Access to Justice

Wearry v. Foster

In Wearry v. Foster, the U.S. Court of Appeals for the Fifth Circuit is considering, among other things, whether the doctrine of absolute prosecutorial immunity shields a Louisiana prosecutor and police officer from a damages action alleging that they fabricated evidence.

Case Summary

In 2016, the Supreme Court threw out the murder conviction of Michael Wearry, who was found guilty of a 1998 murder and sentenced to death in 2002.  After that conviction was vacated, Wearry filed a civil suit against Scott Perriloux, a prosecutor, and Marlon Foster, a police officer, alleging that Perrilloux and Foster conspired to intimidate and coach a 10-year-old child into providing false testimony implicating Wearry in the murder.

Foster and Perriloux argue that their conduct is protected by the doctrine of absolute prosecutorial immunity, which the Supreme Court has held shields certain conduct by prosecutors from damages actions.  A federal district court in Louisiana held that the alleged constitutional violations do not fall within the scope of prosecutorial immunity and permitted Wearry’s suit to go forward.

Defendants appealed to the Fifth Circuit, and CAC filed a friend-of-the-court brief urging the Court to affirm the district court’s decision.

Our brief makes two key points. First, the brief argues that the doctrine of absolute prosecutorial immunity is not supported by the text and history of the Constitution or Section 1983, the broad federal statute that permits individuals to bring damages actions against state and local officials for violations of their constitutional rights. We argue that the Framers drafted the Bill of Rights in part to ensure that persons whose rights were violated by law enforcement would have the ability to have their claims decided by a jury. Further, the doctrine of absolute prosecutorial immunity is at odds with the history of Section 1983 because there was no common-law tradition of absolute immunity for prosecutors at the time Section 1983 was passed. Indeed, courts permitted suits against prosecutors before and after Section 1983 was passed, and the purposes of Section 1983 would not justify such an expansive immunity for prosecutors.

Second, the brief argues that although the Supreme Court has recognized absolute immunity for prosecutors for certain conduct, that immunity should be construed narrowly given the lack of historical support for it.  And nothing in Fifth Circuit or Supreme Court precedent requires that such an immunity be applied in this case.  The Supreme Court has held that prosecutors can be absolutely immune for activities narrowly limited to the judicial phase of the criminal process.  In this instance, however, Foster and Perrilloux were engaged in investigatory activity when they abused their positions to fabricate witness testimony, and no precedent shields such misconduct from all judicial review.

Case Timeline

More from Access to Justice

Access to Justice
March 11, 2021

Unlikely bedfellows in TransUnion SCOTUS case: Justice Thomas and class action fans

Reuters
(Reuters) - As the U.S. Supreme Court gets ready in TransUnion v. Ramirez to revisit the vexing...
Access to Justice
March 4, 2021

Opinion: How the Supreme Court can help sexual assault survivors in the military

Washington Post
Last month, a U.S. Marine posted a video to TikTok sharing her frustration with authorities’ handling of...
By: Miriam Becker-Cohen
Access to Justice
U.S. Supreme Court

Cox v. Wilson

In Cox v. Wilson, the Supreme Court is being asked to consider whether a police officer who shot an unarmed man, rendering him a quadriplegic, is immune from being sued for violating the Fourth Amendment.
Access to Justice
U.S. Supreme Court

TransUnion LLC v. Ramirez

In TransUnion, LLC v. Ramirez, the Supreme Court is considering when individuals whose statutory rights were violated by a private company—putting them in danger of harms that the statute was meant to shield them from—have...
Access to Justice
U.S. Court of Appeals for the Fifth Circuit

Attala County, Mississippi Branch of the NAACP v. Evans

In Atalla County, Mississippi Branch of the NAACP v. Evans, the U.S. Court of Appeals for the Fifth Circuit is considering when federal courts may adjudicate suits that challenge systematic racial discrimination in the jury-selection...
Access to Justice
U.S. Supreme Court

Jane Doe v. United States

In Jane Doe v. United States, the Supreme Court is being asked to reconsider whether servicemembers may sue the United States for money damages pursuant to the Federal Tort Claims Act (FTCA) when they are...