This Should Be a "Duh!" Decision

Wearry v. Foster (5th Cir. 2022):

After the Supreme Court overturned Michael Wearry’s Louisiana capital murder conviction, Wearry v. Cain, 577 U.S. 385 (2016), Wearry brought this §§ 1983 and 1988 suit against the state prosecutor and a sheriff’s detective, alleging that they fabricated evidence that deprived him of due process and a fair trial. Defendants, District Attorney Scott Perrilloux and Livingston Parish Sheriff’s Detective Marlon Foster, each moved to dismiss for failure to state a claim under Rule 12(c) based on assertions of absolute prosecutorial immunity. The district court denied the motions, holding that neither defendant was entitled to absolute immunity for fabricating evidence by intimidating and coercing a juvenile to adopt a false narrative the defendants had concocted out of whole cloth. 

We agree with the district court that Wearry’s complaint alleges misconduct that is fundamentally investigatory in nature. When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted. Therefore, District Attorney Perrilloux is not entitled to absolute immunity for his actions. Nor is Detective Foster absolutely immune. As the Supreme Court has made clear, a police officer is not entitled to the absolute immunity reserved for a prosecutor. We AFFIRM the district court’s rulings.

Fabricating evidence to get a conviction is about as clear a basis for sec. 1983 suit as I can imagine.

I find myself wondering if Rittenhouse should be suing his prosecutor over the video footage that appeared to have been downscaled in quality before they provided it to defense counsel.  Perhaps, it was an honest mistake, but it would be good to know.