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Immunity for Prosecutors v Due Process: What's Covered?

By Minara El-Rahman | Last updated on

Recent news coverage of a lawsuit from an accused high school teacher over an allegedly overzealous prosecutor highlights important questions about immunity for prosecutors and citizens' rights of due process.

According to, Ms. Nicole Howell was found not guilty in a case that charged her with having sex with a 16 year old student. Ms. Howell's attorney Eric Deters has filed a lawsuit on Ms. Howell's behalf that claims that the prosecutor of her case, Kenton Commonwealth's Attorney Rob Sanders, improperly handled the case.

Mr. Deters is attempting to argue that immunity for prosecutors does not apply to their actions before charges are filed.

Like many government officers, prosecutors cannot be sued with the same ease in which individuals are able to sue private actors for injuries caused. That's be cause prosecutors enjoy "prosecutorial immunity."

What Is Prosecutorial Immunity?  

It is immunity granted to prosecutors in order to allow them to prosecute without fear of civil liability. Some of the reasons for this immunity has been: 

  • Allowing civil litigation of prosecutors would undermine the performance of prosecutors
  • Hinder independent decision making
  • Waste time and money with frivolous lawsuits that would serve to undermine the justice system.

How encompassing is this immunity?

Civil liability for individual prosecutors cannot be limited to plainly prosecutorial functions. This means that a prosecutor's actions during trial is protected. In 1976, the Supreme Court held in Imbler v. Pachtman that prosecutors have absolute immunity from liability  for their official actions during trial.

Importantly, even improper motive, bad faith, or intent to do constitutional harm does not dent prosecutorial immunity. That means that even if a prosecutor has bad faith in his/her prosecution of a case, it does not matter for purposes of immunity.

The Supreme Court is currently hearing a case called Pottwattamie County v. McGhee, which may determine whether or not prosecutorial immunity extends to actions of a prosecutor prior to trial.

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