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Prosecutor immune for conduct in prior suit

Virginia Lawyers Weekly//December 8, 2022

Prosecutor immune for conduct in prior suit

Virginia Lawyers Weekly//December 8, 2022

Where a man sued a Commonwealth prosecutor for damages arising out of his allegedly unlawful arrest and continued prosecution, the prosecutor was entitled to immunity. In refusing to dismiss the charges and arguing against bond, the prosecutor exercised “the kind of professional judgment call that prosecutorial immunity is designed to protect.”


In this suit, Dr. Jad Khoraki seeks damages for his allegedly unlawful arrest and continued prosecution based on false allegations made by a former girlfriend. This matter is before the court on the motion for summary judgment filed by Jaime Blackmon.


The Supreme Court of the United States has held (and neither party disputes) that “a prosecutor enjoys absolute immunity from § 1983 suits for damages when [she] acts within the scope of [her] prosecutorial duties” to include “initiating a prosecution and in presenting the State’s case.” However the Supreme Court also made clear that absolute immunity does not protect the prosecutor when conducting investigations similar to a detective and when making comments to the media.

To determine whether absolute immunity is available to Blackmon, it is necessary to apply a functional approach that looks at the conduct in which Blackmon was engaging, because immunity is not predicated only on her status as a prosecutor. Blackmon is entitled to absolute immunity if the court determines that she was functioning in an advocative role rather than an investigative or administrative role.

The Commonwealth of Virginia recognizes a similar prosecutorial protection through its common law and for many of the same justifications as the federal protection. As is the case in assessing absolute immunity under federal law, the basic protection under Virginia common law is extended to prosecutors when their actions are “intimately connected with [their] role in judicial proceedings.”


The second amended complaint presents two claims against Blackmon for malicious prosecution under § 1983 and state law. As a result of the court’s prior opinions, these counts now depend solely on the contentions that Blackmon, acting recklessly and with malice, refused to dismiss the charges based on the Jan. 31, 2020, arrest warrant and opposed granting Khoraki’s request for bond during the bond appeal hearing and, in doing so, made allegedly false and inaccurate statements respecting a continuing investigation into additional charges against Khoraki.

In refusing to dismiss the charges, Blackmon was required to sort through the information pertaining to the case, assess the strength and credibility of the evidence and make a decision on how best to advocate for the Commonwealth. Likewise, Blackmon engaged in the same type of conduct ahead of the bond hearing to determine what her position would be on behalf of the Commonwealth when Khoraki requested bond.

Khoraki contends that Blackmon was engaging in investigative conduct by engaging with lead detective Derrick Longoria and asking another attorney for advice. That argument fails because the manner in which evidence is evaluated “is exactly the kind of professional judgment call that prosecutorial immunity is designed to protect.” Accordingly, Blackmon is entitled to absolute immunity to the extent that she decided to continue evaluating the evidence ahead of the bond appeal hearing rather than immediately moving to dismiss the charges against Khoraki.

Blackman’s conduct during the February 14 bond appeal hearing is also protected by absolute immunity because, in that hearing, she undoubtedly was acting in an advocative function. At the hearing, Blackmon took the position that bond should be denied “out of an abundance of caution,” and she advocated for this position by presenting and discussing evidence with the court. This conduct is precisely the type of conduct that absolute immunity was meant to protect.

Additionally, even if Blackmon had made untrue and inaccurate statements concerning a further investigation against Khoraki during the hearing (which the court believes has no merit based on the transcript from the hearing and Blackmon’s notes from her phone conversation with Longoria), Blackmon would still be protected by absolute immunity because false statements in a court proceeding is protected advocative conduct.

Lastly, to the extent that Khoraki’s § 1983 claim for malicious prosecution relies on a theory of continued prosecution, Blackmon’s conduct following the bond appeal hearing until the charges were dismissed on Feb. 27, 2020, is protected by absolute immunity. Evaluating evidence and deciding how to precede with the case squarely fall within the realm of advocative conduct that absolute immunity protects. For similar reasons, Blackmon is entitled to absolute prosecutorial immunity under state law for the common law claim of malicious prosecution.

Blackmon’s motion for summary judgment granted.

Khoraki v. Longoria, Case No. 3:22-cv-70, Nov. 29, 2022. EDVA at Richmond (Payne). VLW 022-3-540. 19 pp.

VLW 022-3-540

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