Prosecutors Immune From Civil Suits, NJ Appeals Court Says
A New Jersey appeals court has ordered the dismissal of claims of malicious prosecution and civil rights violations against three deputy state attorneys general and two detectives by an Atlantic City councilman and his adviser who claim they were unfairly prosecuted for alleged election fraud.
Appellate Division Judges Jack Sabatino, Michael Guadagno and George Leone said March 12 that the three DAGs and two detectives are entitled to immunity and cannot be sued for performing their professional duties.
“Absolute immunity applies to prosecutorial activities intimately associated with the judicial process, including evaluating evidence, deciding to prosecute and preparing for and presenting evidence in the grand jury and trial,” the judges wrote.
The lawsuits were filed by Councilman Marty Small and his campaign consultant, Thomas Quirk, against DAGs Anthony Picione, Robert Czepiel and David Fritch and Detective Sgt. David Smith and Detective Scott Orman. The appeals court consolidated the state’s appeals.
The lawsuits were filed after Small and Quirk were acquitted in 2011 of allegations of election fraud and absentee ballot fraud in connection with Small’s unsuccessful bid for the Democratic Party nomination for Atlantic City mayor in 2009. This marked Small’s second acquittal on election fraud charges.
Elie Honig, the director of the Division of Criminal Justice, said in a statement that the ruling represented an important victory for law enforcement.
“As the appellate court recognized in its decision, prosecutors and law enforcement officers provide a unique—and critical—public service, and should not be subjected to frivolous lawsuits simply for doing their jobs,” Honig said.
Small’s lawyer, Arthur Murray, said he would ask the state Supreme Court to hear an appeal of the unpublished ruling.
“This is a severe blow for civil rights in the state of New Jersey,” said Murray, of Jacobs & Barbone in Atlantic City. “At the end of the day, the winner is Mr. Small. He has beaten the state of New Jersey.”
Quirk’s lawyer, Northfield solo David Castellani, said he will consider filing a motion for reconsideration or asking the Supreme Court to hear an appeal.
“This is almost a death knell for people trying to bring any kind of claim against a prosecutor,” Castellani said. “This is a dark day for civil rights in New Jersey. This gives prosecutors carte blanche to do whatever they want.”
Small and Quirk were targeted after an Atlantic City man, Eddie Colon, began cooperating with the Attorney General’s Office following an arrest for selling cocaine, according to court documents. Colon told the detectives that another man had told him that all of the mayoral candidates intended to collect fraudulent absentee ballots and that Colon could earn $10,000 for collecting 100 signed ballots on which no votes had been cast.
Small and Quirk were among 14 defendants charged with voter fraud. The three DAGs were all involved in the prosecution at various points.
After they were acquitted, Small and Quirk filed lawsuits against the DAGs and the detectives alleging malicious prosecution, official misconduct, witness tampering and subornation of perjury. They filed claims against the state alleging failure to train and executing policies indifferent to civil rights.
Atlantic County Superior Court Judge Joseph Kane denied the state’s motion to dismiss the lawsuits on summary judgment.
But the appeals court reversed.
“We now determine that the individual defendants are entitled to either absolute or qualified immunity and the state is not a ‘person’ amenable to suit under the [Civil Rights Act],” the appeals court judges said.
New Jersey’s Civil Rights Act is modeled after 42 U.S.C. Section 1983, the judges noted.
The federal statute provides for absolute immunity for prosecutors “‘out of concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust,’” the judges said, quoting the state Supreme Court’s 2004 ruling in Loigman v. Township Committee.
“Even viewing the allegations in their complaints in a light most favorable to plaintiffs, we are satisfied that plaintiffs’ bare allegations are insufficient to properly aver that the actions of the defendants constituted actual fraud, actual malice or willful misconduct such as to abrogate defendants’ statutorily-granted immunity,” the judges said.
