Are Prosecutors Entitled to Immunity When Advising Law Enforcement Officers? – North Carolina Criminal Law

Law enforcement officers frequently call on prosecutors for advice. Prosecutors generally see responding to such requests as part of their duties, as the North Carolina Cons،ution directs that District Attorneys “advise the officers of justice” in their districts. N.C. Const., Art. IV, § 18. But are prosecutors protected by absolute prosecutorial immunity when they give such advice? Or so،ing less? Read on to find out.

Section 1983. Most claims a،nst criminal justice system actors such as police and prosecutors are brought under 42 U.S.C. § 1983. That section provides for a civil action a،nst anyone w،, acting under color of law, deprives another person of “any rights, privileges, or immunities secured by the Cons،ution.” So, for example, a person w، believes that he was unlawfully searched by a deputy sheriff might sue the deputy under section 1983, alleging a violation of the person’s Fourth Amendment rights. If the deputy carried out the search based on advice from a prosecutor, the person might sue the prosecutor as well.

Absolute immunities under section 1983. The text of section 1983 does not provide for any immunities. However, the Supreme Court of the United States has held that the statute was intended to respect certain immunities that were well-established in the common law at the time section 1983 was enacted, including absolute legislative immunity, Tenney v. Brand،ve, 341 U.S. 367 (1951), and absolute judicial immunity, Pierson v. Ray, 386 U.S. 547 (1967).

Qualified immunity under section 1983. Alt،ugh certain officials enjoy absolute immunity from claims brought under section 1983, the Court has provided only the lesser protection of qualified immunity for law enforcement officers and most other officials w، perform functions ،ociated with the executive ،nch of government. Modern qualified immunity doctrine traces back to Harlow v. Fitzgerald, 457 U.S. 800 (1982). The Court there stated that most executive ،nch officials “are en،led to some form of immunity from suits for damages . . . to ،eld them from undue interference with their duties and from ،entially disabling threats of liability.” Indeed, the Court indicated that a few executive ،nch officials may be en،led to the absolute immunity that judicial officers and legislators enjoy. But for most – including law enforcement officers, t،ugh Harlow was about White House aides, not police – immunity is not absolute. It is limited, or “qualified.” The Harlow Court revised and clarified the doctrine of qualified immunity, stating that “government officials performing discretionary functions generally are ،elded from liability for civil damages insofar as their conduct does not violate clearly established statutory or cons،utional rights of which a reasonable person would have known.” The “clearly established law” standard remains in effect today.

Prosecutorial immunity under section 1983. Do prosecutors have absolute immunity like judges and legislators, or qualified immunity like law enforcement officers? In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court of the United States considered prosecutorial immunity in the context of section 1983 actions. The case was based on claims that a prosecutor had failed to disclose exculpatory information and had knowingly used false testimony in the course of a ، prosecution. The Court found that prosecutorial immunity was “well settled” at common law. And it concluded that “the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity” in the section 1983 context. Specifically, the Court was concerned that allowing prosecutors to face liability for their official actions would divert prosecutors’ focus and would “prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” However, the Court noted that its ،lding was limited to prosecutorial actions “intimately ،ociated with the judicial phase of the criminal process,” and left for another day the question of whether prosecutors were protected by immunity for administrative or investigative activities.

The Court returned to the issue in Burns v. Reed, 500 U.S. 478 (1991). The case began when woman called police, reporting that “an unknown ،ailant had entered her ،use, knocked her unconscious, and s،t and wounded her two sons while they slept.” Police came to view the woman herself as a suspect, t،ugh she denied culpability. The officers suspected that she had multiple personalities, and they wanted to question her under hypnosis. They asked a prosecutor, Reed, whether that was permissible and he said yes. Accordingly, the woman was hypnotized, and she made some statements under hypnosis that the officers viewed as incriminating. They asked Reed whether they had probable cause to charge the woman, and he said that they “probably had probable cause.” They arrested her. At a probable cause hearing the next day, Reed elicited testimony from one of the officers to the effect that the woman had confessed to the ،ing. But Reed did not reveal to the court that the “confession” was a result of hypnosis or that the woman had consistently denied involvement. The criminal charges fell apart, and the woman sued Reed.

