Ethics
Prosecutorial ethics
Prosecutor as witness. People v Hernandez (2003) 30 C4th 835, 864–870
Liability
Burns v. Reed (1991) 500 U.S. 478
Buckley v. Fitzsimmons (1993) 509 U.S. 259
113 S.Ct. 2606
Garmon v. County of Los Angeles (9th Cir.) 828 F.3d 837
Inman v. Anderson (N.D. Cal. 2018) 294 F.Supp.3d 907
Claims for monetary damages against prosecutors pursuant to § 1983 may be barred by absolute prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). This immunity applies to conduct “intimately associated with the judicial phase of the criminal process,” and protects prosecutors when they perform traditional activities related to the initiation and presentation of criminal prosecutions. Id.; accord Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005). Thus, prosecutorial immunity bars allegations for, among other things, malicious prosecution and conspiracy in connection with criminal prosecutions. See, e.g., Milstein v. Cooley, 257 F.3d 1004, 1008–09 (9th Cir. 2001) (prosecutorial immunity bars claim of malicious prosecution); Ashelman v. Pope, 793 F.2d 1072, 1075–78 (9th Cir. 1986) (prosecutorial immunity bars claim against prosecutor alleging that prosecutor conspired with the judge to predetermine the outcome of a trial). However, prosecutorial immunity does not extend to “[a] prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). As a result, whether a prosecutor is entitled to prosecutorial immunity for particular conduct turns on whether the prosecutor was “functioning as [an] ‘advocate[ ]’ ” while engaging in that conduct. Id. at 274, 113 S.Ct. 2606. 8 ADA Moore's decision to initiate a criminal prosecution against Plaintiff, and his alleged insistence on continuing that prosecution for 9 months “even though there was no evidence” to support the prosecution, FAC ¶ 13, fall squarely into the category of conduct that is “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S.Ct. 984. Such alleged conduct is clearly intertwined with the presentation of the state's case against Plaintiff. See id. at 431, 96 S.Ct. 984 (“[I]n initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983.”). In other words, ADA Moore was undisputedly “functioning as [an] ‘advocate[ ]’ ” for the state when he continued to prosecute Plaintiff in the face of allegedly insufficient evidence to justify the prosecution. Buckley, 509 U.S. at 273, 113 S.Ct. 2606. As a result, Plaintiff's first cause of action against ADA Moore, to the extent that it is based on ADA Moore's alleged prosecution of Plaintiff without sufficient evidence, is barred by prosecutorial immunity. Indeed, Plaintiff's challenge to ADA Moore's continued prosecution of Plaintiff without sufficient evidence is akin to a malicious prosecution claim, and it is well-established that malicious prosecution claims against a prosecutor pursuant to § 1983 are barred by prosecutorial immunity. Milstein, 257 F.3d at 1008–09; see Zendejas v. Cty. of L.A., 2010 WL 4537090, *5 (C.D. Cal. Nov. 1, 2010) (“[F]or a malicious prosecution claim under the Fourth Amendment, a plaintiff must prove prosecution without probable cause.”). 9 10 In contrast, ADA Moore's alleged failure to return Plaintiff's property after the criminal charge against Plaintiff *917 was dismissed does not appear to amount to conduct that is “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S.Ct. 984. Instead, once the criminal charges against a defendant are dismissed, “disposal of property held as evidence during the pendency of [the prosecution] is clearly an administrative function of prosecutors for which absolute immunity does not lie.” Bushouse v. Kalamazoo Cty., 93 F.R.D. 881, 884 (W.D. Mich. 1982). Indeed, Plaintiff's allegation that the state court judge ordered ADA Moore to return Plaintiff's property to Plaintiff—which the Court must accept as true for purposes of the instant motion—further reinforces the conclusion that ADA Moore's failure to return Plaintiff's property appears to have been unrelated to any ongoing criminal proceedings against Plaintiff. See Imbler, 424 U.S. at 431, 96 S.Ct. 984. Although ADA Moore may eventually be able to demonstrate that he is entitled to prosecutorial immunity for his retention of Plaintiff's property because he was “functioning as [an] ‘advocate[ ]’ ” in retaining Plaintiff's property, Buckley, 509 U.S. at 274, 113 S.Ct. 2606, at this stage of the proceedings, and in light of Plaintiff's allegations, the Court cannot conclude that ADA Moore is entitled to prosecutorial immunity for this portion of Plaintiff's first cause of action.
As discussed above, Plaintiff's second cause of action for “conspiracy to seize the person and deny substantive due process” in violation of the Fourth and Fourteenth Amendments, as it pertains to ADA Moore, appears to be based on ADA Moore's alleged participation in a conspiracy with the City Officers to present a “false and misleading probable cause statement ... requesting a search warrant for [P]laintiff's home.” FAC ¶¶ 13, 15. In the County Defendants' motion to dismiss, ADA Moore argues that Plaintiff's second cause of action is barred by prosecutorial immunity. See County Mot. 5–8. ADA Moore further argues that Plaintiff's second cause of action “fails to sufficiently allege [that ADA Moore] conspired *918 against” Plaintiff and “fails to demonstrate [that ADA] Moore made false and misleading statements.” Id. at 10–12. The Court agrees with ADA Moore that Plaintiff's second cause of action, as it pertains to ADA Moore, is barred by prosecutorial immunity. In Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), the United States Supreme Court held that a prosecutor who knowingly presented misleading evidence in moving for a warrant to search a suspect's house and car after that suspect had been arrested was entitled to prosecutorial immunity because (1) “appearing before a judge and presenting evidence in support of a motion for a search warrant” “clearly involve[s] the prosecutor's ‘role as advocate for the State,’ rather than his role as ‘administrator or investigative officer,’ ” id. at 491, 111 S.Ct. 1934 (quoting Imbler, 424 U.S. at 430–31 & n.3, 96 S.Ct. 984); (2) “appearing at a probable-cause hearing is ‘intimately associated with the judicial phase of the criminal process’ ” because “the issuance of a search warrant is unquestionably a judicial act,” id. at 492, 111 S.Ct. 1934 (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984); and (3) “where [a probable cause] hearing occurs after arrest,” appearing at that hearing is “connected with the initiation and conduct of a prosecution.” Id. More generally, courts have recognized that after a prosecution has been initiated against a specific defendant, prosecutorial immunity attaches to any alleged fabrication of evidence or presentation of that fabricated evidence by a prosecutor in support of the state's case against the defendant. See Hill v. City of New York, 45 F.3d 653, 660–62 (2d Cir. 1995) (holding that a prosecutor's alleged use of false evidence and withholding of exculpatory evidence at a grand jury proceeding was entitled to prosecutorial immunity); Bhatia v. Gaetano, 2008 WL 901491, *3 (D. Conn. Mar. 31, 2008) (“To the extent that Bhatia alleges that Gaetano fabricated evidence in order to aide in a prosecution that had already been initiated, absolute immunity attaches.”).