Suing the DA

Should prosecutors be immune from civil lawsuits?


Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney’s office that prosecuted the case routinely used the testimony of so-called “jailhouse snitches” prosecutors knew or should have known weren’t reliable.

Goldstein’s case is unusual because he’s not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein’s case to go forward, causing the U.S. Supreme Court to agree to hear it.

Goldstein’s lawsuit stems from federal law 42 U.S.C. 1983, which states that “…[e]very person” who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages,” and provides a means for those wronged by government officials to file suit in federal court.

But there are exceptions to Section 1983 suits. In the 1976 case Imbler v. Pachtman, the U.S. Supreme Court carved out a wide exception to the law to exempt prosecutors. The Court said common law tradition grants prosecutors have what’s known as “absolute immunity” from civil rights suits, meaning that they can’t be sued, provided they’re acting in their capacity as prosecutors. Few people enjoy such protections in their own line of work (judges have absolute immunity as well).

But this complete shield from accountability is especially problematic when we’re talking about prosecutors. It’s a job that’s already plagued by incentive problems. We tend to measure a prosecutor’s performance based on how many people he’s able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn’t take. So we have people in a position where they have the enormous power to take away someone’s freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds.

It’s a recipe for abuse.

Generally speaking, it is smart public policy to shield prosecutors from lawsuits when it comes to determining in which cases they’ll pursue charges. If we hamstring prosecutors into factoring potential lawsuits into determining whom to charge, we run the risk of bringing politics or the wealth and status of the accused into what should be a question of law, context, and propriety (any more than these things are already factor into such decisions, anyway).

But you could make a good case that absolute immunity takes this idea too far. Even police officers are given what’s called “qualified immunity” from civil rights suits, which in 1983 the Supreme Court determined meant, “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

That sets a hurdle for lawsuits against the police, but not a wall (some would argue that this hurdle is also too high). It might be time to consider applying that standard to prosecutors, too.

But the Goldstein case doesn’t even seek to overturn the 1976 decision in Imbler. That would take an act of Congress—and again, perhaps that’s something Congress should consider.

Instead, the suit targets Mr. Van de Kamp as the manager of the district attorney’s office. It says that he’s guilty of negligently overseeing his office, and allowing his subordinates to use unreliable, uncorroborated testimony from prison inmates.

Given the current makeup of the Supreme Court, I’d be pleasantly surprised if they allowed Goldstein’s lawsuit to go forward. But they should.

More broadly, we need to reconsider the idea of absolute immunity for prosecutors.

There’s plenty of evidence that this shield from accountability is allowing some prosecutor’s offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in reason magazine quite similar to the Goldstein case. In 2006, Church Point, Louisiana resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants.

Despite the fact that the family’s home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses — who were offered time off from their own sentences in exchange for their testimony — claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

U.S. Attorney Donald Washington’s office had been made aware of this network in a prior conspiracy case, yet his subordinates went on to ask some of the same witnesses to testify in the Colomb case. Even after the extent of the network was revealed in the Colomb trial, federal prosecutors attempted to use some of them again in yet another federal drug case.

Ann Colomb is now suing Washington’s office. Whether her suit will be permitted to go forward may depend on what the Supreme Court does in the Goldstein case. As it stands, the family is broke from their criminal case. Though they were cleared of all charges, the government has yet to even apologize to them, much less compensate them for the five years they were under suspicion, of the four months they served in prison.

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors’ offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn’t allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there’s clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed—if uncomfortable—sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

Radley Balko is a senior editor for reason. A version of this article originally appeared at

Conference Call: Prosecutors Ask High Court for Immunity


The following column, featuring a selected petition up for consideration at the Justices’ private conference on April 11, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for Friday’s conference, click here.

In 1980, a California jury convicted Thomas Lee Goldstein of killing his neighbor with a shotgun in a darkened alley. Central to the state’s case was the testimony of a heroin addict named Edward Fink, who — falsely — told jurors that Goldstein had confessed to the crime while the two shared a holding pen in a Long Beach, Calif., jail.

As in the past, Fink, a longtime police informant, had been promised benefits in exchange for his testimony. But the existence of Fink’s current or previous deals was never relayed to the district attorney prosecuting the case — or, crucially, to Goldstein’s attorney.

More than 20 years later, after federal judges ordered his release from prison, Goldstein, a former Marine, filed a civil rights suit against the former Los Angeles County District Attorney and his chief deputy, alleging they failed to create a database containing information on jailhouse informants, or to otherwise ensure deputy prosecutors were at least aware when witnesses had been promised benefits in exchange for their testimony.

