Civil RightsCriminal Law

Can I sue the prosecutor or the Commonwealth Attorney?

Question: Can I sue the prosecutor or Commonwealth Attorney for malicious prosecution?

Answer: Probably Not.

 Explanation:  In Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780 (2003), the Virginia Supreme Court explicitly held that the Commonwealth’s Attorney was entitled to absolute immunity from suit alleging malicious prosecution. Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation.  That concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.  If the prosecutor’s involvement was not done as prosecutor but was done in his individual capacity then he would not have the immunity. If the malicious prosecution arises from the prosecutor’s role of investigator or administrator he may not be entitled to absolute immunity.  The determination whether absolute prosecutorial immunity is extended to the prosecutor in this case is a matter of state common law not federal law.  Under Virginia law, when a prosecutor is involved in the charging process, that action is “intimately connected with the prosecutor’s role in judicial proceedings and the prosecutor is entitled to absolute immunity. . . .”  Id. at 321.  The process by which an accused may be charged with a criminal offense in Virginia includes indictment, presentment, information, arrest warrant, or summons. When a prosecutor is involved in the initiation of the criminal process, it may take the form of preparation of an indictment for consideration by a Grand Jury, direction to a law enforcement officer to obtain a warrant or summons, or advice to a law enforcement officer that sufficient probable cause exists for the obtaining of a warrant or a summons. For the purposes of determining a prosecutor’s absolute immunity from suit, these are distinctions without a material difference. In each case where a prosecutor is involved in the charging process, under Virginia law, that action is intimately connected with the prosecutor’s role in judicial proceedings and the prosecutor is entitled to absolute immunity from suit for such actions.

In Andrews v. Ring the court explicitly declined to grant blanket immunity to non-prosecutorial conduct, stating, “We do not decide in this case whether actions of a prosecutor in the role of investigator or administrator are entitled to absolute immunity.”  Id. at 321.

In an action for malicious prosecution, the plaintiff has the burden of proving by a preponderance of the evidence that the prosecution was (1) malicious; (2) instituted by, or with the cooperation of, the defendant; (3) without probable cause; and (4) terminated in a manner not unfavorable to the plaintiff.  In the context of a malicious prosecution action, probable cause is defined as knowledge of such facts and circumstances to raise the belief in a reasonable mind, acting on those facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected. The determination whether a defendant had probable cause to believe that a crime was committed is judged with reference to the time the defendant took the action initiating the criminal charges. When the facts relating to the question of probable cause are in dispute, the issue is one of fact to be resolved by the trier of fact.


Example where court denied absolute immunity – Hueston v. Kizer, 2008 Va. Cir. LEXIS 280, 36-37 (Va. Cir. Ct. May 29, 2008).

The issue in Andrews was whether immunity applied where the defendant commonwealth attorney directed a building inspector to obtain criminal complaints against the plaintiffs. In finding that such actions were part of the charging process and no different from other forms of initiating charges, the commonwealth attorney was entitled to absolute immunity. The Court specifically reserved whether immunity would also protect a prosecutor while acting as an investigator or administrator. 266 Va. at 321.

In this case, Kizer is accused of requesting an investigation of Hueston based on the possibility that he attempted to wrongfully influence a grand jury. If that were all that he is alleged to have done, then the court might consider that act alone as part of the charging process. However, Kizer is also alleged to have sought or participated in other investigations where he knew the basis for the investigations was falsified information. He is alleged to have done this to “punish” Hueston. He is alleged to have written a letter accusing Hueston of improperly influencing a grand jury and attempting to have another police officer lie under oath. Such acts, if true, cannot legitimately be deemed part of the charging process. At best, such conduct would be part of his role as an administrator or investigator.

As such, Kizer is not entitled to absolute immunity under Andrews for the acts complained of in the Complaint on the ground that all the conduct complained of was intertwined with the charging process.

Hueston v. Kizer, 2008 Va. Cir. LEXIS 280, 36-37 (Va. Cir. Ct. May 29, 2008).

Question:  Can I sue the Commonwealth Attorney for defamation for reckless and false defaming statements made in the context of judicial proceedings?

Answer: Probably Not.

Explanation: In Buckley v. Fitzsimmons, 509 U.S. 259, 277 (U.S. 1993), the US Supreme Court stated, “ Indeed, while prosecutors, like all attorneys, were entitled to absolute immunity from defamation liability for statements made during the course of judicial proceedings and relevant to them, see Burns, 500 U.S. at 489-490;   Imbler, 424 U.S. at 426, n. 23; id., at 439 (WHITE, J., concurring  in judgment), most statements made out of court received only good-faith immunity. The common-law rule was that “the speech of a counsel is privileged by the occasion on which it is spoken. . . .” Flint v. Pike, 4 B. & C. 473, 478, 107 Eng. Rep. 1136, 1138 (K. B. 1825) (Bayley, J.).


Question:  What recourse do I have for false and defaming statements made by the Commonwealth Attorney in the prosecution of a case if he has absolute immunity?

Answer:  The prosecutor may be subject to sanctions under Virginia Code § 8.01-271.1 or to disciplinary action for violation of ethical rules governing Virginia attorneys. 

Explanation: Rule 4.1, Truthfulness In Statements To Others, states “In the course of representing a client a lawyer shall not knowingly:    (a) make a false statement of fact or law;”  Rule 4.4, Respect For Rights Of Third Persons states “In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”  Rule 3.1, Meritorious Claims And Contentions, states, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”  Rule 3.3 Candor Toward The Tribunal states in pertinent part “ (a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal; and (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.”  Similarly § 8.01-271.1 states “An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact …, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”  (Any motion for sanction under § 8.01-271.1 must be heard within 21 days of the final order or the court loses jurisdiction).



The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.