Pottawattamie County v. McGhee: Prosecutorial Immunity for Manufacturing Evidence?

A police officer who manufactures or fabricates evidence is entitled only to qualified immunity.  Why should a prosecutor be entitled to greater immunity than a similarly-situated police officer?  The prosecutor's argument in Pottawattamie County is illogical when one considers the history and purpose of the Supreme Court's Section 1983 immunity doctrines.

The immunity doctrines are judge-made law.  Nothing in the text of Section 1983 immunizes government officials from lawsuits.  Judges decided - as a matter of policy - that government officials should not be punished for discretionary acts that, in hindsight, violated the law.  Whether one finds the common law of immunities unpersuasive in light of Section 1983's remedial purpose is irrelevant.  Qualified and absolute immunity exist.  It is thus an issue of policy how these doctrine should be applied.

The immunity doctrines depend on the function performed, not the title of the person performing the function.  A prosecutor is entitled to absolute immunity only when she performs an “advocative” function.  In Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976), the Court noted the significant difference between “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate [ ].”  Thus, a prosecutor who is investigating wrongdoing is, under common law, only entitled to qualified immunity.  Prosecutors get the same immunity as a similarly-situated police officer.

A police officer who manufactures evidences is entitled only to qualified immunity.  In 1998, the Second Circuit wrote: “It is firmly established that a constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated by a government officer.” Scotto v. Almenas, 143 F.3d 105, 113 (2d Cir. 1998) (parole officer). See also, Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997) (finding that police officers who allegedly fabricated evidence could stand trial for violation of substantive due process); Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). (“We think the right at issue in this case is appropriately identified as the right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity.”)

"Scholarly" prosecutors want more protection than on-the-beat cops.  Police officers have a challenging job. “[P]olice officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989).  One might well understand why a police officer should be offered qualified immunity.  Imagine having to take a Criminal Procedure or Constitutional Law exam in the "heat of battle."  None of us would do very well.

Yet in Pottawattamie County, prosecutors cannot claim "hot blood."  From the comfort of their offices, prosecutors who had four years of college and three years of law school manufactured evidence.  Why in the world should someone with a law degree be entitled to greater immunity than a police officer?

The prosecutors in Pottawattamie County v. McGhee do not make any persuasive arguments in favor of absolute immunity.  Police officers who manufacture evidence are only entitled to qualified immunity.  Officers-of-the-Court with a Juris Doctorate should not be entitled to greater immunity for committing the same misconduct.


  Dr Linda Shelton

12:33 PM

As the prosecutors fabricated evidence in McGhee isn't it true that they lacked probable cause to indict the defendant? If they lacked probable cause and committed fraud upon the grand jury isn't the indictment void? If the indictment is void isn't the case void? If the case is void doesn't this mean that the court lacked both subject matter and personal jurisdiction over the case? Doesn't this mean that there was total lack of jurisdiction of the court - which is the ONLY situation where absolute immunity for the judge and prosecutor is lost? Therefore, there should be no argument about qualified v. absolute immunity. The prosecutor is liable as he has NO immunity.