By: Kristen M. Mack & Cary J. Hansel*

---

I. Introduction

Absolute immunity from civil liability eliminates any consequence for misconduct that falls short of a crime.^[1] Such immunity is not necessary to protect anyone from frivolous claims, as court rules and case law already perform this function.^[2] Instead, cloaking prosecutors with absolute immunity precludes righteous claims against prosecutors for wrongdoing. In application, absolute immunity from civil liability permits prosecutors to knowingly partake in tortious conduct with impunity.

II. Maryland Prosecutors & Immunity

The greater the power of the individual wielding the immunity, the more likely the immunity is subject to devastating abuse.^[3] There are few officials holding more sway over the lives of Marylanders than Maryland State’s Attorneys.^[4] These prosecutors decide which crimes are prosecuted, who is prosecuted, and what sentences are sought.^[5]

Maryland prosecutors have used their power to make Maryland the nation’s leader in incarcerating the highest percentage of Black people in the country, at seventy-one percent, which is more than twice the national average.^[6] The choices made by Maryland prosecutors have also resulted in Maryland leading the nation in sentencing “young Black men to the longest prison terms, at a rate twenty-five percent higher than the next nearest state—Mississippi.”^[7]

On average, Maryland prosecutors prosecute and seek incarceration for four and a half innocent people every three years.^[8] The National Registry of Exonerations currently lists fifty-four convicted Marylanders who were later exonerated between 1989 and 2025—an average of one and a half false convictions every year over a thirty-six-year period.^[9] Of those exonerated during this period, forty-one cases involved official misconduct, and fifteen included false or misleading forensic evidence by prosecutors.^[10] These factors are not mutually exclusive either. One man’s case was mired by both official misconduct and false or misleading forensic evidence, resulting in him spending thirty-two years in prison.^[11]

Yet, Maryland prosecutors receive absolute civil immunity for any misconduct they commit within their prosecutorial roles.^[12] This includes—but is not limited to—coercing witnesses, prosecuting someone in bad faith, using evidence that was illegally obtained, relying on false or misleading evidence, failing to disclose exculpatory evidence, and knowingly offering perjured testimony.^[13] In short, under Maryland’s current prosecutorial immunity framework, a prosecutor may knowingly prosecute and incarcerate—potentially for life—an innocent person using false evidence without any civil recourse—no matter how clear the evidence is—for the innocent person.

Despite its sweeping impact, prosecutorial immunity was created not by our elected representatives through a legislative process involving the people, but by fiat of the courts.^[14] In Ambrose v. Gersh, the Court discussed dicta from a 1962 case which appeared to recognize prosecutorial immunity, but declined to decide whether the immunity of Maryland prosecutors had been previously recognized.^[15] Regardless of whether the “dicta” from 1962 was sufficient, by 1997, Maryland courts undoubtedly adopted common law prosecutorial immunity in Simms v. Constantine.^[16]     

What is remarkable about this history is the very recent vintage of prosecutorial immunity in Maryland. Maryland has maintained its own common law since 1776, but the earliest dicta suggesting that Maryland prosecutors might enjoy immunity did not arise for nearly one hundred years.^[17] The issue remained unsettled until 121 years after the nation’s birth.^[18] Consequently, there can be no rational argument that prosecutorial immunity existed in Maryland when it was founded. Indeed, when our country declared its independence, Maryland adopted a state constitution, providing in Article 5 that:

[T]he Inhabitants of Maryland are entitled to the Common Law of England . . . as existed on the Fourth day of July, seventeen hundred and seventy-six . . . except such as . . . may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.^[19] 

But there was no prosecutorial immunity—let alone absolute immunity—under English common law.^[20] In fact, there were no public prosecutors in 1776 England.^[21] At the time, private victims prosecuted criminal cases.^[22] That practice persisted for over one hundred years until England established the Office of the Director of Public Prosecutions in 1879.^[23] 

