I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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The Fifth Circuit holds that Dunn Lampton found the limits of prosecutorial immunity

When a prosecutor is acting as a prosecutor– picking cases to indict, say– his or her conduct is virtually completely immune from any lawsuit, no matter how flimsy the prosecution, no matter how malicious or evil the prosecutor’s intention (think of the word “virtually” there as the thinnest of lawyer weasel-words– I used it because I really couldn’t bear saying “completely immune” even though I think that might be the case).

Think of Ed Peters, “indicting on a dare,” Keith Shelton and James Jennings.  When I heard about the civil rights action Jennings had filed, I thought (no matter how wrong what Peters had done) Jennings was going to have a long row to hoe.

But Dunn Lampton, former US Attorney for the Southern District of Mississippi, has found a way to highlight the border between a prosecutor-as-prosecutor and prosecutor-as-persecutor.  In a case I posted about earlier, Oliver Diaz sued Lampton for the improper release of his tax returns, which became the basis of a Judicial Performance proceeding (later dismissed). You might want to look at my prior post for more details.

The Fifth Circuit has just affirmed Judge Jordan’s refusal to dismiss Lampton for prosecutorial immunity.  The opinion begins:

Between 2003 and 2006, Dunnica Lampton, the U.S. Attorney for theSouthern District of Mississippi, prosecuted Oliver Diaz, a Mississippi SupremeCourt justice, and Jennifer Diaz, his wife, for fraud, bribery, and tax evasion.  Oliver Diaz was acquitted, but Jennifer Diaz pleaded guilty to tax evasion.  Lampton then filed a complaint with the Mississippi Commission on JudicialPerformance (the “Commission”) about Oliver Diaz’s conduct. He included copies of the Diazes’ federal tax records obtained during the criminal investigation.  The Commission dismissed the complaint in December 2008.  The Diazes sued Lampton in federal court, alleging a violation of 42 U.S.C.§ 1983 based on deprivation of rights under 18 U.S.C. § 1905 and 26 U.S.C.§§ 6103 and 7213. Jennifer Lampton [sic} also later raised a claim under 26 U.S.C. § 7431. Those statutes prohibit government officials from releasing private taxrecords obtained in the course of their duties. The Diazes’ suit also included anumber of state law claims. Lampton filed a Federal Rule of Civil Procedure12(b)(6) motion to dismiss the § 1983 claim, arguing that absolute prosecutorialimmunity shields his decision to give the tax records to the Commission. The district court denied the motion, and Lampton appealed.

I want to note that the reference to “Jennifer Lampton” in this paragraph was produced by cutting and pasting from the Fifth Circuit opinion!

In affirming the district court ruling of no-immunity, the Fifth Circuit held Lampton was quite simply not acting as a prosecutor:

Vis-a-vis the Commission, his status was merely that of a complaining witness,and complaining witnesses were not accorded absolute immunity at common law.

The decision was on a motion to dismiss; what this means is that, based upon the allegations of the complaint, Lampton isn’t immune as a matter of law.  So back to the trial court it goes (barring Supreme Court appeal) to decide the merits.

Here’s the Fifth Circuit opinion. David McCarty and Chuck McRae argued and won for the plaintiffs.

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