956 F.3d 773
5th Cir.2020Background
- Plaintiffs allege Orleans Parish prosecutors (including D.A. Cannizzaro and ADAs) created and served fake subpoenas—bearing the word "SUBPOENA," the Office seal, and threats of fines/imprisonment—to compel victims and witnesses to meet with prosecutors outside court.
- Recipients reacted differently: some refused (Singleton, Baham), one (Baham) was later jailed on a material-witness warrant after refusing contact, one (Doe) met because she feared arrest, and two (Bailey, LaCroix) retained counsel and the fake subpoenas were withdrawn.
- Plaintiffs sued Individual Defendants (personal-capacity) and Cannizzaro (official-capacity) asserting federal constitutional and Louisiana state-law claims (including abuse of process and fraud).
- The district court denied absolute immunity only for the claims arising from creation/use of the fake subpoenas (finding the conduct ultra vires and outside the judicial phase) but otherwise granted immunity on other claims; it allowed some claims to proceed.
- On interlocutory appeal the Fifth Circuit affirmed the denial of absolute immunity as to the subpoena-related claims at the motion-to-dismiss stage, reasoning the alleged conduct was investigative and outside the judicial process; the court dismissed the remainder of the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutors are absolutely immune for creating/using fake subpoenas | Fake subpoenas were investigative, outside the judicial phase, so no absolute immunity | Issuing subpoenas and preparing witnesses is core prosecutorial trial-prep and thus absolutely immune | Denied absolute immunity at motion-to-dismiss stage: allegations show investigative, non‑quasi‑judicial conduct outside judicial process; immunity not appropriate now (may be revisited later) |
| Whether timing (post‑charging) makes the conduct prosecutorial and thus immune | Function, not timing, controls; allegations show investigatory acts regardless of charges | Actions occurred after charges were filed and relate to trial preparation, so immune | Timing alone does not control; focus is on function—alleged acts are investigative and not protected by absolute immunity |
| Whether the court may exercise pendent appellate jurisdiction to review state‑law claims here | N/A for pendent review; plaintiffs’ state claims not essential to immunity question | Ask court to resolve related merits and state‑law claims on appeal | Court declines pendent appellate jurisdiction; lacks jurisdiction to decide merits of the remaining federal and state‑law claims on this interlocutory appeal |
| Whether absolute immunity under Louisiana law differs from federal standard | Plaintiffs rely on federal functional test; Louisiana law aligns with federal immunity principles | State immunity tracks federal immunity, so federal precedents apply | Louisiana law harmonizes with federal rule, but under the pleadings defendants failed to show absolute immunity for the subpoena claims |
Key Cases Cited
- Imbler v. Pachtman, 424 U.S. 409 (Sup. Ct. 1976) (establishes absolute immunity for prosecutors for actions "intimately associated with the judicial phase")
- Buckley v. Fitzsimmons, 509 U.S. 259 (Sup. Ct. 1993) (distinguishes investigatory functions from advocatory functions; absolute immunity not expansive)
- Burns v. Reed, 500 U.S. 478 (Sup. Ct. 1991) (burden on official to show absolute immunity is justified for the function at issue)
- Van de Kamp v. Goldstein, 555 U.S. 335 (Sup. Ct. 2009) (limits absolute immunity for non‑quasi‑judicial prosecutorial actions)
- Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (prosecutor who issued fake subpoenas not entitled to absolute immunity for avoiding judicial subpoena process)
- Loupe v. O’Bannon, 824 F.3d 534 (5th Cir. 2016) (prosecutor not absolutely immune for ordering warrantless arrest; investigative acts get qualified immunity)
- Hoog‑Watson v. Guadalupe Cty., 591 F.3d 431 (5th Cir. 2009) (prosecutor not absolutely immune for acts of investigation or administration)
- Cousin v. Small, 325 F.3d 627 (5th Cir. 2003) (prosecutorial acts intended to shape testimony at pending trial can be within advocatory function and immune)