act under color of state law. They also act within a zone of core constitutional protection: the Fourth Amendment prohibiting unreasonable search and seizure; the Fifth and Fourteenth Amendments requiring due process; and the First Amendment protecting freedom of speech, among others.
These defendants, however, are not without protection in Section 1983 cases. “On its face Section 1983 admits no immunities.”2 Notwithstanding the plain language of the statute, the Supreme Court has held that Section 1983, sub silentio, incorporates common law immunities well established at the time of its enactment in 1871. The inquiry is, in theory, a historical one. If an official was not immune at common law in 1871, the official is not immune under Section 1983. Congress’ “presumed legislative intent not to eliminate traditional immunities” is the court’s “only justification for limiting the categorical language of the statute.”3
The strongest immunity, of course, is absolute immunity. A prosecutor acting in the role of advocate in connection with a judicial proceeding is entitled to absolute immunity for all acts “intimately associated with the judicial phase of the criminal process.”4 These functions include deciding whether to bring charges, presenting a case to a grand jury, and presenting a case in court. Core advocacy also includes tasks intimately associated with trial such as preparation of a witness during trial. Absolute immunity is, unsurprisingly, absolute. Even if a prosecutor advises a witness to commit perjury the day before his trial testimony, the prosecutor is immune from Section 1983 liability.5
The rationale for this seemingly unjust result is multipronged. For one, “[t]he public trust of the prosecutor’s office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability” in Section 1983 suits brought by disgruntled defendants. “Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.”6 The Supreme Court also expressed concern that the “honest prosecutor” making tough calls under enormous time pressure in hundreds of cases will “inevitably make many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor,” temper a prosecutor’s “wide discretion in the conduct of the trial and the presentation of evidence,” hamper prosecutors “in exercising their judgment as to the use of…witnesses by concern about resulting personal liability,” and therefore potentially deny juries in criminal cases “relevant evidence.”
In the end, absolute immunity resolves “a balance between…evils” to ensure “the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.”7 Whether this result is justified, given the empirical reality that (i) only a small percentage of convicted criminals are exonerated, and (ii) in the even fewer civil rights cases resulting from those exonerations, prosecutors are virtually always represented and indemnified at taxpayer expense, is the topic for another column.
What Is Advocacy?
Prosecutorial immunity extends to advocacy, but what is advocacy? Prosecutors enjoy only qualified immunity when performing “administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.”8 The test is functional: If a prosecutor acts like a police officer, a press agent, or a politician, absolute immunity does not apply. For example, investigation, arrest, and detention is the work of police, not prosecutors, Absolute immunity does not apply there. Absolute immunity is unavailable “for the act of giving legal advice to the police in the investigative phase of a criminal case, or for assisting in a search and seizure or arrest.”9
Prosecutors are not absolutely immune when they speak to the press.10 Nor when they make statements of fact in an affidavit for an arrest warrant, a function usually performed by a police officer or complaining witness.11 “[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.”12 “The ultimate question  is whether the prosecutors have carried their burden of establishing that they were functioning as advocates when they engaged in the challenged conduct.”13
‘Simon v. City of New York’
All of which brings us to Simon v. City of New York, 727 F.3d 167 (2d Cir. 2013), one of the U.S. Court of Appeals for the Second Circuit’s recent forays into this sometimes tricky area of law. As alleged by the plaintiff, the NYPD was investigating whether a police officer falsely reported a stolen car. The NYPD sought to interview the officer’s friend, “Alexandra Griffin,” but confused Griffin with Alexina Simon, Griffin’s mother. After Simon did not respond to a subpoena, an assistant district attorney obtained a material witness warrant instructing Simon to appear in court. The court also issued an “arrest warrant for material witness” authorizing the police to take Simon “into custody…and bring her before this Court” to “determine whether she is to be adjudged a material witness.”
Two officers executed the warrant at Simon’s workplace, but took Simon to the precinct instead of the court. They detained her for several hours, then transferred her to the Queens District Attorney’s Office, where she was questioned by the prosecutor. Simon was released that evening, and ordered to return the next day to the precinct, where she was questioned by police for a number of hours. Simon never did see any judge.14
Simon brought a Section 1983 case against the City of New York, the police officers, and the prosecutor, inter alia, for unreasonable search and seizure. Defendants argued that executing a material witness warrant is prosecutorial, not investigative, and therefore they were absolutely immune.
