Is there any cases that decided this question? Can the DA be sued if they know or should know and maliciously prosecute regardless in such a case?

Primarily interested in the State of California.

2 Answers 2


To prevail in a lawsuit form money damages against a law enforcement officer who is entitled to qualified immunity one must show an intentional violation of a well established constitutional right that caused particularized harm to the person bringing the lawsuit by a particular law enforcement officer, and must show this by a preponderance of the evidence at trial.

To get to trial in the fact of a qualified immunity defense asserted by the law enforcement officer in a pre-trial motion for summary judgment, you must have evidence sufficient to survive a motion for summary judgment (i.e. evidence that would be admissible at trial in the form of statements made under oath by someone with personal knowledge of the facts asserted, or authenticating otherwise admissible documentary evidence). If the law enforcement officers losers the motion for summary judgment, the law enforcement officer can filed an interlocutory appeal before the case goes forward, to review that decision on the merits.

A well established constitutional right is one arising under the U.S. Constitution (rather than a state or federal statute or common law case or ethics rule, for example) that has been applied in a published opinion constituting a binding appellate court precedent in the place where the misconduct allegedly occurred that is sufficiently factually similar to leave no real doubt that it applies to this case.

There is a well established constitutional right for law enforcement to not knowingly use intentionally fabricated evidence to prosecute you in a criminal prosecution.

But choosing to believe one witness (who the plaintiff in the lawsuit may know is lying, but the police do not definitively know is lying) and not another witness (such as the plaintiff in the lawsuit), or making an inaccurate statement in an affidavit in a criminal case, is not itself sufficient to establish a violation of a constitutional right, without the requisite intent to take actions that violate a constitutional right (e.g. without knowledge that the evidence is false).

A district attorney is not a law enforcement officer in most circumstances, and is entitled to absolute immunity from civil liability when acting to carry out the court process in a criminal prosecution. In these circumstances, you can't sue the DA no matter how intentionally malicious the DA may be in the case.

But, when a district attorney is merely acting in an investigative capacity in a pre-prosecution phase of a criminal case, the district attorney is only entitled to qualified immunity.

You generally cannot bring a civil rights lawsuit for money damages against a district attorney for filing groundless criminal charges against you, although under some circumstances, the court, or attorney regulatory officials could sanction a district attorney for such conduct. Likewise, you cannot sue the DA for cooperating with law enforcement officers who have violated your civil rights in an actionable manner in connection with the court process to prosecute an alleged crime on a conspiracy theory.

Governmental employers are not vicariously liable under the principle of respondeat superior for constitutional right violations of their employees and agents. For the governmental entity to have liability it must be shown to have had a policy (formally adopted or de facto) that violated a constitutional right (and the doctrine of qualified immunity does not apply to this inquiry).

Your description of the nature of the alleged misconduct, which is that a police officer is

found to have abetted conspiracy or maliciously falsified a criminal report

is far too vague to determine whether or not a cause of action for violation of one's civil rights arises. It also isn't entirely clear if the question about the police officer in the title and the question about the DA in the body are separate questions, or if the question is assuming (usually incorrectly) that the DA is a law enforcement officer.

Like most things in American law, the inquiry is a fact rich and detail specific inquiry.

It could be that there are some state law legal theories for which the State of California has authorized lawsuits for money damages other than a 42 U.S.C. § 1983 action asserting a violation of the U.S. Constitution, under which you could bring claims in California under state law. None come to mind, but I'm not a California lawyer. Usually, intentional tort claims against governmental entities and governmental employees are barred by sovereign immunity.

  • 1
    thank you! I did not consider the DA a member of the law enforcement, but I did consider it a body that may actively engage in malicious prosecution. In the question case, in that it knows about the abetting of a conspiracy by the police and/or the malicious falsification of a police report, and it regardless proceeds in prosecution. I am finding that the Supreme Court of Canada set case law and since has been allowing for malicious prosecution suits against a DA, sad it's not the case in the U.S..
    – kisspuska
    Commented Aug 26, 2021 at 5:54

I do not find any cases that closely match the descriptions in the question, that police officers have

abetted [a] conspiracy or maliciously falsified a criminal report.

Under current law qualified immunity (QI) protects against suits under 42 U.S. Code § 1983 (Civil action for deprivation of rights) often known just as "Section 1982. It provides that:

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, ...

Note that "qualified immunity" is nowhere mentioned in this section. It is a purely court-made doctrine, and the courts have not defined it as thoroughly as one might wish. Also, it has been significantly changed over the course of its life.

A key aspect to qualified immunity is that it prevents suits against government officials unless they violate rights that are "clearly established". This has come to mean that unless there is previous case law with a very similar fact pattern, any suit for damages will be barred. Note that suits against police departments and governments, and suits for injunctions are not affected by QI. Nor are criminal prosecutions of officers or other officials. Nor are suits under state laws.

Originally defendants had to establish a reasonable, good faith belief that their conduct did not violate the plaintiff's rights, but that aspect was dropped in Harlow v. Fitzgerald, 457 U.S. 800 (1982). Since Harlow defendants need merely show that no right was violated, or that any right violated was not "clearly established", to be protected not just from liability, but from suit, including discovery.

