Protecting Prosecutors From

Civil Litigation and Liability

Patricia Orloff Erdmann, Chief Counsel for Litigation

Office of Indiana Attorney General Greg Zoeller

December 2014

42 42 U.S.C. § 1983 (. § 1983 (§ 1 of the § 1 of the Civil Rights Act of 1871) Civil Rights Act of 1871)

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

42 U.S.C. § 1983

Only a “Person” Can be Liable

An action under Section 1983 for damages must be brought against individuals in their personal capacities or against a local government unit, not against a state agency or a state official in his/her official capacity.

Neither a State nor its officials acting in their official capacities are “persons” under § 1983. Will v. Mich. Dept. of State Police, 491 U.S. 58, 64 (1989). Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997).

A State official, including an elected prosecutor, is a “person” when sued in his or her official capacity for injunctive relief. See Will, 491 U.S. at 71 n.10.

Under Color of State Law Color of State Law State employment is generally sufficient to render

defendant a state actor. Lugar v. Edmondson Oil Co. Inc., 457 U.S. 922, 935 n.18.

Does not include purely private conduct. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).

Independent contractors are liable depending on their function within State system, not precise terms of employment. West v. Atkins, 487 U.S. 42 (1988).

Causation

To recover damages under § 1983, a plaintiff must establish that a defendant was personally responsible for the deprivation of a constitutional right. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).

Negligence, even gross negligence, is not culpable. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.1988).

Federal Constitution or Federal Constitution or LawsLaws

Section 1983 provides a remedy only for the deprivation of rights, privileges and immunities secured by the Federal Constitution and laws.

Section 1983 does not include rights secured by laws of the States. Davis v. Scherer, 468 U.S. 183, 194 (1984).

Speech Is protected by the First Amendment.

Speech

An employee cannot be subjected to a detriment because he or she spoke out on a “matter of public concern.”

Matters of public concern do not include personal complaints or statements made pursuant to the employee’s official duties.

First Amendment Retaliation

Public employee must show: (1) speech was constitutionally

protected, (2) suffered deprivation likely to

deter free speech, and (3) speech was motivating factor

in the employer's actions.

Official Duties ExceptionOfficial Duties Exception

Public employees speaking “pursuant to their official duties” are speaking as employees, not citizens, and are not protected by the First Amendment regardless of the content of their speech. Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)).

But if the “employee spoke as a citizen on a matter of public concern,” the inquiry turns to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Garcetti, 547 U.S. at 418

Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968), requires balancing “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Public employee’s truthful subpoenaed testimony outside course of their ordinary job responsibilities was protected speech Lane v. Franks, 134 S.Ct. 2369 (2014)

Political Association Is protected by the First Amendment.

An applicant for a non-policymaking government position cannot be refused employment, nor can an employee holding such a position be punished or terminated, because of political party membership or support for a particular candidate. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990); Branti v. Finkel, 445 U.S. 507 (1980).

General rule that patronage dismissal violates public employee’s First Amendment right to freedom of political association is inapplicable when hiring authority can demonstrate that party affiliation is appropriate requirement for effective performance of public office involved. Kline v. Hughes, 131 F.3d 708 (7th Cir. 1997).

Equal ProtectionEqual Protection

Guaranteed by the Fourteenth Amendment and can be the basis for an employment claim.

The standards for proving intentional discrimination apply equally in Title VII discrimination and Section 1983 Equal Protection Claims.

Procedural Due ProcessProcedural Due Process

The fundamental requirement of due process is “the opportunity to be heard at a meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976).

An at-will employee does not have a constitutionally protected property right in continued employment. Harris v. City of Auburn, 27 F.3d 1284 (7th Cir. 1994).

Substantive Due ProcessSubstantive Due Process

The scope of protections afforded by substantive due process is highly limited, applying only to decisions affecting fundamental rights. Belcher v. Norton, 497 F.3d 742, 752 (7th Cir. 2007); Wozniak v. Conry, 236 F.3d 888, 891 (7th Cir. 2001).

