Court Says Lawsuit Over Fake Subpoenas Issued By Louisiana DA's Office Can Proceed

from the fake-it-til-you-break-it dept

There's a very slim chance some New Orleans prosecutors might have to pay for their threats and lies. But a slim chance is better than none. The Orleans Parish DA's office was caught using fake subpoenas to coerce cooperation from witnesses and victims of crimes -- a practice it had engaged in for decades before being hit with multiple complaints and lawsuits.

Prosecutors sent out bogus subpoenas -- all bearing the threats of fines and imprisonment -- to hundreds of witnesses over the past several years. None of these were approved by courts overseeing ongoing prosecutions. None of the subpoenas were issued by the Clerk of Courts. The DA's office was simply cranking out fake subpoenas and hoping recipients would be too intimidated by the threat of jail time to question the veracity of the documents.

Lawsuits followed the public exposure of this underhanded tactic. One of the lawsuits, filed by a number of crime victims who'd been served the bogus subpoenas, has received the green light to proceed from a federal court in Louisiana. (h/t CJ Ciaramella)

Unfortunately, there's a ton of hurdles that need to be overcome by the plaintiffs. If you think qualified immunity shields too much official wrongdoing, just wait until you run up against absolute immunity, which tends to protect those operating above law enforcement's pay grade: prosecutors and judges.

Fortunately for the plaintiffs, the crap the DA's office pulled with its fake subpoenas is shady enough to strip away some of this protective layer. As the court notes in its opinion [PDF], the DA's office has never had the power to issue its own subpoenas. That it has been doing exactly this is a serious problem.

Allegations that the Individual Defendants purported to subpoena witnesses without court approval, therefore, describe more than a mere procedural error or expansion of authority. Rather, they describe the usurpation of the power of another branch of government.

"Ends justifies the means" is rarely a successful defense. But that's what the DA's office has offered. The judge rejects it:

Furthermore, that the alleged activity by the Individual Defendants took place as a means to a prosecutorial end is not dispositive of the issue. Under that logic, virtually all activity engaged in by a prosecutor would be absolutely immune from civil liability.

And with that, one layer of immunity disappears.

This Court finds that granting the Individual Defendants absolute immunity for allegations of systematic fraud that bypassed a court meant to check powerful prosecutors would not protect the proper functioning of a district attorney’s office. It would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.

Unfortunately, the prosecutors are covered by absolute immunity for threatening witnesses with arrest to ensure they gave testimony or attended hearings. As screwed up as this sounds, victims of crimes can be thrown in jail to make sure prosecutors can speak to them. Totally legal. All just part of our judicial sympathy for zealous prosecutions. Threatening someone with jail time in person is perfectly fine. It's only the use of fake paperwork -- and bypassing the court system -- that's not protected.

Although the distinction is an admittedly fine one, threatening to imprison a witness to compel cooperation in a criminal prosecution while possessing the lawful means to follow through on that threat is not the same as manufacturing documents in violation of the lawful process for obtaining court-approved subpoenas for witnesses. Threatening witnesses—particularly verbally—with imprisonment to further witness cooperation in an active criminal prosecution seems to this Court to fall into the category of “pursuing a criminal prosecution” as an “advocate for the state.” Holding that such conduct fell outside the protections of absolute immunity would, in fact, potentially subject prosecutors to civil liability for exercising authority they lawfully possess under the law of Louisiana and many other states.

Just as unfortunately, the same behavior the court found couldn't be protected by absolute immunity can be shielded by qualified immunity, at least as far as the plaintiffs' violation of due process claims.

Plaintiffs’ allegations that prosecutors manufactured “subpoenas,” deliberately side-stepping judicial oversight of the subpoena process, appears to this Court to represent a breed of official misconduct. Claims that the practice was not only condoned but directed by top prosecutors and the DA himself only make the allegations more disturbing. This Court believes that Plaintiffs’ claims sufficiently shock the conscience such that they allege a constitutional violation.

Nevertheless, the Individual Defendants are entitled to qualified immunity on these claims. Plaintiffs fail to cite to any case law suggesting that the Defendants’ violated a clearly established right of Plaintiffs.