Since its adoption long after the founding, Maryland courts have refined, but seldom limited, prosecutorial immunity.^[24] Maryland’s prosecutors “enjoy absolute immunity with respect to claims arising from their role in the judicial process,” regardless of their motivation or intent.^[25] Strikingly, immunity applies even when “a prosecutor act[s] with malice.”^[26] To fully appreciate the totality of this immunity, one must consider Maryland’s extreme definition of malice as “‘an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate,’ the purpose being to deliberately and willfully injure the plaintiff.”^[27] To be clear, a Maryland prosecutor may not be held liable for acting with an “evil . . . motive influenced by hate” to “deliberately and willfully injure” someone.^[28]

A brief example illustrates the extent of immunity and the brazenness with which it is sometimes wielded. One of the authors herein was trial and appellate counsel in Prince George’s Cnty. v. Longtin.^[29] Keith Longtin was falsely accused of murdering his wife by Prince George’s County Police.^[30] Among other misconduct, six different officers interrogated him without sleep or sufficient food over a 38-hour period.^[31]  At times during this ordeal, officers chained Mr. Longtin to the wall.^[32] Mr. Longtin learned that his wife was murdered when officers showed him graphic crime scene pictures—depicting his partially naked wife who had been raped and repeatedly cut and stabbed.^[33] When he maintained his innocence despite these tactics, his final interrogator became fed up, walked down the hall to the Commissioner, and falsely claimed that Mr. Longtin had confessed.^[34] Months later, after all his friends and family had read in the newspaper of the false police claim that he confessed to the rape and murder, DNA evidence cleared Mr. Longtin. But the police did nothing to advise prosecutors or seek his release from prison.^[35]

At Mr. Longtin’s civil trial, Prince George’s County called an Assistant State’s Attorney who attempted to take the blame for Mr. Longtin’s unlawful incarceration by arguing that the decision not to release Mr. Longtin was hers.^[36] It would not be a stretch of the imagination to suggest that the prosecutor did so securely with the knowledge that she was absolutely immune from civil liability. The defense, feeling so strongly about this strategy, sought to have the jury instructed that “[o]nly [t]he State’s Attorney may terminate a prosecution of a charge and dismiss the charge by entering a nolle prosequi on the record in open court.”^[37] Fortunately, the instruction was not given, but only because it “is not a completely accurate description of how a prosecution may be terminated.”^[38] To its great credit, the Supreme Court of Maryland also recognized that, “[i]f police officers have been instrumental in the plaintiff’s continued confinement or prosecution, they cannot escape liability by pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute him. They cannot hide behind the officials whom they have defrauded.”^[39] 

Nevertheless, this anecdote illustrates the dangers and potential misuse of prosecutorial immunity. In Longtin, the prosecutor knew that she could take credit for the State’s knowing confinement and continued incarceration of an innocent man even after irrefutable DNA proved his innocence. In twenty-five years as a civil rights lawyer, one of the authors has seen multiple instances of police attempting to shield their misconduct behind the prosecutor’s immunity, including some unfortunately successful examples.

While Maryland courts have not been so blunt in granting prosecutors absolute immunity, the Supreme Court of the United States found that “[it is] better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”^[40] This brutal and extreme policy choice has no doubt contributed to the fact that the United States has the highest incarceration rate of any country in the world by far—outpacing the next highest NATO country, the United Kingdom, by 470 persons per 100,000 population.^[41] The following chart from the Prison Policy Initiative is cause for concern:

Moreover, an October 2021 report from The Sentencing Project found that Black Americans are incarcerated at nearly five times the rate of white Americans.^[42]

This begs the question: Is it better to “leave unredressed the wrongs done by dishonest officers” than to subject them to the same potential liability as everyone else?^[43] After all, criminal defense lawyers, including public defenders, do not receive absolute immunity.^[44] Those familiar with the criminal justice system are aware that public defenders receive as much or more of a criminal defendant’s ire as prosecutors.^[45] If defense lawyers can perform their jobs without immunity, why are prosecutors unable to do the same? More importantly, given the great power prosecutors have and the extreme trust society vests in them, why should “dishonest” prosecutors acting with an “evil . . . motive influenced by hate” to “deliberately and willfully injure” be categorically immune?^[46] 

Those who answer this question with the refrain that prosecutors do no such thing should logically have no objection to a standard permitting liability if prosecutors were to act in such a way. An exception of this magnitude would pose no harm to most prosecutors. Indeed, the vast majority of prosecutors are careful and honorable officers of the court who would likely have no objection to holding dishonest colleagues accountable for malicious acts.^[47]