A claim that employment was wrongfully terminated is not sufficient to state a substantive due process claim unless plaintiff also demonstrates that defendants violated some other constitutional right or that available state remedies were inadequate. Montgomery v. Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005).

Section 1981 protects certain rights “against impairment by nongovernmental discrimination and impairment under color of State law.” 42 U.S.C. § 1981(c).

The rights enumerated in § 1981(a) are “the right to make and enforce contracts, to sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property…” 42 U.S.C. § 1981(a).

Eleventh Amendment immunity. Baker v. Indiana Family & Social Servs. Admin., 260 F.Supp.2d 731, 737 (S.D.Ind. 2003).

Federal Prosecutorial Federal Prosecutorial ImmunityImmunity

Absolute Immunity

“Functional” approach to questions of immunity. Forrester v. White, 484 U.S. 219, 227 (1988).

Prosecutorial - Imbler v. Pachtman, 424 U.S. 409 (1976).

Federal Prosecutorial Federal Prosecutorial ImmunityImmunity

Prosecutors are absolutely immune from civil liability under 42 U.S.C. § 1983 for initiating a prosecution and presenting the State’s case.

The immunity is derivative of the immunity granted to judges and is designed to protect officials from harassing litigation that might interfere with the independent exercise of prosecutorial discretion.

Does not bar action for injunctive relief.Does not bar action for injunctive relief.

Prosecutors are absolutely immune when performing functions “intimately associated with the judicial phase of the criminal process.”

Immune Functions

Qualified Immunity

Qualified immunity protects officials from liability for civil damages for conduct that does not violate clearly established rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Prosecutors performing investigative or administrative functions may only assert qualified immunity from liability for damages.

Conduct immunized if objectively reasonable in light of clearly established law at time.

Non-immune functions

State Law Prosecutorial Immunity

Common Law Immunity - much broader than the federal immunity. See Foster v. Pearcy, 270 Ind. 533, 387 N.E.2d 446 (1979), cert. denied, 445 U.S. 960 (1980); Sims v. Barnes, 689 N.E.2d 734 (Ind. App. 1997).

Indiana Tort Claims Act provides statutory immunities.

Race, Color, Sex, Religion, and National Origin Discrimination

Laws

Apply to employers who have fifteen or more employees

Prohibit discrimination on the basis of race, religion, sex, color or national origin.

42 U.S.C. 2000e-2(a)(1)

Sexual Harassment a form of sex discrimination,

enforced under Title VII.

Relevant considerations include frequency and severity of conduct, whether it is threatening and/or humiliating or merely offensive, and whether the harassment unreasonably interferes with an employee’s work. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975-6 (7th Cir. 2004).

Has different standards depending on whether the harasser is a supervisor or a fellow employee.

Disability Discrimination the Americans with Disabilities Act (ADA) 42

U.S.C. 12101, the Americans with Disabilities Act as Amended (ADAAA), PL 110-325 (S 3406) September 25, 2008, and the Federal Rehabilitation Act, 29 U.S.C. § 791.

The Federal Rehabilitation Act is interpreted in the same manner as the Americans with Disabilities Act. 29 U.S.C. § 791(g)

Title I of the ADA does not apply to suits against the state. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001).

Requires employers to treat disabled employees or job applicants without prejudice.

Applies to employees with conditions that substantially limit one or more major life activities, a record of such impairment or who were regarded as having such an impairment.

For “regarded as” discrimination, transitory disabling conditions must last or be expected to last more than six months

Conditions which are episodic or disabling on an intermittent basis are covered if they would substantially limit a major life activity when active.

Requires an interactive process between employer and employee to address accommodations. Ekstrand v. School Dist. of Somerset, 583 F.3d 972 (7th Cir. 2009).

Requires employers to make reasonable, non-futile accommodations. Equal Employment Opportunity Commission v. Sears Roebuck Co., 417 F.3d 789, 802 (7th Cir. 2005).

The Age Discrimination in Employment Act

Applies to employers with 20 or more employees.

Prohibits discrimination against individuals who are 40 years of age or older, 29 U.S.C. 621, et seq.

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).

