MADISON, Wis. (Legal Newsline) –The 7th Circuit U.S. Court of Appeals is considering the appeal in a Wisconsin civil rights case brought by Cindy Archer, former assistant to Gov. Scott Walker. Walker was the target of two John Doe investigations by Milwaukee District Attorney John Chisolm in 2010 and 2011.

The “John Doe” investigations were shut down in October 2016 by the U.S. Supreme Court. Wisconsin prosecutors like Chisolm had used a little-known provision of state law to investigate aides to Walker in 2010 and 2011, raiding their homes and taking their personal property, then ordering them to be silent. Cindy Archer was the target of one of those raids.

Archer’s civil rights lawsuit against Milwaukee District Attorney John Chisolm raises questions because Chisolm’s attorneys assert that since he is a district attorney, his prosecutorial immunity protects him.

According to WisconsinWatchdog.org, arguments before Seventh Circuit judges in January focused on whether prosecutors are immune from the litigation and if public employees sacrifice their First Amendment rights because they are public employees.

After the raid, Archer filed a civil rights suit naming Chisolm and others, claiming violation of her First Amendment rights because she was ordered to not discuss the raid on her home. Chisolm defended himself by claiming “prosecutorial immunity.” Prosecutors are generally immune to such actions in the course of their duties.

Archer was never accused of a crime, her attorney, David Rivkin, argued.

The trial court sided with Chisolm and dismissed Archer’s lawsuit. Archer appealed, arguing that Chisolm was participating in an investigation, thus his immunity was not guaranteed. In other words, Chisolm acted as a government employee running an investigation, rather than an attorney, she argued.

The Wisconsin Supreme Court got involved. In July 2015 the court stated in the majority opinion: “It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.” It also stated that those citizens hold “fundamental right … to engage in lawful political activity … free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution.”

Peter Russell is a former police officer and now an attorney in Gretna, Louisiana, and partner in the McBride and Russell law firm. He has handled criminal defense matters. 

He opines that “Courts have already allowed for protection for cops in the performance of their duties. These same protections cover prosecutors who are initiating investigations. But these protections are only valid if those officials are doing their job in good faith.”

As Russell explained to Legal Newsline, “When a prosecutor acts in a criminal matter to suppress free speech because it disagrees with his or her own [opinions] that’s criminal and there should be no protection.”

Russell views the Wisconsin matter, and the conduct of Chisolm, as outrageous.

“That’s egregious - this guy went after anybody he didn’t agree with. This prosecutor belongs in jail. As an attorney, Chisolm deserves to lose his law license for malicious prosecution. It actually sounds like a movie."

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