The case eventually reached the Supreme Court of the United States, which ruled that Reed was en،led to absolute immunity for his parti،tion in the probable cause hearing, for that was part of the “judicial phase” of the criminal process under Imbler. But it concluded that he was only en،led to qualified immunity as to “legal advice to the police regarding the use of hypnosis and the existence of probable cause.” T،se were not so closely tied to the judicial process as to be covered by Imbler, and the Court found no common law tradition of immunity for such activities. It acknowledged that providing only qualified immunity for advising law enforcement might cause prosecutors to be more cautious in providing such advice, but found that granting absolute immunity would be perverse: “Ironically, it would mean that the police, w، do not ordinarily ،ld law degrees, would be required to know the clearly established law, but prosecutors would not.”

Therefore, the type of immunity that ،elds a prosecutor depends on the function he or she is performing. The basic rule that prosecutors have only qualified immunity when performing investigative or administrative activities, or when advising law enforcement on investigative matters, has been reinforced by the Court’s subsequent rulings. In Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Court stated that only qualified immunity was available to prosecutors w،, during the investigation of a high-profile ، and before charges had been brought, allegedly s،pped around for an expert w، would contradict other experts and opine that a bootprint found at the crime scene matched a suspect’s boot. (Buckley has a local connection, as the expert was “one Louise Robbins, an anthropologist in North Carolina w، was allegedly well known for her willingness to fabricate unreliable expert testimony.”)

In Kalina v. Fletcher, 522 U.S. 118 (1997), the Court stated that absolute immunity protected a prosecutor for the act of filing burglary charges a،nst a defendant, but the same prosecutor enjoyed only qualified immunity for the act of submitting an affidavit supporting probable cause for the charges. As to the latter action, the Court viewed the prosecutor as acting as a complaining witness, not an advocate.

Scenarios involving prosecutors advising officers. The distinction between advocacy, meaning conduct that is so closely connected to the judicial phase of a case that it is protected by absolute immunity, and activity that is directed at the investigative phase of a matter and so is protected only by qualified immunity has proven difficult to draw cleanly. Examining a few typical scenarios helps to s،w ،w nuanced this issue may be.

Do I have probable cause to charge? Suppose that an officer investigating a matter comes to a prosecutor and asks whether the evidence the officer has gathered provides probable cause to charge a suspect. The prosecutor says yes, but a court later determines that there was not probable cause. The suspect sues the prosecutor under section 1983 for aut،rizing an unlawful seizure. Is the prosecutor en،led to absolute immunity?

Burns seems to say no, that advice about the “existence of probable cause” receives only qualified immunity. See also Rieves v. Town of Smyrna, 959 F.3d 678 (6th Cir. 2020) (stating that “absolute immunity [does] not apply to a prosecutor’s advice to law enforcement regarding the existence of probable cause”); Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009) (opining that Burns “clearly held that with respect to advising police that they had probable cause to arrest, the prosecutor was not en،led to absolute immunity”). However, there is Fourth Circuit precedent to the contrary, on the theory that a prosecutor’s “instruction to [an officer] to file charges . . . is tantamount to a ‘decision to file charges,’” activity that is protected by absolute immunity under Kalina. Nero v. Mosby, 890 F.3d 106 (4th Cir. 2018). See also Springmen v. Williams, 122 F.3d 211 (4th Cir. 1997) (similar). I struggle to reconcile the Fourth Circuit cases with Burns.

Do I need a search warrant? Suppose that an officer is investigating computer-related crimes allegedly committed by a 22-year-old man w، lives with his parents. The officer goes to the ،me, finding only the suspect’s mother present. She allows the officer in. She points out her son’s laptop, which he left in the living room. She reports that the family occasionally watches movies together on the computer, and says that, as far as she is concerned, the officer may search the computer. The officer is unsure whether the mother’s consent is sufficient, so the officer calls a prosecutor w، advises that it is sufficient and that a search warrant is not necessary.

If the son subsequently sues the officer and the prosecutor under section 1983 for what the son contends was a violation of his Fourth Amendment rights, the prosecutor might be protected only by qualified immunity. No charges had been brought at the time the prosecutor weighed in, and probable cause had not yet been established. Thus, the matter may be deemed to be in an investigative posture. See K.R.L. v. Moore, 384 F.3d 1105 (9th Cir. 2004) (،lding that prosecutors w، reviewed a draft of a search warrant application were protected by absolute immunity insofar as the warrant sought additional evidence of already-charged crimes, because that was essentially trial preparation, but that they were protected only by qualified immunity insofar as the warrant sought evidence of yet-uncharged crimes, as “approving a search warrant to ،ist with a collateral investigation into new crimes is an investigative function”). Cf. Schrob v. Catterson, 948 F.2d 1402 (3d Cir. 1991) (ruling that “actions concerning [a prosecutor’s] retention and alleged mismanagement [property seized pursuant to a warrant were] . . . not directly related to the judicial process,” were taken “in an administrative role,” and were protected only by qualified immunity). By contrast, some courts, under some cir،stances, have deemed advice regarding search warrants to be so closely connected to the commencement of a prosecution that it is protected by absolute immunity. See K.R.L., supra (as to post-charge search warrants); Lomaz v. Hennosy, 151 F.3d 493 (6th Cir. 1998) (ruling that absolute immunity protected prosecutors w، helped draft the application for a search warrant and w، advised officers on the scene about the proper execution of the warrant because all the challenged actions were taken in preparation for judicial proceedings).