The Family and Medical Leave Act

Applies to employers with 50 or more employees, 29 U.S.C. 2601, et seq.

Applies to employees who have worked for the employer for a year and who have worked 1250 or more hours in the preceding year.

Employers must provide at least 12 weeks of unpaid leave to employees for:

(1) the birth of a child and to care for newborn child within one year of birth;

(2) the placement with the employee of a child for adoption or foster care and to care for newly placed child within one year of placement;

(3) to care for the employee’s spouse, child or parent who has a serious health condition;

(4) a serious health condition that makes the employee unable to perform essential functions of job;

(5) may in certain circumstances apply to individuals whose close relative is in active duty or active duty call status with the National Guard; (6) must offer up to 26 weeks of leave for a family member caring for an individual injured or who became ill while on active duty

Equal Pay Act Prohibits sex-based wage discrimination between

men and women in the same establishment who are performing under similar working conditions.

Exceptions are where the pay is made pursuant to a seniority system; a merit system; a system based upon quantity or quality of production; or, a differential based on any other factor other than sex.

What if I get sued?

Notify the Attorney General’s Office immediately once notice of a lawsuit is received.

Forward summons, complaint and pertinent paperwork to:

Patricia Erdmann, Chief Counsel for Litigation, Patricia.Erdmann@atg.in.gov(317) 232-6318; FAX (317) 232-7979

Notify your professional liability carrier (if applicable).

RepresentationRepresentation

The Attorney General is required to either defend or authorize the state court administrator to hire private counsel for a prosecutor who is sued for civil damages or equitable relief and the suit would be construed, under notice pleading, as arising out of an act performed within the scope of the duties of the prosecuting attorney. Ind. Code § 33-23-13-3.

This does not permit representation in criminal or disciplinary proceedings.

The Attorney General does not consider an administrative proceeding to be a suit for civil damages or equitable relief.

The right to a defense extends to prosecutors and deputy prosecutors. It does not extend to nonattorney staff.

Indemnification

Prosecutors are entitled to indemnification from the State for “expenses,” including a judgment, court costs, settlement and attorney fees (if the AG authorized hiring private counsel) incurred from litigation arising from performing or failing to perform a prosecutorial duty or responsibility. Ind. Code § 33-39-9-4.

Protecting Yourself From Litigation and Liability

Adopt and enforce policies in a consistent and equitable manner.

Prepare job descriptions. Make sure the descriptions are current and sufficiently broad to encompass other duties as assigned.

Maintain proper documentation for all employees and employment actions.

ContactContact

Call the Attorney General’s office if you have a question about employment issues and civil litigation or liability:

Patricia Orloff ErdmannChief Counsel for Litigation

317-232-6318; 317-232-7979 (fax) Patricia.Erdmann@atg.in.gov

SPECIAL/SENIOR PROSECUTORS: The answer to many ethical

dilemmas

Sonia J. LeerkampSenior Prosecuting Attorney

Adjunct Professor, McKinney School of Law

WHY A SPECIAL/SR PA?I.C. 33-39-1-6 TO AVOID AN ACTUAL CONFLICT OF INTEREST

TO AVOID THE “APPEARANCE OF IMPROPRIETY”

THE PROSECUTOR STANDS CHARGED WITH A CRIME

WHY? (cont.)

DEFENDANT, WHO IS AN ELECTED PUBLIC OFFICIAL, REQUESTS

APPOINTMENT IS IN THE BEST INTERESTS OF JUSTICE

WHEN A PREVIOUSLY APPOINTED SPECIAL PROSECUTOR WITHDRAWS OR BECOMES INCAPACITATED

WHY? (cont.)

PERSON OTHER THAN PROSECUTOR OR HIS DEPUTY FILES A VERIFIED PETITION REQUESTING AND

PROSECUTOR AGREES

WHO MAY SERVE AS A SPECIAL PROSECUTOR? THE FULL OR PART-TIME ELECTED PROSECUTOR

OF ANY OTHER COUNTY

A FULL OR PART-TIME DEPUTY PROSECUTOR OF ANOTHER COUNTY

A SENIOR PROSECUTING ATTORNEY

* There may be strategic reasons for who is selected to serve.

