Opinion
Civil Action No. 00-958, Section "C" (1).
December 13, 2000.
Edward S. Brown, Reese, Reese Brown, Charles Neville Reese, Reese, Reese Brown, Daleville, AL., for Plaintiff.
John P. Kavanagh, Jr., Pierce, Ledyard, Latta Wasden, P.C., Mobile, AL., John P. Kavanagh, Jr., Pierce, Ledyard, Latta Wasden, P.C., Mobile, AL., and Forrest Stephen Latta Pierce, Ledyard, Latta Wasden, P.C., Mobile, AL., for Defendant.
ORDER AND REASONS
This matter comes before the Court on motion to dismiss filed by the defendants Douglas Greenburg and Joseph Waitz, Jr. Having considered the record, the memoranda of counsel and the law, the Court has determined that the motion should be GRANTED on the basis of absolute immunity for the following reasons.
The plaintiff, Clyde Charles ("Charles") is suing the defendants in their individual and official capacities as district attorneys for the Parish of Terrebonne, State of Louisiana. In 1999, Charles was released-from imprisonment for a 1982 aggravated rape conviction after a DNA test on the "rape kit" from that crime revealed that he was not the perpetrator. This lawsuit seeks monetary damages from the defendants under 42 U.S.C. § 1983 for their "opposition" to the plaintiff's efforts since 1992 to perform the test on the rape kit. In this motion, the defendants claim absolute immunity, alternatively, qualified immunity and prescription as to the Section 1983 claims and quasi-judicial immunity and prescription as to any pendent state claims.
It is unclear from the petition, amended petition and opposition, whether the plaintiff is making separate claims under Louisiana law, La. Civ. Code art. 2315. Assuming a claim for negligence is being made, the Court's analysis would remain applicable.
The Court is construing the motion as only challenging claims made against the defendants in their individual capacity. Whether or not claims remain against the defendants in their official capacity will be the subject of consensus or future motions.
There seems to be no dispute that absolute and qualified immunity would apply only to the claims made against the defendant prosecutors in their individual, as opposed to official, capacities. Turner v. Houma Municipal Fire Police Civil Service Board, 229 F.3d 478 (5th Cir. 2000). Absolute immunity protects regardless of the merits of a plaintiff's claim, whereas qualified immunity provides protection unless the official violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Absolute immunity is rarer than qualified, with a presumption "that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." Burns v. Reed, 500 U.S. 478, 486-487 (1991). Absolute immunity is found in "exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business." Butz v. Economou, 438 U.S. 478 (1978).
Neither immunity applies in Section 1983 suits for injunctive or declaratory relief. Chrissy F. by Medley v. Mississippi Dept. of Public Welfare, 925 F.2d 844, 849 (5th Cir. 1991).
Absolute immunity
In Imbler v. Pachtman, 424 U.S. 409, 430 (1976), the Supreme Court recognized absolute immunity in a Section 1983 suit for state prosecutors "in initiating a prosecution and in presenting the State's case." Absolute immunity was recognized where the prosecutor's "activities were intimately associated with the judicial phase of the criminal process" and "in his role as advocate for the State." Id., 424 U.S. at 430-431, fn. 33. In Burns v. Reed, 500 U.S. 478, (1991), absolute immunity was recognized for a prosecutor in "any hearing before a tribunal which perform[ed] a judicial function." Id., 500 U.S. at 490, quoting W. Prosser, Law of Torts § 94, pp. 826-827 (1941), and specifically extended to a prosecutor's act of appearing before a judge and presenting evidence in support of a search warrant where the prosecutor was acting in his "role as an advocate for the State." Id., 500 U.S. at 431, fn 33. However, absolute immunity was not recognized for the prosecutor's activities of advising the police in their investigation. Id. In Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the application of the "functional approach," which looks to "the nature of the function performed, not the identity of the actor who performed it," resulted in absolute immunity being denied the for alleged prosecutorial misconduct in the investigation of a crime and for allegedly false statements made in a public announcement of an indictment. Id., 509 U.S. at 269, quotingBurns, 500 U.S. at 486, and Forrester v. White, 484 U.S. at 229. "A prosecutor's administrative duties and those investigatory functions that do not related to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity." Buckley, 509 U.S. at 273.
The plaintiff indicates in his opposition that the prosecutors were acting as custodians of evidence and not prosecutors, and that the plaintiff was denied access to "evidence" in violation of the Louisiana Constitution, art. XII, § 3 and the Louisiana Public Records Law, La. Rev. Stat. § 44:3(A)(1) and § 44:31.1. The defendants maintain that the prosecutorial action complained of "arose from the performance of their official duties, i.e., by appearing in court and opposing pleadings filed by the plaintiff." (Rec. Doc. 37, p. 3). The Court has several areas of difficulty with the plaintiff's position.
This section provides: "No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law." (Emphasis added).
This section provides: "Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the attorney general, district attorneys . . . which records are: (1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled . . ."
This section provides: "For purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3."
