Commercial Litigation and Arbitration

Absolute Prosecutorial Immunity Does Not Extend to Civil RICO Suit Filed by County Prosecutors Essentially Enjoying No Status Different from Private Lawyers Filing Such Suits

Stapley v. Pestalozzi, 2013 U.S. App. LEXIS 17044 (9th Cir. Aug. 16, 2013):

Former prosecutors Andrew Thomas and Lisa Aubuchon, and their spouses, ("Defendants") appeal the district court's partial denial of their motions to dismiss. Former Maricopa County Board of Supervisors member Donald T. Stapley, Jr. and his spouse ("Plaintiffs") allege that Defendants initiated a frivolous federal civil racketeering ("RICO") suit against Stapley to harass him. The suit was part of an ongoing "political war" in Maricopa County between the Board of Supervisors, Sheriff Joe Arpaio, and others. Thomas and Aubuchon were later disbarred, in part for initiating the RICO suit in question.

Thomas and Aubuchon argued that they are entitled to absolute prosecutorial immunity from any claims arising out of their filing of the civil RICO action. The district court disagreed, denying Defendants' motion to dismiss as to the claims arising from the RICO suit. We affirm.***

B. Civil RICO Suit

Thomas and Aubuchon filed a federal civil racketeering suit against Stapley and others in late 2009. A number of people had advised them not to file the suit. Aubuchon knew that an outside law firm had evaluated the viability of a civil RICO action in October 2009, and had concluded that "there was insufficient evidence for such an action." A RICO expert in the Maricopa County Attorney's Office, Peter Spaw, informed Thomas and Aubuchon that there was no evidence to justify a civil RICO action. Spaw refused to assist in drafting the complaint. MCAO supervisors Barnett Lotstein and Phil MacDonnell also told Thomas that "the RICO Suit was not appropriate or viable based on the facts and circumstances." Despite these warnings, Thomas and Aubuchon actively participated in drafting the complaint before filing it on December 1, 2009. Lotstein and MacDonnell -- who had "believed that Thomas had heeded their advice not to pursue" the RICO suit -- learned about the filing only after Sheriff Arpaio and Thomas announced it to the media.***

Thomas and Sheriff Arpaio voluntarily dismissed the RICO suit on March 11, 2010, less than four months after filing. The court had taken no action on the suit. The dismissal notice stated that "having referred this matter to the Public Integrity Section ("PIN") of the United States Department of Justice and having received their assurances that PIN will review the matter, Plaintiffs [Sheriff Arpaio] and [Thomas] . . . hereby voluntarily dismiss" the case. Thomas and Sheriff Arpaio held a press conference where Thomas announced "victory" in the RICO suit. With the approval of Sheriff Arpaio and Thomas, Sheriff Arpaio's attorney, Robert Driscoll, stated at the conference that the Department of Justice ("DOJ") had agreed to investigate the RICO Lawsuit defendants. DOJ had in fact made no such agreement, but had informed Driscoll only that Thomas and Sheriff Arpaio could submit a tip like any other citizen. DOJ issued a statement two days later, rejecting the press conference's characterization of events and stating that it was "dismayed to learn" that information received from DOJ had been "used as a platform for a press conference."

C. Disbarment of Thomas and Aubuchon

A disciplinary panel of the Arizona State Bar investigated Thomas and Aubuchon related to the above incidents. The panel found "overwhelming" evidence that Defendants had abused their power and "spen[t] the public's money for their cause célèbre." Noting that the "harm" done by Thomas and Aubuchon "to the public, individuals, and the profession was stunning on every front," the panel ordered them disbarred. Aubuchon has appealed the ruling.

With respect to the RICO complaint, the bar panel noted that Thomas and Aubuchon had filed suit despite numerous warnings from other MCAO attorneys and from outside counsel that the suit "would be a misuse of the law" and that "sanctions for a frivolous lawsuit would likely be imposed." The panel determined that the complaint, in addition to being "unintelligible or nonsensical" in places, did not state facts sufficient to support any of its legal claims. The panel also found that Thomas and Aubuchon made no effort to gather evidence to support the suit, that they lacked authority under Arizona law to file the suit, and that the suit caused severe emotional damages to the RICO defendants.***

II. Proceedings Below

Stapley, his spouse, and several other Board members, judges, and County employees sued seeking monetary damages. The suits named multiple defendants, including Thomas, Aubuchon, Sheriff Arpaio, and Maricopa County itself. Most of the parties have settled. The only remaining plaintiffs in this appeal are Stapley and his spouse. Thomas, Aubuchon, and their spouses are the only defendants.