The Second Circuit disagreed. Though a prosecutor acts as an advocate when applying in court for a material witness warrant, the “execution of a material witness warrant is a police function, not a prosecutorial function, as New York’s material witness statute, and the warrant issued in this case, explicitly state.” Under New York law, “only police officers, not prosecutors, are authorized to execute the warrant by arresting people.” In Simon’s case, the defendants—far from performing a judicial or quasi-judicial function—took Simon to the precinct and the district attorney’s office, instead of a court, where the warrant was returnable. “A material witness warrant secures a witness’s presence at a trial or grand jury proceedings; it does not authorize a person’s arrest for purposes of subjecting that person to extrajudicial interrogation by a prosecutor.”15
Drawing the Line
Defendants also suggested that the prosecutor’s questioning was in preparation for a potential grand jury appearance. Lawyers prepare witnesses for court appearances; this is usually traditional advocacy. Police (and sometimes prosecutors) also interview witnesses: to gather evidence, to build a case, to establish probable cause. This is not advocacy, but investigation. Where to draw the line?
The Simon court left the issue to the jury: Though “[t]he prosecutorial function may encompass questioning a witness for a brief period before presentation to determine whether, in the prosecutor’s judgment, the witness’s testimony should still be pursued,” a “reasonable jury could find that the detention and interrogation went beyond what could reasonably be construed as clarifying Simon’s status or ‘preparing’ her for a grand jury appearance, and became an investigative interview.”16
But what if Simon were later called as a witness, either before a grand jury or at trial? “That Simon might eventually have been called to testify in a judicial proceeding does not make her detention a prosecutorial function.”17 As the Supreme Court has observed, “[a]lmost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute.”18 “[E]very prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.”19
The line between an investigative interview and witness preparation is not always clear. Imagine, for example, that a prosecutor instructs a witness to perjure himself before the grand jury, and that testimony becomes the basis for an indictment. Is that mere witness preparation, or fabricating evidence during an investigation?
One potential test is to characterize as investigatory any conduct that occurs before probable cause is established. Before probable cause, there can be no indictment, no charging document, and no “case” for which to prepare. As the Supreme Court put it, “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” That said, a prosecutor is not necessarily an advocate simply because probable cause is established. “Even after that determination…a prosecutor may engage in police investigative work that is entitled to only qualified immunity.”20 The U.S. Court of Appeals for the Fifth Circuit has looked to the charging document: “a prosecutor who assists, directs or otherwise participates with, the police in obtaining evidence prior to an indictment undoubtedly is functioning more in his investigative capacity than in his quasi-judicial capacities.”21
At the end, the key is the conduct, not the title. “A prosecutor who manufactures evidence when acting in an investigatory role can cause a due process violation just as easily as a police officer. The fact that the prosecutor who introduces the evidence at trial cannot be liable for the act of introduction, whether it is the same prosecutor who fabricated the evidence or a different prosecutor, is beside the point.”22
Though all wrongful conviction cases must be evaluated with care, cases against prosecutors require particular care. What is the precise misconduct plaintiffs are challenging? When, in relation to the filing of charges, did the misconduct occur? Did the misconduct create the probable cause, or was probable cause established before the misconduct? Was the misconduct advocacy? Did the misconduct proximately cause the conviction?
One thing is clear: The best time to answer these questions is while investigating the civil rights case, not after the case is filed.
Ilann M. Maazel is a partner at Emery Celli Brinckerhoff & Abady, which specializes in civil rights and commercial litigation.
1. Imbler v. Pachtman, 424 U.S. 409, 417 (1976).
2. Tower v. Glover, 467 U.S. 914, 920 (1984).
3. Burns v. Reed, 500 U.S. 478, 498 (1991) (Scalia, J., concurring in the judgment in part and dissenting in part).
4. Imbler, 424 U.S. at 430.
5. Id.; Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013).
6. Imbler, 424 U. S. at 424-25.
7. Id. at 425-28.
8. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
9. Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995).
10. Buckley, 509 U.S. at 277–78.
11. Kalina v. Fletcher, 522 U.S. 118, 130–31 (1997).
12. Burns, 500 U.S. at 486.
13. Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996).
14. Simon, 727 F.3d at 169-70.
15. Id. at 173 (emphasis in original).
18. Burns v. Reed, 500 U.S. 478, 495 (1991).
19. Buckley, 509 U.S. at 276.
20. Id. at 274 & n.5.
21. Marrero v. City of Hialeah, 625 F.2d 499, 505 (5th Cir. 1980).
22. Whitlock v. Brueggemann, 682 F.3d 567, 583 (7th Cir. 2012).