Sixth Circuit: Absolute Immunity Denied to Prosecutors Who Directed an Investigation and Offered Legal Advice to Officers on the Existence of Probable Cause
From February 2017 through February 2018, the Rutherford County, TN Sheriff’s Office investigated the sale of cannabidiol, commonly known as CBD, products by stores in Rutherford County. During the investigation, a law enforcement officer purchased CBD products from a store, and submitted them to the Tennessee Bureau of Investigation (“TBI”) for lab testing. In May 2017, a lab report indicated that the product contained CBD, a Schedule VI substance.
After receiving the lab report, officers met with Assistant District Attorney (“ADA”) John Zimmerman to seek advice and “prosecutorial direction,” since CBD was not listed as a Schedule VI substance under Tennessee statutes. ADA Zimmerman assured the officers CBD was an illegal Schedule VI substance and needed to be prosecuted. He also instructed the officers to make more purchases of CBD products from other stores. An officer also spoke with District Attorney Jennings Jones, who stated to the officer that the CBD products were illegal.
On January 11, 2018, a meeting was held regarding the testing results. The meeting including TBI employees, ADA Zimmerman, another ADA, and a law enforcement officer. Therein, TBI employees stated that CBD was a Schedule VI substance, but could not determine the legality of the products because TBI lacked the necessary equipment to test the percentage of THC in the CBD products. A TBI attorney present also stated that determining the legality of a substance is case-specific. ADA Zimmerman then turned to the Rutherford County officer present, and stated that the products were illegal and they would go forward with the investigation. That same officer then met with Major William Sharp, and announced that he was uncomfortable testifying about the products’ legality. Major Sharp then postponed the investigation.
On February 2, 2018, a meeting between Major Sharp, Rutherford County officers, DA Jones, ADA Zimmerman, and another ADA was held. As a result of the meeting, on February 12, 2018, officers executed a raid on stores selling CBD products and arrested the owners of these stores. The officers charged the store owners with violating the Tennessee Drug Control Act. A judge then granted temporary injunctions and issued orders to padlock the stores based on a petition filed by ADA Zimmerman and DA Jones that stated the store owner sold edible products laced with marijuana extracts.
The next day, an attorney representing the manufacturers of the CBD products called ADA Zimmerman and explained that the products were legal under Tennessee and federal law. All of the charges against the store owners were dismissed and expunged. DA Jones also issued a press conference and blamed TBI, stating their lab reports were the foundation of all indictments and nuisance actions.
Thereafter, the store owners filed a complaint asserting claims under 42 U.S.C. 7 1983 and § 1985, alleging violations of their Fourth and Fourteenth Amendment rights. Specifically, they alleged that ADA Zimmerman, DA Jones, and Rutherford County Sherriff Mike Fitzhugh violated their constitutional rights to be free from false arrest, unlawful seizure, unlawful prosecution, and their right to equal protection. The store owners also alleged that the defendants conspired to violate their rights. The defendants moved to dismiss the store owners’ claims, claiming absolute and qualified immunity. The district court denied the officers’ motions. The defendants then appealed to the U.S. Court of Appeals for the Sixth Circuit.
The court of appeals first considered whether ADA Zimmerman and DA Jones were entitled to absolute immunity. The court stated that a prosecutor is entitled to absolute immunity when he “acts as an advocate for the State” and his activity is “intimately associated with the judicial phase of the criminal process.” The court clarified though that absolute immunity does not extend to a prosecutor’s administrative and investigative conduct that does not relate to his preparation for the initiation of a prosecution or for judicial proceedings, and does not protect “the investigative functions normally performed by a detective or police officer.”
Here, the court found that ADA Zimmerman and DA Jones were not entitled to absolute immunity. The court noted that ADA Zimmerman, and to a lesser extent DA Jones, helped direct the investigation. In this regard, the court of appeals stated that ADA Zimmerman directed officers to make CBD purchases and submit them for testing, searching for clue that might give him probable cause to recommend the store owners be arrested.
The court also mentioned that ADA Zimmerman and DA Jones advised the officers on the legality of the CBD products. The court of appeals stated that advising law enforcement regarding the existence of probable cause is not protected by absolute immunity. Because the purported illegality of the CBD products was the only basis for probable cause, the court found that ADA Zimmerman’s and DA Jones’s advice to the officers was not protected. Thus, the court of appeals affirmed the district court’s denial of absolute immunity for the prosecutors’ conduct directing the investigation, advising the officers, and pushing the officers to execute the arrests and raids.
The court of appeals next weighed whether ADA Zimmerman and DA Jones were entitled to qualified immunity, which protects government officials from civil suits for damages so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The court held that the facts, when considered in the light most favorable to the plaintiff, supported the inference that ADA Zimmerman and DA Jones erroneously advised the officers that the store owners were selling illegal CBD products, even though the prosecutors knew or should have known they had no evidence of illegality. Indeed, after TBI clarified it could not determine whether the products were illegal, ADA Zimmerman continued to direct the investigation.
The court then held that the prosecutors’ actions were objectively unreasonable because their probable cause determinations rested on inconclusive results in the TBI reports. The court noted that ADA Zimmerman and DA Jones were informed that TBI could not determine the illegality of the products, and relevant Tennessee statutes did not criminalize CBD products. The court stated “[i]t is unreasonable to submit an innocuous product to a lab test that is incapable of determining its legality, then rely on that inconclusive evidence to say that the substance was probably illegal.”
As such, the court affirmed the district court’s denial of absolute and qualified immunity to ADA Zimmerman and DA Jones. The court also affirmed the district court’s denial of quasi-judicial and qualified immunity to Sheriff Fitzhugh for his alleged Fourth Amendment violations, and reversed the district court’s denial of qualified immunity to Sheriff Fitzhugh on the store owners’ equal protection claim.
Read the full case: Rieves v. Town of Smyrna
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.