Section 1983 affords a remedy for unconstitutional abuses of official power by state and local officials. The §1983 remedy, however, is often thwarted by an immunity defense. For example, police officers sued under §1983 may assert the defense of qualified immunity, which affords protection from liability so long as the officer did not violate clearly established federal law.

Some officials are entitled to absolute immunity. Prosecutors sued under §1983 are entitled to absolute immunity for their advocacy functions, though not for their investigative functions., which are generally governed by qualified immunity. Absolute immunity provides protection even if the officer acted in bad faith, or with malice, or violated clearly established federal law. This column focuses on three recent circuit court decisions rejecting claims of prosecutorial immunity for investigative actions.

In Fogle v. Sokol, 957 F. 3d 148 (3d Cir. 2020), the court held that prosecutors were not absolutely immune for fabricating evidence and interviewing witnesses during a homicide investigation. In Singleton v. Cannizzaro, 956 F. 3d 773 (5^th Cir. 2020), the court held that prosecutors were not absolutely immune for issuing "fake subpoenas" designed to pressure crime victims and eyewitnesses to meet with them. And, in Rieves v. Town of Smyrna, 959 F. 3d 676 (6^th Cir. 2020), the court held that prosecutors were not absolutely immune for directing a Sheriff's office investigation and raid of stores selling cannabinoid products. The courts in Fogel, Singleton and Rieves found that the prosecutors were not entitled to absolute immunity because they allegedly carried out investigatory functions.

A prosecutor's advocacy functions include deciding whether to prosecute, presenting the state's case, and preparing for trial and other judicial proceedings. Imbler v. Pachtman, 424 U.S. 409 (1976). The immunity is designed to allow prosecutors to exercise their vast discretion free of the fear monetary liability. Under the functional approach to §1983 immunities, prosecutors generally are not absolutely immune for investigatory functions. When a prosecutor acts like a detective, immunity law will treat him like a detective, and afford qualified immunity. See, e.g., Simon v. City of New York, 727 F. 3d 167 (2d Cir. 2013) (while prosecutor's seeking material witness warrant is part of advocacy function, participation in detention and questioning of witness subject to the  warrant is police function governed by qualified immunity), cert. denied, 572 U.S. 1087 (2014).

The line between investigation and preparation for trial is at times quite fine, requiring careful fact-based evaluations. Because qualified immunity is considered the norm, a prosecutor bears the burden of establishing entitlement to absolute immunity from §1983 liability.

In Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993), the Supreme Court held that prosecutors were not absolutely immune for fabricating boot print evidence at a time that they lacked probable cause either to arrest or prosecute. Before there is probable cause to arrest the prosecutor acts in an investigatory capacity rather than as an advocate. Buckley, 509 U.S. at 224 (before probable cause to arrest a "prosecutor's mission [is] entirely investigative in character."). This does not mean that everything a prosecutor does post-probable cause is necessarily advocacy. "[A] determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. Even after that determination … a prosecutor may engage in 'police investigative' work that is entitled to only qualified immunity." (Id. at 274 n. 5).

Many §1983 claims against prosecutors grow out of wrongful convictions. Fogel v. Sokol, 957 F. 3d 148 (3d Cir. 2020) is such a case. Lewis Fogel spent over 30 years in prison for a homicide conviction. His conviction was vacated based on DNA evidence. He asserted several §1983 claims against, inter alia, former Indiana County (Pennsylvania) District Attorney Olson and former Assistant District Attorney Martin. Olson and Martin moved to dismiss on the basis of absolute prosecutorial immunity. The circuit court found two of Fogel's claims were clearly barred by absolute immunity:

1. The complaint alleged that the state troopers used improper tactics in questioning the homicide victim's sister, Patti Long, and, in the probable cause affidavit they presented to the magistrate judge, DA Olson and ADA Martin failed to report Ms. Long's past inconsistencies. The circuit court concluded that the prosecutors' failure to report the alleged inconsistencies while appearing before a court and presenting evidence was part of their advocacy functions shielded by absolute immunity.
2. The complaint alleged that the prosecutors "at hearings and at trial withhold exculpatory material from defense counsel, the court, and the jury; filed a criminal complaint without probable cause; and committed perjury before and during trial." These alleged constitutional wrongs were "intimately associated with the judicial phase of the criminal process," Imbler, 424 U.S. at 430, and, therefore, within absolute prosecutorial immunity.

