Antitrust Law Daily Wrap Up, RICO—9th Cir.: Former prosecutors not entitled to absolute immunity for civil RICO claims, (Aug 19, 2013)

By Edward L. Puzzo, J.D.

Former prosecutors were not entitled to absolute immunity for filing a civil RICO claim, because their actions were for the purpose of harassment of political enemies and not analogous to a criminal prosecution, the U.S. Court of Appeals in San Francisco has ruled (Stapley v. Pestalozzi, August 16, 2013, Fletcher, W.).

As part of what the Court labeled “an ongoing political war ...involving the Board of Supervisors, Sheriff Joe Arpaio, and others,” former Maricopa County, Arizona prosecutors Thomas and Aubuchon had engaged in what the Court called a campaign of harassment, launching baseless allegations of alleged wrongdoing, including a federal civil RICO action, against Stapley, a member of that county's Board of Supervisors. Citing the U.S. Attorney's office, the court stated that in several instances, the evidence supporting claims was so lacking as to make the theory of liability "nearly incomprehensible." Prior to filing the civil RICO action, outside counsel, an in-house RICO expert within the county attorney's office, and others had informed Thomas and Aubuchon that there was insufficient evidence for such an action, that it was not appropriate or viable, and would be a misuse of the law. Nevertheless, they proceeded with the action. Four months after publicly announcing the initiation of the civil RICO action, and before a court had the opportunity to assess the validity of the claim, Thomas and Aubuchon voluntarily dismissed the action.

Subsequently, Stapley brought an action, alleging that the now-disbarred prosecutors had frivolously initiated the RICO suit to harass him for political purposes. The former prosecutors moved to dismiss the actions, claiming absolute prosecutorial immunity for acting in their official capacity. The appellate court rejected the claim of absolute immunity.

Parameters of absolute immunity. Under U.S. Supreme Court precedent, prosecutors have an absolute immunity under Section 1983 for the decision to initiate a criminal prosecution. Absolute immunity also extends beyond criminal prosecutions to analogous administrative enforcement proceedings, such as civil tax-collection lawsuits.

In support of their claim of absolute immunity for their civil RICO prosecution, the former prosecutors cited Ninth Circuit precedent which contained broad statements implying absolute immunity to government attorneys in all litigation contexts, whether criminal, civil or administrative.

The appellate court responded that the precedent cited did not require absolute immunity in all civil suits. Only certain actions by prosecutors are entitled to absolute immunity. It is the functional nature of the activities being performed, not the status of the person performing them, that is the key to whether or not absolute immunity attaches.

Absolute immunity was possible in the civil context with functions analogous to a prosecutor, the appellate court stated, but the actions of the former prosecutors here were not analogous. First, the civil RICO claim was made under a provision authorizing any member of the public to sue. Under the precedent cited for the proposition that absolute immunity attached, government attorneys were taking action that only a legal representative of the government could take. Here, the former prosecutors were acting in the same capacity as private attorneys.

Second, the civil RICO suit was not analogous to a criminal prosecution. Instead, the appellate court stated, it was essentially a harassing public-relations ploy, involving baseless claims made for the purpose of media publicity against their enemies in a long-running political war. It was noted that, after the former prosecutors had voluntarily dismissed their civil RICO claim, they held a press conference where they misrepresented their reasons for the voluntary dismissal. Through these actions, the court concluded, the former prosecutors had deliberately sidestepped the judicial process and thereby lost the protections of absolute immunity.

The case is Civil Action Nos. 12-16145 and 12-16146.

Attorneys: Sarah Lynn Barnes (Broening Oberg Woods & Wilson PC) for Andrew Thomas. Larry Jay Wulkan (Stinson Morrison Hecker LLP) for Donald Stapley.

Companies: Maricopa County Board of Supervisors; Maricopa County Attorney's Office.

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