Case 1:23-cv-00894-JLH Document 14 Filed 02/05/24 Page 1 of 25 PageID #: 387

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

KATHLEEN KRAMEDAS MCGUINESS, )

CHRISTIE R. GROSS, and )
MY CAMPAIGN GROUP, LLC, )
)
Plaintiffs, )
)
v. ) C.A. No. 23-894-JLH
)
KATHLEEN JENNINGS, )
MARK DENNEY, )
ALEXANDER MACKLER, and )
FRANK ROBINSON, )
)
Defendants. )

DEFENDANTS’ OPENING BRIEF

IN SUPPORT OF THEIR MOTION TO DISMISS
PLAINTIFFS’ SECOND AMENDED COMPLAINT

STATE OF DELAWARE
DEPARTMENT OF JUSTICE

Nicholas D. Picollelli, Jr. (#6317)

Kenneth L. Wan (#5667)
Deputy Attorneys General
Carvel State Office Building
820 N. French Street, 6th Fl.
Wilmington, DE 19801
(302) 577-8400
[email protected]
[email protected]

Counsel for Defendants

Date: February 5, 2024

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION ...........................................................................................................................1

SUMMARY OF THE ARGUMENT ..............................................................................................2

BACKGROUND AND STATEMENT OF FACTS .......................................................................3

STANDARD OF REVIEW .............................................................................................................5

ARGUMENT ...................................................................................................................................6

I. The Court Should Dismiss Count I of the Second Amended Complaint, Plaintiff
McGuiness’s Franks’ Claim Against Defendants Denney, Mackler, and Robinson,
Because It is Barred by Heck and Fails to State a Claim Under Franks .............................6

A. Count I is barred, in part, by Heck because a successful Franks’ claim would

necessarily imply the invalidity of Plaintiff McGuiness’s conviction for
Official Misconduct .................................................................................................6

B. Count I also fails to state a Franks’ claim, in part, because the information in the
Search Warrant that Plaintiff McGuiness contends is misleading is unnecessary to
a finding of “probable cause to believe that the OAOA’s video system might
contain evidence of a crime.” Plaintiff McGuiness was charged with witness
intimidation, and other information in the Search Warrant was sufficiently related
to the that charge to justify seizure of the video surveillance ..................................8

II. The Court Should Dismiss Count I of the Second Amended Complaint, Plaintiff
McGuiness’s Franks’ Claim Against Defendants Denney and Mackler, Because They Are
Entitled to Absolute Prosecutorial Immunity ....................................................................10

III. The Court Should Dismiss Count II of the Second Amended Complaint, Plaintiffs
McGuiness, Gross, and MYCG’s Slander Claim Against Defendants Mackler and
Robinson Because They Did Not Make Any Statements at the Press Conference. And the
Court Should Dismiss Count II Against Defendants Jennings and Denney Because They
Are Entitled to Absolute Immunity Under Delaware’s State Tort Claims Act, 10 Del. C.
§ 4001, and Delaware’s Common Law..............................................................................13

A. Defendants Mackler and Robinson could not have defamed Plaintiffs McGuiness,
Gross, and MYCG during the Press Conference because they did not make any
statements at all ......................................................................................................13

B. Defendants Jennings and Denney are entitled to “absolute immunity” under

Delaware’s State Tort Claims Act, 10 Del. C. § 4001, and Delaware’s common law

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because announcing the indictment of Plaintiff McGuiness was within their official
duties ......................................................................................................................14

i. Delaware’s State Tort Claims Act, 10 Del. C. § 4001 ...............................14

ii. Common Law “Absolute Immunity” to Defamation .................................15

iii. The Delaware Attorney General’s Powers, Duties, and Authority ............17

iv. The Press Conference ................................................................................18

CONCLUSION ..............................................................................................................................20

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TABLE OF AUTHORITIES

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................5

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................5

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ...............................................................................11

Burns v. Reed, 500 U.S. 478 (1991) .........................................................................................10,12

Christopher v. Sussex County, 77 A.3d 951 (Del. 2013) ...............................................................17

Commonwealth v. Schab, 383 A.2d 819 (Pa. 1978) ......................................................................17

Cornish v. Delaware State Police, 1995 WL 413415 (Del. Super. June 2, 1995).........................14

Darling Apartment Co. v. Springer, 22 A.2d 397 (Del. 1941) ......................................................17

Factor v. Goode, 612 A.2d 591 (Pa. Commw. Ct. 1992) ..............................................................19

Fogle v. Sokol, 957 F.3d 148 (3d Cir. 2020)..................................................................................10

Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979) ...................................................................13

Franks v. Delaware, 438 U.S. 154 (1978) ...................................................................1,2,3,6,8,9,10

Greenpoint Tactical Income Fund LLC v. Pettigrew, 38 F.4th 555 (7th Cir. 2022) ................11,12

Grier v. Klem, 591 F.3d 672 (3d Cir. 2010) ....................................................................................7

Heck v. Humphrey, 512 U.S. 477 (1994) ................................................................................1,2,6,8

Imbler v. Pachtman, 424 U.S. 409 (1976) ................................................................................10,11

Kalina v. Fletcher, 522 U.S. 118 (1997)........................................................................................12

Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir. 1992) .................................................................10,11

Matson v. Margiotti, 88 A.2d 892 (Pa. 1952) ...........................................................................17,18