SENIOR PROSECUTOR DEFINEDI.C. 33-39-1-1 PERSON WHO WAS EMPLOYED FOR AT LEAST

8 YEARS AS AN ELECTED PROSECUTOR OR CHIEF DEPUTY

CERTAIN INDIVIDUALS WHO HAVE BEEN EMPLOYED AS CHILD SUPPORT DEPUTY FOR A DESIGNATED PERIOD OF TIME

SR. PROSECUTOR (cont.)

SENIOR PROSECUTOR MUST FILE AN AFFIDAVIT REQUESTING DESIGNATION AS A SENIOR PROSECUTING ATTORNEY IN THE CIRCUIT AND EACH SUPERIOR COURT OF EACH COUNTY IN WHICH HE/SHE IS WILLING TO SERVE AS A SENIOR PROSECUTOR

COPY OF AFFIDAVIT TO BE SENT TO IPAC

DISQUALIFICATION OF SR. PROSECUTOR PERSON WOULD NOT BE AVAILABLE FOR

MINIMUM PERIOD OF TIME COMMITMENT NECESSARY TO HANDLE THE CASE

PERSON HAS A DISQUALIFYING DISCIPLINARY SANCTION

WHEN TO ASK FOR SPECIAL PROSECUTOR? AS SOON AS THE REASON BECOMES EVIDENT

THIS MAY BE BEFORE OR AFTER CHARGES HAVE BEEN FILED, OR IN THE MIDST OF THE PROSECUTION

COMPENSATION OF SPECIAL PROSECUTORS PAID FROM UNAPPROPRIATED FUNDS OF

THE APPOINTING COUNTY

RATE BASED UPON COMPENSATION OF THE PROSECUTOR OF THE APPOINTING COUNTY

TRAVEL, REASONABLE ACCOMMODATIONS AND OTHER REASONABLE EXPENSES

COMPENSATION (cont.)

IF THE SPECIAL PROSECUTOR IS EMPLOYED FULL-TIME AS A PROSECUTOR OR DEPUTY PROSECUTOR IN ANOTHER COUNTY, THE COMPENSATION IS PAID TO THE COUNTY OF THE SPECIAL PROSECUTOR.

OTHERWISE PAYMENT IS TO THE INDIVIDUAL APPOINTED.

COMPENSATION (cont.)

THERE ARE SPECIAL LIMITATIONS ON THE COMPENSATION A SENIOR PROSECUTOR MAY RECEIVE TO PREVENT THE COMPENSATION OF THE SENIOR PROSECUTOR FROM EXCEEDING THE ANNUAL SALARY OF A SERVING FULL-TIME PROSECUTOR

Who actually appoints?

The Judge of the Circuit or Superior Court actually appoints

Judge may ask for assistance/in put from Prosecutor: BE CAREFUL!

IPAC keeps list of qualified Senior Prosecutors

WHO APPOINTS? (cont.) Appointing Judge may ask for updates

Special Prosecutor has same ethical limitations on what he/she shares with the Judge in updates on the status of an investigation/prosecution assigned to the Special Prosecutor

Make sure order of appointment complies with statutory requirements

Who Appoints? (cont.)

Special prosecutor must CONSENT in writing, with copies to elected prosecutor and adverse parties

Special prosecutor may decline or withdraw

At conclusion of case, Special Prosecutor should file Motion to Terminate Appointment

COMMUNICATION

Communication between the Special Prosecutor is ethically restricted

Some informal communications may be warranted

Communication with defense counsel, witnesses, officers and press is same as for local prosecutor

COMMUNICATION (cont.) Communication with or use of local prosecutor’s

resources must be very limited

Initial case materials should be furnished by local prosecutor

After that, the local prosecutor’s direct or indirect access to matters relating to the processing and handling of the case must be very limited or non-existent

QUESTIONS????

COMMENTS????

SONIA J. LEERKAMPs.leerkamp@gmail.com

(317) 509-9555