Wednesday, July 17, 2013

Can George Zimmerman Sue Angela Corey?

A lot of people have been asking me whether or not George Zimmerman could sue Angela Corey (the head prosecutor) for some kind of malicious prosecution tort, or a violation of his civil rights.  My initial thought was absolutely not, because prosecutors usually have "absolute immunity" for their acts.  But upon further research, I'm now not so sure...and indeed there may be a narrow window through which Zimmerman could squeeze a cause of action.  Let me explain below.

So generally speaking, government law enforcement agents are granted certain types of "immunity" for their actions in office.  For example, in almost all cases, they are immune from personal liability for simple negligence.  If a police officer is involved in a garden-variety fender bender while on patrol, you cannot sue him personally (obviously if he's off duty driving his personal vehicle, you can sue him).  So typically state agents are given "qualified immunity" from those kinds of claims, including negligent violations of a citizen's civil rights.  There are many good reasons for this policy.  For one, we'd have a hard time getting people to come work for the state, especially police officers.  Sometimes the police do everything "by the book", as they were taught and trained, but it later turns out that the "book" was unconstitutional and was a procedure that violated the citizen's constitutional rights.  The book gets rewritten and police procedures change, and it would be unfair to blame the police officer for that situation.  To overcome "qualified immunity" when suing a state actor, you have to demonstrate that either the offensive act was either a knowing and intentional violation of the citizen's rights, or was done with reckless disregard for the citizen's rights.

However, there is also a concept of "absolute immunity," which means that under certain circumstances, you cannot sue the state actor no matter how bad the conduct.  Absolute means absolute, i.e. do not pass go, your case is done.  There are not many examples of this, but one of them is a prosecutor advocating in a criminal case.  No matter what a prosecutor does within the scope of advocating the case, immunity is absolute.

Ahh, but notice I said "within the scope of advocating the case."  With Zimmerman I remembered that on April 11, 2012, two "Investigators" appointed by Angela Corey signed a probable cause affidavit as a prerequisite to her office filing the "information" (the charging document) the same day.  Now, the charging document (again, it's called the "information" in Florida) is absolutely privileged, as well as Corey's office's handling of the case from then on.  But I wonder about that probable cause affidavit, which was investigatory and a predicate to the filing of the charges.  

Now, I'm not saying the probable cause affidavit violated Zimmerman's rights in any way, for now I'm just asking whether the affidavit could, in theory, not be absolutely immune and instead expose the investigators who signed it, and possibly Corey who appointed and supervised them, to claims that could overcome the qualified immunity hurdle.  At this time my research is incomplete, but my initial research turned up a 1993 Supreme Court case, Buckley v. Fitzsimmons, 509 US 259.  In that case a defendant was acquitted of the crimes with which he had been charged, and then afterwards he sued the prosecutors claiming they had fabricated evidence in order to indict him in the first place.  The prosecutors claimed that they had absolute immunity.  The Supreme Court stated that although prosecutors generally have absolute immunity, there are some exceptions, the most significant being pre-suit investigatory activities.  On pages 273-276 of the opinion, the Court basically says that some sorts of pre-suit investigatory activities are normally performed by the police, who would only have "qualified immunity," so just because a prosecutor does that same work does not make it absolutely immune from suit.  (p: 273-274: "When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is "neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.")  My understanding is that this is exactly what happened, i.e. Angela Corey's office essentially rejected some or all of the investigation performed by the local Sanford police department, and used their own staff to redo that traditional police work.  Thus it seems to me that the affidavit itself and the acts that led up to it would only be subject to qualified immunity.  Interestingly, the Buckely case also states that prosecutors only have qualified immunity for statements they make at pretrial press conferences.   Again, I have not had the time to research whether Buckley is still "good law" and become more certain about the exposure of that probable cause affidavit, but my preliminary thoughts are that it is subject to only qualified immunity if Zimmerman could argue that somehow that probable cause affidavit violated his civil rights.  

So the next hurdle, and it is a big one, would be whether or not that affidavit violated any of Zimmerman's civil rights or otherwise constituted a tort (e.g. malicious prosecution).  That's a tough hurdle.  A probable cause affidavit does not have to get the facts 100% right as they ultimately appear at trial, but it must be 100% truthful about the facts known at the time the affidavit is made, from which reasonable inferences may be drawn.  Much of the affidavit is probably a fair description of the events based on what was then known, but some allegations are perhaps questionable.  For example, the affidavit states that Zimmerman "profiled" Martin.  What does that mean?  Does it mean Zimmerman had racial animus towards a black teen?  If so, 
what evidence known at the time of the affidavit supported that claim?

Of course, the real pressing question on most people's minds, and has been since the affidavit was first made public, is whether or not the affiant (the person(s) signing the affidavit) was required to disclose or consider any of the facts that suggested Zimmerman had acted in self-defense, especially in light of the fact that the Sanford police department had already at that time determined that the case for self-defense was overwhelming and declined to arrest Zimmerman.  And if there was a duty to disclose or consider those facts, would a failure to do so constitute a knowing or reckless violation of Zimmerman's constitutional rights?  I think a lot of people are bothered by the notion that a probable cause affidavit would exclude known significant exculpatory information.  But at the moment I'm not in a position to have thoughts on that one way or the other.  I'll look into it if I have time, but no promises.  I would think that lawyers smarter than me would have said something about that by now, but hey, you never know.

As a side note, I've also been asked about post trial statements by Angela Corey, wherein she supposedly referred to Zimmerman as a murderer.  I think the Buckley case would suggest she has only qualified immunity, if any, from a potential defamation claim.  But in any case, under the facts and circumstances, it seems to me she is merely giving her opinion, or her interpretation of the facts presented at trial, or stating in a roundabout way her opinion that Florida self defense laws should be changed.  So I doubt that such statements are actionable.  As to whether or not they were dignified or appropriate statements, that is a question I leave the reader and the legal community to decide for themselves.  

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