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First Circuit: Prosecutor Not Entitled to Absolute Immunity When Performing Purely Administrative Duty

by Anthony Accurso

The U.S. Court of Appeals for the First Circuit held that when a prosecutor performs a purely administrative function in relation to a criminal prosecution, she does not enjoy absolute prosecutorial immunity from suits brought under 42 U.S.C. § 1983.

Rolando Penate was charged with drug-related offenses in November 2011. Key to his prosecution were samples analyzed at the Amherst Drug lab that tested positive for controlled substances. Penate filed to dismiss his charges after learning that Sonja Farak, the chemist who analyzed his samples, was prosecuted for drug use while at work in the lab. His motion was denied because of a lack of evidence as to her drug use on the dates when Penate’s samples were analyzed.

In connection with the prosecution of Farak, Assistant Attorney General Anne Kaczmarek was aware of drug treatment worksheets and a diary created by Farak, which revealed her drug abuse at the lab overlapped the analysis of Penate’s samples.

While these materials were used to prosecute Farak, Kaczmarek decided these records were related to Farak’s mental health treatment and irrelevant to other criminal cases. Further, these records were labeled by Kaczmarek as “assorted lab paperwork.”

Penate filed a motion for a new trial after an inspection of the evidence prompted the head of the Attorney General’s Criminal Division to send them to all Massachusetts District Attorneys in late 2014. In January 2017, Penate’s conviction was reversed and dismissed with prejudice, and the judge described Kaczmarek’s conduct as “fraud upon the court.” Penate then filed suit under 42 U.S.C. § 1983 and state tort law. Kaczmarek claimed absolute immunity as Farak’s prosecutor, and Kaczmarek appealed the district court’s denial of immunity.

The First Circuit rejected Kaczmarek’s claim of absolute prosecutorial immunity. First was her claim that, as Farak’s prosecutor, she was entitled to immunity. Quoting Guzman-Rivera v. Rivera-Cruz, the Court said, “the prosecutorial nature of an act does not spread ... like an inkblot, immunizing everything it touches.” As applied here, Kaczmarek’s prosecutorial role in Farak’s case does not immunize her merely administrative role in Penate’s. The Court explained that Kaczmarek’s withholding of evidence in Penate’s case was not “part of her advocacy in Farak’s case.”

Kaczmarek also claimed immunity as a government attorney performing an advocacy function when she decided the evidence was not relevant to cases like Penate’s. The First Circuit denied this claim on the grounds that, with regards to Penate, she functioned as a mere “custodian of evidence” whose function is to respond to records requests, similar to the “function of police officers ... and other clerical state employees.” The Court explained that this function, whether performed by a government lawyer or clerical personnel, “is an administrative one, not analogous to the advocacy of a prosecutor….”

Accordingly, the U.S. Court of Appeals for the First Circuit upheld the district court’s denial of absolute immunity for Kaczmarek, finding that her purely administrative role does not grant her immunity in Penate’s suit against her, regardless of her title as prosecutor in another case. See: Penate v. Kaczmarek, 928 F.3d 128 (1st Cir. 2019). 

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