September-October 2020

Herd immunity? Don’t bet on it

By C. Scott Brumley
County Attorney in Potter County

Imagine, if you will, a true nightmare during business hours. No, not the one where you walk into court only to discover you forgot to wear shoes. I mean the kind that makes you do quick research to see how long unemployment benefits last. In this nightmare scenario, a district judge comes to you, the elected prosecutor, seeking an investigation and prosecution of his opponent in a party primary election.

            That was the alleged foundation of a recent case decided by the U.S. Court of Appeals for the Fifth Circuit, and the court’s analysis offers key lessons for prosecutors about their potential liabilities in civil lawsuits.

            One glaring reason the case is noteworthy relates to the moment in which we live. Criticism of law enforcement, culminating in calls to abolish or defund police departments, is cacophonous at the time of this writing. In recent years, as many of us know, that blitz has not confined itself to decrying police practices. Prosecutors have weathered substantial reproach as well (some deserved; some, less so). Often, the cri de coeur demands abrogation of the most substantial protection prosecutors have against legal retaliation based on their work: prosecutorial immunity. Significantly, those calls do not come solely from the political left or activist groups.[1] Given the tenor and fervor of the debate, courts can anticipate more cases urging the demise of the doctrine. While the dispute will rage on, the current reality confronting a Texas prosecutor on this topic is delineated to an extent in Wooten v. Roach.[2] Before analyzing the Fifth Circuit’s opinion in Wooten, however, it is useful to understand some legal background.

The legal basics

Like other governmental actors, prosecutors are potentially subject to liability in a cause of action under what often is referred to simply as “§1983” if they violate federal constitutional or statutory law. That statute provides, in relevant part, that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. …[3]

Section 1983, by its express language, does not extend any defenses or immunities to prosecutors who may be sued under its framework. But that has not prevented courts from grappling with the possibility that the statute could be seen to impose an unrestrained regimen of liability. “Despite the broad terms” of §1983, the U.S. Supreme Court has explained, “this Court has long recognized that the statute was not meant to effect a radical departure from ordinary tort law and the common-law immunities applicable in tort suits.”[4] Proceeding from that basis, the Supreme Court held 44 years ago that prosecutors are absolutely immune from damages claims under §1983.[5] Texas courts afford the same immunity in state law claims and follow federal authority in applying it.[6]

            Although the immunity is absolute, its reach is not. Absolute immunity is available only for acts that are “intimately associated with the judicial phase of the criminal process.”[7] In identifying those acts, courts use a “functional approach,” focusing on the task performed, not the title of the person who performed it.[8] Phrased a bit differently, Fifth Circuit jurisprudence casts the inquiry as asking whether the prosecutor claiming immunity was acting “as an advocate of the State before a neutral and detached judicial body.”[9] Synchronizing this view with the Supreme Court’s precedent, then, means that conduct that is “intimately associated with the judicial phase of the criminal process” includes all actions “which occur in the prosecutor’s role as an advocate for the State.”[10] Meanwhile, the absolute nature of the immunity means that covered conduct is immune without regard to the wrongful nature or excessiveness of the conduct.[11] The immunity will not be stripped because the prosecutor’s action “was done in error, was done maliciously, or was in excess of his authority; rather he will be subject to liability only when he has acted in the clear absence of all jurisdiction.”[12]

            Policy justifications for the immunity should be reasonably clear to most prosecutors. Absent immunity, the threat of civil suits would undermine performance of a prosecutor’s duties, risk causing liability-conscious timidity in prosecutorial judgment, and cause diversion of energy and attention away from the pressing duty of enforcing the criminal law. Moreover, the frequency of criminal defendants bringing retaliatory suits would impose “unique and intolerable burdens on a prosecutor responsible for hundreds of indictments and trials.”[13]

            Again, the immunity is far-reaching when the function at issue arises from advocacy for the State. So, initiation of prosecution, presenting the State’s case, and carrying it through the judicial process are covered.[14] Pretrial court appearances in support of taking criminal action against a suspect are immune, as is appearing in court to present evidence in support of a search warrant application.[15] Likewise, violation of a prosecutor’s obligations under Brady are immune.[16] Even the knowing use of perjured testimony is seen as covered (though it absolutely should be avoided).[17]

