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Scenario

Let's say someone wanted to force a US State to get into a legal battle to resolve an open issue that the legal system has been reluctant to resolve and for which existing laws were murky.

If a person went to a solicitor and accused an entity of illegal activity knowing in advance that the solicitor or the district attorney would try to refuse to take the case, would it theoretically be possible to then file suit against the solicitor under 42 U.S.C. 1983:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

It is assumed:

The evidence for crimes will be solid, but the context of prosecution is not. There is no clear procedure for what court would be responsible for bringing the case to court. This is the primary reason that a DA or solicitor would refuse the case. Criminal court would handle the charges, but before criminal court could hear the case, damage (personal injury) would have to be established. Civil court would handle damages, but before a damage suit can be brought a criminal liability must be established. Procedural catch-22.

Keep in mind that the goal of this is to force a state to address a question when both state and federal government want the other to take care of the problem so that they don't have to deal with the fallout.

The question:

Is there an existing governance process that exists to handle such a problem? If there is, then this would be the correct answer. This could be a legal mechanism or a legislative mechanism.

Is there a legal procedure of which I am unaware? I cross-posted this into Politics.SE because I honestly don't think there is a clear area capable of resolving the question in isolation (yet).

Narrowing Scope:

As an example of this case in a hypothetical situation. A person has their life threatened by a mobster. The mobster is guilty of a crime for which solid evidence exists. A private citizen brings the evidence to a solicitor, but due to being bought off or because of political pressure or some other reason that should be determined by the court the DA refuses to prosecute. A person in the solicitor's office tips off the mobster and the mobster kills the individual's dog, burns down his house, and does other horrible things to the individual. The mobster is found guilty of the crimes and punished. The individual wishes to sue the DA in civil court. Can this be done? Updated: I suppose for the purposes of this discussion, suit of the county might be more appropriate than suit of the DA.

Context of the question and why it is here

  • This is a procedural question having to do with political management of legal entities, not of federal, state, criminal or common law.
  • This is a speculative question. I do not expect anyone to have a firm definitive answer, but I do not rule out the possibility that one exists. I am asking here because of that choice not to rule out the possibility that an answer exists.

Tangential:

I found this article to put into better words than my own why prosecutorial immunity goes too far right now. This doesn't bear directly on my question, but it does explain why my question is important.

  • All prosecutions are discretionary. No legal requirement for a prosecutor to actually decide to prosecute that specific case. 42 U.S.C. 1983 is meant to be used when a government agent deprives you of an actual right. Having them prosecute someone is not covered. – Viktor Jan 16 '16 at 17:12
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    @Viktor now see that's a very good observation. Let's run with that. How would one go about showing that there is no equal protection? (in the context of the hypothetical scenario of types of legal entity as opposed to groups of people) – SkyLeach Jan 16 '16 at 17:58
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    @SkyLeach Almost certainly not. Prosecutors can decline to prosecute for many reasons, including "the interests of justice would not be served." In fact, they have a duty to use their discretion to seek justice rather than seek convictions wherever possible. – cpast Jan 17 '16 at 8:23
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    @SkyLeach Your question is really too general -- you keep talking about "these circumstances," but it's unclear what exactly you mean. What law would you seek to have enforced? If you have a specific example in mind and we're guessing, it doesn't really work. – cpast Jan 17 '16 at 16:13
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    No. They have qualified immunity and no duty to prosecute. Just because you believe they have evidence doesn't meant that they have enough evidence to prosecute. If you had proof of bribery, you wouldn't bring suit; the government would under anti-racketeering laws. Section 1983 is reserved for when a gov't actor commits a criminal act under color of law, ie. they use their position to commit a crime against you personally. It is not enough to say you suffered a remote injury. – gracey209 Jan 17 '16 at 20:04
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Private prosecution of crimes has become increasingly uncommon under common law systems, which have increased deference to public prosecutors.

The U.S. Supreme Court eliminated private prosecution at the federal level in Leeke v. Timmerman, (1981), 452 U.S. 83. The closest exception found in case law appears to be an allowance for a federal court to appoint a private attorney to prosecute a criminal contempt action if the executive refuses to prosecute. (Young v. U.S. ex rel. Vuitton et Fils, (1987) 481 U.S. 787.)

At least some U.S. states allow "Private Challenges to Prosecutorial Inaction." These can take different forms:

Some states do allow a complainant to either file a request for an order to show cause or to actually prosecute as a private prosecutor.

For example, in Pennsylvania, private criminal complaints are forwarded to a public prosecutor. If the public attorney declines to prosecute then the complainant can request a judicial review of that decision. The standard of review almost always requires the petitioner to show that the failure to prosecute was "an abuse of prosecutorial discretion." And I can't find any such case in which the complainant prevailed, so it's not certain what the remedy would be in that event. (Our best guess is that the private complainant would be allowed to prosecute the case.)

Wisconsin provides a similar statutory mechanism for judicial review of prosecutorial inaction. This good Law Review article explains the Wisconsin law.

This 2004 Law Review article compares New Hampshire (which does have mechanisms for private prosecution) with Massachusetts (which does not).

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There is no legal duty on any state to pursue criminal prosecution. The legal duty extends only to giving consideration to doing so. If, after consideration, they decide not to, then no one can force them to. Case law on this is limited to the court ordering consideration when none was given.

  • I can't agree. There is legal duty provided by the 14th amendment. If a state only pursues prosecution of cases which are affordable, or which are easy (in terms of time and/or staff) then they are effectively neglecting their obligations under federal law. In addition it can be argued that in many cases failure to prosecute can be considered a violation of state law under state constitutions. – SkyLeach Jan 17 '16 at 12:57
  • Dale: AFAIK this isn't entirely accurate. Courts can not only order prosecutors to consider a case, but they can also find an "abuse of prosecutorial discretion" and then decide themselves whether the state has to prosecute a case, enforce a law, etc. – feetwet Jan 17 '16 at 13:31
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    @feetwet could you cite some case law on this subject? Plus prosecutors cannot ethically pursue a case that they don't believe beyond a reasonable doubt... – Viktor Jan 17 '16 at 19:36
  • @Viktor - Your question and observation really merit more research ... which I haven't had time to perform. "Abuse of discretion" usually takes other forms. But I suspect that, if nothing else, there must be examples of courts ruling that a prosecutor has abused his discretion for failing to enforce desegregation laws in the U.S. civil rights era. I wonder what the remedies are. Perhaps this merits its own question. – feetwet Feb 13 '16 at 18:13
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    @Viktor - The most recent reference I could find is from a 1988 Yale Law Journal article, "Private Challenges to Prosecutorial Inaction." It notes that (at the time) at least 9 states had statutory schemes that potentially enable private persons to challenge prosecutorial inaction. But apparently there was no case law indicating what redress should be expected. – feetwet Feb 15 '16 at 20:48

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