Stapley has alleged twelve causes of action under 42 U.S.C. § 1983 and state law. His claims include wrongful institution of civil proceedings, malicious prosecution, false imprisonment and arrest, intentional infliction of emotional distress, unlawful search, equal protection and other constitutional violations, and conspiracy to violate § 1983. Stapley alleged that Defendants' filing of the RICO suit caused some of his injuries.***

V. Discussion

The sole issue before us is whether Defendants are absolutely immune from suit under 42 U.S.C. § 1983 for their actions in filing the civil RICO complaint. The parties agree that state-law prosecutorial immunity from the state-law claims is the same as federal-law immunity from claims under § 1983. We hold that Defendants are not entitled to absolute immunity.

A. Supreme Court Precedent

In Imbler, the Court held that prosecutors have absolute immunity under § 1983 for a decision to initiate a criminal prosecution.

424 U.S. at 430-31. The Court noted the common law rationales for granting immunity, including insulating prosecutors from harassment and allowing them to make independent decisions without fear of litigation. Id. at 422-24. The Court determined that the same concerns warranted absolute immunity under § 1983. Id. at 424. The Court acknowledged that absolute immunity comes at the price of "leav[ing] the genuinely wronged defendant without civil redress." Id. at 427. It nonetheless concluded that absolute immunity was the best "balance between the evils" in the criminal context. Id. at 428 (internal quotation marks omitted). The Court in Imbler did not define the precise scope of prosecutorial immunity. It held only that absolute immunity applied to a prosecutor's "activities . . . intimately associated with the judicial phase of the criminal process." Id. at 430. The Court has since confirmed that the functional nature of the activities being performed, not the status of the person performing them, is the key to whether absolute immunity attaches. See Forrester v. White, 484 U.S. 219, 229 (1988) (holding that "the nature of the function performed, not the identity of the actor who performed it," informs the absolute immunity analysis).

In Butz v. Economou, 438 U.S. 478, 511-14 (1978), the Court extended Imbler beyond criminal prosecutions to administrative enforcement proceedings. In Butz, the Court held that "agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts." Id. at 515. Noting again that functional comparisons are key and that it is the "characteristics of the judicial process rather than its location" that matters, id. at 512, the Court concluded that agency enforcement actions are sufficiently analogous to criminal prosecutions that agency officials who initiate enforcement actions are protected by absolute immunity. Id. at 516-17. The Court emphasized that qualified immunity is the norm for government officials except in "exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business." Id. at 507.

B. Ninth Circuit Precedent

In two early cases, we granted absolute immunity to IRS attorneys who initiated civil tax-collection lawsuits.

See Fry v. Melaragno, 939 F.2d 832, 838 (9th Cir. 1991); Flood v. Harrington, 532 F.2d 1248, 1252 (9th Cir. 1976). We used broad language in Flood, stating that we did not "see any significant reason to distinguish actions involving civil claims" from criminal prosecutions. Flood, 532 F.2d at 1251. Similarly, in Fry we stated broadly that government attorneys are entitled to absolute immunity in all litigation contexts[.] ***

Defendants contend, based on this language, that prosecutors are entitled to absolute immunity in any civil litigation, and that this immunity extends to claims arising from the civil RICO action at issue here.

We do not believe that Flood and Fry require absolute immunity in all civil suits. Flood and Fry both involved suits brought against government attorneys who had brought civil tax enforcement proceedings. The scope of immunity for other types of civil suits was not at issue. The broad reading of Fry and Flood for which Defendants advocate would go well beyond what is required under Supreme Court precedent. The Court has emphasized that qualified immunity is the norm for government officials, and that absolute immunity exists only in "exceptional situations" where it is "essential for the conduct of the public business." Butz, 438 U.S. at 507; see also Burns v. Reed, 500 U.S. 478, 487 (1991) ("We have been quite sparing in our recognition of absolute immunity, and have refused to extend it any further than its justification would warrant." (internal quotation marks and citation omitted)). The Court has never stated that government attorneys receive absolute immunity for all litigation-related conduct, even in criminal cases. Rather, the Court has repeatedly stated that only certain actions taken by prosecutors receive absolute immunity, and that a functional comparison of the activities performed is critical. See Imbler, 424 U.S. at 430 (finding absolute immunity for "activities . . . intimately associated with the judicial phase of the criminal process"); Butz, 438 U.S. at 515 (finding absolute immunity for "functions analogous to those of a prosecutor").

