TABLE OF CONTENTS | ||
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Page | ||
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I. | BACKGROUND | 493 |
A. Facts | 493 | |
B. Judicial Proceedings | 494 | |
II. | OFFICIAL IMMUNITY | 495 |
A. Introduction: The Basic Concept of | ||
Official Immunity | 495 | |
B. Absolute Prosecutorial Immunity | 497 | |
1. The Rationale for According Absolute | ||
Immunity to Prosecutors | 497 | |
2. The Scope of Absolute Prosecutorial | ||
Immunity | 498 | |
C. Application of Official Immunity In This | ||
Case | 502 | |
1. Counts One and Two: The | ||
Constitutional Claims | 502 | |
(a) Conduct Before the Grand Juries | 502 | |
(b) Other Pre-Indictment Conduct | 504 | |
2. Count Four: The Malicious | ||
Prosecution Claim | 505 | |
III. | SOVEREIGN IMMUNITY | 506 |
A. The “Investigative or Law Enforcement | ||
Officer” Proviso to 28 U.S.C. § 2680(h) | 507 | |
B. The Language and Legislative History of | ||
28 U.S.C. § 2680(a) | 508 | |
C. The Purpose of a Governmental | ||
Immunity for Discretionary Acts | 509 | |
D. The Case Law Interpretation of the | ||
Discretionary Function Exception | 511 | |
E. Application of the Discretionary Function | ||
Exception In This Case | 513 | |
IV. | CONCLUSION | 516 |
the prosecutor's absolute protection, like that of the judge from which it is derived, is both justified and bounded by the judicial traditions and procedures that limit and contain the danger of abuse. Cases holding prosecutors absolutely immune have referred to them as “quasi-judicial officers,” and the circumstances typically provide alternative instruments of the judicial branch to check misconduct—the discretion of the grand jury, the procedures of a trial, and the potential sanction of discipline imposed by the court itself.
[A] prosecutor receives absolute immunity only when he acts as an “advocate,” that is, in his role as a participant in the judicial phase of the criminal process. When a prosecutor acts in any other capacity, the rationale for absolute immunity dissolves and the prosecutor receives only the lesser, qualified immunity ....
It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the “discretionary function or duty” that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.
implicates the discretionary function of the Board. To withstand a motion to dismiss, an allegation challenging the Board's performance of any ministerial act must be sufficiently distinguishable from a complaint disputing the Board's exercise of its discretionary function. The plaintiff must therefore allege that the Board breached a duty sufficiently separable from the decision-making function to be nondiscretionary and outside of the exception.
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