The United States Supreme Court’s dramatically framed concern about the “constant dread of retaliation” is unfounded. The threat of liability for malicious acts should not place anyone acting honorably in fear.^[48] The Court itself even seemed to recognize this proposition, noting that absolute immunity protects only the “dishonest” prosecutor.^[49] More importantly, the civil justice system in our country is widely viewed as a vehicle to encourage good conduct by discouraging the opposite.^[50] Any prosecutor considering dishonest and malicious official conduct should fear the consequences of abusing their power, not be free therefrom.

But there is, after all, a middle ground between allowing the rare dishonest prosecutor to run amok and striking some hypothesized fear in the heart of the many good-natured civil servants in this role. Maryland courts can and should adopt a stringent standard for denying a prosecutor immunity and exposing them to liability.

III. Adopting a New Approach to Prosecutorial Immunity

Maryland law already recognizes a spectrum of culpability from negligence to gross negligence to intent to malice.^[51] Negligence is a mere accident arising most often from lack of care or diligence for which most Marylanders can be held liable.^[52] Whereas “gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.”^[53] Intentional misconduct is done purposefully.^[54] Malice requires intent coupled with an “evil or rancorous” motive.^[55]

Maryland’s police officers, like State’s Attorneys,^[56] are public officials involved in the prosecution of criminals.^[57] Maryland’s high incarceration rate^[58] implicitly suggests that police officers have no problem performing their duties while remaining personally liable for misconduct spanning from gross negligence to malice.^[59] Moreover, police are typically better known to the arrestee as a result of having far more personal contact,^[60] including through the use of force.^[61] As a result, police should be far more likely to be the subject of lawsuits.^[62] Yet the state’s police have not been so paralyzed at the thought of lawsuits for gross negligence or malice that they have been unable to do their jobs—quite the opposite has been demonstrated over the decades since the current liability scheme has been in place.^[63] With decades of data demonstrating that public officials can successfully arrest and participate in the prosecution of defendants while bearing liability for gross negligence and malice, it is high time for the Maryland judiciary to reconsider absolute prosecutorial immunity.

The good news is that prosecutorial immunity is purely judge-made law, meaning the courts can modify the scope of the immunity provided.^[64] Moreover, Maryland’s Constitution provides ample support for prosecutorial liability. After all, its drafters reminded us “[t]hat all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct . . . .”^[65] 

Support for the abolition or modification of absolute prosecutorial immunity can be found in Article 19 of Maryland’s Declaration of Rights.  Article 19 provides that:

[E]very man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.^[66]

The Supreme Court of Maryland detailed the relevant history of Article 19^[67] in Piselli v. 75th Street Medical,^[68] stating that:

Article 19 was part of the original Maryland Declaration of Rights adopted in 1776, although it was then designated as Article 17 of the Declaration of Rights. Except for one word, the wording today is identical to the 1776 wording.  All of the original state constitutions adopted at the time of the Revolutionary War, except Virginia’s and North Carolina’s, contained provisions like Article 19. While the United States Constitution contains no comparable provision, today the constitutions of 39 states have clauses similar to Article 19.  These provisions, often referred to as ‘Remedy Clauses’ or ‘Open Courts Clauses’ or ‘Access to Courts Clauses,’ are based on Chapter 40 of the Magna Carta or, more particularly, Lord Coke’s interpretation of Chapter 40.^[69]

The Supreme Court of Maryland has recognized that Article 19 “generally protects two interrelated rights: (1) a right to a remedy for an injury to one’s person or property; [and] (2) a right of access to the courts.”^[70] Thus, Marylanders have a constitutional right to redress in the courts “[w]here a person clearly has a right to money or property under a statute or common law principle, and no statute specifically provides for a remedy, Article 19 guarantees a common law remedy to enforce the right.”^[71] Moreover, “Article 19 ensures that rights belonging to Marylanders are not illegally or arbitrarily denied by the government.”^[72] Accordingly, Article 19 permits only “reasonable restrictions upon traditional remedies or access to the courts.”^[73] Article 19 also “precludes the Legislature from immunizing from suit both the government and the governmental official involved when the cause of action is based upon a violation of state constitutional rights.”^[74] 

