2008-10-01_Jack_Thomas_v_COH_-_Order_Granting_Defendants_Motion_for_Summary_Judgment_and_Remanding_State_Law_Claims

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Case 1:07-cv-00251-JMS-LEK Document 52 Filed 10/01/2008 Page 11 of 17 To determine whether a prosecutor is entitled to absolute immunity, the court applies a functional analysis; that is, the court looks "at the nature of the function performed, not the identity of the actor who performed it." Buckley, 509 U.S. at 269. "[T]he critical factor" is "the nature of the challenged policy and whether it falls within a prosecutor's judicial function or, instead, is part of a prosecutor's exercise of administrative or investigative functions." Goldstein, 481 F.3d at 1175 (citation and quotation signals omitted). "If the action was part of the judicial process, the prosecutor is entitled to the protection of absolute immunity." Broam, 320 F.3d at 1029. For example, prosecutors are absolutely immune from § 1983 liability for decisions to initiate a particular prosecution, to present knowingly false testimony at trial, and to suppress exculpatory evidence. Prosecutors also enjoy absolute immunity for decisions not to prosecute particular cases, and for gathering evidence to present to the trier of fact, as opposed to gathering evidence to determine whether probable cause exists to arrest. On the other hand, prosecutors do not have absolute immunity for advising police officers during the investigative phase of a criminal case, performing acts which are generally considered functions of the police, acting prior to having probable cause to arrest, or making statements to the public concerning criminal proceedings. Nor do government officials have absolute immunity for conduct involving termination, demotion and treatment of employees. 11