But the three other categories of plaintiff's claims alleged investigative conduct not protected by absolute immunity:

(1) The complaint alleged actions taken by DA Olson and ADA Martin with respect to Earl Elderkin who at one point claimed to be an eyewitness to the murder, but whose story shifted over time. He was "known in town as 'Spaceman,' because he claimed that he and his kids were from outer space." At one point he checked himself into a hospital for a psychiatric evaluation, where he offered the police other versions of the murder. DA Olson was concerned about Elderkin's shifting accounts and arranged for an English teacher with no formal training in hypnosis to hypnotize Elderkin and use "'undue suggestion to obtain a statement from Elderkin implicating' Fogle." Olson then took a statement from Elderkin providing probable cause to arrest Fogel. ADA Martin was also involved in this endeavor.

The circuit court ruled that these alleged actions by Olson and Martin constituted investigatory conduct. The court pointed to the holding in Burns v. Reed, 500 U.S. 478 (1991) that  absolute immunity did not protect a prosecutor's advising the police during the investigative phase of a criminal case, including how to use hypnosis to obtain a witness's statement ,  DA Olson's conduct went beyond giving advice, including finding the so-called hypnotist, encouraging undue suggestion, and participating in Elderkin's post-hypnosis questioning. '"By choreographing and securing Elderkin's statement, Olson played 'the detective's role'" of searching for clues and corroboration and establishing probable cause to arrest. 951 F. 3d at 162 Detective functions do not enjoy absolute immunity. Because ADA Martin was allegedly as involved as Olson in shaping Elderkin's testimony, he, too, was denied absolute immunity on this claim.

(2) Fogel's §1983 complaint alleged that DA Olson joined the state troopers in interrogating Fogel's brother Dennis, who was also a suspect in the murder, and that Olson and the troopers used threats, intimidation  and trickery to obtain false and fabricated statements .To cover up their misconduct, the prosecutors misrepresented in reports that Dennis's statements were volunteered without coercion or suggestion.

The circuit court held that even though Olson's conduct in interviewing Dennis occurred after Lewis Fogel's arrest and the judicial process was in motion, Olson was acting in an investigatory capacity "at the end of a long chain of investigative events led or supervised by Olson. …Olson's active participation fueled the entire investigation." Id.at 163.  Olson was not acting as an advocate "interviewing witnesses" in preparation for trial, but as a detective searching for evidence. ADA Martin's interactions with Dennis Fogel were "less clear," but, at the motion to dismiss stage, he had not met his burden of showing his entitlement to absolute immunity.

(3) Fogel's complaint alleged that DA Olson and ADA Martin '"knew about, encouraged, or permitted' the State Troopers to fabricate statements from three jailhouse informants, each describing Fogel's purported confession to the crime."

Even though this alleged conduct occurred after criminal charges had been filed, the prosecutors were not entitled to absolute immunity because, here, too, they "were functioning not as advocates, but as investigators seeking to generate evidence in support of a prosecution." 957 F. 3d at 164. This was another illustration that a finding of probable cause does not guarantee a prosecutor absolute immunity for actions taken afterwards. Id. Qualified immunity governed the prosecutors' detective work.

In Singleton v. Connizzaro, 956 F. 3d 773 (5^th Cir. 2020), the §1983 complaint alleged that prosecutors in the Orleans Parish (Louisiana) District Attorney's Office, at the direction of DA Connizzaro, used fake "subpoenas" to pressure and coerce the plaintiffs, crime victims and witnesses, to meet with and be interviewed by them.

"These documents were labeled 'SUBPOENA' and were marked with the Office's official seal. They directed recipients 'to appear before the District Attorney for the Parish of Orleans' and warned that 'A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.'" 956 F. 3d at 777.

The "subpoenas" violated Louisiana law which required a district attorney to seek a court order directing the clerk to issue a requested subpoena.

The defendants in Singleton moved to dismiss the §1983 complaint on the basis of absolute prosecutorial immunity. The issue was whether the prosecutors' issuance of the fake subpoenas was part of their advocacy function of preparing for judicial proceedings, or investigative activity.