In the Piselli^[75] case, the Supreme Court of Maryland held that a statute of repose, running against a minor child during his or her period of minority and “barring an injured child’s medical malpractice claim before the child is able to bring an action[,] is an unreasonable restriction upon the child’s right to a remedy and access to the courts guaranteed by Article 19 of the Maryland Declaration of Rights.”^[76]

The Supreme Court of Maryland has also held that:

Article 19 provides a measure of constitutional protection even for causes of action which are not based on constitutional rights.^[77] While Article 19 generally prohibits a grant of immunity to both the governmental official and the governmental entity which tortiously violates a plaintiff’s state constitutional rights, the effect of Article 19 upon non-constitutional torts is somewhat more fluid. The test is one of reasonableness.^[78]

The Court specifically stated that “[a] statutory restriction upon access to the courts violates Article 19 . . . if the restriction is unreasonable.^[79] Article 19, “generally prohibits unreasonable restrictions upon traditional remedies or access to the courts but allows the legislature, pursuant to its authority to change the common law or statutory provisions, to enact reasonable restrictions upon traditional remedies or access to the courts.”^[80]

In Lee v. Cline, the Court ruled that “at least to the extent that the Maryland Tort Claims Act substitutes the liability of the State for the liability of the state employee committing a tort, the requirements of Article 19 are satisfied.”^[81] However, the Court carefully noted that:

There is one issue regarding the impact of Article 19 upon Maryland Tort Claims Act immunity which has not been raised in this case, which is not likely presented by the facts of the case, and upon which we intimate no opinion.  The Tort Claims Act, in § 12-104(a)(2) of the State Government Article, caps the State’s liability at $ 200,000, but the Act, in § 5-522(b) of the Courts and Judicial Proceedings Article, grants total immunity to state personnel for torts “for which the State or its units have waived immunity . . . even if the damages exceed the [monetary] limits of that waiver.”  Whether Article 19 of the Declaration of Rights precludes the grant of immunity to state personnel, to the extent that damages exceed $ 200,000, is an issue which has not previously been decided by the Court. As indicated above, we express no opinion on the issue.^[82]

 The following principles stand out from the courts’ various explanations of Article 19: Any restriction on access to the courts must be reasonable, and Article 19 prohibits immunizing both the government and the individual government employee, leaving a victim without remedies.^[83] Furthermore, Article 19 prohibits precisely what Maryland’s absolute prosecutorial immunity accomplishes in practice: denying any remedy to the wronged by immunizing both the prosecutor and the government.^[84]   

For all of the reasons above—and in concert with every person’s inherent drive to see justice prevail when someone is wronged—it is not reasonable to fully immunize prosecutors acting with evil motives to intentionally harm people using the vast powers of their office.

Absolute prosecutorial immunity violates Article 19 of the Maryland Declaration of Rights. It is unconstitutional for the courts, decades after the founding, to have declared the victims of rogue prosecutors remediless because Article 19 guarantees a remedy and reasonable access to the courts.

Absolute prosecutorial immunity also violates the right to trial by jury. Thomas Jefferson described the right to trial by jury as “‘the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.’”^[85] The fundamental right to trial by jury is enshrined in the Declaration of Rights, which provides in Article 5: “The inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law.”^[86] Article 23 of the Declaration of Rights likewise provides “[t]he right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of $ 10,000, shall be inviolably preserved.”^[87] Similarly, all Marylanders enjoy a right to access to the courts under Article 19 of the Declaration of Rights.^[88] Those constitutional provisions combine to create a fundamental right to trial by jury in civil matters meeting jurisdictional limits, as it was preserved under the common law of England, which cannot be abrogated by the court. As demonstrated above, there was no prosecutorial immunity in English common law; consequently, the right to sue one who wrongly prosecuted the plaintiff for a crime existed.^[89] As such, access to the courts and the right to a trial by jury as to such claims is guaranteed by our constitution.^[90]

