Prosecutors Who Issued Fake Subpoenas Do Not (Yet) Get Absolute Immunity

By Joseph Fawbush, Esq. on April 28, 2020

The Fifth Circuit is once again weighing in on an Orleans Parish Criminal District Court's . . . unusual practices. Last year, the Fifth Circuit told OPCDC judges that they could not indiscriminately arrest criminal defendants for failing to pay fines, a practice which led to calls it was running a “debtor's prison." Now, the Fifth Circuit is telling OPCDC prosecutors that they cannot issue fake subpoenas and expect absolute immunity. At least, not yet.

Issuing Fake Subpoenas

The Orleans Parish District Attorneys Office for years sent documents to potential witnesses and crime victims titled “SUBPOENA." They were not subpoenas, however, because prosecutors did not go through the court system to obtain them, which is a violation of Louisiana law. Nonetheless, prosecutors threatened recipients with fines and imprisonment for ignoring the fake subpoenas. One potential witness in a murder investigation was jailed for a week for failing to comply, after a prosecutor in the case obtained a warrant on misleading information.

Various recipients of the fake subpoenas sued, alleging a violation of their constitutional rights under §1983.

Absolute Immunity

Typically, prosecutors have absolute immunity from lawsuits for official actions. The lower court, however, reasoned that since the prosecutors “side-stepped the judicial process" they were not entitled to absolute immunity. The Fifth Circuit panel agreed.

Absolute immunity protects prosecutors so they do not need to fear retaliatory lawsuits for doing their job. However, actions that are not “intimately associated with the judicial phase of the criminal process" do not enjoy absolute immunity. Since the fake subpoenas were done during the investigative part of the process, and not the judicial phase, they did not get absolute immunity. Further, since they did not go through the courts, “they operated free of the checks and safeguards inherent in the judicial process."

However, the Fifth Circuit left open the possibility that prosecutors could prove that they were acting within the judicial process as early as the summary judgment stage. But, according to the Fifth Circuit, the district court was correct to refuse to dismiss the case.

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