Labor & Employment Law Daily Officer’s claims against state attorney who read letter containing racial slurs out loud barred by prosecutorial immunity
Tuesday, July 17, 2018

Officer’s claims against state attorney who read letter containing racial slurs out loud barred by prosecutorial immunity

By Kathleen Kapusta, J.D.

Addressing interlocutory appeals that were part of a broader litigation alleging pervasive race discrimination and unlawful retaliation against three African-American municipal police officers, the Fourth Circuit, affirming in part the decision of the court below, found that prosecutorial immunity barred one officer’s claims that a state attorney created a racially hostile work environment when he read aloud potential evidence containing numerous references to a racial epithet and then retaliated against him after he complained. The appeals court reversed the district court order denying the state’s motion to dismiss or for summary judgment on the officer’s claim that the state interfered with his employment relationship with his municipal employer when the state attorney retaliated against him (Savage v. State of Maryland, July 13, 2018, Harris, P.).

The racist letters. A year after he joined the Pocomoke City Police Department, the officer was assigned to the Worcester County Criminal Enforcement Team (CET), a multi-jurisdictional drug interdiction task force led by the county sheriff’s office. In April 2014, he attended a meeting with members of the Worcester County State’s Attorney’s Office in order to discuss an upcoming case on which he had been the arresting officer. During the meeting, he presented some letters written by the suspects, which the state’s attorney (SA) began reading aloud and verbatim. Those letters contained multiple references to the word “Ni**a.” When the SA stopped to ask if he was offending anyone, the assistant SA, the only other African-American in the room, left.

Termination. By July, after the officer had resigned from the CET, he filed complaints with the EEOC and the Maryland Attorney Grievance Commission objecting to the SA’s repeated reading of the racial slur. In September, the SA sent a letter to the city mayor and council, stating that he would not call the officer as a witness in court without corroboration for his testimony and would decline to prosecute in such cases. Over a year later, the SA and the mayor had a telephone conversation in which the SA reiterated his concerns about the officer’s veracity, suggesting he would never call him to testify again, rendering him “useless” to the police department. The officer was fired 10 days later.

Lawsuit. The officer, along with his co-plaintiffs, filed suit against multiple defendants in federal court. He sued the SA in his personal capacity, claiming he created a racially hostile work environment at the trial-preparation meeting when he read aloud potential evidence containing numerous references to the racial epithet, and then violated the First Amendment by retaliating against the officer after the officer complained about the meeting, by prohibiting him from testifying, communicating that decision to Pocomoke City officials, and impugning his veracity.

District court. The SA moved to dismiss or for summary judgment, and the district court granted his motion, finding the officer’s claims were barred by the doctrine of absolute prosecutorial immunity. The officer then amended his complaint to add Title VII claims against the state of Maryland, alleging that as the SA’s employer, it was liable for his unlawful acts under a third-party interference theory. The state moved to dismiss (or for summary judgment), which the district court denied. The officer then sought and was granted partial final judgment as to the SA’s immunity so he could seek immediate appeal of his dismissal from the case. The state also sought to appeal, and the district court certified for interlocutory appeal its order denying the state’s motions.

Prosecutorial immunity. Addressing the district court’s order dismissing the SA from the case, the appeals court noted that when a prosecutor is functioning as an advocate for the state, his actions are “intimately associated with the judicial phase of the criminal process” and thus protected by absolute immunity. Here, said the court, the SA was acting within his role as advocate during the trial-preparation meeting, entitling him to absolute immunity from damages liability on the officer’s claim. Even if the meeting was held before any criminal charges were filed, it was clear he was preparing for trial. The officer was there to discuss an upcoming case, and he gave the letter to the SA so he could decide whether to use them as evidence.

While the officer argued it was “unnecessary” for the SA to read the letters aloud and verbatim, how evidence should be evaluated is exactly the kind of professional judgment call that prosecutorial immunity is designed to protect, the court stated, noting that the immunity analysis does not turn on “the harm that the [prosecutor’s] conduct may have caused,” but rather on the function the prosecutor was performing at the time.

Retaliation. Turning to the officer’s retaliation claim, the court again found the SA’s actions were “intimately associated with the judicial phase of the criminal process,” entitling him to absolute immunity from damages liability. Specifically, the court observed, decisions regarding witness testimony, such as which witnesses to call, whether potential witnesses are credible, and how to proceed in the face of credibility questions, are a core prosecutorial function, directly tied to the conduct of a criminal trial.

The officer argued, however, that this case was not in fact about “the judicial phase of the criminal process,” but about employment. By refusing to call him as a witness or to prosecute his cases, and then describing that decision to city officials as resting on “veracity” concerns, the SA effectively made it impossible for him to do his job, he claimed, asserting that absolute immunity is not available to prosecutors when they make employment decisions because those are “administrative” rather than advocacy functions.

But, reiterated the court, that “a judgment about witness credibility or which cases to try has negative employment consequences–even readily foreseeable ones–does not change the underlying nature of that judgment; the immunity analysis focuses on the prosecutorial conduct in question, and ‘not on the harm that the conduct may have caused.’” More importantly, observed the court, the Supreme Court has clarified that even if all or some of the complained-of conduct could be categorized as employment-related and hence “administrative,” it still would be protected by absolute immunity. When, as here, the alleged prosecutorial conduct involves the decision not to call an officer as a witness and communication of that decision to the relevant employer, it is still “intimately tied to the judicial process” and thus entitled to absolute immunity. Agreeing with the court below, the appeals court found that because the SA was immune from the officer’s damages claim, he should be dismissed from the suit altogether.

Claim against state. Turning to the state’s appeal, the court noted that while as a general rule the Eleventh Amendment immunizes states from vicarious liability for the acts of state employees, the officer sued the state under Title VII, which abrogates that immunity for suits against a state in its capacity as an employer. Here, the officer argued that Maryland could be held liable under a “third-party retaliatory interference” theory for interfering with his employment relationship with the city through the SA’s retaliatory actions.

End-run? Although the state argued that this was an “end run” around the SA’s absolute prosecutorial immunity and that the officer could not state a claim against Maryland for Title VII retaliation because the plain language of Title VII, which makes it unlawful for “an employer to discriminate against any of his employees or applicants for employment,” precludes a suit by the non-employee officer against the state, the court declined to reach these issues. Instead, it found that even assuming the state could be liable to the officer under Title VII’s anti-retaliation provision for the SA’s conduct, he failed to make out a Title VII retaliation claim based on that conduct.

No Title VII retaliation. The officer’s formal complaints about the pre-trial meeting were not protected under Title VII because the SA’s conduct during the meeting was not unlawful under Title VII, and the officer could not reasonably have believed otherwise. His own factual allegations made clear that the ordinary terms and conditions of his employment required at least some exposure to the documents and offensive language at issue, especially given that he himself brought the letters to the meeting and gave them to the SA for review.

And while the officer argued that the racial slur used by the SA was particularly odious and “pure anathema to African-Americans,” context matters, the court pointed out, explaining that on the facts as alleged, the SA was not aiming racial epithets at the officer or anyone else, or using slurs to give voice to his own views. Rather, “he was reading the word ‘Ni**a’ aloud from letters written by criminal suspects, presented to him by a police officer in the course of a trial-preparation meeting. In that distinct context and without more, no inference of a racially hostile environment can be drawn, and it would not be reasonable to believe that a Title VII violation had occurred.”

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