Rejecting the defendants’ claim of absolute prosecutorial immunity, the U.S. Court of Appeals for the 9th Circuit allowed the case to move forward. At their private conference on April 11, the justices will consider whether to accept the petition for certiorari. (The case is No. 07-854, Goldstein v. Van de Kamp.)

For decades, the Supreme Court has recognized two types of immunity under 42 U.S.C. 1983, the statute under which Goldstein filed his civil rights suit. When sued for money damages, most public servants enjoy “qualified immunity,” meaning charges are automatically dismissed unless the alleged conduct violated clearly established constitutional rights. Meanwhile, a small subset of officers — including judges, legislators, and prosecutors — enjoy “absolute immunity” for all conduct taken while exercising their official, traditional duties.

John Van de Kamp, the district attorney at the time of Goldstein’s trial and now of counsel at Dewey & LeBoeuf in Los Angeles, claimed absolute immunity (though not qualified immunity) from the suit. The district court denied the motion in March 2006, after determining the alleged conduct to be administrative rather than prosecutorial in nature.

On appeal, a 9th Circuit panel unanimously affirmed. Citing the Supreme Court’s 1976 decision in Imbler v. Pachtman, the circuit panel found prosecutors only enjoy absolute immunity for conduct “intimately associated with the judicial phase of the criminal process.” As examples, the panel wrote that immunity would apply to decisions on whether to prosecute particular cases, but not to statements made during press conferences or alleged discrimination in personnel decisions.

On balance, Judge Thelton Henderson, sitting by designation from the U.S. District Court for the Northern District of California, concluded that Goldstein’s allegations “bear a close connection only to how the District Attorney’s Office was managed, not to whether or how to prosecute a particular case.”

In his petition for certiorari, Van de Kamp argues that by suing supervisors in the district attorney’s office, Goldstein sought only to circumvent the civil immunity traditionally afforded to line prosecutors. The petition, filed by Steven Renick of Los Angeles-based Manning & Marder, Kass, Ellrod, Ramirez, contends that allowing such suits will invite a “flood of lawsuits” by vengeful defendants.

As opposed to rote administrative tasks, Renick maintains that locating and disseminating potentially exculpatory information falls within the type of core prosecutorial function traditionally afforded absolute immunity. Indeed, the petition notes, the Supreme Court’s decision in Imbler itself provided absolute immunity to a prosecutor alleged to have withheld exculpatory evidence from the defendant.

Citing other federal courts of appeal, Renick notes the D.C. Circuit has extended absolute immunity to district attorneys against allegations related to the setting of general prosecutorial policies, as has the 7th Circuit against allegations of failure to train or supervise line attorneys. By contrast, under the 9th Circuit’s ruling, “virtually any claim that would otherwise be barred against a line prosecutor…can simply be restated as a claim against one or more supervising prosecutors,” the petition says.

Opposing certiorari, Goldstein maintains the suit seeks to hold Van de Kamp accountable in his role as an administrator, not as prosecutor. The brief in opposition, filed by Marilyn Bednarski of Kaye, McLane, & Bednarski of Pasadena, Calif., contends the allegations involve Van de Kamp’s failure to ensure information on jailhouse informants was shared within the office, as opposed to with particular defendants.

Far from requiring prosecutorial discretion, Bednarski argues, creating a system to share information involves nothing more than compiling objective facts on police informants. And far from enabling a flood of litigation, Bednardski argues, the ruling below applies only to a narrow class of plaintiffs who could establish a causal connection between their wrongful convictions and the failure of supervisory prosecutors to take certain administrative actions.

Whereas line prosecutors themselves cannot face suit for withholding information from defendants, Bednarski cites cases from the 4th, 7th, and 11th Circuits rejecting qualified immunity for police officers who withheld such information from prosecutors in the first place. From a larger standpoint, Bednarski argues, prosecutorial immunity was meant not to shield all employees in prosecutors’ offices from any liability, but to serve as a narrow exception to civil rights laws used only when necessary to protect the judicial process itself. — Ben Winograd

© 2007 ALM Properties Inc.

March 1, 2008 1:35 PM



Sometimes even the police need help. When they do, they don’t call 9-1-1. They call SWAT.


“Something bad is going to happen, either today or tomorrow,” Lt. Dwayne Scheuermann said. “I can promise you that.” Scheuermann is a deputy commander of the New Orleans Police Department’s Special Operations Division.

