Wednesday, March 29, 2023 | Back issues
Courthouse News Service Courthouse News Service

Prosecutor Might Be Liable for Advising Police

(CN) - The 9th Circuit revived a biker couple's lawsuit against a deputy district attorney who allegedly advised police to charge them with murder for a bar stabbing they didn't commit.

Heather and Mark Ewing said deputy district attorney Lester Fleming of Stockton, Calif., advised police officers to add murder charges to their drug and weapon charges, based on reports that the Ewings were at a murder scene outside a Stockton bar. Mark is the vice president of the Jus' Brothers motorcycle club.

The couple were denied bail because of the murder charges, which were dropped after the actual killer turned himself in. The Ewings sued Fleming and the officers, alleging constitutional violations.

Prosecutors are entitled to absolute immunity when representing the state in court or when they're intimately involved in a criminal case, wrote U.S. District Judge Lynn Adelman, who participated in the panel decision. But Adelman said absolute immunity does not extend to "advising police officers whether probable cause exists during their pretrial investigation."

"The Supreme Court has clearly stated that with respect to advising police, prosecutors are entitled to qualified not absolute immunity," Adelman wrote.

Qualified immunity is usually sufficient to protect government officials, the court noted, adding that the officers were entitled to qualified immunity because they relied on Fleming's legal advice.

The San Francisco-based appeals court reversed the lower court's ruling that Fleming is entitled to absolute immunity, and remanded the case to determine if he's entitled to qualified immunity.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.