This case may be designed to find out.
The DA and ADA for Starr County (TX) secured an indictment of the plaintiff for murder following a medication abortion. Plaintiff was arrested and held for three days until the DA dismissed the charges. The State Bar also sanctioned the DA.
The plaintiff recognizes that prosecutorial immunity presents a problem and tries to plead around it. The complaint focuses on the investigation prior to grand-jury presentment, which DA officials carried out without working with the local sheriff or police department. It does include allegations about the DA's office lying to the grand jury, which would be immune. But it tries to frame the claim around an exception to the "independent intermediary" doctrine. Under that doctrine, the actions of an immune independent intermediary (a judge in issuing a warrant, a grand jury in indicting, or a prosecutor in pursuing either) may break the causal chain between plaintiff's injuries and the constitutionally defective actions of police officers during an investigation. For example, a prosecutor's decision to pursue a prosecution may break the causal chain between the injury (wrongful conviction) and an initial arrest without probable cause. But there are exceptions to that, where the intermediary is not independent of the defendant. Plaintiff appears to argue that independent intermediary does not apply when the same person acts as investigator and prosecutor, as there can be no "independence."
There also is a claim against the County, based on the active (although not lead) involvement of the DA. This claims tees-up the competing strands of entity liability we discussed last week--is the DA the policymaker; was he sufficiently involved in the investigation and prosecution or did the ADA carry the ball; and is the DA Office county or state when performing the function of investigating and prosecuting state law. This is not a close question--the Fifth Circuit long ago held that, as a matter of Texas law, a county prosecutor acts as an arm of the state in enforcing state penal law.
Finally, note the plaintiff's strategic choices. Immunity is, unquestionably, an affirmative defense, which the plaintiff need not negate in her complaint. So does it make sense to plead it? Or is the plaintiff better off standing on her complaint, waiting for the 12(b)(6), and responding to that.
