On November 4, 2009, the Supreme Court heard oral argument in a case from Iowa in which two men, who had been wrongly convicted and spent 25 years in prison because the prosecutor in the case falsified evidence, filed a suit for compensation. The Obama Justice Department appeared as a friend of the defendant county seeking to have the suit dismissed and then, when the argument seemed unpersuasive to the Justices, the county settled to avoid an adverse ruling. Immunity, it seems, is the holy grail of our agents of government.
What an outlandish idea that a person should expect respect for his right not to be framed by the agents of government!
Pottawattamie Couny, Iowa, et al
v. Curtis W. McGhee, Jr. et al
CHIEF JUSTICE ROBERTS: We will hear argument first this morning in Case 08-1065, Pottawattamie County v. McGhee.
MR. SANDERS: Mr. Chief Justice, and may it please the Court:
If a prosecutor’s absolute immunity in judicial proceedings means anything, it means that a prosecutor may not be sued because a trial has ended in a conviction, Yet that is exactly what happened in this case. Lower courts may not fashion exceptions to the immunity this — this Court provided in Imbler by purporting to relocate a due process injury from the trial to an earlier investigation.
JUSTICE KENNEDY: Your — your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons.
MR. SANDERS: Your Honor –
JUSTICE KENNEDY: I mean, we were just spinning our wheels in that case?
MR. SANDERS: Your Honor, I don’t believe so at all. I think that this case presents exactly the question that Buckley reserved, and that is whether the fabrication of evidence by a prosecutor in and of itself, without regard to its use in some way, states a constitutional cause of action.
In this case, the use at trial, obviously, was absolutely immunized under Imbler and many of this other — this Court’s other precedents. Despite respondent’s best efforts to argue that there was some sort of due process violation caused by the fabrication itself, without regard to its use in some way, there simply is no support for that.
JUSTICE GINSBURG: Does that mean that, even if we were dealing with police officers who did what the prosecutors were alleged to have done at the investigation stage, no prosecutor, only police investigators, the fact that a trial and a conviction had occurred would mean that the police officers were not liable, either?
MR. SANDERS: Your Honor, the fact that a trial and conviction had occurred could mean that the police officers were liable because of the due process violation at the trial, but in footnote 5 of Buckley, this Court was very clear and insisted that there is no disjunction between observing that a prosecutor, like a police officer, has only qualified immunity during the investigation while, at the same time, insisting that
that does not affect the fact that the prosecutor has absolute –
JUSTICE KENNEDY: Take two cases. One is Justice Ginsburg’s case, a police officer fabricates the evidence, dupes the prosecuting attorney, or — or doesn’t fully disclose. Case two, a prosecutor does the same thing and gives it to a fellow prosecutor. Same — should the analysis be precisely the same?
MR. SANDERS: Your Honor, it should be the same if the prosecutor in the second case that you hypothesize had nothing to do with the later prosecution. In other words, if we could view that prosecutor simply as an ordinary citizen, simply as a
complaining witness, as analogous to a police officer, So there’s no argument in this case that simply, by virtue of being a prosecutor, a prosecutor has absolute
The courts below wrongfully abrogated trial immunity because trial is the only place where the injury of conviction and subsequent incarceration could have taken place. Without reference to that specific injury, there is simply no other injury. The –
JUSTICE GINSBURG: I’m not sure that I fully grasp your answer to my first question and to Justice Kennedy’s, that is, yes or no, if everything that happened was alleged to have happened, but it was done by a police officer or a different prosecutor, nonetheless, the trial went on, the fabricated evidence was introduced, without any participation by the actual prosecutor in that fabrication, does a conviction –does the — do the police officers or the prosecutors that was not involved in the trial get absolute — are they — are they no more liable, not because they have absolute immunity, but because the trial and conviction at which the evidence was used overtakes what liability they might have had, absent the trial?
Is that your position?
MR. SANDERS: Your Honor, our position is — I believe I would agree with you. Our position is there is no liability for the initial fabrication. As the United States explains in its brief, for a police officer to be held liable in those circumstances, it
would need to be under some sort of malicious prosecution theory that would depend on the actual conviction and the use of the evidence at trial.
But the use of the evidence at trial is the injury itself, and that is exclusively a prosecutorial act, only a prosecutor could –
JUSTICE SCALIA: You’re not answering the question clearly. Are both the prosecutor, in Justice Ginsburg’s hypothetical, and the policeman liable? Can’t you answer that? Yes or no.
MR. SANDERS: Yes. This Court –
JUSTICE SCALIA: Good. That’s what I thought your answer was.
MR. SANDERS: Yes. The police officer — likely, this Court has never — never addressed the issue. The police officer would likely be liable because the police officer would have no immunity for the use of the evidence.
JUSTICE SCALIA: Well, she’s more concerned about the prosecutor, and the prosecutor, also, would be treated just like a police officer?
MR. SANDERS: If the prosecutor performed no prosecutorial function, that’s correct.
JUSTICE SCALIA: In the case?
MR. SANDERS: That’s correct, Your Honor.
CHIEF JUSTICE ROBERTS: But only if the — only if the evidence is presented at trial?
MR. SANDERS: But only if the evidence is presented at trial because that’s the only way the evidence can provide injury and so –
JUSTICE KENNEDY: So the — so the law is the more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.
MR. SANDERS: Your Honor, I think it’s not the more deeply you are involved, it’s whether you are in the unique position of a prosecutor to cause injury by use of the evidence at trial. That is exclusively a prosecutorial function. The function test of — of Buckley goes to what function someone is performing, but only the prosecutor can ever perform the function of actually using the evidence.