The court clearly thinks the manufacture of subpoenas is reprehensible, but can't find precedent to make it stick. And since it can't craft a bright line itself, prosecutors can continue to abuse subpoenas until a higher court decides enough abuse is enough.

A few more claims survive the layers of protective immunity. Four plaintiffs are able to show at this point that the DA's office also fudged the truth on "material witness" warrant affidavits. A few plaintiffs can also move ahead with First Amendment claims -- allegations that the combination of fake subpoenas and actual material witness arrest warrants resulted in compelled speech: testimony extracted by prosecutors using these tools as leverage. Those claims will move forward along with the narrowed allegations of abuse of process the court said can't be shielded by absolute immunity.

It's a very limited win for some of the plaintiffs. And it's not even a real victory yet. This opinion allows certain claims to move forward and removes a little immunity. It gives the plaintiffs a small chance to hold some of the Orleans Parish DA's Office personally responsible for abusing the court system and the public's trust for decades.

Filed Under: fake subpoenas, louisiana, new orleans, orleans parish da, prosecutors


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  • icon
    That One Guy (profile), 8 Mar 2019 @ 6:57pm

    So stupid you fail an IQ test? Law enforcement's for you!

    Nevertheless, the Individual Defendants are entitled to qualified immunity on these claims. Plaintiffs fail to cite to any case law suggesting that the Defendants’ violated a clearly established right of Plaintiffs.

    Because apparently 'not being threatened with fraudulent legal threats' isn't clearly established as a right yet when the one doing the threatening is part of the legal system...

    It takes an incredibly broken and corrupt system that 'it wasn't explicitly spelled out that forging legal documents is a problem when you're part of the legal system' is enough to grant someone a pass and protect them from any repercussions for doing exactly that, one that apparently acts as though there is no-one dumber than those in the legal system such that they need to have every single thing pointed out to them specifically before they can expect to have even the slightest idea what is and is not acceptable behavior.

    So long as courts and judges like this continue to be gutless cowards and refuse to actually hand out some gorram punishments victims will continue to be out of luck, since there will never be the very caselaw they demand to justify a punishment, such that they've ensured that the same problem they claim to object to can continue again, and again, and again.

    Qualified immunity is a legal abomination that should never have been allowed, and this just serves as yet another example of why.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2019 @ 2:02pm

      Re: So stupid you fail an IQ test? Law enforcement's for you!

      But doesn't qualified immunity only apply when the individual is acting within what they have a reasonable assumption to be the bounds of the law?

      For instance, theres no qualified immunity for the cops who planted drugs, because they know that's illegal.

      The DA's office knows that sending these subpoenas out without court approval was illegal, as they have never had the right to send them out.

      So qualified immunity would not apply to that specific action, if I understand how the law SHOULD work correctly.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 9 Mar 2019 @ 8:10pm

        Re: Re: So stupid you fail an IQ test? Law enforcement's for you

        On paper vs In practice.

        On paper it would make sense that if they do something that they should reasonably be expected to know wasn't within the scope of their job/the law that should be enough to strip them of qualified immunity.

        In practice however courts often seem to interpret the abomination that is 'qualified immunity' such that unless there was a ruling specifically on a given action that's enough to given the guilty party a pass, under what seems to be the idea(as I noted above) that there is no one dumber than those in the legal/law enforcement fields, and if they don't have precise instructions even in subjects that are blindingly obvious to those outside the field, then it would be unreasonable for them to understand anything.

        Because seriously, how monumentally stupid would you have to be to not get that forging legal documents is a bad thing, made all the worse when you're a member of the legal system? And yet this court is willing to give that a pass because those responsible apparently had no ability to understand what would be wrong with that without a previous legal ruling making it explicit.

        reply to this | link to this | view in chronology ]

  • identicon
    Zem, 8 Mar 2019 @ 7:45pm

    Where are the copyright maximalists when you need them. Here we have an office producing counterfeit subpoenas, robbing legitimate DA creatives from making an honest living.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 9 Mar 2019 @ 5:18am

      Big mischaracterization

      Legal subpoenas are not copyrightable since they don't contain creative content but just an enumeration of facts and legal consequences. In addition, legitimate DA officials don't compete in the space of issuing subpoenas since that is the courts' prerequisite.

