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New Orleans Prosecutors Not Immune in Suit Over Fake Subpoenas

April 21, 2020, 11:40 PM

The Orleans Parish District Attorney can’t escape claims based on the alleged use of fake subpoenas to pressure crime victims and witnesses into meeting with prosecutors, the Fifth Circuit said Tuesday.

District Attorney Leon Cannizzaro allegedly directed prosecutors to send fake subpoenas, which included the office’s official seal that threatened fines and imprisonment for failing to disobey. Five crime witnesses and victims who received the fake subpoenas sued Cannizzaro and other attorneys in the office for violating their constitutional rights.

The prosecutors don’t necessarily have absolute immunity from the claims because they may have been acting outside of their official capacity, the U.S. Court of Appeals for the Fifth Circuit said.

The attorneys had moved to dismiss the claims, arguing they had absolute immunity. A Louisiana federal district court found the attorneys weren’t immune from the claims based on the creation and use of the fake subpoenas, and rejected their motion to dismiss the case.

The Fifth Circuit upheld the ruling, finding the attorneys hadn’t proven immunity at this stage.

The attorneys argued for immunity because because their actions “related to the core prosecutorial function of preparing evidence and testimony for trial.” But the court said a jury could conclude that the fake subpoenas weren’t created and sent in the attorneys’ official capacity.

The attorneys may have used the subpoenas for an “investigatory function” that has historically been “the work of police, not prosecutors.” Investigation “does not become a prosecutorial function merely because a prosecutor has chosen to participate,” the court said.

The fact that the fake subpoenas were sent after charges had been filed in the underlying cases also didn’t entitle the attorneys to absolute immunity, the court said.

Denying absolute immunity would also support the policy underlying the doctrine, the court said. The case is likely the plaintiffs’ only means of legally redressing their injuries, and denying immunity wouldn’t deter prosecutors’ future decisions to charge specific defendants, while also curbing prosecutorial abuse.

The Fifth Circuit said it lacked jurisdiction over the attorneys’ appeal of the decision to deny their motion to dismiss other claims on the merits.

Judge Catharina Haynes wrote the opinion, joined by Judges Jennifer Walker Elrod and Leslie H. Southwick.

Civil Rights Corps and the American Civil Liberties Union represent the plaintiffs. Stanley, Reuter, Ross, Thornton & Alford LLC represents the attorneys.

The case is Singleton v. Cannizzaro, 5th Cir., No. 19-30197, 4/21/20.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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