Legal Question in Criminal Law in California

WA: Prosecutorial immunity is qualified

Babcock v. State, 116 Wn.2d 596, 610-11, 809 P.2d 143(1991)

The Supreme Court has granted prosecutors absolute immunity for "initiating a prosecution and in presenting the State's case". Imbler v. Pachtman, 424 U.S. at 431, 96 S.Ct. at 995. It purposefully left standing appellate case law holding that absolute immunity did not apply to a prosecutor's investigative function. Imbler, at 430, 96 S.Ct. at 995.

The gravamen of this complaint is negligent investigation. Even prosecutors cannot claim unqualified immunity for performing investigatory functions under 42 U.S.C. � 1983. See Mancini v. Lester, 630 F.2d 990, 992-94 (3d Cir.1980) (remanding case to determine whether prosecutor's acts were investigatory or advocatory); Marrero v. Hialeah, 625 F.2d 499, 506-10 (5th Cir.1980) (overturning grant of absolute immunity to prosecutor), cert. denied sub nom., Rashkind v. Marrero, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.) (prosecutor denied absolute immunity for obtaining perjured testimony through threats), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978) (no absolute immunity for wiretap), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979).

The federal courts have accordingly denied immunity to prosecutors' and caseworkers' investigations of child abuse. The Second Circuit in Robison v. Via, 821 F.2d 913 (2d Cir.1987) held that a prosecutor was not immune for taking a child out of her parents' custody to investigate direct complaints of child abuse. Robison, at 919. Although the prosecutor obtained a judicial temporary detention order within hours, the court held that prosecutorial immunity did not shield the prosecutor. Robison, at 917, 920.