RENDERED: AUGUST 21, 2020; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-000593-MR

MICHAEL O’CONNELL APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE OLU A. STEVENS, JUDGE

ACTION NO. 18-CI-002810

CHRISTOPHER THIENEMAN APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.

CLAYTON, CHIEF JUDGE: Michael O’Connell, the Jefferson County Attorney, 

brings this interlocutory appeal from a Jefferson Circuit Court order denying his 

motion to dismiss the amended complaint of Christopher Thieneman. Thieneman 

brought suit alleging defamation in connection with public remarks made about 
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him by O’Connell. O’Connell contends he is entitled to sovereign, qualified 

official, and qualified governmental immunity from suit. 

On May 1, 2018, the Jefferson County Law Library sponsored a 

celebration of Law Day with an outdoor event held at Jefferson Square Park in 

downtown Louisville. The event was held between 10:00 a.m. and 2:00 p.m. and 

featured a number of guest speakers using an electronic public-address system. 

The event was not televised but there were a few bystanders. O’Connell spoke on 

the topic of constitutional law. A truck parked nearby and visible from the park 

displayed a billboard stating “Vote Out Mike O’Connell, Louisville’s Sexual 

Predator Protector paid for by victims of the youth explorer program” with Chris 

Thieneman’s name listed as treasurer. 

In speaking about the First Amendment, O’Connell made the 

following remarks about Thieneman:

He was convicted by a jury of his peers, a conviction 

which was upheld by the courts of this county[;]

therefore he’s obviously free to speak in the manner he 

wants, but my office, and my prosecutors, the women in 

my office will not be intimidated by the speech of Mr. 

Thieneman. He is a sexual predator, he was convicted of 

trying to strangle his then-girlfriend, and the women in 

this community should be wary and be prepared to not 

come in contact with him, ever. He is a danger to this 

community, and to the women in this community, and 

each one should make sure they take every precaution 

they can to protect themselves from this sexual predator. 

There. That’s my right of free speech, and my office 

won’t be intimidated by this. And, between now and 
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whenever, and as long as he wants to keep that up, I’ll 

call it exactly what it is, a sexual, uh excuse me, a 

domestic violence perpetrator, and an abuser of women, 

and he strangles women, and was convicted by a jury, 

and upheld by the appeals court. Thank you very much.

Appellant Brief at *2.

Thieneman filed a complaint against O’Connell in Jefferson Circuit 

Court, stating as his causes of action defamation per se and defamation. He 

subsequently filed an amended complaint to correct a typographical error. 

O’Connell filed a motion to dismiss the amended complaint, arguing that he was 

entitled to sovereign immunity and qualified immunity, that his speech was 

protected by the First Amendment, that Thieneman failed to state a claim for 

defamation as he failed to show actual malice, and that Thieneman failed to state a 

claim for damages. Discovery was stayed pending the circuit court’s ruling on the 

motion to dismiss. O’Connell subsequently filed a supplemental memorandum of 

law concerning qualified immunity. Thieneman filed a response to the motion to 

dismiss and O’Connell filed a reply. The circuit court entered an order denying the 

motion to dismiss after finding the amended complaint was sufficient to state a 

cause of action against O’Connell. This interlocutory appeal followed. 

This interlocutory appeal is permissible because “an order denying a 

substantial claim of absolute immunity is immediately appealable even in the 

absence of a final judgment.” Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 
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883, 887 (Ky. 2009). The cloak of immunity entitles its possessor to be free “from 

the burdens of defending the action, not merely just an immunity from liability.” 

Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (citations omitted). 

O’Connell argues that he is entitled to sovereign immunity because he 

was sued solely in his official capacity as the Jefferson County Attorney. 

Thieneman’s complaint designated the defendant as “Michael O’Connell Jefferson 

County Attorney.” The complaint did not refer to O’Connell in his individual 

capacity. 