He spoke those words the morning of Dec. 20, 2007, little more than an hour before the New Orleans City Council was scheduled to cast its final vote on the demolition of four of the city’s sprawling, hurricane-damaged housing projects. Protesters were already lined up at City Hall, and NOPD’s Tactical Unit – the SWAT team – was on full alert.

In the days leading up the council vote, the SWAT team had been dealing with harassment from radical activists at the B.W. Cooper and St. Bernard projects. The tension was building and Scheuermann suspected it was about to boil over.

The protesters themselves were the subject of much of the controversy. Several prominent New Orleanians, including a couple of council members, charged that many of the protesters were out-of-town, Birkenstock-clad agitators who had never set foot inside a New Orleans housing development until news cameras showed up.
Recent developments seemed to bolster that claim.

After a three-hour standoff at B.W. Cooper – the old Calliope project – SWAT officers arrested two 50-something-year-old protesters from Brooklyn. Other public housing activists turned out to be Ivy League college students on Christmas break.

“We’ve seen a lot of Volvos,” one city official said.

To further harass the police, some protesters used “sleeping dragons,” a device made from a section of reinforced PVC pipe. Protesters shove their arms into each end of the pipe and link hands to form a human chain. The day before the council vote, SWAT members had to spend hours cutting the trespassing activists out of the sleeping dragons before they could arrest them.

That task was complicated significantly because some protesters had rigged their sleeping dragons with electrical wires to make them look like bombs, said Capt. Bobby Norton, commander of the Special Operations Division. NOPD Bomb technicians had to “render safe” each suspicious device before cutting through it.

Another protester arrested at B.W. Cooper was a woman who goes by the name Bork. Jim Arey, a forensic psychologist and the civilian head of NOPD’s crisis negotiation team, interviewed Bork after her arrest. For the last 10 years, Arey said, Bork, from West Virginia, has been a self-described professional protester, traveling the country from one demonstration to another and living off what she refers to as “grants.” Arey said he suspects the grants are really government disability checks.

Back at City Hall, Scheuermann and 10 SWAT officers took up positions inside the council chamber to protect the council members, while a few blocks away in an empty Superdome parking lot, Capt. Norton set up the unit’s mobile command post.

Meanwhile, Intelligence Division commander, Capt. Jeff Winn, and 50 district task force officers were stationed at an undisclosed off-site location to act as a quick reaction force in case things went to hell.

Stationed nearby on Girod Street were EMS units, a fire truck, and the New Orleans Fire Department’s Flying Squad.

Across the street from City Hall, on the 17th floor of a hotel, SOD commanders had installed a “black team,” a surveillance unit, to act as the eyes of the SWAT team. Ringed around City Hall were dozens of uniformed police officers and the mounted unit.

Inside the high-tech mobile command post, it was Norton’s job to control the chaos. Hanging on the back wall of the CP was a flat-panel television screen that showed a satellite picture of the area around City Hall. Norton used computer graphics to add street and building names to the picture.

As overall commander of the operation, Norton had to be ready for anything the protesters threw at him – before, during and even after the council meeting. “We don’t know where they’re going to go or what they’re going to do,” he said.

On the steps of City Hall, a local rapper and political activist, who uses the name Sess 4-5, gave a sort of press conference. There wasn’t much press at the conference, mostly just other activists with camcorders.

“We are here on behalf of the people,” Sess 4-5 shouted for the cameras.
Next to him stood Sharon Jasper, a lifelong project resident and recent housing activist. Jasper wore a T-shirt imprinted with photographs of President Bush, Vice President Cheney, Secretary of State Condoleezza Rice,and Homeland Security Secretary Michael Chertoff. Above the photos, in large block letters, were the words “Wanted for Mass Murder.”

Behind Sess 4-5 and Jasper stood an unidentified activist, a tall man with long dreadlocks, wearing a brown T-shirt. Soon all three of them would be involved in a raucous confrontation with SWAT officers.

Earlier that morning, Lt. Dwayne Scheuermann had said he felt something bad was going to happen. He was right.

SWAT isn’t the only component of the Special Operations Division. In addition to the gunslingers in the Tactical Unit (commonly called SWAT), SOD includes the Violent Offender Warrant Squad, the bomb squad, the marine unit and the dive team. Actual SWAT members number only about 60 officers. They are organized into three platoons: Tac 1, Tac 2 and Tac 3.