      In contrast to legitimate subpoenas, however, the writings we are talking about here are fictional inventions. As such, they are likely due to copyright protection.

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 9 Mar 2019 @ 10:44am

        Re: Big mischaracterization

        Other then the fact that by claiming copyright protection they are also admitting that the subpoenas are not authorized.

        Can't have it both ways :P

        reply to this | link to this | view in chronology ]

        • identicon
          unrepresented taxpayer, 9 Mar 2019 @ 4:32pm

          Re: Re: Big mischaracterization

          reply to this | link to this | view in chronology ]

        • identicon
          unrepresented taxpayer, 9 Mar 2019 @ 4:34pm

          Re: Re: Big mischaracterization

          darned keyboard...

          I mean to say, if it's fiction, it most certainly IS copyrightable.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 11 Mar 2019 @ 5:31am

            Re: Re: Re: Big mischaracterization

            The funny thing is from phonebook and map precedents for copyright traps possibly endangering people for profit has already been ruled not creative in itself. But that might be so complete a fabrication it is more like say - a Narnian Atlas.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Mar 2019 @ 7:09pm

        Re: Big mischaracterization

        Georgia tried to copyright their laws, so the old notion that laws and legal process don't fall under copyright protection is... well, pretty eroded at this point.

        We've fallen that far off the fucking deep end.

        reply to this | link to this | view in chronology ]

        • identicon
          Drunk Uncle Sam, 11 Mar 2019 @ 6:59am

          Re: Re: Big mischaracterization

          When one needs to pay in order to determine legality, then it follows that the poor and destitute can not be held in violation of same even though there is that old myth that ignorance of the law is no excuse.

          reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 Mar 2019 @ 8:17pm

    Perhaps they really need to decide that the system needs to be cleaned up, that allowing these things to go unpunished have destroyed their reputation worse than anything they imagined would happen from a few bad apples.

    If they can't stop corrupting & law breaking in their own ranks why do we let them have power over others?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 8 Mar 2019 @ 9:10pm

      'If you won't purge the bad then you ALL get lumped with them'

      So unwilling to punish their own or hold them to any sort of standard lest they have to admit that their number can contain the corrupt and/or incompetent they instead make clear that corruption and gross incompetence are perfectly acceptable traits for those in the field to have, tainting the very image they tried so futilely to 'protect' worse than any number of corrupt but punished ever could have.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 9 Mar 2019 @ 7:25pm

        Re: 'If you won't purge the bad then you ALL get lumped with the

        I dare you to say that to a judge. Hurting his feelings like that, despite it being both factually true and freedom of speech and expression will result in your imprisonment without trial, possibly for the rest of your life unless you apologize and recant.

        And then the judge will wonder why people consider him corrupt to the point that he's just another Mafia don.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 10 Mar 2019 @ 7:32am

          Re: Re: 'If you won't purge the bad then you ALL get lumped with

          Upon entering a court of law, one does not retain all their rights.

          reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 11 Mar 2019 @ 11:46am

      Re:

      Even if he couldn't find much of a law to help the plaintiffs, the judge could easily have punished the individual attorneys involved in counterfeiting the subpoenas if he'd wanted to.

      It's a fraud on the court-- simple as that-- which is a disbar-able offense. No issues of absolute or qualified immunity there. Refer them all to the state bar and unless the state bar can come up with some reason why counterfeiting subpoenas is okay when the law clearly says it isn't, all those lawyers lose their jobs, those law licenses they spent so much time and money obtaining becomes worthless, and they have to start from scratch with the whole career thing.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 11 Mar 2019 @ 12:32pm

        Re: Re:

        Even if he couldn't find much of a law to help the plaintiffs, the judge could easily have punished the individual attorneys involved in counterfeiting the subpoenas if he'd wanted to.