If strictly construed, the complaint’s designation of O’Connell solely 

in his official capacity would lead to Thieneman’s claims being barred because 

“[t]he absolute immunity from suit afforded to the state also extends to public 

officials sued in their representative (official) capacities, when the state is the real 

party against which relief in such cases is sought.” Yanero v. Davis, 65 S.W.3d 

510, 518 (Ky. 2001) (citations omitted). “Official immunity can be absolute, as 

when an officer or employee of the state is sued in his/her representative capacity, 

in which event his/her actions are included under the umbrella of sovereign 

immunity[.]” Id. at 521. Prosecutors are also afforded absolute immunity “with 

respect to the initiation and pursuit of prosecutions[.]” Id. at 518 (citations 

omitted); see also Jefferson County Commonwealth Attorney’s Office v. Kaplan, 

65 S.W.3d 916, 920 (Ky. 2001), as modified on denial of reh’g (Feb. 21, 2002).
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Yet the allegations of Thieneman’s complaint are directed against 

O’Connell as an individual, not against the state as the real party in interest, nor 

against O’Connell in regard to his conduct of a prosecution. O’Connell 

nonetheless argues that the failure of the complaint to name him in his individual 

capacity is fatal to Thieneman’s case. In Edmonson County v. French, a panel of 

this Court addressed a similar situation in which a slip and fall complaint against 

the members of a fiscal court and judge executive failed to specify they were also 

being named in their individual capacities. 394 S.W.3d 410 (Ky. App. 2013). 

When the defendants invoked the doctrine of sovereign immunity, the plaintiff 

urged the Court to liberally construe her complaint to encompass claims against 

them in their individual capacities. 

In resolving the issue, the Edmonson Court considered two different 

approaches. First, it reviewed Calvert Investments, Inc. v. Louisville & Jefferson 

County Metropolitan Sewer Dist., 805 S.W.2d 133 (Ky. 1991), in which the 

Kentucky Supreme Court held that a claim against a state actor in his or her 

individual capacity must be made with specificity:

[T]he question is whether the Complaint does in fact state 

a basis for personal liability and seek damages in an 

individual capacity. We are persuaded by the failure to 

specify individual capacity in the heading, the lack of 

specificity in the body, and the failure to seek judgment 

against such individuals in the concluding demand, that 

the Complaint fails to state a separate cause of action for 

personal liability against any particular individual.
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Edmonson, 394 S.W.3d at 415 (quoting Calvert Investments, 805 S.W.2d at 139). 

The Edmonson Court also noted the unpublished case of Eblen v. 

Hargis, No. 2002-CA-001478-MR, 2003 WL 21512531 (Ky. App. Jul. 3, 2003), 

an opinion cited by O’Connell, in which Eblen filed suit against the property 

valuation administrator (PVA) for raising the taxable value of his home. Relying 

on the holding in Calvert Investments, this Court upheld the dismissal of Eblen’s 

claim for failure to state a claim against a state actor in his individual capacity, 

noting that the complaint only contained allegations that Hargis acted improperly 

in his employment as PVA. Edmonson, 394 S.W.3d at 414-15.

Second, Edmonson considered McCollum v. Garrett, 880 S.W.2d 530 

(Ky. 1994), in which the Supreme Court adopted a broader approach. In 

McCollum, the plaintiff alleged malicious prosecution against a county attorney but 

did not expressly state whether the claim was against him in his individual or 

official capacity. Id. at 532. The opinion analyzed the issue as follows: 

In our view, this issue should be resolved by a 

commonsense reading of the complaint and application 

of the Rules of Civil Procedure. While disclosure of 

McCollum’s official position in the caption and in 

paragraph 2 creates a measure of uncertainty, the 

complaint otherwise states a straightforward claim

against McCollum based upon his individual actions. 

Nowhere is there any allegation that Henderson County 

or its fiscal court is liable for damages. The relevant 

allegations of misconduct are directed at McCollum and 
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Cottingham. CR[1] 8.06 requires that “All pleadings shall 

be so construed as to do substantial justice.” This rule, 

sometimes called a “liberal construction” rule, requires 

that a pleading be judged according to its substance 

rather than its label or form. To construe this pleading as 

a claim against the defendants in their official capacity 

would result in the claim being barred. To construe it as 

an individual capacity claim permits the litigation to 

proceed toward the merits, a goal we have expressly 

embraced in other contexts. Ready v. Jamison, Ky., 705 

S.W.2d 479 (1986), Crossley v. Anheuser-Busch, Inc.,

Ky., 747 S.W.2d 600 (1988).

