KENTON COM. ATTN. SUED FOR MALACIOUS PROSECUTION BY ACQUITTED SCHOOL TEACHER WHO WAS ALLEGED TO HAVE HAD SEX WITH A MALE STUDENT

KENTON COM. ATTN. SUED FOR MALACIOUS PROSECUTION BY ACQUITTED SCHOOL TEACHER WHO WAS ALLEGED TO HAVE HAD SEX WITH A MALE STUDENT

On Wed. Nov. 25th. Nicole Howell filed a Federal 1983 Civil Rights complaint against Kenton Commonwealth Attorney Rob Sanders.  The suit claims Sanders ordered the arrest of Howell without the required “probable cause”.   Kentucky law since 1993 has held that Prosecutors have a qualified immunity for acts committed during the “Investigatory Phase” of their work, but have Absolute Immunity for the “Prosecutorial Phase” of their work.

To overcome qualified immunity a litigant suing a prosecutor must prove malice and lack of probable cause.  The Doctrine of Absolute Immunity is currently under attack in the U.S. Supreme Court in the Pottawatamee case. A decision by the U.S. Supreme Court is expected to be handed down by June of 2010.

 Absolute Immunity was first created in Federal law in the 1990′s, and was adopted in Kentucky only in 1993.  At the time of the adoption of that doctrine in Ky. Justices Leibson, Combs and Wintersheimer all dissented.

After the l993 Kentucky case, which failed to extend Absolute Immunity to the Investigatory Phase of a criminal prosecution, the General Assembly quickly adopted legislation which provides compensation for any jury verdicts against a prosecutor. This law also covers a Prosecutors legal expenses in defending such a claim.

The Federal Absolute Immunity Rule adopted in the Imbler case, in a concurring opinion made exception for “Constitutional Violations” such as withholding exculpatory evidence.  So even the leading federal ruling on absolute immunity made exceptions.

In the 16 page complaint, Howell’s attorney, Eric Deters of Independence, alleges that Sanders supervised the investigation and personally ordered the arrest of Howell even though the credibility of the complaining witness was questioned by police.

Several Federal Court rulings since Imbler, have authorized malacious prosecution claims against public officials who violate constitutional rights of a defendant.

The lawsuit against Sanders is not the first civil lawsuit against a Kentucky Prosecutor. There are two other Kentucky cases which limit the protection of prosecutors.

In Dugger v. Off 2nd, Inc., Ky.App., 612 S.W.2d 756 (1981), “the Court of Appeals rejected a prosecutor’s absolute immunity claim. Dugger was wrongfully arrested pursuant to a warrant charging him with disorderly conduct. He alleged that the prosecutor signed the judge’s name to the warrant and that the prosecutor’s actions constituted gross negligence, wantonness, abuse of process and collusion since Dugger’s wife was then being represented in divorce litigation by the prosecutor’s law partner. The court correctly recognized that a public prosecutor must have immunity when he is acting within the scope of his authority for without it, the prosecutorial function would suffer. Nevertheless, the court examined the applicable constitutional and statutory provisions and concluded that as the prosecutor had no lawful authority to sign the name of a judge to an arrest warrant, he was outside the scope of his authority and without immunity.”

 In   McCollum v. Garrett, 880 S.W.2d 530 (Ky., 1994)  Charles R. McCOLLUM, III, Henderson County Attorney, was sued by Georgia Fay GARRETT. ” A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.”  The Ky. Supreme Court allowed the civil claim to continue and reasoned that the alleged act was outside the County Attorneys official duties and was only protected by Qualified Immunity.

 In addition, McCollum claims absolute immunity by virtue of his status as a public prosecutor. The Court of Appeals rejected this claim holding

“… in order for a prosecutor to be immune from civil liability for malicious prosecution, he must act within the scope of his duty, which includes performing his duties in good faith. Stated differently, a prosecutor is not immune from liability if a jury finds he initiated or continued criminal proceedings with an improper motive. If, however, the prosecutor has simply made a mistake in judgment by initiating or continuing the action, he will be immune.”

        By this holding, the Court of Appeals reversed the trial court’s finding that McCollum was at all times acting within the scope of his official duties and was thereby entitled to immunity. The Court of Appeals regarded immunity as available only if McCollum performed his duties in good faith and without an improper motive.

These issues relating to prosecutorial immunity are discussed in detail in Judge Stan Billingsley’s new book, Prosecutorial Accountability which is available from LawReader Press. (www.lawreader.com)

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