The Sixth Circuit Makes Immunity Great Again
January 20, 2017 (Fault Lines) – Confidential informants (CIs) and controlled buys are the bread and butter of most drug investigations. Without snitches, it would be difficult for law enforcement to get to the dealers and build a case with a lot of weight. But the inherent problem is that the CIs usually are drug users and have the same sorts of problems fitting into middle-American society as the drug dealers do. In other words, they can be unreliable.
Courts have recognized that CIs can be unreliable, and they have developed doctrines to evaluate warrants issued based on CI statements. Of course, the doctrine is now more relaxed than it once was, but there is at least some notion that CI statements deserve more than a glance—maybe two glances, depending on the judge. On the whole, this problem is mostly tolerable because “it takes a thief to catch a thief.” Although it would sound better as an explanatory doctrine in Latin.
Amy Sanders was indicted for trafficking marijuana, based on the word of a CI. After the case was dismissed, she brought a federal suit, alleging a civil rights violation. Not surprisingly, the defendant, Lamar Jones, raised immunity as a defense.
Jones was introduced to this CI through another law enforcement officer. The CI came with great recommendations and had assisted in getting convictions. Satisfied with the Yelp reviews, Jones began using the CI for controlled buys, despite the CI having limited ties to Decatur County. In short, the CI would contact a drug dealer, ask for drugs, and then meet the seller. After each buy, the CI would get paid. So, there was incentive for the CI to keep making buys.
In a way not clear, the CI contacted someone he called ‘Amy’ and set-up a purchase with her. Although Jones had the phone number, he did not investigate the number. If he had, then he would have learned that the number was associated with Amanda Ramey, with whom Jones was already familiar. But without the additional investigation, Jones did not make the connection.
The CI made the buy in a park, while wearing a concealed video camera. Jones was nearby and saw the seller arrive in a silver Monte Carlo. But Jones was unable to identify the seller or capture the license plate number. Jones knew that, but apparently still had not made the connection, Amanda Ramey drove a silver Monte Carlo.
Jones asked the CI for a description of the seller. The CI described her as “as short and petite with long black hair and tattoos.” Rather than watch the video to obtain either a better description or, you know, an actual picture of the seller, Jones just asked around the office if anyone knew this person. From this not-so-specific description, another deputy identified the seller as Amy Sanders. Jones got Sanders’s driver’s license photo, showed it to the CI a few days later, who identified Amy as the seller.
Jones then wrote out a report with a narrative identifying Amy Sanders as the seller. Although Jones did not note in his report that he watched the video, he later claimed that he watched it and that is was too low of quality to identify the seller. But while being deposed, he was shown a screen capture of the seller and could positively exclude Amy Sanders as the seller. So, it’s more likely than not he never bothered to watch it; the video was probably just something the bothersome prosecutors demanded to indict these cases.
Jones never discussed the case in advance of grand jury with the prosecutor. He showed up, testified from his report, and indicated a recording was available. And just like that, Amy was indicted. It was later discovered that Amy did not sell drugs to the CI.
A quick Google search shows Decatur County, Tennessee has a population of less than 12,000 people. But the District Attorney appears to cover several counties and has eight offices. It’s a little surprising that is how the prosecutor’s grand jury would be run. You’d expect some preliminary screening to occur before the officer is instructed to show up at grand jury, but it’s Tennessee. (Have you seen the Volunteers’ uniforms?)
On the whole, it looks like an officer from a small department with little supervision put in the minimum amount of work and got the wrong person. And without any prior review, the prosecutor used shoddy work product to indict someone. A lot of sloppiness all the way around.
As mentioned before, when Amy filed her wrongful prosecution case, Jones claimed he was absolutely immune for his false grand jury testimony. You see, witnesses cannot be sued for a civil rights violation; they are absolutely immune from suit. In the big picture, this is prudent. You want witnesses to be willing to come and speak truthfully without fear of being sued. This immunity applies to testimony at trial and before the grand jury.
The Sixth Circuit said not so fast. While it agreed that Jones could not be sued based on his grand jury testimony, his report was a different matter:
Our precedent, however, confirms that false grand jury testimony is not the only way to prove participation in the decision to prosecute. A defendant can also influence or participate in the decision to prosecute by prompting or urging a prosecutor’s decision to bring charges before a grand jury in the first place. * * * In other words, false testimony before the judicial decision-maker—grand jury or judge—is not necessary to show influence or participation over the decision to prosecute.
The Court agreed that Sanders could carry the claim on three of the four elements, but the last one, rebutting probable cause, proved to be a problem. Typically, an indictment conclusively establishes that there was probable cause. The use of “conclusively” here means that there was nothing that changes that conclusion, unlike a presumption. Well, it’s almost conclusive because the Sixth Circuit carved out an exception in the case of malicious prosecution. This exception would allow the use of grand jury testimony to prove the lack of probable cause.
If the Sixth Circuit stopped there, then Sanders would have won. But it took note of an intervening Supreme Court case that held grand jury testimony cannot be used in this type of civil rights case. This creates a problem for Sanders. The Sixth Circuit says you cannot use statements besides grand jury testimony to prove lack of probable cause. And the Supreme Court says you can’t use grand jury testimony. The Sixth Circuit summed it up like this:
Therefore, while Rehberg does not provide Jones absolute immunity for his police report, the police report standing alone cannot rebut the grand jury’s finding of probable cause. In other words, Rehberg effectively defeats Sanders’s malicious prosecution claim based on the allegedly false police report because she cannot overcome the presumption of probable cause without using Jones’s absolutely immune grand jury testimony.
* * *
Moreover, the Court observed that “[i]t would thus be anomalous to permit a police officer who testifies before a grand jury to be sued for maliciously procuring an unjust prosecution when it is the prosecutor, who is shielded by absolute immunity, who is actually responsible for the decision to prosecute.” Id. at 1508. This statement implies that an officer should not be susceptible to suit for malicious prosecution because the decision to prosecute lies wholly within the discretion of the prosecutor.
Jones gets a pass because the prosecutor, who has immunity, did not independently review the case before presenting it. And because the testimony cannot be used to overcome the conclusive nature of the indictment regarding probable cause.
So, sloth and carelessness gives rise to immunity. That’s not really the way it’s supposed to work. Immunity should protect government actors for doing their job and the negative consequences that may accrue. But just like how the rule of finality occasionally operates at the expense of cosmic justice, immunity can protect undeserving behavior.
So, Sanders loses, and Jones gets to avoid accountability. In the process, the Sixth Circuit nearly shut the door on malicious prosecutions in cases where an indictment is issued. It did leave it open a crack for possible fabrication of evidence. While in the grand scheme (such as it is) of the American legal system, these principles are quite sound, it leaves Sanders without a right or a remedy.