Judge Andersen partially reconsiders his position on prosecutorial immunity

On March 31, 2008, in Hughes v. Krause 06 C 5792, Judge Andersen ruled that "that plaintiff's section 1983 claims against ASA Canellis were barred by absolute prosecutorial immunity...however, plaintiff's state law claims on the basis that ASA Canellis was not entitled to absolute prosecutorial immunity under Illinois law." In an opinion issued, granting a motion to reconsider, Judge Andersen explained: "Specifically, in our previous Memorandum Opinion and Order, we found that Illinois law recognizes some form of prosecutorial immunity or public official immunity, but we concluded that such immunity was not absolute. We concluded that under Illinois law, absolute prosecutorial immunity does not applicable if the state official acted with malicious motives. It is this conclusion that ASA Canellis asks us to reconsider. In our previous Memorandum Opinion, we determined that ASA Canellis acted firmly within the scope of his official capacity when he weighed evidence and chose to pursue the criminal case against plaintiff and, therefore, was entitled to federal prosecutorial immunity. Upon further consideration, we find that ASA Canellis is entitled to that same absolute prosecutorial immunity under state law as well. Relying on Aboufaris v. City of DeKalb, 305 Ill.App. 1054 (2nd Dist.1999), in our previous Memorandum Opinion, we recognized that the Illinois Appellate Court analyzed the issue of prosecutorial immunity under the rubric of public official immunity. Although the Illinois Appellate Court in Aboufaris may have discussed the doctrine of public official immunity and a lack of malice requirement in order for the official to be afforded protection for acts performed within their official capacity, the Appellate Court ultimately concluded that "a prosecutor acting within the scope of her prosecutorial duties enjoys immunity from civil liability, the same immunity afforded to the judiciary." 305 Ill.App.3d at 1065, 239 Ill.Dec. 273, 713 N.E.2d 804. There is no question that the immunity afforded to the judiciary is absolute. Similarly in White v. City of Chicago, 369 Ill. Ap.3d 765 (1st Dist.2006), the Illinois Appellate Court affirmed the dismissal of both state and federal law claims against the defendant prosecutors on the basis of absolute immunity. " As such, Judge Andersen concludes that: "Prosecutors, like judges, must be allowed to perform the functions of their jobs fearlessly and without fear of consequence" See Hughes v. Krause 2008 WL 2788722 July 17, 2008 The co-defendant States Attorney, who is alleged to have acted in investigatory capacity, akin to that of a police officer, still remains a defendant. Kathleen T. Zellner represents the plaintiff, Stephen L. Garcia represents the Cook County State's Attorneys, and Josh Engquist represents the City defendants.