N.D.Ga.: Prosecutor immune for false presentation of evidence in SW affidavit

A prosecutor’s false presentation of evidence for a search warrant is entitled to immunity. Here, plaintiff doesn’t even say what the false evidence is. Captain Jack’s Crab Shack, Inc. v. Cooke, 2021 U.S. Dist. LEXIS 69196 (N.D. Ga. Mar. 8, 2021):

A prosecutor’s appearance in court to support an application for a search warrant is protected by absolute immunity, even if the prosecutor uses or presents false evidence. See Burns v. Reed, 500 U.S. 478, 490-92, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991); Lloyd v. Card, 283 F. App’x 696, 702 (11th Cir. 2008); but see Kalina v. Fletcher, 522 U.S. 118, 131, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997) (finding that knowingly falsifying information to obtain a warrant—and thereby effectively serving the role as a complaining witness— may strip a prosecutor of absolute immunity).

As was the case for Count I, Plaintiffs fail to identify the allegedly false or fabricated information at issue and therefore fail to provide sufficient factual support. Count II is thus also subject to dismissal due to Plaintiffs’ pleading failures. Furthermore, Cooke enjoys immunity as against the claims in Count II because the prosecutorial function includes conduct and appearances in judicial proceedings, including presentation of evidence in support of a warrant, and the Second Amended Complaint lacks assertions specific enough to show that Cooke actually participated in an investigative, non-prosecutorial role. See Barr v. Gee, 437 F. App’x 865, 876 (11th Cir. 2011).

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