Office of the Attorney GeneralApril 29, 1981 (Approx. 4 pages)
Tenn. Op. Atty. Gen. No. 81-212 (Tenn.A.G.),
*1 Office of the Attorney General
State of Tennessee
Opinion No. 81–212
April 29, 1981
Mr. George R. Bonds
District Attorneys General Conference
1060 Capitol Hill Building
Nashville, Tennessee 37219
Dear Mr. Bonds:
In your letter of January 16, 1981 you requested an opinion on the following questions regarding the responsibility and liability of state criminal investigators.
1. Does a state criminal investigator enjoy immunity from civil liability for acts or omissions within the performance of his official duties?
2. If a state criminal investigator is named as a defendant in a civil action for such acts or omissions is he entitled to legal representation by the state?
3. If a judgment for money damages is rendered against a state criminal investigator for such acts or omissions will the indemnify him for the judgment?
4. Is a state criminal investigator vested with the authority to execute legal papers or documents that are addressed by a court to the sheriff or his deputies?
1. A state criminal investigator is entitled to total immunity in limited circumstances and he is entitled to the defense of qualified executive immunity against claims alleging violations of constitutional rights.
2. All state employees may be represented by the State Attorney General in civil actions where acts complained of were committed by the state employee within the scope of his employment. However, a state employee may elect to retain private counsel to represent his interests whose fees may be paid by the Defense Counsel Commission.
3. There is no statutory authority for the indemnification of a state employee against whom a judgment for compensatory or punitive damages is awarded in either state or federal court.
4. State criminal investigators may serve subpoenas in a criminal case and execute other criminal process.
For some actions a criminal investigator would be totally immune from civil liability. Such process would include testifying in judicial proceedings, serving process, etc. Cf., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). However, in other situations the criminal investigator would only be entitled to claim a defense of qualified immunity in defense of complaints regarding the manner in which the investigator effected an arrest, conducted a search, or performed other investigatory duties.
In defense of a cause of action alleging the deprivation of federal constitutional rights a criminal investigator is entitled to a qualified executive immunity. The doctrine of qualified immunity operates to bar the award of damages against a government official who acts in good faith in accordance with state law and administrative procedures. Garner v. Memphis Police Department, 600 F.2d 53 (6th Cir. 1979) (officer killed unarmed fleeing felon justified where actions were taken in accordance with state law).
*2 The criminal investigator, like any other government official, will not be liable for damages in an action alleging a violation of constitutional rights unless: (1) the official violated a known and unquestioned settled constitutional right of the plaintiff; or (2) the official acted with the intention to maliciously single out the plaintiff to violate the plaintiff's constitutional rights. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). This doctrine does not require criminal investigators, or any other government official, to predict the future development of constitutional law.
The distinction between investigatory duties and the duties of a prosecutor were pointed out in Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1975), cert. denied in part, rev'd in part, 64 L.Ed.2d 620 (1980). The Seventh Circuit Court of Appeals held that a prosecutor's advocacy functions were separate and distinct from his investigative functions and therefore, a prosecuting attorney was only entitled to qualified immunity for his alleged participation in the planning and the execution of a raid on an apartment occupied by members of the Black Panthers. The defense of qualified immunity was clearly delineated for state law enforcement officers in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), where the Court upheld the extension of qualified immunity to police officers against claims by demonstraters who alleged they had been unlawfully arrested because of lack of probable cause and because the statute was unconstitutional.
Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved [citation omitted]. A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Though the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he recently believed to be valid but that was later held unconstitutional on its face or as applied.
The defense of qualified immunity for a police officer in a claim alleging false arrest in the case of Bivens v. Six Unknown Named Agents, 465 F.2d 1339 (2d Cir. 1972) was defined as follows:
[T]o prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. Ibid., 456 F.2d at 1348.
*3 State employees may be represented by the Attorney General in civil actions which allege acts or omissions within the employee's scope of employment. Tenn. Code Ann. §§ 8–6–109–8–6–110; Heath v. Cornelius, 511 S.W.2d 683 (Tenn. 1974). However, a state employee may retain private counsel to represent him in such a civil action for damages whose fees may be paid by the Defense Counsel Commission. Tenn. Code Ann. § 8–42–101et seq. The Defense Counsel Commission is only authorized to pay attorneys fees to those state employees who acted within the scope of their employment or under apparent lawful authority or orders in furtherance of their duties.
There is no state statutory authority for the indemnification of a state employee against whom a judgment for compensatory or punitive damages is awarded in either state or federal court.
Criminal investigators to district attorneys general have been created under various public acts since 1970 and the legislature has conferred upon them the same powers as a deputy to the county sheriff in which the investigator serves. See 1970 Tenn. Pub. Acts, Chs. 573, 605; 1971 Tenn. Pub. Acts, Ch. 192; 1972 Tenn. Pub. Acts, Ch. 495; 1973 Tenn. Pub. Acts, Chs. 56, 74, 322, 375; 1974 Tenn. Pub. Acts, Chs. 423, 552, 685, 687, 717; 1975 Tenn. Pub. Acts, Chs. 69, 253; 1976 Tenn. Pub. Acts, Ch. 734; 1977 Tenn. Pub. Acts, Chs. 356, 426; 1978 Tenn. Pub. Acts, Chs. 631, 697, 726, 770. Accordingly, such criminal investigators are vested with the same authority as a deputy sheriff to execute legal papers or documents addressed by a court to the sheriff or his deputy.