            This aspect of immunity raises a pair of caveats of particular concern.  First, prosecutorial immunity is an immunity only from civil damages. Prosecutors are not shielded by immunity from suits for prospective relief (i.e., injunctive or declaratory claims).[18] Second, other means remain viable to ensure that criminal defendants receive fair treatment in the judicial process and to deter dishonest prosecutors.[19] This facet returns the analysis back to Imbler, where the court emphasized:

… that the immunity of prosecutors from liability in suits under §1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. §242, the criminal analog of §1983. The prosecutor would fare no better for his willful acts. Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.[20] 

            Similarly, it must be remembered that despite that breadth, absolute immunity does not protect everything a prosecutor does. Courts have identified a number of functions performed by prosecutors that are not covered by prosecutorial immunity. Examples include:

            •          planning and executing a raid;[21]
            •          participating in a search of property and a resulting seizure of animals;[22]
            •          acting as the complaining witness in a criminal case by swearing to an affidavit for a search warrant;[23]
            •          making statements in a press conference about a case;[24]
            •          making office employment decisions;[25] and
            •          advising police during the investigative phase of a criminal case.[26]

            Perhaps the most difficult line to draw in deciphering whether prosecutorial immunity applies is participation in an investigation. To be sure, the evaluation of evidence assembled by police and the appropriate preparation of that evidence for its presentation at trial or before a grand jury is entitled to absolute immunity.[27] Similarly, decisions about which witnesses to call, as well as out-of-court efforts to control the presentation of witnesses’ testimony, are covered.[28] Though courts have shied away from using the point at which probable cause is judicially recognized as the bright line for determining applicability of prosecutorial immunity,[29] it remains a significant factor to be considered in evaluating investigative activity.[30] That certainly is worth remembering when thinking about lacing up the gumshoes. As the Fifth Circuit has cautioned, “When a prosecutor makes an investigative decision comparable to that of a police officer—such as whether to order a search and seizure—the prosecutor is not entitled to absolute immunity. Instead, he is given the same immunity a police officer would have: qualified immunity.”[31] With that context in mind, we return to Wooten.

Wooten’s alleged facts

To say that Wooten was not a conventional immunity case would be something of an understatement. The namesake plaintiff was a former district judge who alleged that several officials—ranging from a division chief prosecutor up to the former elected District Attorney and former Attorney General (now Governor) Greg Abbott—had violated the federal Constitution by investigating and prosecuting her, purportedly because she had unseated an incumbent judge and made rulings with which the officials disagreed. The intrigue launched in earnest, according to the plaintiff, the day after she prevailed against an incumbent judge in the party primary election. One could be forgiven for seeing the case as something from the mind of John Grisham.

            In her complaint, the plaintiff alleged that the unseated incumbent judge went to the District Attorney’s Office (DAO) to demand that the office investigate the plaintiff and “find a crime.” Purportedly, the prosecutors landed on a theory that the plaintiff had accepted bribes from campaign contributors, which had been channeled through her media consultant. Fairly soon after the investigation began, the DAO requested assistance from the Attorney General’s Office, which sent in an Assistant Attorney General (AAG) who was experienced in prosecuting election law violations. The AAG was “deputized,” then later appointed attorney pro tem for the investigation.

            Several grand juries participated, the third of which allegedly informed the presiding district judge that the case was unfounded. Meanwhile, the plaintiff met with the AAG, who, she alleged, tried to intimidate her. Ultimately, a grand jury indicted the plaintiff. After the indictment, the AAG allegedly offered to dismiss the indictment if the plaintiff would resign, agree not to run for public office again, and plead guilty to a misdemeanor violation of the Election Code. She refused. The plaintiff then was “re-indicted” on nine counts related to bribery, money laundering, tampering with records, and organized criminal activity. Subsequently, she was convicted, along with her contributors, while her media consultant took a plea deal. But, as you may guess, the saga did not end there.

