Mark Hamblett
New York Law Journal
09-19-2005


A federal judge should have granted former Manhattan prosecutor Linda Fairstein and a colleague absolute immunity against claims of a malicious prosecution by a former defendant, the 2nd U.S. Circuit Court of Appeals has ruled.

Fairstein and fellow former Assistant District Attorney Stacey Mitchell were sued by Sarit Shmueli, who claimed that her arrest for harassing her former domestic partner, Martin Lieberman, was motivated by Lieberman's friendship with Fairstein.

Southern District of New York Judge Sidney Stein had denied the former prosecutors' absolute immunity-based motions because Shmueli had alleged they acted without jurisdiction because they knew she was innocent.

But on appeal, Judge Amalya Kearse writing for a three-judge panel in Shmueli v. The City of New York, 03-0287-pr, agreed with the prosecutors' argument that the defense of absolute immunity "spares an official from any scrutiny of her motives and that the district court thus erred in equating an allegedly improper prosecutorial state of mind with a lack of prosecutorial jurisdiction."

A criminal complaint in 1998 alleged Shmueli had repeatedly harassed Lieberman, his ex-wife, and his family and friends by sending letters disclosing private information about Lieberman and making dozens of "hang up" phone calls.

The complaint also charged her with a number of acts of vandalism and said she posted flyers at Lieberman's daughter's school making libelous and scandalous claims about Lieberman's relationship with his daughter.

Although she was charged with one count each of second-degree harassment and menacing and 91 counts of aggravated harassment, the charges were dismissed in March 2002 on speedy trial grounds.

Shmueli sued in 2003 for claims under 18 U.S.C. �1983, the federal civil rights law, and state law alleging Fairstein, Mitchell, Lieberman and others conspired to prosecute her for crimes they knew she did not commit and had subjected her to false arrest, false imprisonment, assault and battery and malicious prosecution.

Shmueli charged that, in May 1997, after living together for two years, she told Lieberman to move out. He responded, she said, by threatening her that "he and his 'friend ADA Fairstein,'" would "make her life miserable" if Shmueli did not continue the relationship.

Shmueli also claimed Fairstein and Mitchell called her numerous times and threatened to arrest her unless she came to the Manhattan District Attorney's Office for a meeting. When Shmueli finally appeared for a meeting with the two prosecutors, they allegedly told the police to arrest her.

Shmueli's federal civil rights and state law cases before Stein, which included claims that the defendants conspired to keep her in custody and to prolong the criminal proceedings against her, sought $100 million in compensatory damages and another $100 million in punitive damages.

In 2003, Stein granted the former prosecutors' motions to dismiss most of the claims, but he denied their motions to dismiss the �1983 and state law claims for malicious prosecution for events that occurred after Shmueli's arraignment.

Assuming the facts alleged in the complaint to be true for purposes of a motion to dismiss, Stein said that, if the ADAs had prosecuted Shmueli knowing she was innocent, then they would have done so "in clear absence of all jurisdiction," a quotation from the 2nd Circuit case of Barr v. Abrams, 810 F.2d 358 (1987).

So, Stein said, "there is enough here for me to say that absolute immunity does not bar this 1983 claim as of now -- I repeat, as of now."

PROPER JURISDICTION

The District Attorney's Office appealed that decision.

In a ruling joined by Judges Dennis Jacobs and Chester Straub, Kearse said, "Once the court determines that the challenged prosecution was not clearly beyond the prosecutor's jurisdiction, the prosecutor is shielded from liability for damages for commencing and pursuing the prosecution, regardless of any allegations that his actions were undertaken with an improper state of mind or improper motive."

And the case law shows that a number of improper motives have been found as nonetheless shielded by the absolute prosecutorial immunity doctrine, the judge said, including a retaliatory prosecution, the knowing use of perjured testimony and deliberate withholding of exculpatory evidence.

"These principles are not affected by allegations that improperly motivated prosecutions were commenced or continued pursuant to a conspiracy," Kearse said, adding that they also protect prosecutors for claims made under state law.

The statutes under which Shmueli was charged, Kearse said, "plainly authorized the ADAs to prosecute Shmueli for the alleged harassment of Lieberman," as well as his associates and his family.

Shmueli appeared pro se. Assistant District Attorney Michael S. Morgan represented the defendants.

This is a fairly straightforward application of the doctrine of prosecutorial immunity. Charging decisions are at the heart of the "quasi-judicial" activity that is most centrally immunized. This case does offer a valid pointer to remember, however. Where law and ethics (in the broader sense, not just the Disciplinary Rules of Professional Conduct) overlap, such as when a prosecutor has a personal relationship with a victim, arguments like those raised in this case can begin to erode the protection prosecutors enjoy under current law. This specter is most ominously present when the determinative standard is one of those ethereal concepts currently in jurisprudential vogue, such as "evolving standards of societal decency."

I suspect the trial judge found it hard to believe that in a DA office the size of Manhatten's the ADA involved in the case (of a possible 500) just happened to be friends of the complaining witness. Of course I support the opinion but I have as much interest in supporting the awesome power of prosecutors. After all we have the authority with the stroke of a pen to put someone in jail for weeks if not months. In an office of 500 attorneys and 700 support staff surely someone other a friend should have followed thru on this case. So much for that rant. As is often the case the appellate court is taking everything the plaintiff says as true.

And we all know where that can lead you.