Access to Justice

Wearry v. Foster

In Wearry v. Foster, the U.S. Court of Appeals for the Fifth Circuit considered, 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 made 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 argued 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 argued 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.

On May 3, 2022, the Fifth Circuit affirmed the district court’s judgment that Foster and Perrilloux are not entitled to absolute prosecutorial immunity. In a separate opinion, Judge Ho took the position that precedent required a grant of absolute immunity in the case, but quoted from our brief in explaining why the doctrine of absolute immunity is “wrong as an original matter.”

Case Timeline

  • November 13, 2020

    CAC files amicus curiae brief

    5th Cir. Amicus Br.
  • May 3, 2022

    Fifth Circuit issues its decision

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