A three-judge panel for the U.S. Fifth Circuit Court of Appeals on Tuesday affirmed a lower court’s ruling that Orleans Parish prosecutors who allegedly violated crime victims’ and witnesses’ civil rights by using fake subpoenas to pressure witnesses to appear for private meetings are not immune from being sued.
Tuesday’s ruling will allow a federal civil rights suit over the use of the documents to move forward in federal district court.
“Today, the Fifth Circuit made it clear that the prosecutors in the New Orleans District Attorneys’ Office should be held accountable for using fake subpoenas to threaten and coerce our clients. This is a victory for each of those people whose lives they derailed, and now they can move forward with seeking legal relief for their suffering. We are proud to fight for and alongside them,” Katie Chamblee-Ryan, an attorney with the Civil Rights Corps who is representing the plaintiffs in the suit against the Orleans Parish District Attorney’s Office, said in a written statement.
The use of fake subpoenas by New Orleans prosecutors — which went on for decades under several district attorneys — was first reported by The Lens in April 2017. DA Leon Cannizzaro announced the end to the practice the same day The Lens’ first story was published. Later, two other DA’s offices found to be using similar documents — in Jefferson Parish and on the North Shore — also stopped.
In October 2017, the ACLU and the Civil Rights Corps filed a federal suit against the Orleans Parish DA’s Office on behalf of a number of crime victims and witnesses who received the so-called “DA subpoenas,” arguing that the use of the phony documents constituted a violation of their plaintiffs’ civil rights.
Cannizzaro’s office asked U.S. District Court Judge Jane Triche Milazzo to dismiss the suit, arguing prosecutorial immunity, but Milazzo last year allowed most of the counts in the suit to move forward. Cannizzaro appealed to the Fifth Circuit, and the two sides argued before the appeals panel in February.
Cannizzaro’s attorneys argued that the prosecutors enjoyed absolute immunity— a doctrine that shields prosecutors from civil rights suits for actions they took within the scope of their duties. It applies to prosecutors being sued individually for monetary damages.
Their argument hinged on how the subpoenas were being used. Absolute immunity applies if they were acting in their role as advocates for the state.
In February, Cannizzaro’s attorney Raley Alford argued that even if the documents were deceptive, legally invalid and improper, prosecutors were using them to bring critical, and often uncooperative, witnesses in to talk about ongoing criminal cases.
Alford said that the plaintiffs in the lawsuit received fake subpoenas only after defendants in the cases had been indicted or charged through a bill of information, so the attempts to interview them were part of trial preparation, which, he said, is a core part of their roles as advocates for the state.
But the Fifth Circuit judges rejected that argument.
“Although they may yet prevail on [the immunity] claim, we disagree with their argument at this stage of the case,” the opinion said.
The appeals court judges found that the documents were not part of prosecuting cases but instead used to investigate them.
“Defendants were not attempting to control witness testimony during a break in judicial proceedings,” the judges wrote. “Instead, they allegedly used fake subpoenas in an attempt to pressure crime victims and witnesses to meet with them privately at the Office and share information outside of court.”
The opinion noted that Louisiana law provides a mechanism for prosecutors to uses subpoenas compel witnesses to appear for private meetings, provided they are approved by a judge and issued by a court clerk. Orleans prosecutors did not seek a judge’s approval before sending out the fake subpoenas, the judges said, so using them fell outside the judicial process and outside prosecutors’ role as advocates in judicial proceedings.
The judges also dismissed Cannizzaro’s attorneys arguments in legal briefs that, outside of the immunity question, the case should be thrown out on the merits of the civil rights claims, saying they lacked jurisdiction to settle that question at this early stage in the case.
In a written statement, Ken Daley, a spokesman for Cannizzaro said the DA’s office expects to prevail in the case once it is able to dispute the plaintiffs’ central allegations before a judge.
“We will review the opinion and discuss options as this process moves forward. It is important to note that the court thus far has ruled only on the basis of the plaintiffs’ allegations,” Daley wrote. “We have yet to have our opportunity to challenge the factual basis of those claims. Once these allegations must be proven, we expect quite different results.”
This story has been updated to include a comment from the Orleans Parish DA’s office.