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Eleventh Circuit: Prosecutor Denied Absolute Prosecutorial Immunity for Failure to Ensure Cancellation of Material Witness Warrant

by David M. Reutter

In a case of first impression, the U.S. Court of Appeals for the Eleventh Circuit held that a Fulton County, Georgia, assistant district attorney is not entitled to absolute prosecutorial immunity in a 42 U.S.C. § 1983 suit for failing to ensure the cancellation or recall of a material witness warrant.

Someone tried to rob taxicab driver Kidanemariam Kassa one day while he was driving a route in downtown Atlanta. The Fulton County District Attorney’s Office eventually indicted an individual for the attempted robbery. As trial was approaching, Kassa began experiencing medical problems, and the trial date was continued so that Kassa would be available to testify.

Sometime later, Assistant District Attorney Antoinette Stephenson allegedly told a state judge that Kassa was avoiding a subpoena to testify at trial. Stephenson obtained a material witness warrant, but it was never executed because Kassa voluntarily showed up to trial. In Fulton County, it was customary for prosecutors to make an oral motion to cancel the warrant after the witness testified. Stephenson never did so, and the warrant remained active after the conclusion of the trial.

Several months later while driving his cab, Kassa was involved in an accident. He was arrested due to the active warrant. Six days later, a state court judge ordered his release. Kassa sued Stephenson, alleging claims of denial of due process, malicious prosecution, and illegal seizure. Stephenson moved to dismiss, asserting absolute prosecutorial immunity. The U.S. District Court for the Northern District of Georgia granted the motion, and Kassa appealed.

The Court began its analysis by discussing the Supreme Court’s first examination of prosecutorial immunity in a § 1983 proceeding in Imbler v. Pachtman, 424 U.S. 409 (1976). In Imbler, the Supreme Court held a deputy district attorney was entitled to absolute prosecutorial immunity because his “activities were intimately associated with the judicial phase of the criminal justice process.” Since Imbler, a “functional” approach has been used to determine if prosecutorial immunity applies. Burns v. Reed, 500 U.S. 478 (1991). This approach is a fact-specific examination that “looks to the nature of the function performed, not identity of the actor who performed it.” Buckley v. Fitzsimmons, 508 U.S. 259 (1993). The official asserting the immunity bears the burden of showing that it is justified “for the function in question.” Burns.

The Eleventh Circuit has extended absolute prosecutorial immunity to prosecutors for “filing an information without investigation, filing charges without jurisdiction, filing a baseless detainer, offering perjured testimony, suppressing exculpatory evidence, refusing to investigate complaints about the prison system, and threatening further criminal prosecutions.” Hart v. Hodges, 587 F.3d 1288 (11th Cir. 2009).

The Court noted it has never applied the functional approach to determine whether absolute prosecutorial immunity applies for the failure to initiate the cancellation of a material witness warrant. It agreed with Kassa that it should adopt the approach taken by the Third Circuit in Odd v. Malone, 538 F.3d 202 (3d Cir. 2008). That case also concerned the failure to ensure cancellation of material witness warrants.

The Third Circuit reasoned that “keeping a third-party witness in state custody after the termination of the proceeding in which he was to testify has nothing to do with conducting a prosecution for the state.” It further reasoned that the act, or failure to act, in question didn’t require the prosecutor to engage in advocacy — merely advising the court that the witness remained in jail but failed to do so, nor did it require the exercise of professional judgment or legal skill. It then declined to extend absolute prosecutorial immunity in the case.

Applying the Odd analysis, the Court concluded that Stephenson is not entitled to absolute prosecutorial immunity. The Court highlighted several similarities between the present case and Odd, which serve as the basis of its conclusion: (1) prosecutors in both cases failed to recall the warrants even after the judicial proceedings concluded, (2) no advocacy was required in either case to recall the warrant, (3) notifying the judge regarding the recall of the warrant in both cases did not require the exercise of professional judgment or legal skill, (4) because no professional judgment was required, no concern that litigation will negatively affect prosecutorial independence in the future, and (5) allowing witnesses detained under these circumstances to sue prosecutors for failing to cancel warrants is unlikely to result in a flood of litigation against prosecutors.

The Court cited Odd in stating, this is a “relatively clear example of a situation in which the prosecutor’s role as an advocate for the state had concluded.” Thus, the Court held that the district court erred by concluding Stephenson was entitled to absolute prosecutorial immunity for failing to take action to cancel the material witness warrant.

Accordingly, the Court reversed the district court’s order and remanded the case for further proceeding consistent with its opinion. See: Kassa v. Fulton County, Georgia, 40 F.4th 1289 (11th Cir. 2022). 

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