Matthews v. Mancuso, 2017 WL 4164419 (Del. Super. Sept. 19, 2017) ......................................14

Mosley v. Observer Pub. Co., 619 A.2d 343 (Pa. Super. 1993) ....................................................19

Nelson v. Jashurek, 109 F.3d 142 (3d Cir. 1997) ............................................................................6

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Odd v. Malone, 538 F.3d 202 (3d Cir. 2008) ............................................................................10,11

Reynolds v. State, 1999 WL 1427760 (Del. Super. Nov. 10, 1999) ..............................................14

Scheer v. Taylor, 2023 WL 4211510 (W.D. Pa. June 2, 2023) .....................................................12

Seth v. State, 592 A.2d 436 (Del. 1991)....................................................................................16,17

Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997) .......................................................................8

Shnipes v. Shaprio, 2023 WL 6436741 (M.D. Pa. Sept. 29, 2023) ...............................................18

Schrob v. Catterson, 948 F.2d 1402 (3d Cir. 1991) .......................................................................13

State v. McGuiness, 2022 WL 3971195 (Del. Super. Aug. 30, 2022) ..........................................3,7

Thomas v. Kane, 2016 WL 6081868 (Pa. Commw. Ct. Oct. 17, 2016) ...................................16,19

Van de Kamp v. Goldstein, 555 U.S. 335 (2009)......................................................................10,11

Statutes, Rules, and Other Authorities:

Del. Const. Art. III .........................................................................................................................17

42 U.S.C. § 1983 ........................................................................................................................3,6,8

10 Del. C. § 4001 ................................................................................................................1,2,13,14

11 Del. C. § 3532 .............................................................................................................................9

29 Del. C. § 2504 ...........................................................................................................................17

29 Del. C. § 2505 ...........................................................................................................................16

Restatement (Second) of Torts..................................................................................................15,16

Fed. R. Civ. P. 12 .............................................................................................................................5

Fed. R. Civ. P. 8 ...............................................................................................................................5

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INTRODUCTION

This is not a case about protecting and vindicating fundamental rights. Instead, this case

has been brought merely as revenge against Attorney General Jennings, Chief Deputy Attorney

General Mackler, former Deputy Attorney General Denney, and Chief Investigator Robinson for

daring to prosecute Plaintiff McGuiness for her misconduct while serving as the Delaware State

Auditor. Plaintiff McGuiness was the first sitting, statewide public office holder to be convicted

of criminal charges in Delaware. And, from the beginning, she has refused to take responsibility

for her actions and tried to paint the prosecution as biased and sloppy. But the jury in her criminal

case did not buy it. Nor should the same allegations be successful in this case.

First, Plaintiff McGuiness’s Franks’ claim against Defendants Denney, Mackler, and

Robinson is barred, in part, by Heck v. Humphrey, 512 U.S. 477 (1994) because establishing her

claim would “necessarily imply the invalidity” of her conviction for Official Misconduct. Plaintiff

McGuiness’s conviction for Official Misconduct, like her conviction for Non-Compliance With

Delaware’s Procurement Law, was based in part on the structuring of payments under a contract

with Plaintiff My Campaign Group (“MYCG”) and its owner, Plaintiff Christie R. Gross. Second,

despite contending that her prosecution was sloppy, Plaintiff McGuiness has failed, in part, to state

a Franks’ claim. Third, Plaintiff McGuiness ignores that Defendants Denney and Mackler are

entitled to prosecutorial immunity for her Franks’ claim. Fourth, despite contending that

Defendants Mackler and Robinson defamed Plaintiffs McGuiness, Gross, and MYCG during a

press conference, Defendant Mackler never spoke during the press conference, and Defendant

Robinson was not present at all for it. Fifth, Defendants Jennings and Denney are entitled to

absolute immunity under Delaware’s State Tort Claims Act, 10 Del. C. § 4001, and Delaware’s

common law.

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SUMMARY OF THE ARGUMENT

I. The Court should dismiss Count I of the Second Amended Complaint, Plaintiff

McGuiness’s Franks’ claim against Defendants Denney, Mackler, and Robinson, because it is

barred by Heck v. Humphrey, 512 U.S. 477 (1994) and fails to state a claim under Franks v.

Delaware, 438 U.S. 154 (1978).

II. The Court should dismiss Count I of the Second Amended Complaint, Plaintiff

McGuiness’s Franks’ claim against Defendants Denney and Mackler, because they are entitled to

absolute prosecutorial immunity.

III. The Court should dismiss Count II of the Second Amended Complaint, Plaintiffs

McGuiness, Gross, and MYCG’s slander claim against Defendants Mackler and Robinson because

they did not make any statements at the Press Conference. And the Court should dismiss Count II

against Defendants Jennings and Denney because they are entitled to absolute immunity under

Delaware’s State Tort Claims Act, 10 Del. C. § 4001, and Delaware’s common law.

