Yesterday, while we were all losing our minds about Dobbs, the rest of the judiciary continued to function. The Fifth Circuit decided Wearry v. Foster. The panel found that the doctrine of absolute prosecutorial immunity did not foreclose a 1983 suit against a state prosecutor.
When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted. Therefore, District Attorney Perrilloux is not entitled to absolute immunity for his actions.
Judge Ho wrote a dubitante opinion:
