Van de Kamp v. Goldstein

Is the challenged policy prosecutorial or administrative in nature?

Absolute immunity is “an absolute bar to liability,” as opposed to qualified immunity, which protects government officials from civil suits only when their alleged conduct does “not violate a constitutional right or violates a constitutional right that was not ‘clearly established.’” Goldstein, 481 F.3d at 1173, quoting Saucier v. Katz, 533 U.S. 194, 201–02 (2001). Only absolute immunity is at issue here, since Van de Kamp and Livesay did not claim qualified immunity in the district court. See Goldstein, 481 F.3d at 1172–73.

The case turns on the Supreme Court’s decision in Imbler v. Pachtman, and how it was interpreted in the cases that followed. 424 U.S. 409 (1976). Imbler established that prosecutors could claim absolute immunity from §1983 civil suits when the alleged misconduct is “intimately associated with the judicial phase of the criminal process.” Id. at 430. In Imbler, the prosecutor had been accused of knowingly using false testimony and suppressing exculpatory evidence, actions which were clearly part of “initiating a prosecution” and “presenting the State’s case.” Id. at 430. The Imbler holding was narrow and the Court did not decide whether a prosecutor acting as an administrator or investigator should likewise receive absolute immunity. See Id. at 430. However, subsequent decisions have confirmed the existence of this distinction: “A prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see also Burns v. Reed, 500 U.S. 478 (1991), Kalina v. Fletcher, 522 U.S. 188 (1997).

Petitioners Van de Kamp and Livesay argue that Goldstein alleges failures that are necessarily prosecutorial in nature, and therefore absolute immunity should apply. See Brief of Petitioners at 22. Goldstein claims he was wrongfully accused of murder based on the false testimony of an informant who received a reduced sentence in exchange. See Brief for Respondent at 3. Under the landmark case of Brady v. Maryland, the prosecution is required to disclose to a criminal defendant all evidence that is material to guilt or to punishment. 373 U.S. 83, 87 (1963). Such exculpatory evidence includes information affecting the credibility of a witness, such as the fact that the government promised a witness that he would not be prosecuted or that he would receive a lesser sentence in exchange for his testimony. See Giglio v. US, 405 U.S. 150, 154 (1972). It is well-established under Imbler and progeny that an individual prosecutor will receive absolute immunity from a suit alleging Brady or Giglio violations. See Brief of Petitioners at 26. Van de Kamp and Livesay claim that the Ninth Circuit gave no “principled basis” for distinguishing between the Brady failures of an individual prosecutor, and their alleged failure here as supervising prosecutors to ensure, through training and supervision, that individual prosecutors are complying with these obligations. Id. at 26. They argue that the “duty to disclose exculpatory information under Brady and Giglio arises only in the context of prosecution,” and consequently, that the claims are not administrative but are prosecutorial in nature. Id.

However, Goldstein argues that Van de Kamp and Livesay are mischaracterizing his complaint, as he is “not trying to hold Petitioners vicariously liable for the trial tactics of the deputy who prosecuted him.” Brief for Respondent at 16. He claims he is not blaming them for inadequate training or supervision of trial attorneys. Id. at 10, 16. In fact, Goldstein concedes that the trial prosecutor did not knowingly or willingly violate Brady, since as far as the trial prosecutor knew, “there was no information to disclose, and therefore no decision to make.” Id. at 10. Instead, Goldstein claims, the allegations are focused on the supervising prosecutors’ administrative failure to establish an internal information system for tracking deals made with jailhouse informants, a failure which resulted in “an information vacuum that prevented line prosecutors learning the truth about informants.” Id. at 9–10.