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BACKGROUND AND STATEMENT OF FACTS

Plaintiff McGuiness served as the Delaware State Auditor from January 2019 until October

2022. D.I. 5, Second Amend. Compl. at 3, ¶ 9. On July 1, 2022, Plaintiff McGuiness was

convicted by a jury in Delaware’s Superior Court of Structuring: Non-Compliance With

Delaware’s Procurement Law and Official Misconduct related, in part, to a contract that she

entered into with Plaintiffs MYCG and Gross. See State v. McGuiness, 2022 WL 3971195, at *1,

*4-7 (Del. Super. Aug. 30, 2022). In support of both convictions, lead prosecutor for the State of

Delaware, Defendant Denney, presented evidence that Plaintiff McGuiness intentionally split

invoices under the MYCG contract into multiple payments to avoid oversight and Delaware

Division of Accounting approval. See Trial Tr. at 4-6, 15-24, 90-91, State of Delaware v.

McGuiness, No. 2206000799 (June 30, 2022).

Now, pursuant to 42 U.S.C. § 1983, Plaintiff McGuiness brings this action against

Defendants Denney, Mackler, and Robinson for alleged mistakes made during the investigation of

her crimes. Specifically, Plaintiff McGuiness brings a Franks’ claim for allegedly false or

misleading statements that Defendants Denney, Mackler, and Robinson included in an affidavit of

probable cause in support of a search warrant (the “Search Warrant”) executed during the

investigation. See Second Amend. Compl. at 21-25, ¶¶ 80-96. Plaintiff McGuiness contends it

was false that she split the MYCG contract invoices into multiple payments to avoid oversight and

Delaware Division of Accounting approval because she did, in fact, have approval. Id. at 22-23,

¶¶ 85-86. And Plaintiff McGuiness takes issue with the inclusion of a statement in the Search

Warrant, that an employee in Plaintiff McGuiness’s office had an item stolen from her at work,

because the allegation was investigated by police, and police determined the allegation was not

credible. Id. at 23, ¶¶ 87-88. Moreover, Defendants Denney, Mackler, and Robinson allegedly

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knew or should have known the statements in the Search Warrant were false or misleading because

they had access to the same evidence. Id. at 22-25, ¶¶ 86, 88, 90-91, 94-95.

Plaintiffs McGuiness, Gross, and MYCG also bring a claim for slander under Delaware

common law against Defendants Jennings, Denney, Mackler, and Robinson for statements made

during a press conference (the “Press Conference”) to announce Plaintiff McGuiness’s criminal

indictment. Id. at 25-29, ¶¶ 97-119. According to Plaintiffs McGuiness, Gross, and MYCG, it

was a false statement that they entered into a “sweetheart deal” to avoid public bidding and that

Plaintiff McGuiness illegally structured a series of payments to MYCG in order to avoid public

oversight, specifically, the Delaware Division of Accounting. Id. at 26-28, ¶¶ 102-03, 108, 114.

And the nature of MYCG’s services was allegedly misrepresented. Second Amend. Compl. at 28-

29, ¶¶ 115-116. Finally, Defendants Jennings, Denney, Mackler, and Robinson allegedly knew or

should have known the statements were false. Id. at 26-28, ¶¶ 103-04, 109, 112-113, 115.

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STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows an accused party to bring a motion to

dismiss a complainant’s claims for failing to provide a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2), 12(b)(6). A Rule 12(b)(6)

motion may be granted only if, accepting the well-pleaded allegations in the complaint as true and

viewing them in the light most favorable to the complainant, a court concludes that those

allegations “could not raise a claim of entitlement to relief[.]” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 558 (2007).

The factual allegations do not have to be detailed, but they must provide more than labels,

conclusions, or a “formulaic recitation” of the claim elements. Id. at 555 (“Factual allegations

must be enough to raise a right to relief above the speculative level … on the assumption that all

the allegations in the complaint are true (even if doubtful in fact)[.]”). Moreover, there must be

sufficient factual matter to state a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). The facial plausibility standard is satisfied when the complaint’s factual content

“allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (“Where a complaint pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and plausibility of entitlement to relief.”

(internal quotation marks and citation omitted)).

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ARGUMENT

I. The Court Should Dismiss Count I of the Second Amended Complaint, Plaintiff
McGuiness’s Franks’ Claim Against Defendants Denney, Mackler, and Robinson,
Because It Is Barred by Heck and Fails to State a Claim Under Franks.

A. Count I is barred, in part, by Heck because a successful Franks’ claim would

necessarily imply the invalidity of Plaintiff McGuiness’s conviction for
Official Misconduct.

Plaintiff McGuiness contends that Defendants Denney, Mackler, and Robinson violated

the Fourth Amendment by co-drafting an affidavit of probable cause in support of the Search

Warrant which allegedly included false or misleading information. See Second Amend. Compl.

at 21-25, ¶¶ 80-96. More precisely, Plaintiff McGuiness contends that it was false or misleading

to state that she split invoice payments under a contract with Plaintiffs MYCG and Gross because

accounting records “showed that both invoice payments were, in fact, approved by the Division of

Accounting as required by that agency’s regulations.” Id. at 22-23, ¶¶ 85-86. She further contends

that, because Defendants Denney, Mackler, and Robinson possessed or had access to the

accounting records, they knew or should have known that their statements were false or

misleading. Id. at 22-24, ¶¶ 85-86, 91, 94.

