When a prosecutor is sued for a wrongful conviction, does absolute or qualified immunity apply?

1. Trial Briefs
ILLINOIS STATE BAR ASSOCIATION
The newsletter of the Illinois State Bar Association’s Section on Civil Practice & Procedure
VOL 61 NO. 9MAY 2017
Recently, wrongfully convicted
defendants have filed federal lawsuits
against former prosecutors seeking
compensation for the time spent behind
bars. The first plaintiff, Jack McCullough,
sued, amongst many others, the former
prosecutor in DeKalb county for “engaging
in ‘pervasive misconduct’ to frame him for
an infamous cold case murder.”1
Herein is
a review of when a prosecutor is entitled to
qualified immunity or absolute immunity
from civil damages.
Prosecutors enjoy two different types
of immunity from civil damages: absolute
immunity and qualified immunity. To
determine “whether particular actions of
government officials fit within a common-
law tradition of absolute immunity,
or only the more general standard of
qualified immunity, [courts] have applied
a ‘functional approach.’”2
Under the
functional approach, the court “looks to
‘the nature of the function performed, not
the identity of the actor who performed
it.’”3
If the prosecutor’s function was quasi-
judicial, then the prosecutor is granted
absolute immunity, but if the function was
administrative or investigatory, then it is
only qualified immunity.4
A prosecutor enjoys absolute immunity
from section 1983 suits for his or her
actions taken within the scope of his or
her prosecutorial duties.5
Such actions
must be “intimately associated with the
judicial phase of the criminal process,”6
and include bringing charges;7
initiating
a prosecution;8
preparing for a case;9
reviewing, obtaining and evaluating
evidence;10
interviewing witnesses;11
deciding what evidence is relevant at
trial;12
deciding that sufficient evidence
supports a charge;13
preparing a felony
review card;14
reading a defendant
his Miranda rights;15
interviewing a
defendant;16
and approving charges against
the defendant.17
Almost all actions that lead to wrongful
convictions, no matter how repugnant,
are shielded by absolute immunity so
long as they fall within the scope of
prosecutorial duties. Such actions include
bringing charges against a defendant while
believing that no wrongdoing has been
done;18
soliciting false testimony from a
witness and then knowingly using that
false testimony before a grand jury;19
deliberately suppressing exculpatory
evidence;20
and failing to disclose material
evidence;21
initiating charges maliciously
and unreasonably, without probable
cause or on the basis of false evidence
or testimony.22
However, if a prosecutor
takes such repugnant actions, then the
prosecutor has violated a model rule
of professional conduct and may face
repercussions from the ADA.23
A prosecutor is not entitled to absolute
immunity when the prosecutor “performs
the investigative functions normally
performed by a police officer.”24
Similarly,
when a prosecutor acts as an administrator
as opposed to an advocate of the state, the
prosecutor is not protected by absolute
immunity.25
In such cases, a prosecutor is
entitled to qualified immunity.26
“Under
this form of immunity, government
officials are not subject to damages liability
for the performance of their discretionary
functions when ‘their conduct does not
violate clearly established statutory or
constitutional rights of which a reasonable
person would have known.’”27
Prosecutors are entitled to qualified
immunity for giving legal advice to the
police.28
Taking testimony from a witness
falls within a prosecutor’s duties, but being
involved in an abusive interrogation does
not fall within a prosecutor’s duties.29
When a prosecutor obtains evidence after
filing charges against a criminal defendant,
this activity will most likely be connected
to the prosecutor’s duties and absolutely
protected.30
Determining whether absolute or
qualified immunity applies to a
prosecutor’s conduct
BY ALEX YORKO

2. 2
Trial Briefs
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MAY 2017 / VOL 61 / NO. 9
So, in deciding whether absolute or
qualified immunity protects a prosecutor,
timing is the key. Whether or not a
prosecutor “was acting within his quasi-
judicial capacity and thus absolutely
immune from suit is a legal question.”31
“It
is a matter to be decided by the trial court
in light of the facts surrounding the actual
conduct of the defendant.”32
In the McCullough complaint, the
Plaintiff states that all of the State’s
Attorneys “are being sued in their
individual capacities for actions taken
under the color of law and within the
scope of their employment during the
investigation and prosecution of the
Plaintiff…”33
Each prosecutor is “being
sued exclusively for their actions in
investigation of Plaintiff outside of court
proceedings, and not for any action
related to their in-court duties…”34
The
complaint also alleges that the State’s
Attorney helped in deciding whether or
not there was probable cause to arrest
McCullough, which most likely falls within
the “investigation” stage that is normally
performed by the police.35
Other circuits
have held that when a prosecutor acts
before probable cause is established, this
does not entitle the prosecutor to absolute
immunity.36
Additionally, the complaint
alleges that the State’s attorney approached
a witness to see if the witness would testify
in the McCullough case.37
The plaintiffs were wise to allege that
the State’s Attorneys were not acting within
the scope of their employment during the
investigation of the Plaintiff. For the actions
during the investigation phase of the case,
the State’s Attorneys most likely will not be
afforded absolute immunity. However, it
appears the former State’s Attorney might
be entitled to absolute immunity when
interviewing witnesses, since this took
place after McCullough was arrested. It will
be up to the trial court to decide whether or
not the State’s Attorneys were acting within
the scope of their employment. 