Finally, Maryland’s courts should not have adopted absolute prosecutorial immunity but should have instead entrusted the matter to the legislature. Article 8 of the Declaration of Rights mandates a distinct separation of powers between the three branches of state government, providing: “[t]hat the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.”^[91] After all, it is the legislature’s function to create the law, and the courts are trusted with its interpretation and application.^[92] But here, the courts overstepped by creating an immunity, and an absolute one at that, which was not previously recognized in Maryland or imported via our Constitution from English common law.^[93]  

It is only through the adoption of any prosecutorial immunity by the legislative branch that Maryland may observe the constitutional mandate of separation of powers. After all, “the right of the People to participate in the Legislature is the best security of liberty and the foundation of all free Government.”^[94] The public’s right to be heard and to participate in the legislative process is denied when critical legislative functions, such as the grant of immunity, are performed by the courts with only the parties to a particular case before them.

Maryland’s General Assembly is the traditional body to pass legislation regarding any immunities due to public officials, like prosecutors. Examples abound, but include the Local Government Tort Claims Act and the Maryland Tort Claims Act (“MTCA”).^[95] The MTCA grants state employees immunity for all but grossly negligent or malicious conduct and substitutes the State as the liable party for conduct not rising to these standards.^[96]  Section 5-522(b) of the Courts and Judicial Proceedings Article provides that:

State personnel, as defined in § 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver.^[97]

Prosecutors fall within the statute’s definition of state personnel, so their acts within the scope of their public duties, and without malice or gross negligence, are shielded from liability by statute.

This is important to our analysis for two reasons. First, it demonstrates that the legislature has established ground rules for prosecutorial liability and that the judicial grant of absolute immunity should give way under the doctrine of separation of powers, as adopted in Maryland’s Constitution.^[98] Second, the existing statutory scheme permits the court to abolish absolute prosecutorial immunity without fear of any gap in protection for prosecutors who avoid gross negligence and malice.^[99] The solutions proposed here are easy to implement, and the court may act with confidence that all but what the Supreme Court called “dishonest officers” will be protected.^[100]

IV. Conclusion

John Adams hoped we would form “a government of laws, not of men,” but absolute immunity robs us of recourse to the law, ceding significant portions of our government to the absolute whim of the immune.^[101] It is long past time to reconsider this extreme approach in favor of a compromise permitting prosecutorial liability in instances of gross negligence or malice. This is the only way to make good on the constitutional promise that all Marylanders “for any injury done” shall have a “remedy” and “justice and right, freely without sale, fully without any denial.”^[102]

---

* Authors Kristen M. Mack and Cary J. Hansel are civil rights lawyers with the firm of Hansel Law, PC. Interested readers are invited to learn more about them and their practices at http://www.hansellaw.com.

[1] “Absolute immunity is ‘[a] complete exemption from civil liability, usu[ally] afforded to officials while performing particularly important functions, such as a representative enacting legislation and a judge presiding over a lawsuit.’” State v. Rovin, 472 Md. 317, 327 (2021) (citing Black’s Law Dictionary).

[2] See generally Md. Rule 1-341(a) (describing the court’s authority to dismiss frivolous claims).

[3] Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America, 53 Md. L. Rev. 271, 292–93 (1994) (“Prosecutors enjoy unparalleled power in our society. Traditionally, this power has manifested itself most clearly in the prosecutor’s decision whether to bring charges . . . . Concurrent with this power . . . there exists the great potential for abuse.”).

[4] See generally Rovin, 427 Md. 317 (2021) (explaining prosecutorial immunity); see generally Md. Code Ann., State Gov’t § 12-105 (West 2024) (stating that state personnel are immune from liability).

[5] See Md. Code Ann., Crim. Proc. §§ 14-106–14-111 (West 2008) (describing the duties of Maryland state prosecutors, including investigating, and filing cases).

[6] Ashley Nellis & Celeste Barry, A Matter of Life, The Sentencing Project (2025), https://www.sentencingproject.org/app/uploads/2025/01/A-Matter-of-Life-The-Scope-and-Impact-of-Life-and-Long-Term-Imprisonment-in-the-United-States.pdf; see also Yanet Amanuel, Let’s Believe in the Power of People to Change, ACLU Md. (March 28, 2024), https://www.aclu-md.org/en/news/lets-believe-power-people-change.

