One thing is abundantly clear after yesterday’s oral argument in the Supreme Court case of Van de Kamp v. Goldstein—the lack of clarity in the Court’s prosecutorial immunity jurisprudence.

As yesterday’s argument reconfirmed, the Court’s precedents provide no rhyme or reason for determining under which circumstances prosecutors will receive absolute immunity from lawsuits alleging civil rights violations and when they will simply be protected by qualified immunity, which allows suits against officials who violate clearly established constitutional rights. To be sure, the current immunity regime, based on the Court’s 1976 decision in Imbler v. Pachtman, draws a line—if prosecutors are acting as “advocates,” then they receive absolute immunity, but if they are acting as “administrators,” then they do not—but the Justices’ questions yesterday showed vividly how arbitrary that line is.

As we’ve discussed more fully in an earlier post, Thomas Goldstein’s claim is that supervisory prosecutors in the Los Angeles District Attorney’s Office should be subject to liability for the office’s failure to gather and properly manage information on whether jailhouse informants were receiving benefits in exchange for testimony. This failure to organize and disseminate information meant that the D.A. who prosecuted Goldstein did not know—and hence could not tell Goldstein, as is constitutionally required—that Eddie Fink, the jailhouse informant responsible for sending Goldstein to prison for 24 years for a murder he didn’t commit, was receiving a more lenient sentence in exchange for his false testimony. Under the Court’s decision in Imbler, Goldstein’s Section 1983 lawsuit rises or falls at the Court not on whether he can show his civil rights were violated, but on whether he can show that the conduct challenged can be viewed as purely administrative.

During yesterday’s argument, the Justices tested the application of Imbler’s administrative function line by posing several hypothetical questions, which suggested the following absurd results: 1) if a senior prosecutor enacts an office-wide policy directing trial prosecutors never to reveal constitutionally-required exculpatory information, the senior prosecutor is protected by absolute immunity because his conduct is directed at trial strategy; but if a senior prosecutor is merely asleep at the wheel and his indifference causes trial prosecutors to inadvertently violate defendants’ constitutional rights at trial, then the senior prosecutor may be subject to suit; 2) if a senior prosecutor hires and directs a lay person to implement a system that prevents prosecutors from learning information that they would normally be constitutionally compelled to turn over to a defendant, the senior prosecutor is absolutely immune, but the lay person may be sued; and 3) nearly every case in which a prosecutor has violated civil rights at trial can be turned into a case alleging an “administrative failure,” thus rendering the line drawn in Imbler essentially meaningless, simply by arguing that the violation was caused by a supervisor’s failure to create a preventative policy or devote a corner of the office library to explaining how to comply with the Constitution. In response to nearly all these hypotheticals, counsel for the parties noted that the distinctions may be very fine—and even random—but that they are nonetheless compelled by Imbler and its progeny. None of the Justices seemed particularly pleased with this state of affairs.

Unfortunately, while the Justices were ready to highlight and lament the flaws in the application of the Court’s immunity jurisprudence, the Justices seemed unwilling to reconsider the fundamental soundness of Imbler. Perhaps Justice Breyer captured the Court’s mood best when, in an aside from a hypothetical positing a trial prosecutor’s blatant violation of constitutional rights, he said: “maybe he shouldn’t be immune, but he is.”

One couldn’t help thinking, listening to all of this, well, why? If a prosecutor shouldn’t be immune, but is, and if the current line drawn in the immunity sand is a shifting one, why doesn’t the Court re-examine the root of the problem? CAC submitted an amicus brief to the Court that shows that such arbitrary results were not at all what the Reconstruction Congress intended when it passed Section 1983 of the Civil Rights Act, which provides the cause of action used to hold officials liable for constitutional rights violations. There is nothing in the text or history of Section 1983 to support absolute immunity for prosecutors—to the contrary, the drafters of the Civil Rights Act were specifically concerned with wrongful prosecutions of African Americans and abolitionists in the Civil War period and intended Section 1983 to provide a remedy for abuse of prosecutorial power.

Justice Breyer’s comment suggests that the Court is not presently inclined to ask why their hypotheticals must proceed from the unjustified premise that a prosecutor who purposefully violates a criminal defendant’s constitutional rights at trial is absolutely immune under the Civil Rights Act. While the Justices did not take the opportunity at argument to go beyond proving the awkwardness of Imbler’s rule of absolute immunity, it may be difficult to avoid addressing the root cause of this unwieldy jurisprudence for much longer.

For the sake of constitutional accountability and civil rights protection, let’s hope a future reconsideration of Imbler is not merely hypothetical.