Should the application of absolute or qualified immunity depend on whether the governmental actor is a prosecutor or a police officer?
Harrington and McGhee argue that since Hrvol and Richter, like police officers, engaged in unconstitutional conduct during the investigative phase of the criminal process, they, like police officers, are eligible only for qualified immunity. See Brief for Respondents at 30. They assert that, “the conduct, not the identity, of the state actor, drives the constitutional analysis.” See id. at 28. They argue that the fabrication of evidence by any governmental actor violates the Constitution. See id. They emphasize that the Court should not treat Hrvol and Richter any differently than police officers who fabricate evidence. See id. at 27. They argue, “petitioners stand or fall with the police officers with whom they worked side-by-side and conspired. All are liable; none is immune.” See id. In advancing this argument, they cite Pyle v. Kansas, in which the Court held that police officers who fabricate evidence and deliver it to a prosecutor for use at trial violate the Due Process Clause.