        And therein lies the kicker, 'if'.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 8 Mar 2019 @ 11:30pm

    There are a lot of threats coming from a lot of places. I want to share my story coming from the perspective of a 25 year old millennial.

    My generation has an incredible disdain for the government and the systems in place that govern society. When I was in high school, we hated America. We hated our public school system, our teachers, the failed concept of marriage and what it means to be a family... and we mentally checked out from all of it and decided it wasn't who we were. We remember 9/11, we remember the influx of fear and airport security and a growing prejudice against Muslims and Hispanics from the daily news and the way our parents spoke about it all. Take that, and the growing fear from the destruction of our ecosystem, and we found solace in rebellion and opted out for finger painting with our hippie friends while listening to Rage Against the Machine. We prayed for a zombie apocalypse so that we wouldn't have to endure living in this world for the rest of our lives.

    So then Obama came, and he was our political rock star. His campaign was all about HOPE, and he made us feel like something different than whatever the hell this is was actually feasible. Did he deliver? No, and looking back, I think his inability to achieve very much was symbolic of a hard lesson that needs to be learned. But I will always be fond of him and grateful for the symbolic hope we were given.

    Now we have Donald Trump, and we all lost our minds. We went from one extreme to the other, and now we were faced with this egotistical blubbering buffoon on television that makes you cringe. He doesn't present himself well, and we as well as everyone else ran with that out of fear of the safety of humanity and the power of love. Ever since the presidential campaign began, our entire nation has been spoon fed fear, hate, disgust, and a complete intolerance without consideration. To consider what Trump has to offer this country became an unspeakable act of ignorance and racism, and I believed this as deeply as the next Liberal millennial.

    Then North Korea and the child separations at the border happened, and I quickly identified the blatant ignorance and lack of education behind our hateful intolerance of the ''evils'' of the world. Once this clicked for me, I spent hours of research and was brave enough to admit what I never thought possible: Trump is probably the best president we have ever had, we have all been brainwashed, and my ''political tribe'' holds hatred to a higher regard than critical thinking and problem solving. Since this change in my worldview, I have experienced what other Trump supporters have had to endure. My friends and family were appalled and refused to consider all of the details, my mother even burst into tears when we discussed the children at the border and it shattered my heart to see her so distraught with a poor understanding of the complexities of things. Since then, I have learned to not tell anyone my political views. Not out of fear, but because I just don't have the mental energy to waste on people that want to be angry, reject solutions, and deny their own right to think for their selves.

    I'm a college student now and have ditched the angry hippie crowd from my past. I'm majoring in psychology with a minor and sociology because I intend to help lift the barrier between the hopeless and the hopeful, to teach other misfits like myself that curiosity and education will set you on a path towards everything that you think you aren't good enough to be a part of. And I am delighted to be doing this in a time when we have a president that will lay the foundations for a society that can make my dreams and others realistically obtainable. Obama gave me hope, but Trump gives me the reassurance that my personal endeavors will not be in vain as the resources will be provided to the ones that seek to repair this mess;

    ''You'll find the light in the strangest of places if you look at it right''

    • The Grateful Dead.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Amrinder (profile), 9 Mar 2019 @ 3:32am

    Nice post.

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 9 Mar 2019 @ 4:08am

    Other avenues...

    This seems like a good candidate for an ethics complaint to the Louisiana bar. Or is that process just as full of loopholes as the civil liability?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2019 @ 5:32am

      Re: Other avenues...

      In most states that would be complaining to the people responsible for committing the offense that what they did is not ethical; ie. the perpetrators and the regulators are one and the same.

      In fact in many states one does not pay taxes to the state but to the tax collector who then pays them to the state. This may sound like the same thing thing but it is not. I will give you an example. The tax payer pays taxes to Billy Bob, the tax collector. Billy Bob takes the money and leaves town. Was any money stolen. Legally no. The money Billy Bob left town with was legally HIS money. All Billy Bob did was not pay the state/county/city their cut of what he collected. That is not he did not theft because the money was never the state/county/city's money.

