This is the third in our series of articles previewing upcoming Supreme Court cases. You can read the first here and the second here.

Image Credit: John Linwood

Pottawattamie County v. McGhee is a case that’s rather interesting more so for its facts and the chutzpah of the parties being sued rather than the law itself.

In 1978, a retired police captain was killed as he was working as a security guard.  The police, anxious to bring a suspect to trial, came across a person named Kevin Hughes.  According to the allegations in the lawsuit, Hughes was pressured by the prosecutors into providing false testimony against two suspects, Curtis McGhee and Terry Harrington.  McGhee and Harrington were convicted of the crime and sentenced to prison.

In 2002, The Iowa Supreme Court overturned their convictions on the grounds that crucial information was withheld from the defendants, namely the existence of another suspect.  As the issues regarding the prosecutor allegedly manufacturing false testimony became public, McGhee and Harrington sued, claiming their civil rights were violated.

In response to the suit, the prosecutors invoked a normally uncontroversial defense: prosecutorial immunity.   When a prosecutor is being sued for unintentional acts, a general immunity from tort lawsuit helps keep prosecutors focused on their jobs and not letting relatively minor issues distract them from their goal of getting dangerous criminals off the streets.  But there’s a statute that seems to run head-first into that long-standing tort immunity rule: 42 USC §1983.  Section 1983 has a very broad and simple rule for when public employees can be sued for violating a person’s civil rights:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress

By a literal reading of this statute, the prosecutors here, under their legal authority as prosecutors, deprived McGhee and Harrington of their physical freedom and their right to a fair trial by providing false evidence to a criminal proceeding.  But nothing is as simple as it seems.

In 1976, the Supreme Court curtailed the ability of exonerated prisoners to sue their prosecutors for providing false evidence against them.  The court reasoned that the law should be read not to overrule the old immunities, but that they should be harmonized with each other.  The Court then rehashed the rationale that led to the immunities for judges and prosecutors for doing their jobs, and concluded that the immunity rules should stand.

The Court did soften its stance later, however, when it decided to draw a distinction between lawyers who investigate and lawyers who prosecute.  Investigators are entitled to only a “qualified” immunity, whereas prosecutors are entitled to “total” immunity.

The prosecutors in this case clearly did both.  The question for the Court is: which rule applies?  Do the prosecutors get qualified immunity because they were involved in evidence gathering?  Or do they get total immunity because they also tried the case themselves?

Frequent readers of this site shouldn’t be surprised that I am strongly in favor of letting individuals file civil suits against the government for violations of their civil liberties by state officials.  It’s an individualist check on the government’s abuse of power.  The idea of allowing a prosecutor who intentionally framed a defendant to avoid civil liability merely because they entered a court appearance on behalf of the State seems to eviscerate the point of statutes like §1983.  Given the choice between a prosecutor’s office that pulls its punches for fear of lawsuit and a prosecutor’s office with everything to gain and nothing to fear from trampling on a person’s rights, I’d take the former any day.

I’m also extremely skeptical of the logic the Court used in 1976 to conclude that the plain language of §1983 did not overrule the common law prosecutorial immunities.  The historical reasons for granting this immunity make have been good policy, but in the face of a statute plainly taking away any individualized immunity for anything, those good policies become bad law.  In fact the court did create an exception for judicial issues in §1983.  It barred injuctive relief to overturn the result of a court case under the guise of a §1983 claim.  Clearly the legislators were considering the impact of their law on the judiciary, and chose not to exempt prosecutors.  It’s judicial hubris for the Court to conclude that the plain meaning of the law is such a bad idea that the Court has to carve out an exception Congress was too stupid to create.