Friday, March 4, 2011

Supreme Court Examines Limits of Prosecutorial Immunity

This week, the U.S. Supreme Court listened to arguments about whether to allow former Attorney General John Ashcroft to be sued by Abdullah al-Kidd, an American Muslim, who was arrested and detained using a law intended to make sure witnesses testify in criminal proceedings, according to the Associated Press.

The various Circuit Courts of Appeals have split on whether an arrest under a material witness warrant like the one used on al-Kidd in 2003 was constitutional. The issues before the court are whether prosecutors should continue to have absolute immunity from civil law suits when performing prosecutorial functions and is a material witness warrant a protected function.

The law is settled on the issue of protected prosecutorial functions, for which prosecutors may not be sued. The Court in Imbler v. Pachtman, 424 U.S. 409 (1976) acknowledged that absolute immunity may “leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” But the Court expressed agreement with Judge Learned Hand, who observed that it is “in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949).

The question for the Supreme Court is whether or not taking a material witness into custody, even as a pretext for investigating the detained witness, is a protected prosecutorial function.

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