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Did a Clark County prosecutor overstep his bounds? Maybe, says the Court of Appeals

The Washington Court of Appeals this month cleared the way for the Clark County Prosecuting Attorney’s Office to be sued for false arrest and false imprisonment.

The ruling reversed Clark County Superior Court Judge David Gregerson, who last year tossed a family’s lawsuit against Clark County Prosecutor Tony Golik on the grounds that the prosecutor’s office had absolute immunity from liability stemming from a 2014 arrest of a mother for attempted murder. (The criminal charge was subsequently dismissed, and the family, represented by attorney Roger Bennett, sued the county.)

The Court of Appeals based its reversal on a “dispute of material fact as to whether the prosecutor’s office was acting within the scope of its normal prosecutorial function,” according to the Jan. 17 decision.

In its summary of the case, the appellate court wrote that the woman suffered her first acute psychotic episode in November 2010. She tried to suffocate her daughter while she was delusional and hallucinating. Fortunately, the father intervened and the child was unharmed. The woman then wandered to her neighbor’s house, naked, in the snow, and was found by deputies from the Clark County Sheriff’s Office. Deputies didn’t arrest her; she was involuntarily hospitalized. The case was referred to Child Protective Services, which filed a dependency case. The woman lost custody of her children for nearly two years while she underwent mental health treatment. In April 2012, the dependency case was dismissed and she was reunited with her children.

The Clark County Prosecutor’s Office, the appellate court wrote, was aware that the woman had underwent treatment and had been reunited with her children. Still, in 2013, a deputy prosecuting attorney assigned to the Children’s Justice Center reviewed the cold case and told detectives he was ready to charge the woman with attempted first-degree murder.

Months passed. Eventually the prosecutor told a Vancouver police sergeant to arrest the mother.

She was charged with attempted murder in April 2014 and the case was dismissed by a judge less than two months later because the statute of limitation for filing the felony charge had expired.

While a prosecutor “acting within the scope of his or her duties in initiating and pursuing a criminal prosecution is absolutely immune from liability,” the court wrote, a prosecutor “is not immune for actions taken outside of the judicial phase of the criminal process.”

In this case, the prosecutor, Scott Jackson, currently second in command of the county’s prosecutor’s office, performed an action “normally performed by a detective or a police officer.”

“For example, providing legal advice to the police falls outside of absolute immunity’s scope. Similarly, ordering arrests or advising those making arrests are not prosecutorial functions.”

Emails between Jackson’s office and the police demonstrate that Jackson’s office directed the officers with how to proceed with the arrest, the ruling said.

“Advising law enforcement about how (the woman) was to be apprehended was not a prosecutorial function for which Jackson is entitled to absolute immunity,” wrote Judge David Mann. Judges Marlin Appelwick and Mary Kay Becker concurred.

Tags: criminal law

Jeffrey D. Barrar, P.S.: Vancouver Defenders Jeffrey D. Barrar, P.S.
Vancouver Defenders