Id. at 533 (footnote omitted).

In deciding whether to adopt the Calvert or the McCollum approach, 

the Edmonson Court noted that the plaintiff, who was injured when she slipped and 

fell on some ice outside the courthouse, specifically alleged in her complaint that 

the fiscal court was responsible for maintaining and keeping safe the premises of 

the courthouse, a public building, and that the defendants failed to keep the 

premises in a reasonably safe condition. The plaintiff “did not single out any 

particular member of the fiscal court or the judge executive regarding that person’s 

action or lack of action, as was the case in McCollum. And she certainly alleged 

that the county and the fiscal court were liable.” Edmonson, 394 S.W.3d at 416. 

The Court consequently rejected the “liberal construction” rule of McCollum and 

construed the complaint strictly according to Calvert. Id.

 

1 Kentucky Rules of Civil Procedure.
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By contrast, as we have noted, the allegations of misconduct in 

Thieneman’s complaint state a straightforward claim against O’Connell based 

upon his individual actions and do not allege that the County Attorney’s Office is

in any way liable for damages. This situation bears greater similarity to McCollum

and accordingly Thieneman’s complaint shall be construed as being brought 

against O’Connell in an individual, as well as a representative, capacity. 

“[W]hen sued in their individual capacities, public officers and 

employees enjoy only qualified official immunity, which affords protection from 

damages liability for good faith judgment calls made in a legally uncertain 

environment.” Yanero, 65 S.W.3d at 522 (citation omitted). “Qualified official 

immunity applies to the negligent performance by a public officer or employee of 

(1) discretionary acts or functions, i.e., those involving the exercise of discretion 

and judgment, or personal deliberation, decision, and judgment, . . . ; (2) in good 

faith; and (3) within the scope of the employee’s authority.” Id. (citations 

omitted). Conversely, “[a] government official is not afforded immunity from tort 

liability for the negligent performance of a ministerial act.” Patton v. Bickford, 

529 S.W.3d 717, 724 (Ky. 2016), as modified on denial of reh’g (Aug. 24, 2017).

Discretionary acts are “those involving the exercise of discretion and 

judgment, or personal deliberation, decision, and judgment.” Id. (citation omitted). 

“Discretion in the manner of the performance of an act arises when the act may be 
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performed in one or two or more ways, either of which would be lawful, and where 

it is left to the will or judgment of the performer to determine in which way it shall 

be performed.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010), as 

corrected (May 7, 2010) (citing Upchurch v. Clinton County, 330 S.W.2d 428, 430 

(Ky. 1959)). “On the other hand, ministerial acts or functions—for which there are 

no immunity—are those that require ‘only obedience to the orders of others, or 

when the officer’s duty is absolute, certain, and imperative, involving merely 

execution of a specific act arising from fixed and designated facts.’” Id. (quoting 

Yanero, 65 S.W.3d at 522).

Thieneman does not dispute that O’Connell’s comments at the Law 

Day event were made within his discretionary, rather than ministerial, capacity, as 

his decision to speak and the content of his remarks were determined by his own 

will and judgment. Under these circumstances, “[o]nce the officer or employee 

has shown prima facie that the act was performed within the scope of his/her 

discretionary authority, the burden shifts to the plaintiff to establish by direct or 

circumstantial evidence that the discretionary act was not performed in good faith.” 

Yanero, 65 S.W.3d at 523 (citation omitted). “[Q]ualified official immunity yields 

to proof that a defendant’s actions were malicious.” Martin v. O’Daniel, 507 

S.W.3d 1, 6 (Ky. 2016), as corrected (Sept. 22, 2016) (emphasis original). 
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The elements of a defamation claim are as follows: “(a) a false and 

defamatory statement concerning another; (b) an unprivileged publication to a third 

party; (c) fault amounting at least to negligence on the part of the publisher; and (d) 

either actionability of the statement irrespective of special harm or the existence of 

special harm caused by the publication.” Toler v. Süd-Chemie, Inc., 458 S.W.3d 

276, 282 (Ky. 2014), as corrected (Apr. 7, 2015) (citation and footnote omitted). 