The Cornell LII page on Qualified Imminity lists several significant cases:

  • In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court held that federal government officials are entitled to qualified immunity. The Court reasoned that "the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority." ...

  • In Malley v. Briggs, 457 U.S. 335 (1986), the Supreme Court examined immunity for police officers with regard to acting on the basis of a faulty warrant. The Court held that qualified immunity does not apply to a police officer when the officer wrongfully arrests someone on the basis of a warrant, if the officer who could not reasonably believe that there was probable cause for the warrant. Reasonability is determined by the action that an objectively reasonable officer would take.

  • In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court held that when an officer of the law (in this case, an FBI officer) conducts a search which violates the Fourth Amendment, that officer is entitled to qualified immunity if the officer proves that a reasonable officer could have believed that the search constitutionally complied with the Fourth Amendment. The relevant question that a court should ask is whether a reasonable officer could have believed the warrantless search to be lawful, considering clearly established law and the information which the officer possessed. The Supreme Court also held that "subjective beliefs about the search are irrelevant."

  • In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court held that a ruling on a qualified immunity defense must be made early in the trial court's proceeding, because qualified immunity is a defense to stand trial, not merely a defense from liability. When there is a summary judgment motion for qualified immunity, the court should rule on the motion, even if a material issue of fact remains on the underlying claim.

  • In Safford Unified School Dist. #1 v. Redding, 129 S.Ct. 2633 (2009), the Supreme Court held that even when an individual's Fourth Amendment right to be safe from unreasonable search and seizure is violated, the person performing the search may still be immune under qualified immunity, if "clearly established law does not show that the search violated the Fourth Amendment." However, this holding was in the context of a school official conducting a search of a student for illicit items.

A Washington Post story: "Five myths about qualified immunity" mentions several cases including saying;

For example, the Supreme Court threw out a case last year in which a man sought damages after an officer ordered a police dog to attack him, even though he had surrendered and was seated with his arms in the air. The plaintiff in the case, Baxter v. Bracey (2020), was unable to point to a prior case with similar facts.

Jay Schweikert in the blog post "Blatant Misrepresentations of Qualified Immunity by Law Enforcement" cites several cases including Mullenix v. Luna, 577 U.S. 7, 11 (2015) which make it clear that QI does not apply to criminal proceedings.

The post goes on to say:

[T]he doctrine [of QI] only does work in the space where a constitutional right has been violated, but a court determines this right was not "clearly established" (which generally requires a prior case with functionally identical facts). See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (describing the "two-step sequence" where a court must first decide whether the facts alleged "make out a violation of a constitutional right," and if so, then decide "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct").


in a Sixth Circuit decision called Latits v. Phillips, the court granted immunity to a police officer who ran a suspect off the road with his car, then ran up to the driver's window and shot him three times, killing him. The court first held that this officer did, in fact, violate Mr. Latits' Fourth Amendment rights, noting in particular that

although police procedures do not set the bounds of the Fourth Amendment, we consider it relevant that Officer Phillips repeatedly violated police procedures in both ramming Latits and running up to his car.

Nevertheless, the court still granted immunity to Phillips, because previous Sixth Circuit cases "did not involve many of the key[] facts in this case, such as car chases on open roads and collisions between the suspect and police cars." In other words, the fact that Phillips was violating department policy was irrelevant to the qualified immunity question; all that mattered is that the specific facts of this case were somewhat different from the facts of prior cases.

... For example, in Jessop v. City of Fresno, the Ninth Circuit granted immunity to police officers alleged to have stolen over $225,000 in cash and rare coins while executing a search warrant.

In "Overcoming Qualified Immunity in Civil Rights Claims" the Shouse California Law Group writes:

California law largely follows federal law for qualified immunity (discussed above). But arguably there is no qualified immunity for California police officers accused of false arrest or imprisonment.18 And unlike federal law, California law places the burden on police to justify a false arrest or imprisonment.19

When California law enforcement officers get sued for misconduct, they can ask their police department to defend them going forward. Whether the case settles or the police officer is found liable at trial, the police department is responsible for paying all compensatory damages to the plaintiff. This includes expenses for medical bills, lost wages, pain and suffering, and other out-of-pocket expenses. How Qualified Immunity Fails by JOANNA C . SCHWARTZ from the Yale Law Journal is a 75-page l;aw review article on the current state of QI and proposals for change. It presents results of a study of over 1,000 cases, showing that claims of QI resulted in dismissal of only 3.9% of the cases where it could hav been raised.


I cannot provide specific cases that address the issues describes in the question. But based on cses where QI has been applied, it might apply in such cases, depending on the specific details, and previous cases found by plaintiffs. However, state-level suits, particularly in California, follow different rules where QI may not apply.

  • Harlow v. Fitzgerald has joined Wickard and Kelo in the list of worst SCOTUS decisions that are still in effect.
    – EvilSnack
    Commented Sep 26, 2023 at 16:11

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