This claim, however, is barred by Heck v. Humphrey, 512 U.S. 477 (1994). Heck provides

that no cause of action exists under 42 U.S.C. § 1983 for “harm caused by actions whose

unlawfulness would render a conviction or sentence invalid” or would “necessarily imply the

invalidity of” the conviction, unless the conviction or sentence has been reversed, vacated,

expunged, or otherwise favorably terminated. Heck, 512 U.S. at 486-87. A plaintiff’s lawsuit is

barred under § 1983 if “establishing the basis for the … claim necessarily demonstrates the

invalidity of the conviction.” Id. at 481-82; see, e.g., Nelson v. Jashurek, 109 F.3d 142, 145 (3d

Cir. 1997). Thus, a plaintiff may not sue “for alleged unconstitutional conduct that would

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invalidate his or her underlying sentence or conviction unless that conviction has already been”

favorably terminated. Grier v. Klem, 591 F.3d 672, 677 (3d Cir. 2010).

In Plaintiff McGuiness’s criminal case, she faced charges for Structuring: Non-Compliance

with Delaware’s Procurement Law and Official Misconduct. See State v. McGuiness, 2022 WL

3971195, at *1. Defendant Denney, as lead prosecutor, presented the same evidence for both

charges at trial, including that Plaintiff McGuiness split invoice payments under the contract with

Plaintiffs Gross and MYCG. See Trial Tr. at 4-6, 15-24, 90-91, State of Delaware v. McGuiness,

No. 2206000799 (June 30, 2022). And, in response, Plaintiff McGuiness made the same argument

as she does now: that invoice payments for the MYCG contract were approved by Delaware’s

Division of Accounting as required by that agency’s regulations. Id. at 45-47. Nonetheless, the

jury convicted Plaintiff McGuiness of both charges. State v. McGuiness, 2022 WL 3971195, at *1.

Subsequently, the Superior Court entered a judgment of acquittal for Plaintiff McGuiness

on the structuring conviction. See id. at *4-6. The court explained that, although Plaintiff

McGuiness’s structuring of the MYCG contract undoubtedly violated Delaware’s accounting

procedures, it did not constitute a crime under Delaware’s Procurement Code. Id. The court,

though, did not reach the same conclusion as to Plaintiff McGuiness’s conviction for Official

Misconduct. Id. at *6-7. It left the conviction in place, id., and noted explicitly that:

While the Court has found the jury’s verdict as to [the structuring charge] was not
supported by the evidence, the facts surrounding the interaction between MyCG,
Christie Gross and the Defendant can still be considered and are relevant to whether
the facts support the Official Misconduct offense …. [The structuring charge] is a
technical one relating specifically to the procurement process while [the Official
Misconduct offense] is broader in scope and relates to the relationship between the
Defendant, [her] Daughter and MyCG.

Id. at *6 n.51

In other words, because the same evidence led a jury to convict Plaintiff McGuiness of

Structuring: Non-Compliance with Delaware’s Procurement Code and Official Misconduct, it is

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immaterial that one of the convictions was terminated in her favor. That is, so long as establishing

her claim in this case would “necessarily imply the invalidity” of her Official Misconduct

conviction. And it would; and it does. Again, Plaintiff McGuiness contends here, as she did at

her criminal trial, that invoice payments for the contract with Plaintiffs Gross and MYCG were

approved by Delaware’s Division of Accounting, as required by that agency’s regulations. But a

jury already heard and rejected that defense when they found Plaintiff McGuiness guilty of Official

Misconduct. Consequently, Count I of the Second Amended Complaint is barred, in part, by Heck

and should be dismissed.

B. Count I also fails to state a Franks’ claim, in part, because the information in
the Search Warrant that Plaintiff McGuiness contends is misleading is
unnecessary to a finding of “probable cause to believe that the OAOA’s video
system might contain evidence of a crime.” Plaintiff McGuiness was charged
with witness intimidation, and other information in the Search Warrant was
sufficiently related to that charge to justify seizure of video surveillance.

Plaintiff McGuiness next takes issue with this allegedly misleading statement from the

Search Warrant:

On or about June 25, 2021, an employee who is friends with former employees and
whistleblowers to the misconduct at the Office of the Auditor of Accounts called
the police to report an item stolen from within the office.

See Second Amend. Compl. at 23, ¶ 87. Plaintiff McGuiness contends that this statement is

misleading and constitutes a Franks’ violation because “police had investigated the claim and

determined the report to be ‘crazy.’” Id. at 23, ¶ 88. Thus, according to Plaintiff McGuiness, there

was in fact “no probable cause to believe that the OAOA’s video system might contain evidence

of a crime.” Id. at 23-24, ¶ 89.

When a plaintiff in a § 1983 action alleges misrepresentation and omissions in an affidavit

of probable cause for a warrant, the plaintiff must satisfy the two-part test developed in Franks v.

Delaware, 438 U.S. 154 (1978). See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)

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(citing id.). Under step one, the plaintiff must show “that the affiant knowingly and deliberately,

or with a reckless disregard for the truth, made false statements or omissions that create a falsehood

in applying for a warrant.” Id. Second, and of significance here, the plaintiff must show “that

such statements or omissions are material, or necessary, to the finding of probable cause.” Id. In

determining materiality, falsehoods are excised, and the omissions are added to the original

affidavit by supplying the omitted information to determine whether probable cause existed. Id.

at 399-400.

