U.S. Dist. Judge Bertlesman Grants Summary Judgment in Favor of Kenton Com. Attn. Rob Sanders

COVINGTON – A lawsuit claiming that a former Dayton High School teacher – accused of having sex with a 16-year-old student – was maliciously prosecuted has been thrown out of federal court.


Nicole Howell, who was acquitted of the criminal charge, claimed in the suit filed in November that Kenton Commonwealth’s Attorney Rob Sanders violated her constitutional rights.

U.S. District Judge William Bertelsman ruled that Sanders could not be sued because, as a prosecutor, he has immunity.

Howell’s attorney, Eric Deters, said he would appeal the decision to the 6th. Circuit Court of Appeals.

“Prosecutor immunity is under attack across this country,” Deters said. “The United States Supreme Court and circuits across this country have been more willing to hold prosecutors accountable than they have in the past.” Bertelsman wrote in his opinion that he was not second-guessing the verdict. A jury took 70 minutes to find Howell not guilty of first-degree sexual abuse, a crime punishable by up to five years in prison.

Judge Bertelsman based his ruling on the legal theory that there was sufficient probable cause for the arrest and that the allegations that Sanders prosecuted the case for political reasons was not relevant even if they were found to have been true.

A recent case in which prosecutorial immunity was argued before the U.S. Supreme Court was settled before the high court could rule on it.  It was widely believed by court watchers that the oral arguments before the Sup. Ct. went so bad for the State of Iowa prosecutor  that they were not willing to risk an adverse ruling, so they settled with the plaintiff for $12 million dollars. 

Recently the Supreme Court granted certiori for another case from the Dist. of Columbia in which a prosecutor is relying on the doctrine of absolute immunity.  It is thought by some that the Sup. Ct. is looking for an opportunity to limit the immunity of prosecutors that has been imposed by the various Circuits.

The landmark case on prosecutorial immunity Imbler v. Pachman granted immunity for actions of a prosecutor taken during the “judicial” phase of their work, but granted only qualified immunity for actions taken during the investigatory phase of their work.  The Imbler case made an exception for constitutional rights violations by prosecutors such as knowingly using perjured evidence.

Prosecutors are absolutely immune from liability in §1983 suits brought against prosecutorial actions that are “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U. S. 409, 428, 430, because of “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and lead him to “shade his decisions instead of exercising the independence of judgment required by his public trust,” id., at 423. However, absolute immunity may not apply when a prosecutor is not acting as “an officer of the court,” but is instead engaged in, say, investigative or administrative tasks. Id., at 431, n. 33

Imbler v. Pachman was based on violations brought under the Federal Civil Rights Act, but the courts have recognized common law theories which allow civil damages against prosecutors.  (Bivens v. Six Unnamed FBI Agents.)

Another Circuit Ruling has allowed a civil action against former Attorney General John Ashcroft to proceed thereby denying his claim of prosecutorial immunity.

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