            The Court of Criminal Appeals ultimately reversed the convictions of the campaign contributors based on insufficient evidence. Based on those reversals, the plaintiff filed an application for habeas relief, which was granted by a state district court. She then sued the county, the elected District Attorney (DA), the Assistant District Attorney (ADA) who originally handled the investigation, the AAG, and then-Attorney General Abbott. Motions to dismiss based on prosecutorial immunity were largely denied by the federal district court. The trial court declined to rule on the defendants’ dismissal motions based on qualified immunity, instead granting the plaintiff an opportunity to amend her complaint to address qualified immunity. Before the plaintiff filed an amended complaint, notices of appeal were filed by the individual defendants. The “very next day,” the plaintiff filed her amended complaint. Apparently rejecting the defendants’ argument that filing of the notices of appeal divested the trial court of jurisdiction, the trial court judge then issued a second order that dismissed the plaintiff’s claims of supervisory liability and failure to intervene against the ADA; dismissed the malicious prosecution and procedural due process claims against the ADA and the DA; dismissed all claims against Abbott; dismissed the supervisory liability, failure to intervene, malicious prosecution, and procedural due process claims against the AAG; and denied dismissal as to all remaining claims.

The Fifth Circuit’s decision

As a jurisdictional matter, the Fifth Circuit concluded that the defendants’ filing of their notices of appeal did, in fact, divest the district court of jurisdiction to entertain the amended complaint. That being so, appellate issues concerning the trial court’s rulings in the second order (after the filing of the notices of appeal) were dismissed. Simply put, only the trial court’s initial order was considered. Consequently, the Fifth Circuit honed in on the “relatively narrow” issues of whether the defendants were entitled to absolute prosecutorial immunity for their alleged acts. What followed was a mixed bag for the defendants: The court concluded that immunity shielded some defendants but not all.

            In its initial order, the trial court had determined that the ADA and the DA were not entitled to prosecutorial immunity. It did so based on the investigatory distinction discussed earlier, reasoning that the ADA and DA “were acting as investigators searching for probable cause, as opposed to acting as prosecutors with probable cause preparing for prosecution.” Agreeing as to the ADA, the Fifth Circuit found significance in the allegations that the ADA led the DAO’s investigation, using the grand jury for an extended period without initiation by a separate law enforcement agency. Also notable to the appellate court was that, after a year of grand jury investigation, the ADA conceded that he needed more time to investigate before he could secure an indictment. In other words, said the Fifth Circuit, “he did not yet have probable cause.” Moreover, the document appointing the AAG as pro tem explicitly indicated that the DAO would “render … non-prosecutorial support, investigative aid, and other assistance.”[32] As a result, the Fifth Circuit concluded, the ADA was not entitled to dismissal based on prosecutorial immunity.

            The DA, on the other hand, fared better. While the plaintiff had alleged that the DA led the DAO during the time in question, had employed the ADA, and was aware of another DAO investigation into the plaintiff and another judge, she did not specifically allege that the DA was involved in supervising the investigation at issue. Instead, the plaintiff’s supervisory liability allegations were conclusory and failed to show that the DA was performing an investigative rather than prosecutorial function in supervising the office. Here, the Fifth Circuit found key guidance in Van de Kamp v. Goldstein. There, in the view of the Fifth Circuit, the Supreme Court had drawn a distinction between a supervisory prosecutor’s administrative obligations “directly connected with the conduct of a trial” and those “concerning, for example, workplace hiring, payroll administration,” and others unconnected with the judicial process. Essentially, the former category is protected by absolute immunity, while the latter isn’t. Given the focus of the plaintiff’s allegations on the DA’s leadership resulting in purportedly wrongful prosecution practices (which were largely conclusory), the Fifth Circuit held that the DA was entitled to prosecutorial immunity.