In this case, even adding the omitted information about the employee’s report allegedly

being characterized as “crazy,” the Court can still find that there was probable cause to seize video

footage as part of the Search Warrant. The paragraph about the employee’s report of theft appears

to be part of a section in the Search Warrant that contains allegations of Plaintiff McGuiness

surveilling the communications of potential whistleblowers and witnesses to her misconduct. See

D.I. 5-1 at 8-9, ¶¶ 34-38. Plaintiff McGuiness, importantly, was being investigated for witness

intimidation, as cited by the Search Warrant. Id. at 2 (citing 11 Del. C. § 3532). Moreover, the

paragraph immediately following the challenged statement about the employee’s report provides

that, “[i]n an interview on September 16, 2021, the current Chief of Staff informed your affiant

[sic] and that the Auditor has control over – and access to – the office’s video surveillance system.”

Id. at 9, ¶ 38. This statement can be reasonably interpreted as Plaintiff McGuiness using the video

surveillance system as another means to monitor potential whistleblower and witness

communications. There is also no indication in the Search Warrant that it only sought video

footage related to the reported theft by one employee that Plaintiff McGuiness is alleging is

“crazy.” As a result, the Court can dismiss Count I of the Second Amended Complaint because

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there was still probable cause to seize video surveillance even if the Court were to add in that the

employee’s report was crazy.

II. The Court Should Dismiss Count I of the Second Amended Complaint, Plaintiff
McGuiness’s Franks’ Claim Against Defendants Denney and Mackler, Because They
Are Entitled to Absolute Prosecutorial Immunity.

A prosecutor is absolutely “immune from a civil suit for damages” for “activities []

intimately associated with the judicial phase of the criminal process[.]” Imbler v. Pachtman, 424

U.S. 409, 430-31 (1976). To determine whether a prosecutor’s activities are intimately associated

with the judicial phase of the criminal process, “courts engage in a functional analysis of each

alleged activity,” Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (cleaned up), in which

they “focus upon the functional nature of the activities rather than the prosecutor’s status to

determine whether absolute immunity is warranted.” Fogle v. Sokol, 957 F.3d 148, 159 (3d Cir.

2020) (cleaned up).

Applying this functional approach, courts have concluded that a prosecutor enjoys absolute

immunity for “all actions performed in a quasi-judicial role,” Kulwicki, 969 F.2d at 1463 (cleaned

up), such as “initiating a prosecution,” Imbler, 424 U.S. at 431, “soliciting … testimony from

witnesses in grand jury proceedings and probable cause hearings,” Kulwicki, 969 F.2d at 1465

(cleaned up), presenting evidence to a judge, Burns v. Reed, 500 U.S. 478, 479, 491-92 (1991),

and conducting a trial. Imbler, 424 U.S. at 431; see also Fogle, 957 F.3d at 159 (“Th[e] functional

test separates advocacy from everything else[.]”). Conversely, there may be circumstances in

which a prosecutor may not enjoy absolute immunity, such as when addressing “workplace hiring,

payroll administration, the maintenance of facilities, and the like.” Van de Kamp v. Goldstein, 555

U.S. 335, 344 (2009). “While it is tempting to derive bright-line rules from [precedent], we have

cautioned against such categorical reasoning to preserve the fact-based nature of the inquiry.”

Fogle, 957 F.3d at 160 (cleaned up); see also Odd v. Malone, 538 F.3d 202, 210 (3d Cir. 2008)
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(rejecting “bright-line rules that would treat the timing of the prosecutor’s action (e.g. pre- or

postindictment), or its location (i.e. in- or out-of-court), as dispositive”) (citations omitted).

Importantly, absolute prosecutorial immunity shields more than just the decision to initiate

a criminal prosecution. Kulwicki, 969 F.2d at 1464-65 (“Absolute immunity for prosecutorial

activity is not limited to the initiation of a lawsuit … [as] ‘the duties of the prosecutor in his role

as advocate … involve actions preliminary to the initiation of prosecution and actions apart from

the courtroom.’” (quoting Imbler, 424 U.S. at 431 n.33)). Absolute immunity can “extend[] to

the preparation necessary to present a case, and this [can] include[] … obtaining, reviewing, and

evaluat[ing] … evidence.” Id. at 1465 (cleaned up); see also Van de Kamp, 555 U.S. at 344

(alleged failure to maintain system for collecting informant impeachment materials is absolutely

immune because it is a task “directly connected with the conduct of a trial,” as it “require[s] legal

knowledge and the exercise of related discretion”); Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993) (actions entitled to immunity from suit include “the professional evaluation of the evidence

assembled by the police and appropriate preparation for its presentation at trial or before a grand

jury after a decision to seek an indictment has been made.”). Indeed, the Supreme Court has

advised that “absolute immunity applies when a prosecutor prepares to initiate a judicial

proceeding or appears in court to present evidence in support of a search warrant application.”

Van de Kamp, 555 U.S. at 343 (citations omitted).

