Patterico's Pontifications


9th Circuit On Prosecutorial Immunity

Filed under: Court Decisions — Justin Levine @ 4:12 pm

[posted by Justin Levine]

I know that Patterico is very busy these days. But if he ever gets around to it, I’d be curious to hear his perspective on this decision.

— Justin Levine

UPDATE FROM PATTERICO: I haven’t read the decision, but I do have one question: how does Stephen Reinhardt end up on every single case involving hot-button liberal issues?

Honestly, it’s more than a little odd.

I will add a comment that doesn’t go to the merits of the decision, but is based on news reports I have about read it. I never really held ambitions to be a supervisor. But if I had, this decision would kill those ambitions dead.

Unless, of course, it gets reversed.

UPDATE x2 FROM PATTERICO: I’ll try to post on this more when I’m not dead tired. But the upshot seems to be that, while prosecutors would get absolute immunity for deliberately hiding exculpatory evidence in a case, they are not entitled to such immunity for drafting policies that are insufficient to ensure that exculpatory informaton is disclosed.

I’m not sure I buy that.

13 Responses to “9th Circuit On Prosecutorial Immunity”

  1. I doubt if he’ll tell you.

    I can tell you. It sucks. I read the opinion. A prosecutor has absolute immunity if he knowingly presents false evidence but he does not have that immunity for not “institut[ing] procedures that would allow information-sharing among prosecutors and ensure disclosure of informants’ histories”??? Love that Ninth Circuit.

    nk (829232)

  2. The Ninth Circuit is very resistant to prosecutorial immunity and attempts to reduce its scope whenever possible. Reversal is unlikely since the Supreme Court accepts such a small number of cases. On the other hand, the Ninth has issued a number of bad immunity cases in the last few years. Maybe the Supremes will grant cert. on this one or some other case in the near future to set the Ninth Circuit straight. Reinhardt, one of the judges on this panel, is one of the most reversed federal judges on the bench.

    GRS (02a37a)

  3. Reinhardt is on these things because if he wasn’t they would generally go the normal way. So, he’s the man that bites dog.

    Kevin Murphy (0b2493)

  4. From the summary, I can see (barely) that Van de Camp might be liable if the system he devised was so negligent that informants could blithely perjure themselves, and did.

    However, I cannot see how the DDAs would be liable in any way for systemic injury. Now, if one could prove they knew of perjury by their witness, or withheld exculpatory evidence (see Nafong), that’s another matter.

    Kevin Murphy (0b2493)

  5. Reinhardt had help.

    Thelton Henderson: Blocked Prop 209, ruling that the 14th Amendment required affirmative action (overturned by 9th Circuit). Has taken control of state prison medical care.

    Kevin Murphy (0b2493)

  6. The decision does not address any claims of qualified immunity (because Van de Camp didn’t claim any), only those of absolute immunity.

    It basically says that absolute immunity only holds for clearly prosecutorial actions, and not for administrative functions; and that the negligence at issue was administrative.

    Not sure if the law is being applied right, but it seems like a reasonable decision if it is, as the actions seem administrative.

    Kevin Murphy (0b2493)

  7. The 9th curcut court the nations most over turned court in the nation its time to close down their ship of irrevolent fools

    krazy kagu (e22b83)

  8. Not totally off-topic. Can you truly blame U.S. Attorney’s in the 9th Circuit for not pursuing some death penalty cases?

    nk (95836b)

  9. Am I the only one who’s curious that prosecuters have an absolute immunity both for knowingly presenting false evidence and for intentionally concealing exculpatory evidence? What’s the difference between suborning perjury and “knowingly presenting false evidence”? When coupled with the previous case where it was discussed that the law was not a “gotcha game” … what kind of game is it?

    htom (412a17)

  10. It’s worth noting the the NC Bar Assoc. ethics committee has a complaint against Nefong that includes “intentionally concealing exculpatory evidence”. I wonder if the 9th C. is trying to get an oar in.

    LarryD (336e87)

  11. htom–

    I’m sure Patterico will correct me if I’m wrong 😉 but I believe that prosecutors have absolute CIVIL immunity because otherwise they’d be spending all their time responding to nuisance & Hail-Mary suits from people they prosecuted. They remain, however, subject to CRIMINAL penalties for suborning perjury and the like.

    The agency they work for (e.g. the County of LA) remains liable for civil penalties. But not the individual. This is akin to the “corporate veil.”

    Some defendant’s-rights-oriented judges don’t much care for this, and this may be an attempted end-run. I imagine, if the ruling will expose DA’s to endless personal suits, that even the 9th Circuit will review it en banc.

    Kevin Murphy (805c5b)

  12. Strange meaning for “absolute immunity” but probably one of those differences between law and engineering.

    htom (412a17)

  13. This is just a variant of federal governmental immunity. In the common law there is absolute judicial privilege which devolves to the benefit of everyone involved in the judicial process. For example, Mr. Goldstein cannot sue the jury. And his trial attorney cannot sue his appellate/post conviction attorneys for slander because they claimed ineffective assistance of counsel.

    nk (95836b)

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