Due Process – Qualified Immunity – Absolute Immunity

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Civil

7th Circuit Court of Appeals

Officials: BAUER, MANION, and SYKES, Circuit Judges

Due Process – Qualified Immunity – Absolute Immunity

No.13-3343; 13-3346; 13-3347 Robert Lee Stinson v. James Gauger, Lowell T. Johnson, and Raymond Rawson

Defendant-respondents not entitled to absolute immunity for misconduct during investigation.

“Indeed, the Supreme Court recently noted, if only in passing, that the distinction drawn in Buckley III—between alleged misconduct during trial and trial preparation (for which a prosecutor is absolutely immune) and alleged misconduct during an investigation (for which a prosecutor has only qualified immunity)—applies to witnesses as well. In Rehberg the Court held that a witness is entitled to absolute immunity for his testimony before a grand jury and for preparing grand-jury testimony. 132 S. Ct. at 1507. The Court was careful to note, however, that absolute immunity does not extend “to all activity that a witness conducts outside of the grand jury room. For example, we have accorded only qualified immunity to law enforcement officials who falsify affidavits … and fabricate evidence concerning an unsolved crime.” Id. at 1507 n.1 (citing, among other cases, Buckley III, 509 U.S. at 272–76). Here, Stinson accuses the odontologists of fabricating their opinions during the investigative phase of the Cychosz case, before probable cause existed. In light of Rehberg and the principles outlined in Buckley III, absolute immunity does not apply to this alleged misconduct.”

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.