[7] Amanuel, supra note 6; see also Nellis & Barry, supra note 6.

[8] See infra note 9 (showing that Maryland has exonerated 54 individuals since 1989, about 2 individuals per year).

[9] See Exonerations—States, Maryland, The Nati’l Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/browse.aspx?View=%7BB8342AE7-6520-4A32-8A06-4B326208BAF8%7D&FilterField1=State&FilterValue1=Maryland (last visited May 5, 2025). 

[10] Id. 

[11] Id.

[12] Gill v. Ripley, 352 Md. 754, 769 (1999) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 494 (1993)).

[13] Absolute Immunity for Prosecutors, The Nati’l Police Accountability Project (2020), https://www.nlg-npap.org/wp-content/uploads/2020/07/Absolute-Immunity-Fact-Sheet-vF.pdf.

[14]  See Prosecutorial Immunity, Inst. for Just., https://ij.org/issues/project-on-immunity-and-accountability/immunity-forprosecutorial-conduct/ (last visited Jan. 10, 2025).

[15] Ambrose v. Gersh, 46 Md. App. 71, 75 (1980), aff’d, 291 Md. 188 (1981). 

[16] Simms v. Constantine, 113 Md. App. 291, 304 (1997) (“What emerges from . . . the extensive case law emanating from the Supreme Court of the United States on the subject of the immunity . . . albeit not . . . binding authority in Maryland, is nonetheless [] highly persuasive . . . .”).

[17] Md. Decl. of Rts. art. 5(a)(1) (“That the Inhabitants of Maryland are entitled to the Common Law of England . . . as existed on the Fourth day of July, seventeen hundred and seventy-six . . . .”).

[18] See William Brock, The Idiosyncrasies of Imbler: Absolute Immunity for Prosecutors Makes Absolutely No Sense, B.U. (Jan. 26, 2024), https://sites.bu.edu/dome/2024/01/26/the-idiosyncrasies-of-imbler-absolute-immunity-forprosecutors-makes-absolutely-no-sense/.

[19] Md. Decl. of Rts. art. 5(a)(1).

[20]  William Bock, The Idiosyncrasies of Imbler: Absolute Immunity for Prosecutors Makes Absolutely No Sense (Jan. 26, 2024), Bos. Univ. Sch. Of L., https://sites.bu.edu/dome/2024/01/26/the-idiosyncrasies-of-imbler-absolute-immunity-for-prosecutors-makes-absolutely-no-sense/.

[21] See John H. Langbein, The Origins of Public Prosecution at Common Law, 17 Am. J. Legal History 313, 315–17 (1973).

[22] See Bock supra note 20.

[23] Langbein, supra note 21.

[24] Gill v. Ripley, 352 Md. 754, 770 (1999).

[25] Id.; see State v. Rovin, 472 Md. 317, 346 (2021). 

[26] Rovin, 472 Md. at 345–46; see also Gill, 352 Md. at 767.

[27] Hines v. French, 157 Md. App. 536, 562–63 (2004) (first quotingShoemaker v. Smith, 353 Md. 143, 163 (1999); and then quotingLeese v. Balt. Cnty., 64 Md. App. 442, 480 (1985)). 

[28] Id.

[29] See Prince George’s Cnty. v. Longtin, 419 Md. 450, 499 (2011).

[30] Keith Longtin Paid $7.5 Million After Being Falsely Charged with His Wife’s Murder, Just. Denied, Summer 2012, at 5.

[31] Id.

[32] This information is known to the authors based on Cary Hansel’s work as Mr. Longtin’s attorney.

[33] Id.

[34] Keith Longtin Paid $7.5 Million After Being Falsely Charged with His Wife’s Murder, supa note 30.

[35] Id.

[36] Id.

[37] Md. Rule 4-247(a); Prince George’s Cnty. Maryland v. Longtin, 190 Md. App. 97, 141 (2010), aff’d sub nom 419 Md. 450 (2011).

[38] Longtin, 190 Md. App. at 141.

[39] Longtin, 419 Md. at 499 n.30 (quotingJones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)).