Special Operations is based on Moss Street, beside the abandoned 3rd District station. Before the storm, the SWAT team was housed in an old two-story brick schoolhouse but since Katrina washed four feet of water into the building, the team has been crammed into two doublewide trailers – one for the platoons, the other for the rank. The trailers sit parked beside the team’s old building.

At one end of the administration trailer there is a pair of cramped offices belonging to Capt. Norton and Lt. Scheuermann. The air conditioning only works in one office and the heat doesn’t work in either. Each trailer has a single toilet that drains into a plastic bladder on the ground behind it. The bladders fill up so quickly and get emptied so infrequently that the male officers mostly use a makeshift urinal behind the old schoolhouse so that the female officers can use the two bathrooms.

Common office supplies are in short supply. Team members buy most of them out of their own pockets. New cars are also hard to find.

What’s not hard to find is esprit de corps. Team members are proud to be part of SWAT. A T-shirt seen recently on one member says it best: “NOPD SWAT. The Final Option.” When things go bad, police officers call SWAT.

They are the Police Department’s 9-1-1.

Getting into SWAT is tough. The training is tough. The hours are tough. Officers can’t apply to SWAT. They have to be chosen.

To be considered, prospective team members must have distinguished themselves in some other specialized unit. Most are recruited from district task forces. Some come from narcotics units. Candidates have to be aggressive, physically fit and intelligent. They must possess good street sense and, most importantly, they have to be team players.

They are the best of the best.

“We don’t want any rebels out here or any rogues,” says Sgt. Hans Ganthier, one of two sergeants on Tac 3. “The difference between our unit and the districts is that all of our guys are hand-picked.”

Candidates also need a record of making solid felony arrests. They need good courtroom presence and excellent shooting skills.

The first step to become a member of a SWAT platoon is an interview with the platoon sergeants. If passed, then it’s on to an interview with the rest of the platoon. A good reputation is essential. Perhaps more than with any other unit within a police department, SWAT members have to trust each other. “When you go through a door and go left,” Ganthier says, “you’ve got to trust that the guy behind you is going right.”

If a candidate passes the interviews and gets a vote of confidence from his or her prospective platoon mates, the next step is a series of physical agility tests: running, push-ups, sit-ups and the all-important shooting test. Poor shots get washed out, Ganthier says.

All newly selected team members have to pass a tough two-week SWAT school. The curriculum includes advanced weapons training, entry techniques, hostage rescue, crowd control and physical fitness.

SWAT handles the most dangerous assignments the Police Department has – high-risk warrants, barricaded suspects, hostage situations, proactive patrol in high-crime neighborhoods and security for special events. Cohesion among team members is a must. “They see each other more than they see their families,” Ganthier says.   

At City Hall, on the morning of the decisive City Council vote, civil sheriff’s deputies let 278 spectators into the council chamber – the room’s maximum capacity, according to the fire marshal – then shut the door. Those protesters who didn’t get in were furious they’d been left standing outside. Above them, storm clouds closed in.

Inside, the deputies were having trouble controlling the unruly crowd. Several protesters refused to sit down, including local rapper Sess 4-5 and the man in the brown T-shirt.

Local housing activist Sharon Jasper, the woman wearing the “Wanted for Murder” T-shirt who had stood beside Sess 4-5 during his press conference, took a seat for a minute, then stood up and fired off a racist rant at a middle-aged white man seated behind her. When the man tried to make a point, Jasper jabbed her finger at him and shouted: “Shut up, white boy. Shut up, white boy.”

Two days earlier, Jasper had been featured in a Times-Picayune article in which she called her government-subsidized apartment, located in a recently renovated house in Faubourg St. John, a “slum.” The photograph that accompanied the article showed Jasper seated on a sofa in her apartment. The rooms visible in the photo appeared well appointed, with nice furniture and hardwood floors. Next to Jasper stood a 60-inch flat-screen television. In the photo caption Jasper was quoted as saying, “I thank God for a place to live but it’s pitiful what people give you.”

Inside the council chamber, the protesters began to chant, “Let the people in. Let the people in.”

Meanwhile, Sess 4-5 berated the council. “Who talking about the people? Who talking about the homeless? I’m from the project and I’m fighting for my people.”
Krystal Muhammad, a member of the Houston chapter of the New Black Panther Party, shouted at the council members, who had not yet taken their seats. “Bring your coward selves out here and let our people in here,” Muhammad said. “It don’t make no sense. Black people want to come and stand for something and you want to lock us out like we slaves on your plantation.”

