5th Circuit refuses to toss suit against prosecutors accused of using fake subpoenas

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Prosecutors in New Orleans aren’t entitled to dismissal of a lawsuit claiming that they issued fake subpoenas to pressure crime victims and witnesses to meet with them.

The 5th U.S. Circuit Court of Appeals at New Orleans said the prosecutors who sued in their individual capacities were not entitled to absolute immunity at this stage of the litigation.

Law360, Bloomberg Law and the Lens have coverage.

Prosecutors are entitled to absolute immunity in their role as advocates for the state but not for investigative decisions, the April 21 appeals court opinion said. Here, prosecutors were accused of using the subpoenas to gather information, which is more like investigative work, the appeals court said.

The decision pointed out that prosecutors could still be entitled to qualified immunity protection.

Judge Catharina Haynes, an appointee of President George W. Bush, wrote the opinion. The decision was joined by two other Bush appointees, Judges Leslie Southwick and Jennifer Walker Elrod.

Plaintiffs who said they received fake subpoenas included victims of domestic violence and child molestation. Two were potential witnesses to murder cases.

Another plaintiff said she was pressured to provide testimony that contradicted her memory of events regarding the murder of her daughter’s boyfriend. Prosecutors allegedly sent her fake subpoenas and then obtained a material witness warrant that put her in jail for a week.

The Lens had published a story on the fake subpoenas in 2017. District Attorney Leon Cannizzaro announced the same day that he was stopping the practice.

A spokesman for Cannizzaro provided a statement to the Lens.

“We will review the opinion and discuss options as this process moves forward. It is important to note that the court thus far has ruled only on the basis of the plaintiffs’ allegations,” the statement said. “We have yet to have our opportunity to challenge the factual basis of those claims. Once these allegations must be proven, we expect quite different results.”

The plaintiffs are represented by the American Civil Liberties Union, the ACLU of Louisiana and the Civil Rights Corps, according to a press release that quoted Bruce Hamilton, staff attorney with the ACLU of Louisiana.

The decision is “a win for prosecutorial accountability that sends a clear message that prosecutors are not above the law,” Hamilton said.

The case is Singleton v. Cannizzaro.

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