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Eleventh Circuit rules that Atlanta prosecutor not entitled to absolute prosecutorial immunity in civil rights lawsuit based on alleged improper firing of crime lab director

On May 26, 2017, in Mikko v. City of Atlanta, et al, No. 15-15135, the Eleventh Circuit Court of Appeals reversed a trial court’s summary judgment in favor an Atlanta district attorney on prosecutorial immunity grounds in a 42 U.S.C. Section 1983 civil rights case brought by the former director of the Atlanta Police Department Crime Lab, who allegedly had been fired because the district attorney had complained to the police department that the crime lab director was moonlighting by providing expert testimony for a defendant in a Florida criminal case. The trial court had granted summary judgment to the district attorney based on prosecutorial absolute immunity and qualified immunity. Although the Eleventh Circuit upheld the summary judgment on qualified immunity grounds, the Court concluded that the district attorney and his subordinate were not entitled to prosecutorial absolute immunity because their actions “were not taken in their role as advocates.” The Court distinguished this situation from the facts of Van de Kamp v. Goldstein, 555 U.S. 335, 129 S. Ct. 855 (2009), in which the Supreme Court ruled that absolute immunity existed for a prosecutor’s alleged failure to properly train subordinate prosecutors because the administrative supervision at issue was “directly connected with the conduct of a trial.” Id. at 344, 129 S. Ct. at 862. The Eleventh Circuit stated that that while the defendants’ conduct “may be connected to trial advocacy in an abstract, general sense, the connection between a prosecutor’s actions and trial must be more specific than that.”

The Eleventh Circuit affirmed the trial court’s ruling regarding the existence of qualified immunity, which “offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Quoting from Lee v. Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002). The Court concluded that the district attorney and his underlings were acting “at least within the outer perimeter of [their] discretionary duties” when they expressed concern about the crime lab director’s outside work. Although the plaintiff argued that his First Amendment speech rights had been violated, the Eleventh Circuit noted that for purposes of a qualified immunity analysis, the violation must have been apparent from existing law. The Court cited previous court decisions, in particular Lane v. Franks, 573 U.S. __, 134 S. Ct. 2369, 2378 (2014) to support its conclusion that existing case law does not clearly establish that it violates the First Amendment for a government employer to fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. Although these precedents did not directly address the issue of a firing based prospectivetestimony, it was sufficient for the Eleventh Circuit to conclude that the violation was not apparent from existing law.