Prosecutorial Immunity
Why you can almost never sue the prosecutor who wrongfully charged you — and the narrow exceptions.
What It Is
Prosecutorial immunity is a form of absolute immunity that protects prosecutors from § 1983 liability for actions taken as advocates — deciding to prosecute, presenting evidence at trial, arguing before a grand jury, and conducting trials.
Imbler v. Pachtman, 424 U.S. 409 (1976) established the doctrine. A prosecutor who knowingly uses fabricated testimony to convict an innocent person is absolutely immune from your civil suit. Yes, really.
The Function Test
Immunity depends on the function performed, not the person’s title:
Absolutely immune (advocacy function):
- Deciding whether to prosecute
- Presenting evidence to a grand jury or at trial
- Making arguments in court
- Plea negotiations
Only qualified immunity (investigative function):
- Giving legal advice to police during an investigation
- Participating in searches or interrogations
- Fabricating evidence before it enters the judicial process
- Making public statements to the press
The line is crossed when the prosecutor acts more like a police officer than a lawyer. Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
Why It’s Outrageous
The doctrine means:
- A prosecutor who hides exculpatory evidence (Brady violation) is absolutely immune if they did it as part of trial preparation
- A prosecutor who presents testimony they know is false is absolutely immune
- A prosecutor who selectively prosecutes based on race is absolutely immune for the charging decision
Your only recourse: bar complaints, judicial referral for sanctions, or hoping the DOJ prosecutes under 18 U.S.C. § 242 (it almost never does).
The Connick Aftermath
Connick v. Thompson, 563 U.S. 51 (2011) closed another door. Thompson spent 18 years in prison (14 on death row) because prosecutors hid blood evidence. He won a $14 million verdict against the DA’s office under Monell — failure to train. The Supreme Court reversed 5-4, holding a single Brady violation can’t establish failure to train.
So: the individual prosecutor is absolutely immune. The office can only be liable under Monell if there’s a pattern of violations — but since individual violations are immune from suit, it’s nearly impossible to build the pattern.
Key Cases
- Imbler v. Pachtman, 424 U.S. 409 (1976) — Absolute immunity for advocacy functions
- Buckley v. Fitzsimmons, 509 U.S. 259 (1993) — Only qualified immunity for investigative functions
- Kalina v. Fletcher, 522 U.S. 118 (1997) — No absolute immunity for making false statements in an affidavit (witness function, not advocacy)
- Van de Kamp v. Goldstein, 555 U.S. 335 (2009) — Absolute immunity for supervisory prosecutors’ failure to train on Brady obligations