JUSTICE GINSBURG: But it’s strange to say you can have a prosecutor, who wasn’t involved in the trial, would have liability, but as long as the prosecutor, in effect, turns the investigatory stage material over to himself, rather than to another
prosecutor, then there’s absolute immunity.
MR. SANDERS: Your Honor, that is correct, but I think the Court, more than 80 years ago, when it summarily affirmed Yaselli v. Goff from the Second Circuit, spoke to this question. In that case, the Court said — affirmed the Second Circuit in its view that, if a prosecutor cannot — if a prosecutor has absolute immunity for
acting maliciously at trial, that immunity cannot be circumvented –
JUSTICE GINSBURG: No, but the — the question is not at trial, nothing about trial. It’s the pretrial conduct.
MR. SANDERS: The — the odd thing about –if we are taking out reference to the trial itself, then there simply can be no claim. Respondents urge a new freestanding right, separate and apart from the due process trial right, yet at the same time –
JUSTICE GINSBURG: But you said that there — that there would be liability, as long as it wasn’t the same person involved in the investigation and the trial. Even though there had been a trial, you say — you answered Justice Scalia, that those people separated from the trial would be liable, even though there was a trial, and it’s at issue.
MR. SANDERS: Your Honor, looking to the common law, the rationale for that would be a form of malicious prosecution, but as you observed in your concurrence in Albright, asserting malicious prosecution against a prosecutor would be anomalous because it’s the prosecutor who is exclusively responsible for causing
the kind of injury. If a police officer or a nonprosecuting prosecutor simply fabricates the evidence, as Chief Judge Easterbrook of the Seventh Circuit said, there can be no cause of action. It is the exclusive function of a prosecutor
in a case who uses the evidence who can cause the injury, and although –
JUSTICE SOTOMAYOR: But that makes no sense because, if you go down that road, then what you’re saying is that neither the — neither a police officer
or a different prosecutor who fabricated evidence could be liable, either, because the only person who causes the deprivation is the prosecutor who uses the false
evidence at trial.
MR. SANDERS: Your Honor, this Court has not spoken to that question, but as you stated, that would be the rationale of the restatement actually. The restatement says, if there is no deception of the prosecutor, then it is the prosecutor’s willful and free will use of the evidence at trial.
JUSTICE SOTOMAYOR: Now, the Second Circuit in its decision, Judge Newman, looked at it and said there are two causes to the injury here. One is the fabrication, joint tortfeasors. There are two people who can cause any injury and the prosecutor who actually puts the evidence in at trial. That’s how you hold police officers and different prosecutors liable because they are assisting in the violation that is occurring.
MR. SANDERS: Uh-hmm.
JUSTICE SOTOMAYOR: Why doesn’t that theory fit the same prosecutor who commits two different acts?
MR. SANDERS: Your Honor, I think –
JUSTICE SOTOMAYOR: One commits the direct violation, and the other act, the investigatory act, contributes to it, leads to it as a joint activity with it.
MR. SANDERS: Your Honor, I believe the analysis is not that it — because it leads to the injury itself. The tort of wrongful conviction based on use of false evidence at trial has only one element under this Court’s precedents in Pyle and Mooney and
Hysler and Rochin. That element is the prosecutor’s use of the evidence at trial. But simply because that act is absolutely immune is not to say that someone else
who’s responsible for –
JUSTICE SOTOMAYOR: You’re confusing — the constitutional injury is the deprivation of liberty. That’s the injury.
MR. SANDERS: That’s correct.
JUSTICE SOTOMAYOR: What causes that injury is not an element of the crime. It is — the question is have you proven the violation, have you proven the injury.
MR. SANDERS: Well –
JUSTICE SOTOMAYOR: So why does the use define the scope of the injury?
MR. SANDERS: Because that is the way a prosecutor would be held liable. The cause of action against a prosecutor, even though he would be absolutely immune, would be the prosecutor’s knowing or even unknowing use of the false evidence at trial. But in this case, Respondents ask for a free-standing due process right that would somehow at the same time protect the interest against wrongful conviction at
trial. That simply can’t be. This Court’s decision –
JUSTICE GINSBURG: What about the view that Judge Fairchild expressed very simply. He said if this fabrication had not occurred, there never would have been any trial.
MR. SANDERS: Your Honor, as we discussed in our opening brief in this case, I think that Judge Fairchild’s reasoning is classic malicious prosecution reasoning. That is, that it’s the false evidence that impelled the prosecution. But again, this Court has been absolutely clear that a malicious prosecution theory cannot be asserted against a prosecutor because a prosecutor can initiate willfully and maliciously a wrongful prosecution based on good evidence, bad evidence, or no evidence at all. It’s simply untenable to say — and this Court’s decision last term in Van de Kamp made clear that where the injury comes at trial, where that is the
interest protected against, that you can somehow abrogate immunity and continue with a case based on that kind of claim based on a claim of an earlier due process
JUSTICE GINSBURG: Was there no injury in the period before? Let’s leave out the trial for a moment. There was a deprivation of liberty during the investigatory stage.
MR. SANDERS: Your Honor, I think any earlier deprivation of liberty would be covered by the Fourth Amendment. The Fourth Amendment is not implicated in the question presented here. It has not been briefed. Surely there would be an interest against wrongful seizure or, since this — these arrests were pursuant to legal process, against a form of malicious prosecution. But again, that would be a Fourth Amendment theory and it could not be asserted if it is malicious prosecution against a prosecutor.
JUSTICE STEVENS: Would you clear up one thing for me I really don’t quite understand. You do agree that if the police officers did this there would be liability?
MR. SANDERS: Your Honor, this Court has not addressed that issue. That is the view of some of the circuits and the Restatement.
JUSTICE STEVENS: Are you assuming that to be correct or are you disputing that?
MR. SANDERS: We’re assuming that to be correct, but if I –
to be continued—-