The Fifth Circuit has ruled in a published opinion that a group of Louisiana prosecutors who attempted to use fake subpoenas to pressure witnesses and crime victims to answer questions are not entitled to the usual immunity that comes with the office when pursuing a criminal case.

The three-judge panel held on Tuesday that although prosecutors are entitled to absolute immunity while in the "judicial phase" of a criminal case — meaning while pursuing charges — the prosecutors in this case were using the bogus subpoenas to investigate crimes and were also subverting the judicial process, not participating in it.

"Defendants' use of the fake subpoenas in an attempt to obtain information from crime victims and witnesses outside the judicial context falls into the category of investigative conduct for which prosecutors are not immune," U.S. Circuit Judge Catharina Haynes wrote in the opinion for the court. "In using the fake subpoenas, [the prosecutors] also allegedly intentionally avoided the judicial process that Louisiana law requires for obtaining subpoenas."

The case was filed in 2017 by half a dozen Louisiana residents who had received fake subpoenas and by the victims services and public advocacy group Silence is Violence in New Orleans. The suit alleged that the district attorney for Orleans Parish and 10 of his prosecutors had a practice of using unconstitutional methods to coerce victims and witnesses, including lying to obtain material witness warrants and manufacturing fake subpoenas.

In the case of Renata Singleton, a victim of domestic violence, after she chose not to speak with investigators, prosecutors allegedly sent two fake subpoenas supposedly to make her think that she was required by law to meet with prosecutors at their office. When she did not attend, prosecutors sought a material witness warrant, allegedly using misleading information, and jailed Singleton on a $100,000 bond, according to the complaint.

Two other plaintiffs in the lawsuit were witnesses to two different murders in New Orleans, and both received fake subpoenas from the district attorney's office threatening them with jail time if they did not come to a meeting with prosecutors. Both women hired private attorneys to fight the fake subpoenas.

The other parties include a victim of molestation and child pornography and the mother of a murder victim. The complaint added that Silence is Violence has reportedly been forced to shift its focus from public advocacy for victims of crime to instead "protecting crime victims from the coercive tactics of the District Attorney's Office."

In analyzing the question of immunity for prosecutors in the context of the fake subpoena claims, the federal judge overseeing the case ruled that prosecutors were not entitled to absolute immunity in the present case. On appeal, the Fifth Circuit upheld that ruling on Tuesday, although it added it was possible prosecutors would be able to uncover more facts later that would support granting immunity.

Katherine Chamblee-Ryan, an attorney for the victims and witnesses, said the decision would make it easier for her clients to hold prosecutors accountable for their alleged misconduct. Although the plaintiffs are also pursuing claims against the office itself, this will allow them to continue with allegations against individual prosecutors as well, she said.

It will also be good for victims' rights more broadly, she added.

"Victims and witnesses really are in a legal black hole," she said. They don't have a right to counsel or other protections that might shield them from overzealous prosecutors, she explained.

Moreover, the new ruling helped highlight the limits of immunity for prosecutors, which are not well understood, she said.

"It shouldn't be new information, but people read absolute immunity so broadly," she said, addigng that those assumptions can have a chilling effect on suits ever being filed.

In the decision, the Fifth Circuit noted that absolute immunity is a protection extended to judges and grand jurors to protect their ability to make decisions free from concern for liability. Prosecutors have the same protection when pursuing criminal charges, but this protection is meant to protect the position and the ability of prosecutors to function, not necessarily to protect individual prosecutors, the Fifth Circuit wrote.

Moreover, the U.S. Supreme Court has held that when prosecutors are acting as investigators, they are not entitled to absolute immunity but to a lesser form of immunity given to police officers, the decision noted.

In this case, the judges held, prosecutors were acting as investigators trying to gather information from victims as witnesses. Moreover, they were also not participating in the judicial process as required, and it was unlikely that allowing the suit would deter other prosecutors from filing charges against future defendants, which is the goal of the absolute immunity doctrine, the decision held.

The decision also noted that by circumventing the judicial process, prosecutors also circumvented the usual safeguards — such as needing a judge's signoff for a subpoena — and that a private lawsuit was therefore potentially necessary to curb this type of misconduct.

"This case is likely plaintiffs' only means of legally redressing the harms they suffered as a result of individual defendants' alleged conduct," the decision said.

Counsel for the prosecutors noted that the case was still in its early stages when the courts act as though all allegations are true for the purpose of deciding questions such as immunity. 

"The defendants dispute many of the plaintiffs' allegations and believe that the facts developed in litigation will ultimately support their immunity defense and reveal the plaintiffs' claims to be without merit," attorney W. Raley Alford told Law360 in a statement. 

The witnesses and victims are represented by Bruce W. Hamilton, Anna Marie Arceneaux, Mariana Louise Kovel and Somil Bharat Trivedi of the ACLU; Alec George Karakatsanis, Katherine Ashworth Chamblee-Ryan, Olevia Boykin, Ryan Downer and Tara Mikkilineni of Civil Rights Corps; and Michael Steven Blume of Venable LLP.

The prosecutors are represented by Richard C. Stanley, Matthew J. Paul, Patrick M. Bollman and W. Raley Alford III of Stanley Reuter Ross Thornton & Alford LLC; Thomas Jeffrey Barbera of Barbera Law Firm; and Robert L. Freeman Jr. of the Orleans Parish District Attorney's Office.

The case is Renata Singleton et al. v. Leon Cannizzaro Jr. et al., case number 19-30197, in the U.S. Court of Appeals for the Fifth Circuit.

--Editing by Peter Rozovsky.

Update: The story has been updated with comment from counsel for the prosecutors.