By Megan M. Olson
Government employees are afforded a variety of protections to allow them to perform their jobs without being subject to civil liabilities. Prosecutorial immunity mirrors the immunity afforded to judges, which protects prosecutors who are acting within the scope of their official duties from civil liability, even if such acts are malicious. The primary public policy argument in favor of absolute prosecutorial immunity is to allow prosecutors to focus on their public duties and exercise independent judgment in initiating cases without concern for harassment or intimidation by unsatisfied litigants.
A recent Illinois appellate case tests the extent of prosecutorial immunity. In Kirichkow vs. Bruscato, 2025 IL App (4th) 240552, Plaintiff (the former Mayor of South Beloit) alleged that while the parties were serving their respective terms in office, Defendant (the former State’s Attorney of Winnebago County) pressured him to cooperate in a scheme to disband the South Beloit Police Department so that the Winnebago County Sheriff’s Office could take it over. Plaintiff further alleged he was threatened with arrest if he failed to do what was asked of him.
Shortly after the Plaintiff’s mayoral term ended, he was arrested and indicted for obstruction of justice stemming from a city council meeting in which the plaintiff played a shortened video clip of an incident at the police department instead of playing the entire video. The charges were brought by Defendant, who was still serving as the State’s Attorney for Winnebago County. The criminal case was eventually dismissed after no probable cause was found for the charges at the trial court level. Plaintiff later filed a civil lawsuit for malicious prosecution against Defendant, alleging criminal charges were filed against him for political reasons and as retribution for plaintiff’s unwillingness to participate in defendant’s plan to disband the South Beloit Police Department.
The appellate court was tasked with answering the following: “Whether, for purposes of prosecutorial immunity, a prosecutor’s decision to prosecute a criminal for solely malicious reasons is an act outside of the scope of prosecutorial duties.” On March 7, 2025, the Fourth District answered this question in the negative. The Fourth District acknowledged that both Illinois and federal courts have historically recognized the common-law doctrine of absolute prosecutorial immunity. With respect to the application of absolute prosecutorial immunity, the Court looked to the “functional approach” adopted by the United States Supreme Court and several Illinois appellate decisions. The “functional approach” assesses the nature of function performed, rather than the identity of the person who performed it. Bianchi v. McQueen, 2016 Ill. App. 2d 150646, 58 N.E.3d 680 (2nd Dist. 2016). As such, a prosecutor has absolute immunity only for those activities which are intimately associated with the judicial phase of the criminal process, but not when they perform investigative functions normally performed by a police officer. White v. City of Chicago, 369 Ill. App. 3d 765, 769-71, 861 N.E.2d 1083 (1st Dist. 2006).
Rejecting public policy arguments from Plaintiff, the Fourth District cited to the reasoning outlined in Frank v. Garnati, 2013 Ill. App. 120321, 989, N.E. 2d 319 (5th Dist. 2013). In the Frank case, the Fifth District determined that absolute prosecutorial immunity does not prevent prosecutors from the potential of being criminally charged, but protects prosecutors from being subject to harassing civil litigation which would distract from his or her official duties and the ability to utilize independent judgment when determining what prosecutions to pursue and allowing them to proceed through the court system. The Fourth District concluded that a prosecutor’s decision to prosecute a defendant, even if motivated by “solely malicious reasons,” is covered by absolute prosecutorial immunity because such a decision is intimately associated with the judicial phase of the criminal process. The Fourth District has remanded this matter back to the trial court for further proceedings.
The key takeaway from the Kirichkow case is that Illinois courts are unwilling to weaken the application of such protections. As prosecutorial immunity and judicial immunity are so closely aligned, doing so could open the door to weakening civil protections afforded to government employees not only in the judicial branch, but in all areas of government.
About Megan M. Olson
Megan focuses her practice on serving cities, villages, townships, library districts, road districts, park districts and other local government entities. In addition to providing general counsel, she provides guidance on establishing and drafting new ordinances and policies, contract negotiations, building and code enforcement, administrative proceedings, Freedom of Information Act compliance and intergovernmental agreements. Megan also has experience in eminent domain, land use, development and public water supply matters. Click here to read Megan's full attorney bio.