Court Says Lawsuit Over Fake Subpoenas Issued By Louisiana DA's Office Can Proceed

from the fake-it-til-you-break-it dept

There's a very slim chance some New Orleans prosecutors might have to pay for their threats and lies. But a slim chance is better than none. The Orleans Parish DA's office was caught using fake subpoenas to coerce cooperation from witnesses and victims of crimes -- a practice it had engaged in for decades before being hit with multiple complaints and lawsuits.

Prosecutors sent out bogus subpoenas -- all bearing the threats of fines and imprisonment -- to hundreds of witnesses over the past several years. None of these were approved by courts overseeing ongoing prosecutions. None of the subpoenas were issued by the Clerk of Courts. The DA's office was simply cranking out fake subpoenas and hoping recipients would be too intimidated by the threat of jail time to question the veracity of the documents.

Lawsuits followed the public exposure of this underhanded tactic. One of the lawsuits, filed by a number of crime victims who'd been served the bogus subpoenas, has received the green light to proceed from a federal court in Louisiana. (h/t CJ Ciaramella)

Unfortunately, there's a ton of hurdles that need to be overcome by the plaintiffs. If you think qualified immunity shields too much official wrongdoing, just wait until you run up against absolute immunity, which tends to protect those operating above law enforcement's pay grade: prosecutors and judges.

Fortunately for the plaintiffs, the crap the DA's office pulled with its fake subpoenas is shady enough to strip away some of this protective layer. As the court notes in its opinion [PDF], the DA's office has never had the power to issue its own subpoenas. That it has been doing exactly this is a serious problem.

Allegations that the Individual Defendants purported to subpoena witnesses without court approval, therefore, describe more than a mere procedural error or expansion of authority. Rather, they describe the usurpation of the power of another branch of government.

"Ends justifies the means" is rarely a successful defense. But that's what the DA's office has offered. The judge rejects it:

Furthermore, that the alleged activity by the Individual Defendants took place as a means to a prosecutorial end is not dispositive of the issue. Under that logic, virtually all activity engaged in by a prosecutor would be absolutely immune from civil liability.

And with that, one layer of immunity disappears.

This Court finds that granting the Individual Defendants absolute immunity for allegations of systematic fraud that bypassed a court meant to check powerful prosecutors would not protect the proper functioning of a district attorney’s office. It would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.

Unfortunately, the prosecutors are covered by absolute immunity for threatening witnesses with arrest to ensure they gave testimony or attended hearings. As screwed up as this sounds, victims of crimes can be thrown in jail to make sure prosecutors can speak to them. Totally legal. All just part of our judicial sympathy for zealous prosecutions. Threatening someone with jail time in person is perfectly fine. It's only the use of fake paperwork -- and bypassing the court system -- that's not protected.

Although the distinction is an admittedly fine one, threatening to imprison a witness to compel cooperation in a criminal prosecution while possessing the lawful means to follow through on that threat is not the same as manufacturing documents in violation of the lawful process for obtaining court-approved subpoenas for witnesses. Threatening witnesses—particularly verbally—with imprisonment to further witness cooperation in an active criminal prosecution seems to this Court to fall into the category of “pursuing a criminal prosecution” as an “advocate for the state.” Holding that such conduct fell outside the protections of absolute immunity would, in fact, potentially subject prosecutors to civil liability for exercising authority they lawfully possess under the law of Louisiana and many other states.

Just as unfortunately, the same behavior the court found couldn't be protected by absolute immunity can be shielded by qualified immunity, at least as far as the plaintiffs' violation of due process claims.

Plaintiffs’ allegations that prosecutors manufactured “subpoenas,” deliberately side-stepping judicial oversight of the subpoena process, appears to this Court to represent a breed of official misconduct. Claims that the practice was not only condoned but directed by top prosecutors and the DA himself only make the allegations more disturbing. This Court believes that Plaintiffs’ claims sufficiently shock the conscience such that they allege a constitutional violation. Nevertheless, the Individual Defendants are entitled to qualified immunity on these claims. Plaintiffs fail to cite to any case law suggesting that the Defendants’ violated a clearly established right of Plaintiffs.

The court clearly thinks the manufacture of subpoenas is reprehensible, but can't find precedent to make it stick. And since it can't craft a bright line itself, prosecutors can continue to abuse subpoenas until a higher court decides enough abuse is enough.

A few more claims survive the layers of protective immunity. Four plaintiffs are able to show at this point that the DA's office also fudged the truth on "material witness" warrant affidavits. A few plaintiffs can also move ahead with First Amendment claims -- allegations that the combination of fake subpoenas and actual material witness arrest warrants resulted in compelled speech: testimony extracted by prosecutors using these tools as leverage. Those claims will move forward along with the narrowed allegations of abuse of process the court said can't be shielded by absolute immunity.

It's a very limited win for some of the plaintiffs. And it's not even a real victory yet. This opinion allows certain claims to move forward and removes a little immunity. It gives the plaintiffs a small chance to hold some of the Orleans Parish DA's Office personally responsible for abusing the court system and the public's trust for decades.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fake subpoenas, louisiana, new orleans, orleans parish da, prosecutors