The circuit court held that the prosecutors' conduct was investigative in nature. Far from engaging in conduct "intimately associated" with the judicial process, the defendants' conduct was intentionally designed to avoid and side-step the judicial process, the very process that serves as a check on prosecutorial conduct. 956 F. 3d at 781-02, relying on Lacey v. Maricopa County, 693 F. 3d 896, 913-14 (9^th Cir. 2012), and Loupe v. O'Bannon, 824 F. 3d 534, 539- 40 (5^th Cir. 2016). "'Where the prosecutor has side-stepped the judicial process, he has forfeited the [immunity] protections the law offers to those who work within the process.'"  Singleton, 956 F.3d at 782, quoting Lacey ,693 F. 3d at 914.

The court was not persuaded by defendants' argument that their creation and issuance of the fake subpoenas was protected by absolute immunity because it was part of their trial preparation. In some sense, almost any action by a prosecutor including "direct participation in purely investigative activity" could be said to relate to the decision to prosecute, But absolute prosecutorial immunity is not that expensive. 956 F.3d at 782. To be protected by absolute immunity the activity must be more closely linked to advocacy.

The fact that the fake subpoenas were issued after criminal charges had been filed did not detract from the essential fact that they were issued outside the judicial process allegedly to avoid the judicial process. And, the fake subpoenas were employed to pressure the crime victims and witnesses to meet with the prosecutors privately in the district attorney's office, not to compel them to testify at trial.

In Rieves v. Town of Smyrna, 959 F. 3d  678  (6^th Cir. 2020) ,the §1983 complaint filed by the plaintiff retailers alleged, inter alia, that defendants Rutherford County (Ohio) District Attorney Jones  and ADA Zimmerman directed a Sheriff's office investigation called "Operation Candy Crush," advised the Sheriff's office about the legality of cannabidiol ("CBD") products, and propelled "the Sheriff's office to raid stores selling CBD and arrest the owners. The complaint claimed that the raid and arrests violated the Fourth Amendment and the Equal Protection Clause.

The DA and ADA moved to dismiss on the basis of prosecutorial immunity. The circuit court agreed with the district court that the defendants were not entitled to prosecutorial immunity. The alleged actions of the DA and ADA "occurred prior to the initiation of judicial proceedings and without probable cause" and were not intimately related to either the initiation of judicial proceedings or the defendants' advocacy roles. The circuit court referenced dictum in Buckley v. Fitzsimmons, 509 U.S. at 274 that absolute immunity would not protect a prosecutor's "plan[ning] and execut[ing] a raid on a suspected weapons cache" .(The plaintiffs Rieves did not dispute that absolute immunity protected the prosecutors' presentation of evidence to the grand jury and obtaining civil forfeiture.") (956 F.3d at 692 n. 7).

The circuit court found that the prosecutors' advice to the police that CBD products were illegal was not shielded by absolute immunity because the advice was allegedly given during the investigative phase prior to the initiationsof judicial proceedings. See Burns, 500 U.S. at 493 ("[A]dvising the police in the investigative phase of a criminal case is [not] so 'intimately associated with the judicial phase of the criminal process' that it qualifies for absolute immunity.").

D.A. Jones argued that by the time the alleged conduct took place he had already decided to prosecute. But the court ruled that prosecutorial immunity does not protect all conduct that occurs after a prosecutor "retrospectively and subjectively" claimed he's decided to prosecute. And, a prosecutor's mere decision to prosecute does not control whether all of his subsequent conduct is absolutely immune. 959 F.3d at 693 (citing Buckley v. Fitzsimmons, 509 U.S. at 275-76 (prosecutor who "later call[s] a grand jury to consider the evidence [that his alleged misconduct uncovered] does not retroactively transfer the administrative into the prosecutorial.").

Absolute prosecutorial immunity does not bar criminal prosecutions against prosecutors, but there have been very few prosecutions against prosecutors. Like other attorneys, prosecutors who engage in serious professional misconduct may be subject to attorney disciplinary proceedings, but this, too, occurs quite infrequently. The §1983 damages remedy is a potentially important check on abuses of prosecutorial authority, but this remedy is subject to absolute prosecutorial immunity. Fogel, Singleton and Rieves are important decisions because they illustrate that when a prosecutor steps outside her role as an advocate and engages in investigative conduct, absolute immunity will not immunize her unconstitutional conduct.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.