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To: 1L
Federal is usually the best bet as they are more familiar with the issues involved.

Obviously not your practice area. Re-read 42 U.S.C. 1983
http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001983----000-.html

And then take another look at Imbler v. Pachtman, 424 U.S. 409, (1976)

"The common-law rule of immunity is thus well settled. 21 We now must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under 1983. We think they do. If a prosecutor had only a qualified immunity, the threat of 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages...We agree with the Court of Appeals that respondent's activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force."

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=424&invol=409

112 posted on 10/03/2005 8:59:01 PM PDT by PAR35
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To: PAR35

Actually, it is one of my areas of practice as I have a similar case right now. You need to read the following case:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/000/96%2D792.html

"Section 1983 may create a damages remedy against a prosecutor for making false statements of fact in an affidavit supporting an application for an arrest warrant, since such conduct is not protected by the doctrine of absolute prosecutorial immunity."

If I practiced litigation accepting as gospel without argument one case, especially one that isn't really on point, to determine how to proceed, I wouldn't be a very good lawyer. There are ALWAYS exceptions and ways around a holding.


128 posted on 10/04/2005 9:17:18 AM PDT by 1L
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