As the council members prepared to take their seats, they were met with jeers and curses. The start of the meeting was running late. Civil sheriff’s deputies asked everyone in the audience to sit down so the meeting could begin. Sess 4-5 refused. He remained standing in front of the first row of seats and continued shouting at the council.

A deputy took hold of his arm and again asked him to sit down. The rapper jerked his arm away. “Why you pulling on me?” he said.

When the deputy tried to escort Sess 4-5 from the council chamber, the room erupted. As sheriff’s deputies struggled with the rapper-turned-activist, the man in the brown T-shirt and dreadlocks jumped into the fray. Then a heavyset woman grabbed a deputy from behind and dragged him backward 10 feet from the scuffle. The deputies had lost control of the situation.

The SWAT team stepped in. With Superintendent Warren Riley and Deputy Chief Bruce Adams looking on, SWAT officers used Tasers and empty-hand control techniques to restore order. Within a minute or two they had several agitators in handcuffs, including Sess 4-5, Krystal Muhammad and the man in the brown T-shirt.
As SWAT officers led Sess 4-5 from the council chamber, a Times-Picayune reporter asked him what his real name was.

“Fuck off,” he said.

On her way out the door, Krystal Muhammad spit on a white Associated Press photographer.

Outside, the chaos continued. About a hundred protesters rallied just beyond the iron gates at the front of the breezeway that separates City Hall from the council chamber. They held signs, chanted and spouted conspiracy theories.

“They sent that water in here,” one woman screamed. “They blew them levees. They been planning this since Day One.”

Inside the gates, SWAT members and district task force officers formed a secondary line of defense.

Soon it would be tested.

“From the project to the street,” the crowd chanted. “No justice, no peace.”
Following the scuffle inside, police officers escorted the protesters they had arrested to a paddy wagon waiting behind City Hall. When the crowd outside saw their compatriots being hauled off to jail, they surged forward and began pulling on the gates.

A few minutes later, the set of leg irons that had been holding the gates closed broke loose. The crowd flung the gates open and tried to storm the building. “We going [to] fight!” a female protester shrieked. “We going [to] fight!”

Sheriff’s deputies ordered everyone back but the wild-eyed protesters were beyond listening to reason. The deputies tried to pull the gates closed but they quickly lost the tug-of-war to the hostile crowd.

Again, SWAT had to step in.

Lt. Scheuermann, who had been in the thick of the melee inside, was in the breezeway monitoring the rapidly deteriorating situation. After the deputies lost control of the gates, Scheuermann led several SWAT officers into the crowd.

The protesters were frenzied but unorganized and seemed unsure what to do after finally getting what they wanted – a clear path into the breezeway.

Scheuermann and the rest of the SWAT officers suffered no such uncertainty. They knew what they were doing. They pushed back against the crowd, which by that point had become a mob, and seized hold of the gates. Protesters who refused to back off got hit with pepper spray and Tasers. Several fell to the ground. At least two were carted off by ambulance, including Bork, the professional protester from West Virginia who had been arrested at the B.W. Cooper project the day before.

Shortly after the mini-riot, Police Superintendent Warren Riley gave an impromptu press conference under the breezeway. He said SWAT team members had done what was necessary to defend themselves and to regain control of the situation.

After tangling with the SWAT team, most of the protesters lost their taste for direct confrontation – except for one man. Dressed in a homemade hazmat suit, he made a half-hearted attempt to open the gates again but gave up when Deputy Chief Bruce Adams threatened to arrest him.

When the promised rainstorm finally hit, the crowd melted away.

Inside the meeting room, the much talked about racial split of the City Council never happened. The council voted unanimously to demolish the four projects.

Despite the ruckus inside the council chamber and the street battle outside, no one was seriously hurt and only a dozen protesters had to be arrested. For the SWAT team, it was another successful mission.

SWAT commanders hope to get a new home soon. They say the city is looking at a 90,000-square-foot building on Tchoupitoulas Street that could house everything under one roof – office space, equipment storage and training facilities. But most of the SWAT team’s rank-and-file members have their sights set on the simpler things in life – such as functioning toilets.

Regardless of whether they get the new space or not, SWAT, because of its careful selection, rigorous training and strong camaraderie, will continue to be the best of the best.

They are the Police Department’s 9-1-1.

Chuck Hustmyre is a freelance writer and author of the true crime books An Act of Kindness and Killer with a Badge and the novel House of the Rising Sun.