In United States v. Mario Nelson Reyes-Romero, a non-U.S. citizen who was previously deported to El Salvador was arrested and prosecuted for the crime of unlawful reentry. The district court found that DHS officers’ testimony about the prior deportation proceedings amounted to “a combination of nonsense . . . [and] lies,” and criticized the federal prosecutors for relying on that testimony and then failing to disavow it, in spite of applicable ethics standards that require prosecutors to correct witness statements that are obviously untrue.
The defendant then sued the government under the Hyde Amendment, and the district court granted him an award of $73,757 in fees and costs. Among other things, the district court found that inconsistencies in the immigration removal forms that were used in the prior deportation proceedings were so apparent that it was “frivolous” for the government to have charged him under the illegal reentry statute. Although district courts are ordinarily entitled to substantial discretion in granting or denying Hyde Amendment awards, the Court of Appeals for the Third Circuit reversed, stating that “the Hyde Amendment is not an appropriate vehicle to criticize the conduct of law enforcement officers or second-guess the management of a criminal prosecution.”
Unfortunately, there is no other viable “vehicle” for people to sue miscreant prosecutors or law enforcement officials. Despite the enormous amount of power they wield, they are almost entirely impervious to accountability. Prosecutors are absolutely immune from liability under the civil rights statutes, and police officers and other executive branch officials benefit from “qualified immunity,” which has become the practical equivalent of absolute immunity. While the Hyde Amendment purports to open a small crack in that wall of impunity, the Third Circuit’s Reyes-Romero decision sends an unmistakable message to district courts: if you dare to find a prosecutor liable then all deference to your findings of fact will go out the window.