[40] Imbler v. Pachtman, 424 U.S. 409, 428 (1976) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)). 

[41] See Emily Widra, States of Incarceration: The Global Context 2024, Prison Pol’y Initiative, https://www.prisonpolicy.org/global/2024.html.

[42] Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, The Sent’g Project (Oct. 13, 2021), https://www.sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-stateprisons-the-sentencing-project/.

[43] Imbler, 424 U.S. at 428 (quoting Gregoire, 177 F. 2d at 581).

[44] Tower v. Glover, 467 U.S. 914, 921 (1984).

[45]  John B. Mitchell, In (Slightly Uncomfortable) Defense of ‘Triage’ by Public Defenders, 39 Val. U. L. Rev.

925, 930 (2005); John B. Mitchell, Redefining the Sixth Amendment, 67 S. Cal. L. Rev. 1215, 1216, 1227–29 (1994).

[46] See Drug Fair of Md., Inc. v. Smith, 263 Md. 341, 352 (1971).

[47] The authors wish to stress this point. Our colleagues in the 24 State’s Attorneys’ offices around the State are, in great measure, excellent people and devoted public servants doing important work with our gratitude. Our practice does, however, bring us into frequent contact with those whose conduct falls far short of these ideals, but would instead meet the high standards for liability proposed herein. While these problematic prosecutors are few in number, the same is not true for their victims, so the need for reform is great.

[48] Imbler,424 U.S. at 428. 

[49] Id.

[50] Jill W. Lens, Tort Law’s Deterrent Effect and Procedural Due Process, 50 Tulsa L. Rev. 115, 118 (2014).

[51] See infra notes 54 and 55.

[52] Barbre v. Pope, 402 Md. 157, 164–65 (2007) (explaining that due to the Defendants lack of diligence he violated the Plaintiffs constitutional rights).

[53] Barbre, 402 Md. 157, 187 (quoting Liscombe v. Potomac, 303 Md. 619, 635 (1968)). 

[54] Id. at 182.

[55] Id. at 182.

[56] Md. Code Ann., Crim. Proc. §§ 14-106–14-111 (West 2008) (describing the duties of Maryland state prosecutors, including investigating, and filing cases); see also Md. Const. art. V, § 3.

[57] Md. Code Ann., Crim. Proc. § 2-102(b)(1) (West 2025).

[58] Maryland Profile, Prison Pol’y Initiative, https://www.prisonpolicy.org/profiles/MD.html (last visited May 2, 2025); see also Nellis & Barry, supra note 6.

[59] See Md. Code Ann., Cts. & Jud. Proc. § 5-522(a)(4). 

[60] Crim. Proc. § 2-102(b)(1).

[61] Mapping Police Violence, Maryland, Police Data, https://policedata.org/report/md/statewide/uof (last visited May 2, 2025) (providing data regarding reported uses of force instances in Maryland from 2017 to 2022, which occurred more than 25,000 times).

[62] See, e.g., Prince George’s Cnty. Maryland v. Longtin, 190 Md. App. 97, 141 (2010), aff’d sub nom 419 Md. 450 (2011).

[63] Cts. & Jud. Proc. § 5-522(b).

[64] Gill v. Ripley, 352 Md. 754, 770 (1999).

[65] Md. Decl. of Rts. art. 6.

[66] Id. at art. 19.

[67] For a more comprehensive review of the history and application of such clauses, see Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001); Shannon M. Roesler, The Kansas Remedy by Due Course of Law Provision: Defining a Right to a Remedy, 47 Kan. L. Rev. 655 (1999); Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L. Rev. 1279 (1995); David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197 (1992); David Schuman, Oregon’s Remedy Guarantee, 65 Or. L. Rev. 35 (1986); Hans A. Linde, First Things First: Rediscovering The States’ Bills of Rights, 9 U. Balt. L. Rev. 379, 385 (1980); Richard L. Perry & John C. Cooper, Sources of Our Liberties 341–351 (1990); Raymond B Stringham, Magna Carta Fountainhead of Freedom 54–57 (1966); Samuel E. Thorne et al., The Great Charter: Four Essays on the Magna Carta and the History of Our Liberty 52–61 (1965); Faith Thompson, Magna Carta: its Role in the Making of the English Constitution, 1300-1629, at 97–99, 364–365 (1948); see also Carl Nicholas Everstine, The General Assembly of Maryland, 1634-1776, at 566 (1980).