In 1972, the Supreme Court recognized that holding the entire prosecution office responsible for promises made by one attorney may be burdensome to larger offices, but stated that “procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” Giglio, 405 U.S. at 154. Goldstein claims that the Los Angeles County District Attorney’s Office knew of this obligation, as well as that police officers and prosecutors relied on “testimony from career felons who, like Fink, trafficked in false jailhouse confessions in return for sentence reductions,” and that prosecutors even coached such informants on their false testimony. Brief for Respondent at 5. Goldstein blames Van de Kamp and Livesay for having this knowledge and yet failing to develop a system to track benefits given to informants. See Id. Indeed, Goldstein claims that they deliberately decided not to establish such a system, “because they preferred a system guaranteed to ‘prevent’ trial deputies from learning exculpatory information that they would have to disclose to the defense.” Id. Thus, Goldstein argues, the alleged misconduct of Van de Kamp and Livesay is administrative in nature and not intimately associated with a judicial proceeding. See Id.

Policy Concerns and Alternative Options

The Supreme Court’s decision in Imbler was based, in part, on the same public policy concerns underlying the immunity granted to prosecutors at common law: fear that the threat of a tort claim would “deter prosecutors in the independent and vigorous performance of their duties.” Brief of Petitioners at 14. Absolute immunity for trial prosecutors is intended to prevent the “concrete, pervasive threat of vexatious and retaliatory suits.” Id. at 33–34. In the instant case, the Van de Kamp and Livesay argue that if the Supreme Court affirms the Ninth Circuit’s opinion below and denies the application of absolute immunity to Van de Kamp and Livesay, then these same policy concerns would increase exponentially, since “chief advocates, such as a District Attorney, Attorney General, or United States Attorney,” are in charge of offices that prosecute hundreds or thousands of cases every year. Id. at 33–34. If supervising prosecutors cannot claim absolute immunity, then criminal defendants like Goldstein “will simply retool their claims and assert that the alleged prosecutorial misconduct was the result of improper policy or training.” Id. at 34.

Goldstein, however, argues that the concern about a flood of lawsuits is unwarranted. See Brief for Respondent at 48. He points out that a criminal defendant could not bring a suit similar to his own unless “the stars align” in a very specific fact pattern: a criminal defendant must be convicted at trial, based on the testimony of an informant whose credibility cannot be called into doubt because his informant status is not disclosed to the defense, who does not know this information because the chief prosecutor has not set up a system to get the relevant Brady information to the trial prosecutor (who should then have passed it on to the defense). See Id. at 48. In addition, Goldstein notes that the concerns about a flood of litigation did not outweigh the policy considerations in other post-Imbler cases, yet “the predicted litigation frenzy never materialized.” Id. at 47; see also Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Burns v. Reed, 500 U.S. 478 (1991).

Both parties argue that there are alternative options available. Goldstein points out that even if absolute immunity is not applicable to chief prosecutors for the wrongs alleged in this complaint, qualified immunity is still available. See Brief for Respondent at 46–47. As the Supreme Court has stated, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). However, Van de Kamp and Livesay argue that qualified immunity does not provide prosecutors with sufficient protection, since it still requires some type of initial discovery process, along with “an intensive factual rehashing of the underlying proceedings.” Brief of Petitioners at 34.

Furthermore, Van de Kamp and Livesay claim that there are alternative methods of keeping prosecutors in check, even if they are granted absolute immunity from §1983 civil lawsuits. See Brief of Petitioners at 15–16. They contend that prosecutors are still subject to criminal charges and “professional discipline” by peer associations. Id. at 16, quoting Imbler, 424 U.S. 429. Moreover, Van de Kamp and Livesay argue, chief prosecutors are also, at times, in elected positions and so are “accountable to their voters,” which adds “another level of scrutiny and accountability.” Brief of Petitioners at 36. However, Goldstein argues that prosecutors rarely are disbarred or held criminally liable for their misconduct, and voters are not likely to “punish” an overzealous prosecutor at the polls. Brief for Respondent at 54-55. In short, Van de Kamp and Livesay claim that qualified immunity does not offer enough protection for prosecutors, while Goldstein argues that alternative checks on prosecutors do not offer enough protection for defendants.