Shields Engaged

By Daniel Richardson

O’Connor v. Donovan, 2012 VT 27.

Let us make this summary short because it does no good to repeat in any great detail the careful analysis offered by the SCOV in this decision.

Plaintiff was a police officer in South Burlington, who gained a reputation for investigating drug crimes.  Enter Defendant who was elected Chittenden County State’s Attorney in 2006.  The two did not apparently get along, and Defendant took increasingly stronger action against Plaintiff, including meeting with Plaintiff’s superiors to criticize him; refusing to prosecute cases or issue warrants based on Plaintiff’s affidavits; accusing Plaintiff of dishonesty; speaking against Plaintiff when he sought to join the State Police; and distributing information that reflected poorly on Plaintiff to various defense attorneys.

If even some of these allegations are true, it is safe to conclude that Defendant had issues with Plaintiff or Plaintiff’s work.  Although it happens, it is rare for State’s Attorneys to turn so thoroughly on police officers.  The thin blue line, as public defenders bemoan, almost always includes the prosecutor’s office. 

The State’s Attorney, however, is the chief law enforcement officer in each county, and his or her decisions are usually the final word.  If he or she believes that an officer is being dishonest or negligent in his police work, then the State’s Attorney has an ethical obligation to step in, isolate the bad actor, and prevent incorrect or untruthful work from seeing a courtroom.

This would seem to set up today’s case as a review of whether Defendant acted properly under the circumstance or if he purposefully attempted to defame Defendant and wreck his career as a payback for Defendant’s prior history as a criminal defense attorney representing alleged drug dealers in court. 

Such a guess would, of course, be wrong.  The issue for today’s decision is immunity.  Under both Vermont and federal law, government actors are granted varying degrees of immunity from liability.  How and to what extent such immunity attaches is not only the subject of the SCOV’s analysis but an entire area of public liability law.   

Here is the trick to immunity.  There are two forms.  Absolute immunity, like its name suggests, is absolute.  If entitled to such immunity, a government actor cannot be subject to civil liability for anything she does, no matter how bad or corrupt the acts might be.  Such broad and unlimited liability, as you can imagine, is strictly limited to a handful of eligible actors and a limited number of actions.

For most of the ham and eggers in government, their actions are covered under the second form of immunity, qualified official immunity.  This lesser form of immunity protects actors only if they meet a three-part test: (1) Acting within their scope of authority; (2) In good faith; and (3) In a discretionary rather than ministerial task.

As you might suspect, a determination of absolute immunity is a pack-up-the-tent-and-go-home-type of ruling while qualified official immunity is an invitation to further discovery, motions, fact finding, and trial work.  It is akin to the shields that protect the Enterprise in Star Trek.  No matter how vicious the photon torpedo allegations may be, the ship is protected and suffers only the most minor jarring of the bridge.  Qualified immunity is a weakened shield.  It may protect, but it will not prevent everything, and it may—if the proper facts are presented—fail entirely leaving the ship vulnerable. 

In other words, plaintiffs will tolerate the application of qualified immunity but fear a determination of absolute.

While we are making things complicated, let’s add the second set of spin to the SCOV’s immunity analysis.  Under Vermont law, absolute immunity is a function of office.  The Attorney General and the Governor are entitled to absolute immunity by virtue of their office.  It does not matter what they are doing.  Under Federal law, it does.  Absolute immunity under the federal system only extends to individuals based on the activity they are pursuing.  So for example, a school board discussing and voting on a proposal is entitled to absolute immunity, but a school board hearing an employee grievance might not be. 

So the scope of the immunity also depends upon the nature of the claim.  File a claim for violation of civil rights, and the court will use the federal law lens.  File a claim for defamation, interference with a contractual relationship, or another action under state law, and the court will put on its state immunity glasses.

Today’s case concerns allegations of defamation, intentional infliction of emotional distress, and interference with a business relationship.  This fits squarely under the state law lens, and the broader immunity offered under this analysis to state’s attorneys is fatal to Plaintiff’s case.

Basically, the SCOV analyzes the present case by reviewing its landmark holding of Levinsky v. Diamond.  In that case, the SCOV held that the Attorney General of the time and his deputies were immune from liability for statements made to the press and the legislature as well as decisions made in the prosecution of plaintiff’s case.  The hold was that the Attorney General’s power to prosecute is broad, fundamental, and encompasses nearly all parts of his job.  As a result, he was entitled to absolute immunity and the various actions were deemed to be part of the job. 

After carefully scrutinizing Levinsky as well as a number of cases cited or relied upon by Levinsky as well as a number of cases following Levinsky, the SCOV concludes that the precedent and policy underlying absolute immunity make it applicable to the office of state’s attorney. 

The result is not unexpected for anyone familiar with Levinsky or the broad grant of immunity that prosecutors in almost every jurisdiction enjoy, but it does represent a step forward in the analysis and, at the very least, a clarification about the right of state’s attorneys to claims such immunity.

With this conclusion, neither the SCOV nor the trial court is obliged to delve into the nature of Defendant’s actions.  The action is dismissed. 

Ironically, the Defendant might be the one short changed here.  By virtue of his immunity, the SCOV never analyzes the nature of his actions.  Instead, it simply reviews the alleged actions as stated by Plaintiff under the assumption that they might be true.  While the end result is in his favor, it does generate several paragraphs where the court speculates on liability if Plaintiff’s claims turn out to be true without a corresponding conclusion that they are not. 

Of course, Defendant’s discomfort is ultimately minimal next to Plaintiff who must look to others or other claims or simply forego the hope of any legal remedy for the wrongs he believes he has suffered.

Plaintiff might want to seek a ship without shields.