            Similar results were obtained for the AAG and Abbott. As to the AAG, the court noted that the only allegation concerning appearance before any of the grand juries occurred after the plaintiff’s refusal of the plea offer, at which time the AAG secured a “re-indictment” of the plaintiff. “Appearing before a grand jury to present evidence and obtain an indictment is the function of an advocate for the State to which prosecutorial immunity attaches,” said the Court. Also ineffective were the plaintiff’s allegations concerning a related FBI investigation and the plea offer. The supposed withholding of several pages of the FBI’s report fell victim to the rule that failure to disclose exculpatory evidence is shielded by absolute immunity. Finally, plea bargaining activities also are intimately associated with the judicial phase of the criminal process. Because the AAG’s acts were found to be prosecutorial, rather than investigative, Abbott’s alleged failure to supervise or intervene in the case also was covered by absolute immunity.

            For those keeping score at home, then, every defendant except the ADA was dismissed based on absolute prosecutorial immunity. The ADA’s alleged role in leading a grand jury investigation prevented successful assertion of absolute immunity, so the claims against him were remanded to the trial court. There, he still may assert qualified immunity. Results of that aspect of the case bear watching, as they are not preordained.

The lessons

Ultimately, Wooten wasn’t so much a development in prosecutorial immunity law as a useful illustration. The fight in the Fifth Circuit, as should concern prosecutors, was about absolute immunity. Why is absolute immunity such a big deal? Just ask the Wooten parties who now are out of the case without having to go back and assert qualified immunity in the trial court. In simplistic terms, qualified immunity is OK. Absolute immunity is better—a lot better. Of course, disgruntled criminal defendants are likely to vehemently disagree.

            Arguably the most important point Wooten demonstrates is that prosecutors should invest careful thought before becoming an active participant in an investigation. What Wooten and other prosecutorial immunity cases depict is a judicial landscape in which following the orthodox series of steps in a criminal case leads to substantially greater comfort with affording absolute immunity than in cases where prosecutors take on roles typically filled by police officers and other non-prosecutorial participants. Similarly, grand juries are not entirely talismanic. While the normal presentation of facts adduced by law enforcement to a grand jury is almost certainly covered by prosecutorial immunity, leading the grand jury on an investigatory expedition is not.

            In the same vein, the case shows that who initiates an investigation is an important decision point. Reviewing and assessing evidence compiled by a law enforcement agency rests on solid prosecutorial ground. Conversely, prosecutor-led investigations at times may be necessary, but they also can entail forfeiture of the most formidable protection from damages a prosecutor has.

            Wooten also shows how difficult it remains to successfully plead a supervisory liability case against elected prosecutors. In practical terms, the disposition regarding the DA suggests that an elected prosecutor’s decisions, policies, and acts focusing on how the office prosecutes cases (such as pretrial and trial advocacy, Brady training, and the like) generally will be protected by prosecutorial immunity. Whether to fire an investigator or deciding to buy coffee from a different vendor will not be. That doesn’t mean immune decisions bear no consequences. But it does mean, significantly, that those consequences won’t be meted out in the form of civil damages liability. For now, at least.


[1] See, e.g., David Rittgers, Connick v. Thompson: An Immunity That Admits of (Almost) No Liabilities, Cato Inst. Sup. Ct. Rev. 2011, at 203-36; Frederic Block, Let’s Put an End to Prosecutorial Immunity, The Marshall Project, Mar. 13, 2018, available at (commentary of federal district judge); Evan Bernick, It’s Time to End Prosecutorial Immunity, HuffPost, Aug. 12, 2015, available at; see also The Federalist Society, Prosecutorial Immunity, Criminal Law Procedure Practice Group Teleforum, Jan. 4, 2018, available at

[2] No. 19-40315, 2020 WL 3638385 (5th Cir., July 6, 2020).

[3]  42 U.S.C. §1983.

[4]  Rehberg v. Paulk, 566 U.S. 356, 361 (2012).

[5]  Imbler v. Pachtman, 424 U.S. 409, 427 (1976).

