A good primer on prosecutorial immunity

As every plaintiff-side civil rights lawyer has advised his clients from time-to-time, you cannot sue the prosecutor. On rare occasions you can, but prosecutors have immunity from suit, for the same reason judges are immune from suit: every unhappy criminal defendant would otherwise sue the prosecutor. This judge-made rule ensures the courthouse will not be as tall as the Empire State Building.

The case is Ogunkoya v. Monaghan, issued on January 9. The facts are unusual. Plaintiff lives in Brooklyn. He was charged with fraudulent Home Depot gift card activity in Monroe County, which is   three or four hours away from New York City. While all this was going down, he was planning to take the New York bar examination. He was going to be arraigned in town court in Monroe County, but the town judge objected because the offenses allegedly took place in a different town. Rather than have plaintiff arraigned in the right town, the prosecutors delayed that arraignment and sought a bail hearing, claiming he was a flight risk. This led the local judge to impose a a $100k cash/$300k bond bail. A jury acquitted him of all charges, prompting plaintiff to sue the prosecutors. The district court said plaintiff could proceed with that portion of the case, but the Court of Appeals reverses.

Prosecutors cannot be sued for initiating a prosecuting and presenting the state's case. More broadly, the DA cannot be sued for acts that are taken in his capacity as an advocate. The Court of Appeals says the prosecutor's decision to prosecute plaintiff and proceed by grand jury indictment was a prosecutorial exercise of discretion entitled to absolute immunity. While the trial court said the local arraignments were a police and not a prosecutorial responsibility, the Second Circuit sees it differently. While it is generally a police responsibility to present a detailed person before a court for evaluation of the legality of her detention, a legal principle that might support plaintiff's case against the ADA on the ground that the ADA unreasonably delayed his prosecution, in this case, the ADA's function in controlling plaintiff's arraignments on multiple and different charges that would later be subsumed in a single charging document was part of the prosecutor's role as the gatekeeper of "whether an when the prosecute," the latter quotation arising from the seminal prosecutorial immunity case, Imbler, a Supreme Court case from 1976.

The decision to initiate prosecution, what charges to bring and how to perfect and consolidate those charges "is a quintessential prosecutorial function," the Circuit Court says. Not only were the prosecutors participating in plaintiff's arraignment, but they were also preparing to prosecute him on multiple charges in two other towns. Pursuing all the charges in a single indictment rather than pursue three separate criminal actions under the six felony complaints was ultimately a prosecutorial function. That plaintiff's prosecution was delayed in this regard does not give him a Section 1983 lawsuit against the prosecutors.