In Greenpoint Tactical Income Fund LLC v. Pettigrew, a limited-liability company, several

affiliates, and related individuals brought an action against an FBI Agent and an Assistant United

States Attorney (“AUSA”) alleging that defendants violated the Fourth Amendment by submitting

a false and misleading affidavit in support of a search warrant related to an FBI investigation into

the plaintiffs for fraud. 38 F.4th 555, 558 (7th Cir. 2022). In particular, the AUSA was alleged to

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have “intentionally, knowingly, and recklessly assisted” or “directed” the FBI Agent in preparing

and filing “false statements and representations or material omissions in the search warrant

affidavit.” See id. at 559-60, 566 (cleaned up). The circuit court, however, held that the AUSA

was entitled to absolute immunity because the plaintiffs’ contention that he “assisted” or “directed”

the FBI Agent in preparing the affidavit did not suggest that the AUSA was acting in an

investigative capacity. Id. at 566. Instead, the AUSA was merely evaluating the evidence that the

FBI Agent had gathered and presented to him. Id. And reviewing and weighing evidence after an

investigation is complete falls within a prosecutor’s role as an advocate, which is protected by

absolute immunity. Id. at 565-66 (citing cases). Thus, the AUSA was entitled to absolute

immunity. Id. at 567.

Here, like in Greenpoint Tactical Income Fund LLC v. Pettigrew, Plaintiff McGuiness

contends that Defendants Denney, Mackler, and Robinson violated the Fourth Amendment by co-

drafting an affidavit of probable cause in support of the Search Warrant, which allegedly included

false or misleading information. See Second Amend. Compl. at 21-25, ¶¶ 80-96. Yet Greenpoint

Tactical Income Fund LLC v. Pettigrew explicitly provides that Defendants Denney and Mackler,

as prosecutors, are protected by absolute immunity for such conduct. See also Kalina v. Fletcher,

522 U.S. 118, 129 (1997) (noting that the preparation and filing of the affidavit supporting the

application of an arrest warrant was protected by absolute immunity as it was part of the advocate’s

function); Scheer v. Taylor, 2023 WL 4211510, at *6 (W.D. Pa. June 2, 2023) (holding that an

allegation of a detective conspiring with a district attorney to obtain a search warrant by

misrepresenting information within the affidavit of probable cause “concern[ed] actions

‘connected with the initiation and conduct of the prosecution[,]’” thereby entitling the district

attorney to absolute prosecutorial immunity (quoting Burns, 500 U.S. at 491-92)), adopting report

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and recommendation, 2023 WL 4209415 (W.D. Pa. June 27, 2023). And while Defendants

Denney and Mackler may have needed to secure facts or information to draft the affidavit of

probable cause, the Third Circuit has held that “to the extent that the securing of information is

necessary to a prosecutor’s decision to initiate a criminal prosecution, it is encompassed within the

[prosecutorial] immunity afforded to the decision itself.” Forsyth v. Kleindienst, 599 F.2d 1203,

1215 (3d Cir. 1979) (holding that the Attorney General’s decision to authorize warrantless

electronic surveillances was a quasi-judicial function that qualified for absolute prosecutorial

immunity and that the securing of any information necessary to make that decision was covered

by absolute prosecutorial immunity as well); see also Schrob v. Catterson, 948 F.2d 1402, 1414,

1416 (3d Cir. 1991) (holding that absolute prosecutorial immunity extends to “the preparation

necessary to present a case,” which includes the obtaining, reviewing, and evaluation of evidence)

(cleaned up). Accordingly, Defendants Denney and Mackler are entitled to absolute prosecutorial

immunity for co-drafting the disputed affidavit of probable cause.

III. The Court Should Dismiss Count II of the Second Amended Complaint, Plaintiffs
McGuiness, Gross, and MYCG’s Slander Claim Against Defendants Mackler and
Robinson Because They Did Not Make Any Statements at the Press Conference. And
the Court Should Dismiss Count II Against Defendants Jennings and Denney Because
They Are Entitled to Absolute Immunity Under Delaware’s State Tort Claims Act,
10 Del. C. § 4001, and Delaware’s Common Law.

A. Defendants Mackler and Robinson could not have defamed Plaintiffs

McGuiness, Gross, and MYCG during the Press Conference because they did
not make any statements at all.

The only alleged defamatory statements asserted in Count II of the Second Amended

Complaint occurred during the Press Conference. See Second Amend. Compl. at 25-29, ¶¶ 97-

119. But nowhere in Count II do Plaintiffs McGuiness, Gross, or MYCG allege that Defendants

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Mackler or Robinson made any “defamatory communication”1 during the Press Conference. In

fact, the video of the Press Conference definitively shows that Defendant Mackler did not make

any statement during the Press Conference. See Second Amend. Compl. at 12-13,

¶ 42 (hyperlinked video). And Defendant Robinson was not even present at the Press Conference.

Id. Therefore, the Court should dismiss Count II against Defendants Mackler and Robinson

because they cannot be liable for defamation.

B. Defendants Jennings and Denney are entitled to “absolute immunity” under

Delaware’s State Tort Claims Act, 10 Del. C. § 4001, and Delaware’s common
law because announcing the indictment of Plaintiff McGuiness was within
their official duties.

i. Delaware’s State Tort Claims Act, 10 Del. C. § 4001.

Delaware’s State Tort Claims Act (“STCA”), 10 Del. C. § 4001, affords judges, the

Attorney General, and Deputy Attorneys General absolute immunity for “all civil claims or causes

of action founded upon an act or omission arising out of the performance of an official duty[.]”

See 10 Del. C. § 4001; see also Cornish v. Delaware State Police, 1995 WL 413415, at *2 (Del.

Super. June 2, 1995) (cleaned up). It is the plaintiff’s burden to prove the absence of immunity.

