Anyone who reads this blog knows that we do drugs.

But we do civil rights, too (at least in certain contexts, where the representations don’t create positional conflicts for our firms).

Herrmann recently filed an amicus curiae brief (link here) on behalf of Black Cops Against Police Brutality in the U.S. Supreme Court case of Pottawattamie County, Iowa v. Harrington, which will be argued on Wednesday, November 4. (Here’s a link to the Supreme Court docket for that case.)

The popular press will predictably pick up this story on about November 3 (the day before argument), so we figured we’d give you a preview here first. (We often choose not to publish blog posts about cases in which we’re personally involved, but we’re not representing a party in this case, and the issue is just too sexy to ignore. Because this post doesn’t relate to drug and device law, however, Bexis chose to play no role in writing this. Herrmann alone, who submitted the amicus brief, is responsible for this post.)

The remarkable allegations in the Pottawattamie County complaint (many of which were admitted in opposition to summary judgment) are these:

Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They sued the prosecutors for having violated their civil rights. The prosecutors contend that they have absolute immunity from liability.

The Obama administration filed an amicus brief on behalf of the white prosecutors and will defend that position during oral argument.

The legal spat is this: Police officers who are investigating crimes receive only qualified immunity from civil liability if they violate a suspect’s rights. After formal criminal proceedings are commenced against a suspect (by indictment, information, arraignment, or preliminary hearing), however, prosecutors generally have absolute immunity from civil liability for their conduct at trial.

In Pottawattamie County, the prosecutors were involved in investigating the crime, and they allegedly conspired with the police to manufacture false evidence. When prosecutors are working alongside police during the investigative phase, are the prosecutors entitled to absolute immunity?

The Pottawattamie County case is thus both big and little. It’s big because the allegations are so horrendous, and the stakes are so high. But it’s little because the holding will likely affect only those situations where prosecutors helped police to investigate crimes.

SCOTUS wiki has coverage of Pottawattamie County, and the Volokh gang tackles the issues in the comments to this post. The Black Cops amicus brief is singled out for attention over at Simple Justice.

The issues have been briefed elegantly by the parties. The Black Cops brief merely adds some spice to the stew. Among other things, that brief recounts some sad examples from American legal history of where white cops have manufactured false evidence against black defendants. For example, in Brown v. Mississippi, 297 U.S. 278 (1936), white officers were investigating the murder of a white man. Acting without probable cause, the officers seized a black man named Arthur Ellington from his home, strung him up to a tree, and whipped him. He refused to confess.

The next day, the officers rearrested Ellington and flogged him with a leather strap having a metal buckle. Ellington’s confession ultimately “conform[ed] to the demands of [the] torturers.” Id. at 282. The jury convicted; the U.S. Supreme Court reversed.

Sadly, similar examples of racially motivated miscarriages of justice in America abound.

In addition to that historical perspective, the Black Cops amicus brief poses a hypothetical question: Suppose prosecutors accompanied the police to the flogging of Arthur Ellington, advising the police and demanding that Ellington change his confession to fit the known facts. Suppose Ellington was then convicted and released from prison only decades later. Is it conceivable, on those hypothetical facts, that the police would be entitled to only qualified immunity from civil liability, but the prosecutors who conspired with them would be given absolute liability?

There’s plenty of room for outrage on the Pottawattamie County facts, and there may well be room for outrage in the governing law.

You’re sure to read more on all sides of this issue as the case nears argument in six weeks and decision some months later.

Stay tuned.