January 2008

Policies Regarding the Use of Informants, a Must for Prosecutors

By Nevada Attorney General Catherine Cortez Masto

Recently, the Ninth Circuit Court of Appeals decided Goldstein V. City of Long Beach, 481 F.3d 1170, 2007 WL 914228 (9th Cir. 2007), which discussed the difference between “absolute” and “qualified” immunity for prosecutors.  In Goldstein, the Ninth Circuit found that a local prosecutor was not entitled to “absolute immunity” for actions he took in setting office policies regarding the sharing of information regarding jailhouse informants.  Id. at 1175.

In order to fully understand Goldstein and its impact, an understanding of the difference between “absolute” and “qualified” immunity is necessary.  If someone has “absolute” immunity, that person’s actions, regardless of how egregious those actions might be, are immune from civil liability.  On the other hand, if someone has “qualified” immunity, then that person has immunity for discretionary actions that do not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  The Supreme Court has held that prosecutors have absolute immunity under 42 U.S.C. § 1983 for actions they take within the scope of their prosecutorial duties.  Imbler v. Pachtman, 424 U.S. 409, 424 (1976).

Imbler quoted with approval from a much earlier California case why absolute immunity is necessary:

The office of public prosecutor is one which must be administered with courage and independence.  Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict?  To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby.  There would be involved in every case the possible consequences of a failure to obtain a conviction.  There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office.  The work of the prosecutor would thus be impeded, and we would have moved away from the desired objective of stricter and fairer law enforcement.

Id. at 423-24 (quoting Pearson v. Reed, 44 P.2d 592, 597 (Cal. Ct. App. 1935)).

However, the Supreme Court has made it clear that not every function a prosecutor performs is entitled to absolute immunity.  A prosecutor’s administrative duties are not entitled to absolute immunity, nor are actions taken outside the core concepts of being an officer of the court.  For example, if a prosecutor gives legal advice to the police, then the prosecutor’s actions are entitled to only qualified immunity.  Burns v. Reed, 500 U.S. 478, 492-93 (1991).  On the other hand, Burns held that same prosecutor had absolute immunity in presenting a search warrant application to a judge.  Id. at 492.

After Burns, the Supreme Court made it clear that a prosecutor has absolute immunity for the act of preparing a witness or selecting an expert.  Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993).  Buckley noted:

We had not retreated, however, from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the court of his role as an advocate for the State, are entitled to the protections of absolute immunity.  Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.

Id. at 273.

Buckley did not stop there.  The Court also determined that a prosecutor going to the crime scene and comparing boot prints was not acting within the traditional role of a prosecutor-- and, consequently, his purported manufacture of false evidence was only entitled to qualified immunity.  Buckley, 509 U.S. at 274-75.  In 1997, the Supreme Court decided that the act of preparing a criminal complaint was subject to absolute immunity, though swearing to the facts in support of an arrest warrant was entitled to only qualified immunity.  Kalina v. Fletcher, 522 U.S. 118, 129-30 (1997).

With these concepts in mind, we can turn to Goldstein and what the Ninth Circuit recently held.  First, the doctrine of qualified immunity was not before the Ninth Circuit at all, since the defendants had not raised it.  This is perhaps an object lesson.  Raise defenses in the alternative—since the defendants in Goldstein were almost certainly entitled to qualified immunity, in that they were being sued for actions they took as the District Attorney and Chief District Attorney for Los Angeles County.

The more important question decided by Goldstein was whether absolute immunity applied to the office’s failure to train deputies on the necessity of sharing information about jailhouse informants.  The Ninth Circuit held it did not.  The plaintiff in Goldstein alleged that the informant in his case had received benefits for his testimony and in the past had worked with the police, and that the informant’s protestations that he did not receive inducements were false.  Further, the plaintiff alleged that the defendants did not develop office-wide policies regarding the sharing of information regarding benefits received by informants for testimony given in the case at issue despite a Supreme Court case holding that such a constitutional obligation existed.1  Giglio v. United States, 405 U.S. 150, 154 (1972).

Interestingly, Imbler itself cited Giglio for the kind of claim for which the prosecutor would be absolutely immune.  Imbler, 424 U.S. at 431 n.34.  Thus, the trial prosecutor does have absolute immunity for what occurred at trial.  The question in Goldstein became whether the District Attorney and his Chief Deputy were absolutely immune for failing to initiate an office policy that trained deputy attorneys on their Giglio obligations.

The cases examining the level of immunity afforded to the setting of office policies have taken an approach similar to the Goldstein court.  For example, one federal judge recently found that prosecutors were entitled to absolute immunity from willfully failing to turn over exculpatory evidence; coercing jailhouse informant testimony; and fabricating testimony.  McGhee v. Pottawattamie County, 475 F.Supp.2d 862, 892-93 (D. Iowa 2007).  However, McGhee, like Goldstein, differentiated between “preparatory conduct that is merely administrative or investigative [and] preparatory conduct that is itself prosecutorial.”  Id. at 881.  As a result, actions that the prosecutors took before the filing of criminal charges were “investigatory” in nature, entitling them to only qualified immunity.

Because Goldstein dealt with the failure to develop policy (an administrative function Burns held was only entitled to qualified immunity), the case is not unique.  In similar fashion, the Third Circuit has held that a district attorney’s office is not entitled to absolute immunity for a claim that it failed to properly train its deputies.  Carter v. City of Philadelphia, 181 F.3d 339, 356 (3rd Cir. 1999).

However, prosecutors need to be mindful of Goldstein.  All prosecution offices need to take steps to ensure that they do not fall into the trap Los Angeles County did.  Prosecuting agencies must develop policies for dealing with all relevant evidence including exculpatory and impeachment evidence so that prosecutors within the agency can access this information if necessary.  The absolute immunity Imbler provides the individual prosecutor is irrelevant when the claim is that the agency itself failed to develop policies or has inadequately trained the staff.  However, liability can be avoided under the qualified immunity standard if the office implements procedures to prevent recurring situations that present an obvious potential for a constitutional violation.  Canton v. Harris, 489 U.S. 378, 389-90 (1989).

In other words, if prosecuting agencies develop these policies, then the agency has protected itself even if an individual prosecutor then fails to follow this procedure.

Footnote:

¹ It must be noted that there is not proof that prosecutors acted in the reprehensible manner discussed in the opinion.  Rather, because “absolute immunity” is a complete defense, that “facts” are taken from the plaintiff’s pleadings and presumed to be true for the purposes of the opinion.

 Attorney General Catherine Cortez Masto took the oath as Nevada’s Attorney General in January 2007.  Prior to her service at the Attorney General’s Office, Masto worked as Assistant County Manager for Clark County, beginning in 2002. Prior to working at Clark County, Masto served two years as a federal criminal prosecutor for the United States Attorney's Office in Washington, D.C.  In September 1995, Masto was appointed to work in Governor Bob Miller's administration, where she was appointed as chief of staff in 1998.