[68] Piselli v. 75th Street Med., 371 Md. 188, 204–205 (2002).

[69] Id.

[70] Piselli, 371 Md. at 205. 

[71] Id. at 206. 

[72] Doe v. Doe, 358 Md. 113, 127 (2000) (internal quotation marks omitted). 

[73] Piselli, 371 Md. at 206 (emphasis added).

[74] Id. at 207; see Lee v. Cline, 384 Md. 245, 262–64 (2004); DiPino v. Davis, 354 Md. 18, 50–51 (1999); Ashton v. Brown, 339 Md. 70, 105–06 (1995); Ritchie v. Donnelly, 324 Md. 344, 370–75 (1991); Clea v. City of Balt., 312 Md. 662, 680–81 (1988); Weyler v. Gibson, 110 Md. 636, 653–54 (1909).

[75] Piselli, 371 Md. at 216.

[76] Id.

[77] Dua v. Comcast Cable of Maryland, Inc.,370 Md. 604, 644 (2002); see also Robinson v. Bunch, 367 Md. 432, 444 (2002); Doe, 358 Md. at 128; State v. Board of Education, 346 Md. at 647; Renko v. McLean, 346 Md. 464, 484 (1997);Johnson v. Maryland State Police, 331 Md. 285, 297 (1993); Murphy v. Edmonds, 325 Md. 342, 365 (1992).

[78] Lee, 384 Md. at 264–266 (quoting Murphy, 325 Md. at 365). 

[79] Murphy, 325 Md. at 365.

[80] Lee, 384 Md. at 264–266 (quoting Johnson, 331 Md. at 297).

[81] Id. 

[82] Id. at 267 n.4.

[83] Id.

[84] See, e.g., Parker v. State, 337 Md. 271, 274–75 (1995) (discussing an analogous doctrine: judicial immunity). The Supreme Court of Maryland has not only recognized that judicial immunity bars a suit and “cannot form the basis of a recovery against the State . . . . ,” id. at 286, but also that “absolute [judicial] immunity is needed to forestall endless collateral attacks on judgments through civil actions against the judges themselves,” id. at 287.

[85] Lucky Ned Pepper’s, Ltd. v. Columbia Park & Recreation Asso., 64 Md. App. 222, 225 (1985) (quoting Thomas Jefferson, Letter to Thomas Paine (1789)).

[86] Md. Decl. of Rts. art. 5.

[87] Md. Decl. of Rts. art. 23.

[88] Md. Decl. of Rts. art. 19.

[89] Md. Decl. of Rts. art. 5, 23, 19.

[90] Id.

[91] Md. Decl. of Rts. art. 8.

[92] Stearman v. State Farm Mut. Auto. Ins. Co., 381 Md. 436, 454 (2004) (interpreting the Maryland Constitution).

[93] Bock, supra note 20; Langbein, supra note 21.

[94] Md. Decl. of Rts. art. 7; see also Md. Decl. of Rts. art. 8. 

[95] Md. Code Ann., State Gov’t § 12-104-105 (West 2024).

[96] Id.; see Cooper v. Rodriguez, 443 Md. 680, 706–07 (2015); see also Md. Code Ann., Cts. & Jud. Proc. § 5-522(b) (West 2025).

[97] Cts. & Jud. Proc. § 5-522(b).

[98] Md. Decl. of Rts. art. 8.

[99] See, e.g., Md. Code Ann., Cts. & Jud. Proc. § 5-522(b).

[100] Imbler v. Pachtman, 424 U.S. 409, 428 (1976).

[101] Amanda A. Mathews, “A Government of Laws and Not of Men”: John Adams, Attorney, and the Massachusetts Constitution of 1780, at 110 (Boston College 2008); see also Mass. Const. pt. 1, art. XXX (“[T]o the end it may be a government of laws and not of men.”).

[102] Md. Decl. of Rts. art. 19 & art. 5.