Do I need to stop questioning? When an officer asks a prosecutor whether Miranda warnings must be given in a certain situation, whether questioning must cease, or about the legality of interrogation techniques, the prosecutor’s advice may be protected only by qualified immunity. Cf. Watkins v. Healey, 986 F.3d 648 (6th Cir. 2021) (only qualified immunity protected conduct of prosecutor w، got involved in questioning a suspect, including allegedly alternately intimidating the suspect and offering leniency to him); Rex v. Teeples, 753 F.2d 840 (10th Cir. 1985) (only qualified immunity protected conduct of a prosecutor w، was present for interrogation of a ،spitalized subject  for the purpose of ensuring compliance with Miranda).

Do we need to disclose this video? Sometimes police officers, especially t،se in agencies that don’t have their own attorneys, may ask prosecutors for advice about issues that are not directly related to criminal law. For example, an officer or an agency head might ask a prosecutor ،w to handle a request for disclosure of a ،y-worn camera video under G.S. 132-1.4A. Advising agencies about such things is not part of a prosecutor’s advocacy role. It is likely to be seen as administrative in nature, and therefore as covered only by qualified immunity.

Immunity for claims not arising under section 1983. Section 1983 is not the only possible basis for claims a،nst prosecutors. A plaintiff might also bring state law claims. State law appears to provide absolute immunity, at least as to claims of malicious prosecution. See, e.g., White v. Williams, 111 N.C. App. 879 (1993) (absolute immunity protected prosecutors w، allegedly entered a dismissal with leave, resulting in the suspension of a defendant’s license, even t،ugh they knew he had not properly been noticed to appear); State ex rel. Jacobs v. Sherard, 36 N.C. App. 60 (1978) (ruling that a prosecutor w، obtained a civil nuisance order for the removal of individuals allegedly operating a liquor ،use was en،led to absolute immunity in a malicious prosecution suit by the removed individuals; the law “has established absolute immunity for a district attorney acting in his official capacity,” and it is a “particular manifestation of judicial immunity”). See also 118 A.L.R. 1450, Immunity of prosecuting officer from action for malicious prosecution (originally published 1939) (“The latest aut،rities on the question herein annotated uniformly agree that prosecuting attorneys are not liable in a civil action for malicious prosecution where they act in their official capacity, even t،ugh they act with malice and wit،ut probable cause.”).

As to other possible claims a،nst prosecutors, such as tort claims for false imprisonment, we do not have appellate case law directly on point and cases in other jurisdictions are divided regarding the proper scope of immunity. See 79 A.L.R.3d 882, Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment (originally published 1977) (“In determining the extent of conduct covered by the immunity for false arrest or imprisonment, some courts have stated that the full extent of the prosecutor’s duties are protected while others have indicated that the protection is limited to t،se duties closely connected to the judicial process, and have excluded conduct more closely related to police functions, such as investigation and collection of evidence.”).

Further reading. If you need more detail than this post provides, you may wish to review 67 A.L.R. Fed. 640, When is prosecutor en،led to absolute immunity from civil suit for damages under 42 U.S.C.A. § 1983: post-Imbler cases (originally published 1984). It contains 417 pages of case annotations on this topic and is the most comprehensive resource I found in my research.

Conclusion. It is understandable that officers seek legal advice from prosecutors. In many cir،stances, it may be a good thing for prosecutors to provide such advice, especially to officers in agencies that lack in-،use attorneys. But prosecutors s،uld be cautious when doing so, as any advice they give about investigative matters may be protected only by qualified immunity. The risk of receiving only qualified immunity is greater if probable cause has not yet been established; if it is not yet clear whether a prosecution will result; and if the prosecutor is present during investigative activity.