Metropolitan News-Enterprise


Wednesday, December 3, 2003


Page 1


Ninth Circuit Panel Wrestles With Prosecutorial Immunity Issue


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Ninth U.S. Circuit Court of Appeals panel appeared perplexed yesterday as the judges questioned attorneys on the limits of prosecutorial immunity from civil rights lawsuits.

“How can a lawyer who is suborning perjury be acting as an advocate?” and claim immunity from a suit by the injured party, Judge William Fletcher asked San Diego attorney Edward Patrick Swan Jr.

Swan, who represents accused suborner and former San Diego Deputy District Attorney Peter Longanbach, noted that the U.S. Supreme Court has applied absolute immunity in the case of a prosecutor accused of using perjured testimony at trial.

Judge Harry Pregerson nodded, but said that ruling was “shocking” and questioned whether it ought to be extended to pre-trial investigation, as contended by Swan.

Civil Rights Suit

Longanbach, former District Attorney Paul Pfingst, and former Assistant District Attorney Greg Thompson are among the defendants in a 42 U.S.C. Sec. 1983 suit by David Genzler, who in 1996 was convicted of second-degree murder in connection with the death of a surfer in Ocean Beach.

That conviction was overturned on appeal. At a second trial in August 2000, Genzler, who had claimed self-defense, was convicted of involuntary manslaughter.

He was released from prison in February 2001 and proceeded to sue. He claims that Longanbach engaged in multiple acts of misconduct, including persuading Genzler’s girlfriend to give false testimony at the preliminary hearing, and did so in part because the then-district attorney and other higher-ups in the office encouraged a “win at all costs” mentality.

Longanbach, who was promoted to head of the office’s economic crimes unit after Genzler’s allegations surfaced, later resigned from the office and pled guilty to felony grand theft in connection with separate allegations that he used county staff and resources to conduct personal real estate business.

He was placed on interim State Bar suspension in January of last year following the conviction.

The Genzler case and the unrelated allegations against Longanbach became prominent issues in last year’s contest for district attorney, in which Pfingst, who was first elected in 1994, was defeated by former San Diego Superior Court Judge Bonnie Dumanis.

Trial Court Ruling

Most of Genzler’s claims against Longanbach were thrown out on grounds of absolute immunity by U.S. District Judge Judith Keep of the Southern District of California. But Keeep held that the immunity does not apply before probable cause is established, so that the prosecutor could be held liable for suborning perjury at the preliminary hearing.

She also said that the claims against Pfingst and other officials in the office could go forward because their alleged misconduct was “administrative” in nature, rather than arising from the prosecutorial function.

The distinction made by Keep with respect to the case against Longanbach, Swan warned, would eviscerate the rule of absolute immunity.

Senior Deputy County Counsel Morris Hill, representing the other defendant prosecutors, questioned how they could be liable in their individual capacities when there was “no allegation they actually did anything” to violate Genzler’s right to a fair trial.

Administrators’ Status

He also argued that administrators have the same absolute immunity as their subordinates who actually try the cases, and that a defendant who claims to be the victim of a “culture” of bad faith in the prosecutor’s office must look to other remedies, such as habeas corpus.

“Even if it’s administrative, it’s still prosecution,” Hill told the panel. Case law holding that the immunity does not apply to “administrative” matters, he said, is limited to employer-employee disputes.

So all the innocent accused gets is his freedom and “the $15 they give you when you get out of jail?,” Fletcher asked.

Hill responded affirmatively. The alternative, he said, would be to allow defendants to relentlessly tie up prosecutors in civil court.

“The purpose of prosecutorial immunity is so the prosecutor can concentrate on prosecuting people, instead of defending lawsuits,” he told the judges.

Third Circuit Senior Judge Robert E. Cowen, who sat on the panel by designation, pressed Genzler’s lawyer to clarify what constitutional rights were violated by Longanbach’s superiors.

The evidence, Patrick Hosey replied, showed that they used their administrative powers to reward unethical prosecutors, and thereby violated Gensler’s 14th Amendment due process rights.

Cowen was plainly unimpressed with the answer. “There is nothing in classic legal literature that would say that they have violated any...constitutional rights,” the New Jersey-based jurist said, calling Hosey’s argument “amorphous.”

When Swan’s turn came for rebuttal, Fletcher asked him whether prosecutorial immunity is so broad as to leave citizens without protection from “systematic failure” of prosecutors to act in good faith.

Swan responded that other remedies were available, as Pfingst and Longanbach had both learned.

Miscreant prosecutors, Swan said, can be prosecuted themselves and can be internally disciplined. And if the failure is systematic, the attorney noted, the elected prosecutor can be voted out of office.

The fact that the victims of the misconduct are left without direct remedy, Swan said, is a necessity because allowing them to sue for damages “would disserve the larger public interest.”


Copyright 2003, Metropolitan News Company