We recently rejected a prosecutor's claim of absolute immunity in Lacey v. Maricopa County, 693 F.3d 896, 912-14 (9th Cir. 2012) (en banc). The county attorney in Lacey was another ally of Sheriff Arpaio in his wars against political adversaries. See id. at 909. The county attorney had issued subpoenas against newspaper publishers who had offended Sheriff Arpaio by publishing articles that criticized him. Id. at 913-14. The subpoenas were invalid because they had been issued without approval from or notice to the grand jury. Id. at 913. The attorney thereby violated Arizona statutes requiring either grand jury approval or notification. We held that the attorney was not entitled to absolute immunity from § 1983 claims brought by the improperly subpoenaed publishers. Id. We emphasized that the county attorney had avoided judicial scrutiny by acting unilaterally: "Where the prosecutor has side-stepped the judicial process, he has forfeited the protections the law offers to those who work within the process." Id. at 914.

C. Absolute Immunity for Thomas and Aubuchon


The question here is whether, in the circumstances of this case, Thomas and Aubuchon are entitled to absolute immunity from claims arising out of their initiation of the civil RICO suit. Defendants have the burden of showing that they are entitled to absolute immunity. See Burns, 500 U.S. at 486. We conclude that Defendants have not carried their burden.

Because the RICO suit was civil, see 18 U.S.C. § 1961, et seq., it was not "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430 (emphasis added). Defendants therefore try to analogize this case to Butz, where absolute immunity was extended in the civil context to "functions analogous to those of a prosecutor." Butz, 438 U.S. at 515. We conclude that Defendants' actions here were not "analogous to those of a prosecutor" for two reasons. See id.

First, the federal RICO statute does not provide any special authorization for county attorneys to file civil RICO suits. County attorneys may file civil RICO suits under 18 U.S.C. § 1964(c), but they have no status as plaintiffs different from private citizens. Compare § 1964(b) (authorizing the United States Attorney General to initiate a RICO suit), with § 1964(c) (authorizing "[a]ny person injured in his business or property" to sue under the RICO statute). As the district court noted, Thomas and Aubuchon were thus "in the same position as . . . private lawyers" in bringing the RICO suit. 869 F. Supp. 2d at 1056. This case is therefore distinguishable from all cited cases where a government attorney was granted absolute immunity. In those cases, the government attorney was taking action that only a legal representative of the government could take. See, e.g., Imbler, 424 U.S. at 410 (criminal prosecution); Butz, 438 U.S. at 480 (federal agency enforcement action); Fry, 939 F.2d at 834 (civil tax collection proceeding); Flood, 532 F.2d at 1249 (same). Inasmuch as Defendants did not act in a uniquely governmental role in filing their civil RICO suit, their actions were not "analogous to those of a prosecutor." Butz, 438 U.S. at 515.

Second, the circumstances of this case indicate that the civil RICO suit was not "analogous" to a criminal prosecution. Rather, Defendants filed the RICO suit as part of their long-running "political war" against members of the Board of Supervisors, judges, and others. The suit was essentially a harassing public-relations ploy. Defendants filed baseless criminal suits against Stapley and others both before and after filing the RICO suit, seeking media publicity for their actions in connection with these suits. Before initiating the civil RICO suit, Defendants received warnings from attorneys both inside and outside their office that the suit had no basis in fact or law and would likely result in sanctions. Defendants had also been warned of ethical conflicts related to filing the suit.

Defendants nonetheless filed the RICO suit, announcing it to the media immediately after filing. Then, before the court had any opportunity to assess its validity, Defendants voluntarily dismissed the suit. After dismissing the suit, Defendants held a press conference, announcing that the Department of Justice had agreed to investigate the RICO Lawsuit defendants. The DOJ had, in fact, made no such agreement, and it later announced that it was "dismayed to learn" of the press conference. Through these actions, Defendants deliberately "side-stepped the judicial process," like the prosecutor in Lacey who avoided judicial scrutiny and thereby lost the protections of absolute immunity. Lacey, 693 F.3d at 914.

We need not determine whether each of the distinguishing characteristics here, standing alone, would be sufficient to defeat absolute immunity. We hold only that, under the circumstances presented here, Defendants are not entitled to absolute immunity because their actions were not sufficiently "analogous to those of a prosecutor." Butz, 438 U.S. at 515.

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