Malicious Prosecution Action Against County, Medical Examiner and District Attorney Survived Motion to Dismiss/Prosecutorial and Governmental Immunity Doctrines Explained

The Fourth Department affirmed Supreme Court’s denial of a motion to dismiss a malicious prosecution (intentional tort) action against two counties, a district attorney and a medical examiner.  The action was commenced after plaintiff was arrested and indicted for the death of his seven-month-old daughter (the indictment was subsequently dismissed).  In explaining the nature of the action, the Fourth Department wrote:

Once a suspect has been indicted, the grand jury action creates a presumption of probable cause….  “If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith” … .  Here, the complaint sufficiently alleges fraud, perjury, and conduct undertaken in bad faith. Plaintiff alleged that the police concluded in their initial investigation, based upon statements by [the medical examiner], that the infant’s death was accidental, and the case was closed. However, after plaintiff’s wife spoke with [the district attorney], [the district attorney] allegedly began a campaign to bring charges against plaintiff despite knowing that plaintiff’s wife was giving inconsistent information. Plaintiff alleged that [the district attorney] encouraged or coached [the medical examiner] to provide false information to the police and false testimony to the grand jury regarding the infant’s cause of death and time of death. Plaintiff further alleged that [the district attorney] and [the medical examiner] were aware that the information was not mentioned in the autopsy report, was not supported by any document, and had no scientific basis.

In concluding the prosecutorial and governmental-function immunity doctrines did not require the dismissal of the complaint, the Fourth Department described the elements of both as follows:

Prosecutorial immunity provides absolute immunity “for conduct of prosecutors that was ‘intimately associated with the judicial phase of the criminal process’ ” …, i.e., conduct that involves “ ‘initiating a prosecution and in presenting the State’s case’ ” ….  Thus, a prosecutor’s conduct in preparing for those functions may be absolutely immune, but acts of investigation are not ….  Prosecutors are afforded only qualified immunity when acting in an investigative capacity…   The focus is on the conduct for which immunity is claimed … .It is therefore the case that, where the prosecutor advises the police … or performs investigative work in order to decide whether a suspect should be arrested …, the prosecutor is not entitled to absolute immunity.  * * *The governmental function immunity defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” …. This limitation on liability “ ‘reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second- guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury’ ”….

“Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor’s particular position and whether they inherently entail the exercise of some discretion and judgment . … If these functions and duties are essentially clerical or routine, no immunity will attach” …. Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” …. If a functional analysis shows that the employee’s position is sufficiently discretionary, then the municipal defendant must also show “that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated” )….

“[G]overnmental immunity does not attach to every action of an official having discretionary duties but [attaches] only to those involving an exercise of that discretion” …. .

Here, the functions and duties of…the Medical Examiner include conducting an autopsy, reporting his findings to the police, and testifying before a grand jury.  The functions and duties of …an assistant district attorney include evaluating the evidence assembled by police officers. Those functions and duties are discretionary …..

Based on plaintiff’s allegations, however, it cannot be said that the conduct of [the medical examiner] and [the district attorney] was related to an exercise of their discretionary duties. Plaintiff alleged that [the medical examiner] fabricated findings and gave testimony that was not included in his autopsy report, and that [the district attorney] coached [the medical examiner] to lie. That alleged conduct plainly did not involve the exercise of “reasoned judgment which could typically produce different acceptable results” …..  Kirchner v County of Niagara …, 561, 4th Dept 6-28-13