The last Section 1983 Litigation column (March 5, 2013) focused on recent decisions concerning absolute prosecutorial immunity. Absolute immunity protects prosecutors sued under §1983 for carrying out their advocacy functions, but not for functions essentially investigative or administrative in nature. These later functions are governed by the lesser protection of qualified immunity. It is not always easy to determine, however, whether a prosecutor carried out an advocacy function as opposed to an administrative or investigative function. This column addresses recent decisions applying prosecutorial immunity to §1983 claims relating to (1) extradition proceedings; (2) material witness warrants; (3) plea bargaining; and (4) post-conviction proceedings.
Extradition
We start with a fairly easy issue, namely whether a prosecutor’s extradition decisions are protected by prosecutorial immunity. The U.S. Court of Appeals for the Ninth Circuit in Slater v. Clarke1 recently held that a prosecutor’s extradition decisions are part of the advocacy function and thus protected by absolute immunity. The §1983 complaint in Slater filed on behalf of the estates of Beverly and Brian Mauck alleged that they were murdered by Daniel Tavares in their home in the state of Washington. Following his release from prison in Massachusetts, Tavares traveled to Washington. Even though Massachusetts officials, including Assistant District Attorney Erin Donnelly, knew that there were several serious criminal charges pending against Tavares in Massachusetts, including for violent assaults on prison staff, and knew he was in Washington, they refused to seek his extradition from Washington.2 The complaint alleged that Donnelly’s refusal to seek extradition was the cause of Beverly and Brian’s death.
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