See 10 Del. C. § 4001; Cornish, 1995 WL 413415, at *2.2

Defendants Jennings and Denney, by their positions as Delaware’s Attorney General and

Deputy Attorney General, respectively, clearly fall under the STCA. They are therefore entitled

to absolute immunity under the STCA if holding a press conference to announce an indictment

“aris[es] out of the performance of an official duty.” It does.

1
In Delaware, the “elements of a defamation claim are[:] (i) a defamatory communication; (ii)
publication; (iii) the communication refers to the plaintiff; (iv) a third party’s understanding of the
communications’ defamatory character; and (v) injury.” Matthews v. Mancuso, 2017 WL
4164419, at *2 (Del. Super. Sept. 19, 2017) (cleaned up).
2
Even to survive a motion to dismiss, a plaintiff must allege the absence of immunity. See
Reynolds v. State, 1999 WL 1427760, at *11 (Del. Super. Nov. 10, 1999) (citations omitted).
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ii. Common Law “Absolute Immunity” to Defamation.

The common law recognizes “absolute immunity” from claims for defamation against

high-level executive officials. The Restatement (Second) of Torts,3 § 591 provides:

An absolute privilege to publish defamatory matter concerning another in

communications made in the performance of his official duties exists for

(a) any executive or administrative officer of the United States; or

(b) a governor or other superior executive officer of a state.

Relevant comments to § 591 provide further that:

b. In Barr v. Matteo (1959) 360 U.S. 564, it was held that the rule of absolute
privilege stated in Clause (a) extends to all officers of the United States, no matter
how inferior their positions or duties, so long as the publication is made in the
performance of the duties, or, as the Court put it, within the “outer perimeter” of
their duties. Accordingly, the rule stated in Clause (a) extends to all federal officers.

d. The privilege stated in this Section is absolute. Hence no action for defamation
can be maintained against any one of the designated executive officers irrespective
of his purpose in making the publication….

f. The absolute privilege stated in this Section exists only when the officer, whether
he is a federal officer or a superior officer of a State, publishes the defamatory
matter in the performance of his official duties, or within the scope of his line of
duty. This does not mean that the publication must be one that the officer in
question is required to make, as when the head of a department is required by law
to file an annual report concerning its affairs. It is enough that the publication is
one that the officer is authorized to make in his capacity as an officer. Thus the
head of a federal or state department may be authorized to issue press releases
giving the public information concerning the conduct of the department, or events
of public interest that have occurred in connection with it; and if he is so authorized
he is within the scope of his official duties when he gives the information to
the press.

Restatement (Second), § 591.

3
Hereinafter, the “Restatement (Second).”
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Delaware’s Attorney General clearly qualifies as a high-level or superior executive

officer.4 That means Defendant Jennings is entitled to absolute immunity if, as the Attorney

General, announcing an indictment to the press was in the “performance of her duties.” Stated

differently, whether announcing an indictment to the press was within the “scope of her duties.”

And even though Defendant Denney is not the Attorney General, if this Court finds that Defendant

Jennings is entitled to absolute common law immunity, it should find the same for Defendant

Denney because, as a Deputy Attorney General, the Attorney General may delegate any of her

duties to him. See 29 Del. C. § 2505(d) (“The Attorney General may appoint … persons … to be

assistants or special assistants, who shall have such powers, duties and responsibilities as

designated by the Attorney General.”);5 see also Restatement (Second), § 591 at cmt. e. (“The rule

stated in this Section protects not only the regular incumbent of the particular executive offices

described but also one who, for the time being, is lawfully performing the functions of the office.”).

4
Comment c. to § 591 provides:

All of the state courts that have considered the question have agreed that the
absolute privilege stated in Clause (b) protects the superior officers of the state
governments, including at least the governor, the attorney-general or the heads of
the state departments whose rank is the equivalent of cabinet rank in the Federal
Government. A good number of the States have gone further, and have extended
the absolute privilege to state officers of various ranks below that of cabinet level.
The greater number of state courts have not made the extension to the point of the
federal rule and some have expressly confined the absolute privilege to superior
officers of the States. This leaves the inferior officers in these States with only a
conditional privilege, as stated in § 598A.

See, e.g., Thomas v. Kane, 2016 WL 6081868, at *6 (Pa. Commw. Ct. Oct. 17, 2016) (“There is
no question that Kane, as Attorney General, was a high public official at the time the alleged
defamatory statements were made.” (citation omitted)).
5
Deputy Attorneys General are currently designated as “assistants” under 29 Del. C. § 2505. See
Seth v. State, 592 A.2d 436, 442 n.2 (Del. 1991).
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In sum, under either the STCA or the common law, the question for the Court in

determining whether Defendants Jennings and Denney are entitled to absolute immunity is

whether announcing an indictment to the press “arises out of” or is “within the scope” of the

Delaware Attorney General’s official duties. It does, and it is.

iii. The Delaware Attorney General’s Powers, Duties, and Authority.

