This article appears in the October 2020 issue of our monthly newsletter, Public Safety Labor News.
On February 8, 2017, Assistant Burleigh County (North Dakota) State’s Attorney Julie Lawyer received an anonymous letter concerning a Bismarck police officer’s destruction of evidence. The letter prompted Lawyer to review the files of all approximately 100 active, sworn Bismarck police personnel. As part of her investigation, Lawyer reviewed the file of Sergeant Robyn Krile.
In Krile’s file, Lawyer discovered two letters of reprimand and several performance evaluations which Lawyer believed raised Brady/Giglio issues. Lawyer further investigated the incidents for which the letters of reprimand were issued and concluded Krile had made false statements as a Bismarck police officer.
Lawyer shared her belief that the letters of reprimand and performance evaluations raised Giglio concerns with Bismarck Police Chief Dan Donlin. Chief Donlin disagreed and advised Lawyer that he did not see the incidents for which the letters of reprimand were issued as amounting to Giglio issues. Despite Chief Donlin’s opinion, Lawyer continued to believe Krile’s conduct amounted to a Giglio concern.
On March 22, 2017, Lawyer sent a letter to Chief Donlin summarizing her investigation into Krile’s file and stating her belief that Krile had made false statements as a Bismarck police officer. Lawyer informed Chief Donlin that such information would have to be disclosed to the defense in cases in which Krile was involved pursuant to Giglio and, as a result, the Burleigh County State’s Attorney’s Office would no longer use Krile as a witness in its cases.
Because the Burleigh County State’s Attorney’s Office was no longer willing to use Krile as a witness in its cases, the Bismarck Police Department terminated Krile’s employment. Krile filed a complaint with the Department of Labor and Human Rights claiming the Bismarck Police Department discriminated against her based upon race and sex.
Krile also filed a lawsuit in state court against Lawyer claiming defamation. The complaint alleged Lawyer defamed Krile by publishing the Giglio letter to the Bismarck Police Department and Chief Donlin and by publishing her affidavits to the Department of Labor and Human Rights during her investigation. The complaint also alleged Lawyer published the Giglio letter to the Peace Officer Standards and Training (POST) Board. Finally, the complaint alleged Lawyer published the Giglio letter and related information to Krile’s prospective employers.
Citing the doctrine of “prosecutorial immunity,” the North Dakota Supreme Court dismissed some, but not all, of Krile’s lawsuit. The Court described that
“privileged communications may be either absolute or qualified. A privilege is absolute when the free exchange of information is so important that even evidence of actual malice does not destroy the privilege. A qualified privilege, on the other hand, may be abused and does not provide absolute immunity from liability for defamation.
“At the outset, we acknowledge the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor. Prosecuting attorneys are considered quasi-judicial officers entitled to absolute immunity granted judges when their activities are intimately associated with the judicial phase of the criminal process. Prosecutorial functions entitled to absolute immunity include, for example, the initiation and pursuit of a criminal prosecution and the presentation of the State’s case at trial. However, when functioning in the role of an administrator or investigative officer rather than in the role of an advocate, prosecutors have only the protection of qualified immunity.
“Lawyer’s decision to Giglio impair Krile and no longer use Krile as a witness in criminal proceedings was an activity intimately associated with the judicial phase of the criminal process entitled to absolute privilege or immunity. We conclude Lawyer’s publication of the Giglio letter to Police Chief Donlin was not made within the proper discharge of Lawyer’s official duties as an assistant state’s attorney. We recognize prosecutors are required to disclose certain information to the defense in a criminal proceeding under Brady and Giglio, and that the diminished credibility of a police officer hindered by Brady and Giglio may raise challenges for the prosecution. However, in this instance, Lawyer was acting in an administrative capacity by informing Chief Donlin of her opinion that Krile was Giglio impaired and of how her office would proceed with cases in which Krile was involved. Lawyer’s publication of the Giglio letter to Chief Donlin was not an absolutely privileged communication.”
The Court found absolutely privileged the communications with the Department of Labor as they occurred as part of a “proceeding authorized by law.” The Court determined there was insufficient evidence to decide whether Lawyer’s publication of the Giglio letter to the POST Board was absolutely privileged “because we are unable to determine from the existing record whether Lawyer disclosed the Giglio letter to the POST Board as part of a Board investigation.”
The Court remanded the case to the trial court to determine whether Lawyer acted with the degree of malice necessary to lose the qualified privilege and be subject to liability for defamation.
Krile v. Lawyer, 2020 WL 4360050 (N.D. 2020).
Also in the October 2020 issue:
- Court Upholds Officer’s $500k Judgment Against Sergeant
- Pre-Existing PTSD Does Not Bar Officer’s Disability Claim
- No Retaliation If Decision-Maker Unaware Of Protected Activity
- EMS Captain’s Facebook Post May Be Constitutionally Protected
- Double Jeopardy Results In Reversal Of Suspension For Racial Slur
- Internal Affairs Findings Not Admissible In Civil Lawsuit Against Officer
- Inadvertent Recording Of Calls On Police Line Does Not Violate Wiretap Laws
- ‘Failure To Train’ Claim Must Show Deliberate Indifference
- Non-Shaving Deputy Wins Punitive Damages, Attorney Fees