Beyond Absolute Immunity: Alternative Protections for Prosecutors against Ultimate Liability for § 1983 Suits
Taddei, John P., Northwestern University Law Review
ABSTRACT-Questions of whether prosecutors should be immune from liability for constitutional torts, and if so, whether that immunity should be qualified or absolute, have been the source of considerable controversy for the last half century. Some argue that absolute prosecutorial immunity is indispensable, a necessary tool to protect public servants who, without immunity, would be buried under a mountain of frivolous § 1983 suits. Others see absolute prosecutorial immunity as unjust because it prevents genuinely wronged individuals from rightfully collecting damages from constitutional tortfeasors. As the debate over the Supreme Court's prosecutorial immunity jurisprudence continues, the current scope of protections afforded to prosecutors outside of the judicially created immunity regimes has received decidedly less attention. This Note will argue that states and local municipalities have created a number of protections for public officials, including prosecutors-such as indemnification legislation, private insurance, and other alternative liability mechanisms-to cover losses from torts they commit in the line of duty. These protections prevent prosecutors from shouldering the burden of personal financial liability even in instances in which they cannot don the cloak of absolute immunity. Considering the breadth of the protections that are currently afforded prosecutors coupled with the opportunity for their expansion to additional jurisdictions, the Court's decades-old justifications for maintaining absolute prosecutorial immunity are no longer a concern. Therefore, the Court should abandon its confusing absolute prosecutorial immunity jurisprudence once and for all.
Several high-profile cases have recently thrust the issue of prosecutorial misconduct into the collective American consciousness. The botched prosecution of Senator Ted Stevens for failure to disclose gifts and the "rush to accuse" three former Duke University lacrosse players of rape both generated significant media attention.1 They are prominent examples of the fallout that can result when prosecutors abuse their position. Though the charges against both Senator Stevens and the Duke lacrosse players were eventually dropped,2 many other less publicized incidents have featured frivolous litigation, unjust convictions, and imprisonment of the innocent. Statutory recourse is available for the victims of such wrongs, but under the current judicially invented system of prosecutorial immunity, few can collect damages.
42 U.S.C. § 1983 creates a cause of action for damages against "[e]very person who, under color of" state or local law, subjects "any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States.3 But questions of whether prosecutors should be immune from suit under § 1983, and if so, whether that immunity should be qualified or absolute, have been the source of considerable controversy for the last half century.4 Some argue that absolute prosecutorial immunity is indispensable, a necessary tool to protect public servants who, without immunity, would be buried under a mountain of frivolous § 1983 suits.5 Others see absolute prosecutorial immunity as unjust because it prevents genuinely wronged individuals from rightfully collecting damages from constitutional tortfeasors.6 Currently, most prosecutorial conduct is absolutely immune from § 1983 suits.7
The distinction between absolute and qualified immunity has both practical and legal significance. Absolute immunity from suit protects an individual from liability regardless of his state of mind at the time he commits an alleged constitutional violation.8 Qualified immunity applies to a narrower range of conduct; it protects an individual from liability only for acts or omissions undertaken in good faith.9 Generally, actions undertaken in good faith include "conduct [that] does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. …