      That was a good system in the 19th century and before; today it is a horrible system. Change it. Impossible too enshrined in law.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 9 Mar 2019 @ 9:53am

      You'd like to think so...

      ... But as evidenced by the likes of Prenda, the state bars could be replaced with literal cardboard cutouts of people in suits with 'lawyer' written on them and be just as effective, and interested in, holding those with legal licenses accountable for their actions.

      And they were just regular scum with legal licenses, there's no chance in hell that the state bar would go after a prosecutor or DA, no matter what they did.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2019 @ 5:53am

    What would happen to an ordinary person attempting the same thing? These goons should face the same, there is no reason for immunity when you run around yelling Law 'N Order.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2019 @ 7:11am

      Re:

      The state of Louisiana is like no other state in America. The state-backed positions are literally stacked against everyone they see in court. The only solution is revolution and replacement with normal agreed upon laws. Boss Hog wished he had the law on his side like it would have been in LA. If the corrupt prosecutors think they are immune to the laws of physics, they have another thing coming.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Mar 2019 @ 12:51pm

        Re: Louisiana Corrupt

        Louisiana state & local governments have been notoriously corrupt since the Civil War.

        This counterfeit subpoena stuff is very trivial ... given Louisiana history.

        Avoid Louisiana.

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 9 Mar 2019 @ 1:46pm

        Re: Re:

        If the corrupt prosecutors think they are immune to the laws of physics, they have another thing coming.

        ...another think coming.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2019 @ 9:26am

    Reminds me of the movie training day? Wasn't there a scene where a fake warrant was presented.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2019 @ 11:11am

    Qualified immunity does not apply, qualified immunity is for the purpose of them performing duties they think are legal and not having to face prosecution for that. This is why there needs to be establoshed precedence for stuff, even if its stupid.

    However in this case there is no question, they did not ans never had the right to engage in what they were doing. This was blatantly illegal sidestepping of the judicial process and they were aware they were doing it. None of their claims say we thought this was allowed, all their reasons amount to them feeling they dont have to go to he courts for these suvpoenas.

    Allowing qualified immunity to stand in this case is a travesty and even in the ectremely permissive rules it should not stand in this case.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 10 Mar 2019 @ 10:20am

    Nothing civil about it

    I could care less about this civil lawsuit nonsense. What I want to know is where are the prosecutions for falsifying court documents? Where are the disbarments?

    But, of course, neither of those things will ever happen because the party offending is the same as the party prosecuting and the party disbarring. And so, oh well, boys will be boys and more of the same next week or next month.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2019 @ 5:52am

      Re: Nothing civil about it

      Actually disbarment is done by the Bar Association, which is not a government entity.

      reply to this | link to this | view in chronology ]

      • icon
        Coyne Tibbets (profile), 16 Mar 2019 @ 9:52am

        Re: Re: Nothing civil about it

        And who is the Bar Association? Lawyers. And the prosecution? Lawyers.

        Nobody is getting disbarred for doing this because the lawyers are as bad about policing their own as the cops and the doctors.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2019 @ 5:54am

    It's New Orleans, what do you expect?

    We're talking about a place that's built below sea level in a coastal region, and people dumb enough to not only live there but, when the inevitable finally happened, to rebuild and try to stay there even in a time of global warming when the seas are slowly but surely rising and the problem is getting worse. Do you really expect sensible behavior out of people living there?

    reply to this | link to this | view in chronology ]

    • identicon
      Annonymouse, 11 Mar 2019 @ 7:01am

      Re: It's New Orleans, what do you expect?

      Looks at Holland.
      It was is and can be done.
      Nah lets just do it as before and besides who likes windmills and houseboats anyways?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2019 @ 8:55pm

    "Nevertheless, the Individual Defendants are entitled to qualified immunity on these claims. Plaintiffs fail to cite to any case law suggesting that the Defendants’ violated a clearly established right of Plaintiffs."

    This sounds like such a weak argument, the appeal to precedent - a particular feature of common law, especially considering Louisiana is the only Civil Law state in the union.

    reply to this | link to this | view in chronology ]


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