Article Regarding DA Cruden’s actions from Carolina Public Press:
DA faces defamation lawsuit over memos about sexual assault case
by Mackenzie Thomas
This article mentions that DA Cruden will have to overcome sovereign immunity in this case.
However, the following article by Trey Allen from the UNC School of Government entitled “Do Intentional Tort Claims Always Defeat Public Official Immunity” explains how malice overcomes claims of sovereign and public official immunity.
Furthermore, according to Buckley vs Fitzsimmons 509 U.S. 259 (1993) as seen on the following website:
Where DA Fitzsimmons made statements to the media:
“Fitzsimmons' statements to the media also are not entitled to absolute immunity. There was no common-law immunity for prosecutor's out-of-court statements to the press, and, under Imbler, such comments have no functional tie to the judicial process just because they are made by a prosecutor. Nor do policy considerations support extending absolute immunity to press statements, since this Court has no license to establish immunities from § 1983 actions in the interests of what it judges to be sound public policy, and since the presumption is that qualified, rather than absolute, immunity is sufficient to protect government officials in the exercise of their duties.
  • Thus, statements made publicly to the press are not entitled to absolute prosecutorial immunity, only qualified immunity. Yet, immunity refers to immunity from civil suit for federal 1983 civil rights claims. However, in cases of state tort defamation claims, absolute and qualified privilege are in play instead. However, absolute privilege would not be entitled for out of court statements to the public either and qualified privilege can be overcome by proving malice.
According to North Carolina case law found in the following jury instructions:
"Actual malice may be found in a reckless disregard for the truth and may be proven by a showing that the defamatory statement was made in bad faith, without probable cause or without checking for truth by the means at hand."
Thus, we believe that DA Cruden acted with actual malice when he published false statements about a witness without probable cause or without checking for truth by the means at hand. Actual malice overcomes soverign immunity as well as qualified privilage.