Whether absolute prosecutorial immunity under 42 U.S.C. § 1983 extends to a prosecutor's knowing destruction of exculpatory evidence and defiance of a specific court order that leaves no room for discretion

No question identified. : 2. Good cause exists for a 30-day extension. An extension is justified by the press of business on numerous other pending matters. The undersigned is responsible for the following engagements, which make it difficult for counsel to prepare the petition for a writ of certiorari by the current deadline: 1) Oral argument in Sonos, Inc. v. Int'l Trade Comm'n, No. 22-1421, and Sonos, Inc. v. Google, No. 22-1573 (Fed. Cir.), on November 8, 2023; 2) Oral argument in Pegasystems Inc. v. Appian Corp., No. 1399-22-4 (Va. Ct. App.), on November 15, 2023; 3) A reply brief in Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., Nos. 23-10151 and 23-10171 (11th Cir.), due November 20, 2023; 4) A brief in opposition to certiorari in Smith v. Spizzirri, No. 22-1218 (U.S.), due December 4, 2023. 5) A reply brief in AliveCor v. ITC, Nos. 23-1509 and 23-1553 (Fed. Cir.), due January 17, 2024; and 6) Ongoing argument preparation in Plexxikon Inc. v. Novartis Pharm. Corp., No. 23-1118 (Fed. Cir.). 8. In addition, an extension is warranted because this case presents two substantial and important questions of law: is the defense of absolute prosecutorial immunity available under 42 U.S.C. § 1983 for a prosecutor’s knowing destruction of exculpatory evidence, and is it available for a prosecutor’s defiance of a specific court order that leaves no room for discretion? In holding that absolute immunity is available for both forms of prosecutorial misconduct, the Sixth Circuit disregarded this Court’s carefully drawn boundaries on the defense. This Court has made clear that absolute immunity serves only to insulate prosecutorial conduct that is intimately related to the judicial process and entails the exercise of advocative discretion and professional judgment. See Kalina v. Fletcher, 522 U.S. 118, 126, 130 (1997). The two forms of misconduct at issue here fall outside those limits. Destroying evidence is a ministerial act far removed from the judicial process, and as Judge Nalbandian emphasized in parting ways with the panel majority, defying a judicial directive that leaves no room for discretion is “disobedience,” not advocacy. App. A at 27 (quoting Odd v. Malone, 538 F.3d 202, 214 (3d Cir. 2008)). 4, Both questions Applicant will present to the Court are ones on which the circuits are split. First, in holding that absolute immunity applies to the knowing destruction of exculpatory evidence, the Sixth Circuit joined three other circuits and expressly split from the Third Circuit. Compare App. A at 9, and Annappareddy v. Pascale, 996 F.3d 120, 142 (4th Cir. 2021), and Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978), with Yarris v. County of Delaware, 465 F.3d 129, 136-37 (3d Cir. 2006) (rejecting absolute immunity for the knowing disposal of exculpatory evidence). Similarly, the Sixth Circuit’s grant of absolute immunity for defiance of a court order that left no room for discretion deepened an existing split between the Eighth and Eleventh Circuits—both of which grant absolute immunity for such misconduct—and the Third and Tenth Circuits, which reject absolute immunity for the same misconduct. Compare App. A at 10, and Hart v. Hodges, 587 F.3d 1288, 1298 (11th Cir. 2009), and Webster v. Gibson, 913 F.2d 510, 512 (8th Cir. 1990), with Odd, 538 F.3d at 214, and Gagan v. Norton, 35 F.3d 1473, 1474-75 (10th Cir. 1994). 5. Additional time is also necessary because undersigned counsel and his firm did not represent Applicant before the Sixth Circuit. Additional time is thus reasonably necessary for counsel to become familiar with the issues, the record, and relevant case law. An extension of time will help ensure that the petition clearly and thoroughly presents the important issues raised by the Sixth Circuit’s decision. 6. The requested 30-day extension would cause no prejudice to Respondents, who have advised that they have no objection to the extension. 7. For the foregoing reasons, Applicant hereby requests that an