__________
Alex Yorko is a 2L at Northern Illinois
University College of Law.
1. Ann O’Neill, 1957 cold case police and
prosecutors sued for ‘pervasive misconduct’,
CNN (Apr. 15, 2017) <http://www.cnn.
com/2017/04/14/us/ridulph-mccullough-
lawsuit/>.
2. Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
3. Id. quoting Forrester v. White, 484 U.S. 219,
229 (1988).
4. Henderson v. Lopez, 790 F.2d 44 (7th
Cir.
1986).
5. Imbler v. Pachtman, 424 U.S. 409 (1976).
6. Weimann v. Kane County, 502 N.E.2d 373,
377 (2nd
Dist. 1986).
7. Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989).
See also Prosecutorial Immunity – Qualified
Immunity – Appellate Jurisidiction, 8 No. 1 Fed.
Litigator 10 (1993).
8. Id.
9. Schrob v. Catterson, 948 F.2d 1402 (3d
Cir. 1991). See also Prosecutorial Immunity –
Qualified Immunity – Appellate Jurisidiction, 8
No. 1 Fed. Litigator 10 (1993).
10. Id.
11. Hampton v. City of Chicago, 349 F.Supp. 2d
1075 (N.D. Illinois 2004).
12. Id.
13. Tyler v. Witkowski 511 F.2d 449 (7th
Cir.
1975).
14. Id.
15. Id.
16. Id.
17 Id.
18. Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989).
See also Prosecutorial Immunity – Qualified
Immunity – Appellate Jurisidiction, 8 No. 1 Fed.
Litigator 10 (1993).
19. Schrob v. Catterson, 948 F.2d 1402 (3d
Cir. 1991). See also Prosecutorial Immunity –
Qualified Immunity – Appellate Jurisidiction, 8
No. 1 Fed. Litigator 10 (1993); Burns v. Reed, 11.
S.Ct. 1934 (1991).
20. Imbler v. Pachtman, 424 U.S. 409 (1976).
21. Woods v. Carey, 563 F.Supp. 212 (N.D.
Illinois 1983).
22. Henry v. Farmer City State Bank, 808 F.2d
1228 (1986).
23. Model Rule on Prosecutorial Duties.
24. White v. City of Chicago, 861 N.E.2d 1083
(Ill. App. Ct. 1st
Dist. 2006) citing Buckley v.
Fitzsimmons, 509 U.S. 259 at 273 (1993).
25. Burns v. Reed, 500 U.S. 478 (1991).
26. Patterson v. Burge, 328 F. Supp. 2d 878
(N.D. Ill. 2004).
27. Buckley v. Fitzsimmons, 509 U.S. 259
(1993).
28. Id.
29. Patterson v. Burge, 328 F.Supp 2d 878 (N.D.
Illinois 2004).
30. Hunt v. Jaglowski, 926 F.2d 689 (7th
Cir.
1991).
31. Spiegel v. Rabinovitz, 121 F.3d 251, 256 (7th
Cir. 1997).
32. Id.
33. McCullough Complaint Page 5.
34. Id.
35. Id. at 18.
36. McGhee v. Pottawattamie County, 547 F.3d
922 (8th
Cir. 2008).
37. McCullough complaint page 21.
THIS ARTICLE ORIGINALLY APPEARED IN
THE ILLINOIS STATE BAR ASSOCIATION’S
TRIAL BRIEFS NEWSLETTER, VOL. 61 #9, MAY 2017.
IT IS REPRINTED HERE BY, AND UNDER THE AUTHORITY OF, THE ISBA.
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