Are Prosecutors Entitled to Immunity When Advising Law Enforcement Officers?

Law enforcement officers frequently call on prosecutors for advice. Prosecutors generally see responding to such requests as part of their duties, as the North Carolina Constitution directs that District Attorneys “advise the officers of justice” in their districts. N.C. Const., Art. IV, § 18. But are prosecutors protected by absolute prosecutorial immunity when they give such advice? Or something less? Read on to find out. Section 1983. Most claims against criminal justice system actors such as police and prosecutors are brought under 42 U.S.C. § 1983. That section provides for a civil action against anyone who, acting under color of law, deprives another person of “any rights, privileges, or immunities secured by the Constitution.” So, for example, a person who believes that he was unlawfully searched by a deputy sheriff might sue the deputy under section 1983, alleging a violation of the person’s Fourth Amendment rights. If the deputy carried out the search based on advice from a prosecutor, the person might sue the prosecutor as well. Absolute immunities under section 1983. The text of section 1983 does not provide for any immunities. However, the Supreme Court of the United States has held that the statute was intended to respect certain immunities that were well-established in the common law at the time section 1983 was enacted, including absolute legislative immunity, Tenney v. Brandhove, 341 U.S. 367 (1951), and absolute judicial immunity, Pierson v. Ray, 386 U.S. 547 (1967). Qualified immunity under section 1983. Although certain officials enjoy absolute immunity from claims [...]