First, the pleadings indicate that the requests for the rape kit were presented to the courts, and that the prosecutors in question formally opposed those requests. Clearly, the prosecutors in doing so acted in performance of their official duties. Under the "functional approach," the defendants' activities were directly attached to the judicial process and the defendants were acting in their roles as advocates for the state. The fact that the defendants may also have been the custodians of the evidence does not detract from the essence of their function with regard to the requests. Ironically, among the Supreme Court statements supportive of absolute immunity indicated that one purpose of it is to protect prosecutors who willingly disclose evidence after conviction that suggests innocence.
The plaintiff alleges in the petition that he successfully received a state court order on one occasion, but later was refused access. Whether the state court resolved the parties' differences to the plaintiff's detriment or whether the plaintiff did not pursue his rights in state court after the defendants allegedly violated the court order, the prosecutor was still performing a prosecutorial function.
The possibility of personal liability also could dampen the prosecutor's exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial this duty is enforced by the requirements of due process, but after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. . . . Indeed, the record in this case suggests that respondent's recognition of this duty led to the post-conviction hearing which in turn resulted ultimately in the District Court's granting of the writ of habeas corpus.Imbler, 424 u.s. at 427, fn 25. Further,
Although this Court refused to dismiss the plaintiff's first Section 1983 suit seeking access to the rape kit, the record in that matter establishes that the critical evidence was turned over to the plaintiff as a result of cooperation from the defendants, not because of a judicial determination of entitlement.
The alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system. Moreover, it would often prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice.Id., 424 U.S. at 427-428. Here, the defendants' activities, as pleaded by the plaintiff, "were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force." Id., 424 U.S. at 430. SeeBrison v. Police Office Tester, 1994 WL 709401 (E.D.Pa. 1994); Roberts v. Toal, 1997 WL 83748 (E.D.Pa.), aff'd, 133 F.3d 910 (3d Cir. 1997);Harrison v. Abraham, 1997 WL 256970 (E.D.Pa. 1997), aff'd, 1512 F.3d 1025 (3d Cir. 1998).
The Court remains somewhat unclear as to the precise nature of the state law claims being made, and whether the defendants owed a duty to the plaintiff under state law that would be relevant to a claim under La. Civ. Code art. 2315. However, the defendants would be entitled to absolute immunity under Louisiana law from civil suits involving conduct within the course and scope of their prosecutorial functions. Knapper v. Connick, 681 So.2d 944 (La. 1996).
The Court's next concern is with the scope of the Public Records Law, which the plaintiff argues entitled him access to the rape kit and is a reason why absolute immunity should not be recognized. It would appear that by its terms, "public records" do not include physical evidence. Under La. Rev. Stat. 44:1(2), "public records" are "[a]ll books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment . . ." In fact, in the statute relating specifically to "prosecutive" agencies and access to family members in cases involving a person who has died for at least ten years, the statute permits access not only to the record, but to "evidence" as well. La. Rev. Stat. § 44:3F. The Public Records Law does not appear otherwise provide access to evidence, much less physical evidence, as opposed to documents or records from prosecutors as claimed by the plaintiff.
In addition, the plaintiff does not plead facts indicating a right to access to public records under Section 44.31.1, even if public records included the evidence of the rape kit. Although he speaks of relevance to a post-conviction application in his opposition, the plaintiff does not identify any ground under Article 930.3 which could potentially apply. in any post-conviction application. Conclusion
The grounds specified in Section 930.3 are:
(1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana;
(2) The court exceeded its jurisdiction;
(3) The conviction or sentence subjected him to double jeopardy;
(4) The limitations on the institution of prosecution had expired;
(5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; or
(6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States of the state of Louisiana.
In light of the disposition on the issue of absolute immunity, the Court does not address the issues of qualified immunity or prescription as it pertains to individual liability, which liability is the only one addressed by this order and reasons.
An innocent man has spent many years in prison while the evidence which could have readily freed him remained exclusively in the custody of prosecutors who could have, in their discretion, released it but refused. Regardless of how one views this in terms of fairness, the prosecutors are immune from personal liability for that choice. As the plaintiff is certainly aware, he is riding the crest of a new body of law using the latest science to free innocent men and women. The plaintiff was among a number of imprisoned people to use the civil rights laws and the judicial system in the 1990's to gain the injunctive relief sought. This Court previously held that the plaintiff's request for the rape kit was not subject to dismissal for frivolousness. This led to negotiations between the parties which, with the able assistance of the Magistrate Judge, resulted in agreement and eventual freedom for the plaintiff. It was, in the end, an agreement giving the plaintiff access to the rape kit, not a court order. Different issues are presented when damages are sought from the defendants who, like the plaintiff, were at the forefront of newly-developing law.
The Court notes that a constitutional basis for this access in post-conviction proceedings has been recently recognized by lower courts. Harvey v. Horan, 119 F. Supp.2d 581 (E.D.Va. 2000).
Accordingly,
IT IS ORDERED that the motion to dismiss filed by the defendants Douglas Greenburg and Joseph Waitz, Jr. in their individual capacities is GRANTED.
IT IS FURTHER ORDERED that the parties shall advise the Court in writing by fax (504-589-2643) of the status of any remaining claims in this matter, which will be discussed at the telephone status conference set for December 14, 2000, at 3:30 p.m.