H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Prosecutor’s Absolute Immunity Armor is Pierced in Colorado

A former college student who had been accused of libeling a professor in an online
journal can pursue his lawsuit against the prosecutor who approved a search warrant affidavit for his home, a federal appeals court said Monday.

The 10th U.S. Circuit Court of Appeals issued a ruling reversing a lower court’s dismissal of the lawsuit against Weld County prosecutor Susan Knox.

The lower court said Knox couldn’t be sued because of qualified immunity for overnment employees.

The appeals court disagreed, sending the case back to the trial court.

Former University of Northern Colorado student Thomas Mink sued Knox in 2004 after she approved a search warrant affidavit for his home following a complaint that he had libeled a professor in his online paper “The Howling Pig.” Greeley police seized a computer and written materials from the home.

A district court granted Mink’s motion for a temporary restraining order and ordered police to return the computer and other items.

The district attorney’s office then said the statements in “The Howling Pig” couldn’t be prosecuted under Colorado’s criminal libel law.

Mink pursued his lawsuit, saying his constitutional rights were violated. A district court ruled that Knox couldn’t be sued for approving the affidavit because a reasonable official in her position could believe the statements weren’t constitutionally protected.

The appeals court said a reasonable person wouldn’t take the spoof of the professor as
statements of fact or believe publishing the statement was a crime.

H. Michael’s Take:

This case will send ripples of fear into the Colorado Prosecutors subculture. As long as I can recall (over 28 years), DA’s have enjoyed complete and absolute immunity from civil lawsuits as a result of the discretionary decisions they make as prosecutors.

Immunity is an exemption granted by statute or government authorities from a legal duty, penalty or prosecution. Before this case in Colorado District Attorney’s enjoyed almost absolute immunity from civil suit -that is -from liability for decisions made in the course of their duties… this case has the potential to change that status…