18 November 2005

At Least He's Not Your Prosecutor.

Actually, he is, if you live in Mesa County, home to Grand Junction, Palisade, Clifton and Fruita. It seems that a prosecutor acting under the direction of District Attorney Pete Hautzinger (now a Republican, who previously ran as a Democrat for the state legislature in a campaign I worked on personally) prosecuted a man 24 year old man for possession a prescription drug pursuant to a lawful prescription. The man was left to rot in jail for nearly a year. The problem. It isn't illegal to possess a prescription drug pursuant to a lawful prescription and it isn't a controlled substance in any case. His pathetic public defender also didn't catch this rather big problem with the case. The rest of the story can be found at Left Off Colfax.

You know what is even worse? In all likelihood, the victim of the wrongful arrest probably doesn't have a valid civil rights claim. Why? It isn't enough that officials violate a clearly established constitutional right (and a right to not be arrested for offenses that don't exist is probably clearly established). You also have to show that the violation of the right was intentional, and in the case of the prosecutor and defense attorney it seems pretty clear that it was not.

Furthermore, prosecutors and judges have something very close to absolute immunity from civil liability. Perhaps, the public defender could be sued for professional malpractice, but, even that claim would have to clear hurdles associated with the Colorado Governmental Immunity Act, and would be subject to severe limitations on the damages that could be awarded (which would, in any case, be strictly compensatory).

I'll write at length on the topic in another post, but this case is a good illustration of why I believe that the law of wrongful conviction, wrongful arrest and use of force against innocent people should primarily be based upon takings law (the government may not take property without fair compensation), rather than primarily upon intent and process oriented civil rights laws. If, in fact, you were imprisoned for a length of time, and this imprisonment is not ultimately credited towards time you have to serve pursuant to a conviction for a crime, you should be entitled to just compensation from the government, not because they did something improper, but because they took your liberty without just compensation.


Off Colfax said...

Question for you, Andrew:

Do compensatory damages include lost wages as a result of said wrongful arrest and imprisonment as well? After all, it is a distinct financial loss that, without the original act by public officials, would not have occured.

Just a curiosity of mine.

Andrew Oh-Willeke said...

Lost wages would be compensatory damages, but to get them you need a cause of action. Also, strictly speaking, you ought to deduct costs avoided (rent, food, etc.) as a result of incarceration.

Andrew Oh-Willeke said...

Update: The victim of this mess was a woman and was later charged and given a lenient sentence for sharing another drug prescribed for her with a fellow inmate.