Wednesday, September 26, 2012

Absolute immunity for prosecutors in Monserrate domestic violence case

As a matter of law, some people cannot be sued. No matter what they do, it seems. That's the rule in this case involving domestic violence committed by a former New York State Senator.

The case is Giraldo v. Kessler, decided on September 14. Giaraldo was Hiram Monserrate's girlfriend. The police interrogated her against her will when they had reason to believe that Monserrate hit her in the face with a drinking glass. Monserrate was in the State Senate when this happened. For those of you who live outside the State of New York, this is the kind of social degenerate who gets elected to state government in New York from time time. Anyway, Giraldo did not want to answer police questions about the assault, and she denied that Monserrate had done anything wrong and that the whole thing was an accident when he brought her "glass of water that broke, causing shards to fly and cut her forehead." No matter. The police held her against her will for five hours and "ordered" her to sign a statement implicating Monserrate in the assault, to no avail. Then the prosecutors got involved. They also held Giraldo against her will for two hours. Giraldo sues the prosecutors under the Fourth Amendment. (She also sues the police, but that claim is not on appeal).

Plaintiffs' lawyers are often asked by potential clients if they can sue the prosecutor who pursued criminal charges against them. Sometimes, these charges are dismissed or dropped or the jury acquits the defendant. Understandably, the defendant wants to remedy this possible injustice. The courts will not allow it, for obvious reasons. If prosecutors were on the hook each time someone is acquitted, they would be sued out of existence.

Can you sue the prosecutors in this case? After all, Giraldo was not charged with anything. She was hassled by the prosecutors. That's a distinction, true, but she cannot sue the prosecutors in any event. They have absolute immunity. The district court allowed this claim to go forward, but the Court of Appeals (Winter, Cabranes and Carney) reverses and dismisses the claim against these defendants. "Prosecutorial immunity from Section 1983 liability is broadly defined, covering virtually all acts, regardless of motivation, associated with the prosecutor's function as an advocate." Tough to get around this standard. "Investigative acts reasonably related to decisions whether or not to begin or to carry on a particular criminal prosecution, or to defend a prosecution, are shielded by absolute immunity when done by prosecutors." Giraldo cannot sue the prosecutors because, at the time they interrogated her, Monserrate was arrested and the prosecutors had to make quick legal decisions about how to proceed. The interview, unpleasant as it was, was in preparation of a court proceeding in which the prosecutor acts as an advocate." Giraldo was an important witness in this proceeding, and the prosecutors had the right to personally assess her credibility when she tried to exonerate Monserrate.

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