The Virginia Defamation Law Blog
Thinking about suing the prosecuting attorney for defamation because the false criminal charges he brought against you damaged your reputation and were ultimately dismissed? Well, don’t. Just like you can’t sue a judge who finds you guilty, you generally can’t sue a prosecutor for maligning your reputation in the course of a criminal prosecution performed in good faith, even if the charges are ultimately dropped or dismissed. Both judges and–though to a lesser extent–prosecutors are immune for their official acts associated with the judicial phase of the criminal process. Statements made by prosecutors outside the scope of their judicial functions, however, are fair game for defamation suits.
Yesterday, the Virginia Supreme Court clarified the law in this area by holding that although a Commonwealth’s Attorney enjoys quasi-judicial immunity for acts taken within the scope of their duties and intimately associated with the judicial phase of the criminal process, this immunity does not extend to statements made by a Commonwealth’s Attorney outside the confines of a judicial proceeding. The court held that a Commonwealth Attorney’s former administrative assistant could pursue a defamation claim against her former boss based on her allegation that he made false public statements about the reasons for her termination. These statements were not made in the course of performing any judicial or quasi-judicial function, so they were not entitled to immunity.
First, note that “judicial immunity” and “judicial privilege” are not necessarily the same thing, though they both result in the avoidance of defamation liability. When courts speak of the “judicial privilege” in Virginia, they are usually referring to the absolute privilege afforded to statements made in the connection with and relevant to a judicial proceeding. These statements can be made by almost anyone involved in a court case (e.g., lawyers, parties, and witnesses). “Judicial immunity,” on the other hand, usually refers to the immunity judges have against all forms of liability for acts taken in connection with cases they preside over. This immunity is to protect judicial independence and ensure judges feel safe to make rulings without worry of retaliatory litigation by people unsatisfied with the judge’s decisions.
Yesterday’s case–Viers v. Baker–dealt with “quasi-judicial immunity.” Quasi-judicial immunity is like the immunity enjoyed by judges but extends to any public official (1) performing a judicial function, (2) acting within their jurisdiction, and (3) acting in good faith. A “judicial function” is one that “shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages.” (See Harlow v. Clatterbuck, 230 Va. 490, 494 (1986)). Quasi-judicial immunity gives “absolute immunity [to] prosecutors from civil liability for acts within the scope of their duties and intimately associated with the judicial phase of the criminal process.” (See Andrews v. Ring, 266 Va. 311, 320 (2003)).
In Viers v. Baker, the Commonwealth’s Attorney for Dickenson County attempted to invoke an immunity argument when he was sued for defamation by his former administrative assistant, Sheila Viers. Viers alleged that shortly after Chadwick Seth Baker became the new Commonwealth’s Attorney, he fired her because she hadn’t cleaned his office to his satisfaction. When faced with public pressure about the situation, he allegedly began making public statements suggesting that he fired Viers because she had wiped data from his computer. 
Viers claimed that these statements were knowingly false and designed to harm her reputation.
At first, Baker succeeded in getting the case dismissed, arguing that he had immunity under 42 U.S.C. § 1983. The Virginia Supreme Court reversed, however, holding that federal immunity law did not apply to this state-law defamation case, and that under Virginia immunity law, Baker was not entitled to quasi-judicial immunity and would have to defend against the defamation claim.
The court, treating the allegations in the complaint as true, noted that “Baker’s false statement was not related to any possible pending or forthcoming criminal investigation.” The allegations were that he made the statements “solely for the purpose of assuaging the discontent growing among his constituents and members of his political party.” Even though tampering with computer data can be a crime in Virginia, criminal proceedings were never seriously contemplated against her. Quasi-judicial immunity did not apply here, the court held, because the alleged statements were made in a context that did not “share enough of the characteristics of the judicial process” to qualify as “performing judicial functions.” Furthermore, the statements were not within the scope of his prosecutorial duties and were not “intimately associated with the judicial phase of the criminal process.”
In short, if a prosecutor, acting in good faith, makes false statements about a defendant in the course of doing his job, he will be immune from defamation liability. If he makes false statements about a person in any other context, he can be sued for defamation like any other defendant.