[6]  See Hesse v. Howell, No. 07-16-00453-CV, 2018 WL 2750005, at *6 (Tex. App.—Amarillo June 7, 2018, pet. denied) (mem. op.); Lesher v. Coyel, 435 S.W.3d 423, 430 (Tex. App.—Dallas 2014, pet. denied); Charleston v. Allen, 420 S.W.3d 134, 136-37 (Tex. App.—Texarkana 2012, no pet.); Clawson v. Wharton County, 941 S.W.2d 267, 272 (Tex. App.—Corpus Christi 1996, writ denied).

[7]  Van de Kamp v. Goldstein, 555 U.S. 335, 342-43 (2009); Imbler, 424 U.S. at 430.

[8]  Van de Kamp, 555 U.S. at 342; Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).

[9]  Loupe v. O’Bannon, 824 F.3d 534, 540 (5th Cir. 2016).

[10]  Cousin v. Small, 325 F.3d 627, 632 (5th Cir. 2003).

[11]  Cousin, 325 F.3d at 635; Parkinson v. Cozzolino, 238 F.3d 145, 159 (2d Cir. 2001).

[12]  Kerr v. Lyford, 171 F.3d 330, 337 (5th Cir. 1999).

[13]  Imbler, 424 U.S. at 424-25; Lampton v. Diaz, 639 F.3d 223, 228 (5th Cir. 2011).

[14]  Van de Kamp, 555 U.S. at 342-43; Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994); Graves v. Hampton, 1 F.3d 315, 318 (5th Cir. 1993).

[15]  Burns v. Reed, 500 U.S. 478, 492 (1991); Kalina v. Fletcher, 522 U.S. 118, 126 (1997).

[16]  Cousin, 325 F.3d at 635-36; see also Connick v. Thompson, 563 U.S. 51, 65-66 (2011).

[17]  Boyd, 31 F.3d at 285.

[18]  See Supreme Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 736 (1980) (absolute immunity does not bar injunctive claims under §1983); Johnson v. Kegans, 870 F.2d 992, 998 (5th Cir.), cert. denied, 492 U.S. 921 (1989) (same); see also Guild v. Securus Techs., Inc., No. 1:14-CV-366-LY, 2015 WL 10818584, at *9 (W.D. Tex. Feb. 4, 2015) (noting absolute immunity does not apply to claims for prospective relief).

[19]  Lampton, 639 F.3d at 223.

[20]  424 U.S. at 428 (internal citations omitted); see also Tex. Disciplinary R. Prof’l Conduct 3.04(b) (lawyer shall not counsel or assist witness to testify falsely), 3.09(a) (prosecutor shall refrain from prosecuting or threatening to prosecute charge knowing it is unsupported by probable cause).

[21]  Buckley, 509 U.S. at 274.

[22]  Hoog-Watson v. Guadalupe County, Tex., 591 F.3d 431, 439 (5th Cir. 2009).

[23]  Kalina, 522 U.S. at 129-30.

[24]  Buckley, 509 U.S. at 277; Oden v. Reader, 935 S.W.2d 470, 475 (Tex. App.—Tyler 1996, no writ).

[25]  See Forrester v. White, 484 U.S. 219, 229-230 (1988) (under functional approach, judge not entitled to absolute immunity from sex discrimination claim by probation officer demoted and fired by judge).

[26]  Burns, 500 U.S. at 493; Loupe, 824 F.3d at 539.

[27]  Buckley, 509 U.S. at 273.

[28]  Mowbray v. Cameron County, Tex., 274 F.3d 269, 276-77 (5th Cir. 2001).

[29]  See Spivey v. Robertson, 197 F.3d 772, 775-76 (5th Cir. 1999) (“The starting point must be earlier than the formal onset of judicial proceedings, at least encompassing preparatory moments”), cert. denied, 530 U.S. 1229 (2000).

[30]  See Buckley, 509 U.S. at 274 (prosecutor “neither is, nor should he consider himself to be, an advocate before he has probable cause to have anyone arrested”).

[31]  Singleton v. Cannizzaro, 956 F.3d 773, 781 (5th Cir. 2020) (internal punctuation & citations omitted).

[32]  2020 WL 3638385, at *8.