Whether a special prosecutor, appointed by a juvenile court judge to prosecute certain cases in juvenile court, enjoys the protections afforded to prosecutors by the doctrine of prosecutorial immunity?

The doctrine of prosecutorial immunity protects a special prosecutor from suit for monetary damages arising from actions that fall within the ambit of his or her prosecutorial duties.

The doctrine of prosecutorial immunity protects the holder from monetary damages sought in an action brought pursuant to 42 U.S.C. § 1983 “when he acts within the scope of his prosecutorial duties.” Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976). Absolute immunity shields a prosecutor from exposure to lawsuits, not just liability. “[T]he rationale for granting absolute immunity is ‘as much to protect the relevant persons from a trial on their actions as it is to protect them from the outcome of the trial.’ ” McSurely v. McClellan, 697 F.2d 309, 315 (D.C.Cir.1982) (quoting Briggs v. Goodwin, 569 F.2d 10, 59 (D.C.Cir.1977) (Wilkey, J., concurring), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 113 (1978).

Under Tennessee law, the doctrine protects a prosecutor from allegations of false arrest and malicious prosecution. Willett v. Ford, 603 S.W.2d 143, 146–48 (Tenn.App.1979); see also Shell v. State, 893 S.W.2d 416, 421 (Tenn.1995) (prosecutors are immune for malicious prosecution under § 1983 and under state common law). “[S]ince the same immunity is applied in § 1983 actions as is applied in common law actions, the decisions in those cases—such as Imbler—which involve prosecutorial immunity under § 1983 are equally applicable to common law actions ...” Willett, 603 S.W.2d at 147.

To determine when the prosecutor is entitled to absolute immunity, the Supreme Court has adopted a “functional approach.” See Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). The “functional approach” focuses on the role of the prosecutor at the time he or she engages in the challenged conduct. Under this analysis, absolute immunity attaches if the prosecutor's actions are “intimately associated with the judicial phase of the criminal process,” Imbler, 424 U.S. at 430, 96 S.Ct. at 994, or “quasi-judicial” in nature. Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978). Investigative or administrative functions are not protected from liability under the doctrine of qualified immunity. Butz, 438 U.S. at 512.

Utilizing the functional approach, all the cases addressing the doctrine's application to special prosecutors hold that the special prosecutor acts “in the shoes of the prosecutor.” Costello v. Norton, et al, at pg. 6 (N.D.N.Y.). Thus, if the act complained of falls within the ambit of prosecutorial duties, then the special prosecutor is entitled to prosecutorial immunity. In applying the Imbler analysis to special prosecutors, the Tenth Circuit explained:

Taylor v. Nichols, 558 F.2d 561, 565 (10th Cir.1977).

In Costello, supra, the special prosecutor was absolutely immune for his decision not to prosecute certain charges and for his attempts to negotiate a plea bargain. Prosecutorial immunity protected a special prosecutor's decision to prosecute in several cases. See McCarthy v. Mayo, 827 F.2d 1310 (9th Cir.1987); Taylor, supra; Lerwill v. Joslin, 712 F.2d 435 (10th Cir.1983). In DeCamp v. Douglas County Franklin Grand Jury, 978 F.2d 1047 (8th Cir.1992), the special prosecutors were absolutely immune for helping the grand jury draft an official report.

A special prosecutor retains prosecutorial immunity for prosecutorial functions, even when the actual appointment is invalid. “To hold otherwise would require a prosecutor to be concerned about the technicalities of his appointment and, consequently, could interfere with his exercise of independent judgment, a problem prosecutorial immunity was designed to alleviate.” McCarthy v. Mayo, 827 F.2d 1313, 1315 (9th Cir.1987). In McCarthy, the plaintiff argued that the appointment of special deputy attorneys general violated state statutes because the deputies were overpaid. The Ninth Circuit analyzed, however, that “[e]ven if overpayment did eviscerate actual authority, it would not affect the prosecutors apparent authority.” Id. Thus, the special prosecutors in McCarthy retained prosecutorial immunity for bringing criminal indictments against plaintiff.

Apparent authority to act does not rest on technicalities of local law. In Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir.1983), a city attorney acted outside his authority when he initiated prosecution of plaintiff for violations of a state statute. Therefore, plaintiff argued, the city attorney did not enjoy absolute immunity for that action. The Court disagreed. It explained:

Id. at 438.

Although there is no Sixth Circuit or Tennessee state case on point, the cases¹ addressing the application of the doctrine of prosecutorial immunity to special prosecutors uniformly hold that special prosecutors enjoy immunity for performing prosecutorial functions.