The Attorney General is the chief law officer of the State of Delaware chosen by the

citizens of Delaware at a general election held every four years. Seth v. State, 592 A.2d 436, 439

(Del. 1991); Del. Const. Art. III § 21. The office is a constitutional one “with the broad authority

to exercise numerous and varied powers.” Seth, 592 A.2d at 439. “[I]n the absence of express

legislative restriction, the Attorney General, as the chief law enforcement officer of the State, may

exercise all the powers and authority incident to the office at common law.” Christopher v. Sussex

County, 77 A.3d 951, 957 (Del. 2013) (quoting Darling Apartment Co. v. Springer, 22 A.2d 397,

404 (Del. 1941)); see also 29 Del. C. § 2504 (“The State Department of Justice and the Attorney

General shall have the following powers, duties and authority: (1) To continue to exercise the

powers and perform the duties by the Constitution, statutes and common law vested in and imposed

upon the Attorney General prior to January 1, 1969[.]”). Among the powers conferred by the

General Assembly upon the Attorney General is the authority “to have charge of all criminal

proceedings ….” § 2504(6). The Supreme Court of Delaware has also stated, “[i]n the exercise

of his [or her] official powers, the Attorney General has discretion in determining who shall be

prosecuted and in what manner that prosecution shall take place.” Seth, 592 A.2d at 439.

Regarding the Delaware Attorney General’s common law duties, the Pennsylvania

Supreme Court’s decision in Matson v. Margiotti provides helpful guidance. 88 A.2d 892 (Pa.

1952), overruled on other grounds, Commonwealth v. Schab, 383 A.2d 819 (Pa. 1978). In Matson,

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the Pennsylvania Attorney General wrote and released a letter to the press, before delivering it to

the district attorney, alleging that an assistant district attorney in the district attorney’s employ was

a member of a communist organization. See Matson, 88 A.2d 892. The assistant district attorney

subsequently sued for libel. Id. at 893. The court, however, held that the Pennsylvania Attorney

General was entitled to absolute immunity for releasing the letter to the press because it was “in

the public interest to permit an Attorney General to keep the public advised of his official acts and

conduct where such actions are in the course of and within the scope of his official duties or

powers.” Id. at 900. Importantly, the court noted that the Pennsylvania Attorney General’s powers

arose from the “common law” and included “the right to investigate criminal acts, to institute

proceedings in the several counties of the Commonwealth, to sign indictments, to appear before

the grand jury and submit testimony, [and] to appear in court and to try criminal cases on the

Commonwealth’s behalf ….” Id. at 898 (citations omitted).

iv. The Press Conference.

Initially, it is important to note that Plaintiffs McGuiness, Gross, and MYCG do not

contend that Defendants Jennings and Denney were acting outside of their official duties by

announcing the indictment against Plaintiff McGuiness during the Press Conference. Nor could

they. Applying Matson to this case leads inexorably to the conclusion that holding a press

conference to announce an indictment is well within the official duties of Defendant Jennings as

the Delaware Attorney General and Defendant Denney as a Deputy Attorney General with

delegated duties and powers from Defendant Jennings. That is because the Delaware Attorney

General has the same broad powers as the Pennsylvania Attorney General in Matson, including

the right to investigate criminal acts, institute criminal proceedings, and advise the public of the

official acts and conduct of the Delaware Attorney General’s office. See also Shnipes v. Shapiro,

2023 WL 6436741, at *7 (M.D. Pa. Sept. 29, 2023) (finding that Pennsylvania’s Attorney General
18
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was entitled to absolute immunity for written statement to the press explaining charging decision

against plaintiff); Thomas v. Kane, 2016 WL 6081868, at *7 (Pa. Commw. Ct. Oct. 17, 2016)

(finding that Pennsylvania’s Attorney General and Special Agent in Charge of Pennsylvania’s

Bureau of Criminal Investigations were entitled to absolute immunity for issuing allegedly

defamatory statements in two press conferences to the media and public because it concerned the

termination of a public corruption sting operation and “[t]he public has an interest in knowing that

a criminal investigation paid for by the taxpayers has been terminated and the reasons why the

case will not be prosecuted.”); Mosley v. Observer Pub. Co., 619 A.2d 343 (Pa. Super. 1993)

(Pennsylvania District Attorney entitled to absolute immunity related to an interview for an article

in which he allegedly made false statements about the plaintiffs because his statements were related

to an ongoing investigation into plaintiffs); Factor v. Goode, 612 A.2d 591 (Pa. Commw. Ct. 1992)

(Philadelphia Mayor and Revenue Commissioner entitled to absolute privilege against liability for

describing Philadelphia property owners as “deadbeats” and “tax cheats” who think “they’re above

the law” during a press conference. The court considered defendants “high public officials” whose

statements were made “within the scope of their authority.”). Should the Court agree, ipso facto,

Defendants Jennings and Denney are entitled to absolute immunity for Plaintiffs McGuiness,

Gross, and MYCG’s claim for slander under both the STCA and Delaware’s common law.

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CONCLUSION

For the reasons stated, Defendants Jennings, Denney, Mackler, and Robinson respectfully

request that this Court dismiss Plaintiffs McGuiness, Gross, and MYCG’s Second Amended

Complaint in its entirety.

STATE OF DELAWARE
DEPARTMENT OF JUSTICE

/s/ Nicholas D. Picollelli, Jr.

Nicholas D. Picollelli, Jr. (#6317)
Kenneth L. Wan (#5667)
Deputy Attorneys General
Carvel State Office Building
820 N. French Street, 6th Floor
Wilmington, DE 19801
(302) 577-8400
[email protected]
[email protected]

Counsel for Defendants

Date: February 5, 2024

20