Usually prosecutors cannot be held liable for damages they cause. In legal terms, they enjoy absolute immunity. But how far does that immunity extend? This fall, the U.S. Supreme Court will decide whether an official who acts as a "complaining witness" in presenting perjured testimony before a grand jury is immune from damages for the harm he caused. Rehberg v. Paulk, No. 10-788.

This case arose from prosecutorial overreaching against Charles A. Rehberg, who had sent anonymous faxes to the management of a hospital in Georgia parodying and criticizing the hospital management and activities.

Supposedly as a "favor" to the hospital, a district attorney and chief investigator pursued Rehberg. They sought and obtained his personal emails from his Internet Service Provider by using official letterhead for the request, despite a lack of an impaneled grand jury at the time. The prosecutor and investigator pursued this without involving the local police department.

Ultimately a grand jury indicted Rehberg. This first indictment included allegations that Rehberg had assaulted a doctor after unlawfully entering his home, when in fact Rehberg had never even been to his home and no assault or burglary had ever been reported to law enforcement authorities. This indictment was based on the testimony of only one complaining witness -- the same chief investigator who was doing a "favor" for the hospital. When Rehberg objected to the indictment, it was withdrawn.

A new second indictment was then brought againist Rehberg, but it again included allegations of assault by him against the doctor based on testimony of the chief investigator and the doctor. Rehberg said he was nowhere near the doctor as alleged. The prosecutor promised to withdraw the second indictment, but never did; the state court ultimately dismissed it.

A third indictment was brought against Rehberg, again creating bad publicity for him, and it was eventually dismissed too. At some point Rehberg was even arrested.

Rehberg sued the county, the investigator and two prosecutors under federal law, Section 1983, for damages caused by the false accusations. Section 1983 is the means by which citizens can recover damages for violations of their constitutional rights by state or local government officials. Nearly all his lawsuit was rejected by the U.S. Court of Appeals for the Eleventh Circuit, which extended absolute immunity for prosecutors to protect even false testimony by a complaining witness before a grand jury.

In another recent case, the Supreme Court overturned a $14 million damage award for the withholding of evidence by prosecutors, a precedent that suggests a trend to broaden immunity for prosecutors.