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By Porter Wells
A black police officer can’t hold a white Maryland prosecutor liable for a decision to not use the officer as a witness in court, even if it did result in the officer losing his job, the U.S. Court of Appeals for the Fourth Circuit said July 13.
The decision reinforces the principle of prosecutorial immunity: that a prosecutor cannot be sued for decisions made as the government’s advocate while preparing for trial. A prosecutor may indeed be liable when making decisions as an administrator or employer. When serving as an officer of the court, however, a prosecutor is exercising professional judgment connected to the judicial process and is therefore absolutely immune from civil suit.
The court admitted that it understood why former Pocomoke City, Md., police officer Franklin Savage would be offended by State’s Attorney Beau Oglesby reading racial epithets aloud “verbatim,” but those epithets were contained within documents retained for evidence at trial and were read aloud during a trial preparation meeting. That is the exact behavior the principle of prosecutorial immunity is meant to protect, the Fourth Circuit said.
Oglesby subsequently decided that Savage had “veracity” issues as a state’s witness and decided not to put him on the stand at multiple trials. Savage alleged Oglesby did this in retaliation for his complaints and said not being used as a witness was why he was fired.
The court affirmed the U.S. District Court for the District of Maryland’s decision to dismiss Oglesby from the lawsuit, but reversed the district court’s denial of the state’s motion to dismiss Savage’s retaliation claim. A retaliation claim requires the activity that a plaintiff complains about to be unlawful, and a prosecutor sorting through evidence with his team is not unlawful, the court ruled.
The Maryland Attorney General’s Office in Baltimore represented Oglesby and the state. The Washington Lawyers Committee for Civil Rights & Urban Affairs in Washington, the ACLU of Maryland in Baltimore, and Wiley Rein LLP in Washington represented Savage.
The case is Savage v. Maryland, 4th Cir., No. 17-1636, opinion issued 7/13/18.
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