Thus, in addition to proving each of these elements, O’Connell’s qualified official 

immunity imposes upon Thieneman the additional burden of showing that the Law 

Day remarks were made, not negligently, but maliciously, i.e., in bad faith. 

“[I]n the context of qualified official immunity, ‘bad faith’ can be 

predicated on a violation of a constitutional, statutory, or other clearly established 

right which a person in the public employee’s position presumptively would have 

known was afforded to a person in the plaintiff’s position, i.e., objective 

unreasonableness; or if the officer or employee willfully or maliciously intended to 

harm the plaintiff or acted with a corrupt motive.” Yanero, 65 S.W.3d at 523

(citation omitted).

Thieneman argues that a claim for defamation per se creates a 

conclusive presumption of both malice and damages, in reliance on Stringer v. 

Wal-Mart Stores, Inc., 151 S.W.3d 781, 794-95 (Ky. 2004), overruled by Toler,

458 S.W.3d 276. But “[t]o the extent that Stringer stands for a perpetuation of 
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allowing the mere allegation of falsity to permit an inference of malice, it is 

overruled. . . . [A]ny statement in Stringer to the contrary notwithstanding, both 

malice and falsity must be shown for a plaintiff to overcome the qualified 

privilege.” Toler, 458 S.W.3d at 287 (emphasis original).

Thieneman argues that malicious prosecution does not sound in 

negligence and consequently the qualified official privilege is unavailable to 

O’Connell. But Thieneman’s complaint does not allege malicious prosecution,

which is a significantly different claim from defamation. Malice is one of the 

elements that must be proven as part of a malicious prosecution claim and 

therefore in that context the “defense of qualified official immunity has little 

meaning and no effect.” Martin, 507 S.W.3d at 6. By contrast, O’Connell is 

protected by qualified official immunity if his remarks, if defamatory, were made 

without malice and in good faith. 

Thieneman also alleges that O’Connell has improperly prevented 

discovery by filing this interlocutory appeal. The record shows that Thieneman 

served discovery requests on O’Connell, who filed a motion to stay discovery 

pending the circuit court’s ruling on the motion to dismiss. Thieneman did not 

respond to the motion to stay discovery and did not appear at the motion hour on

October 8, 2018. At that motion hour, the circuit court ruled it would hold the case 

in abeyance for a week to allow Thieneman to respond. At the following motion 
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hour, on October 15, 2018, Thieneman still had not responded or appeared. The 

circuit court accordingly granted the motion to stay discovery. Thieneman was 

provided with ample opportunity to raise his argument regarding discovery and it 

will not be addressed here for the first time on appeal.

The concurring opinion makes a public policy argument for extending

absolute prosecutorial immunity to O’Connell for his remarks, while 

acknowledging that this defense was not invoked by O’Connell and is not 

supported by our case law. In McCollum, the Kentucky Supreme Court discussed 

the scope of prosecutorial immunity in the context of Buckley v. Fitzsimmons, 509 

U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993), observing that Buckley “is 

clear that absolute immunity does not follow a prosecutor in all of his actions.” 

McCollum, 880 S.W.2d at 534. 

In Buckley, the appellant, a criminal defendant, claimed that

defamatory remarks made about him at a press conference by the prosecutor, 

Fitzsimmons, deprived him of the right to a fair trial by inflaming the public

against him and causing the jury to deadlock rather than acquit him. As the 

concurrence has rightly noted, the claims in Buckley were made pursuant to 42 

U.S.C.

2 §1983 and, consequently, in order to claim prosecutorial immunity, 

Fitzsimmons would have had to show it was well-established prior to the 

 

2 United States Code.
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enactment of §1983 in 1871. The concurring opinion also notes that whereas the 

United States Supreme Court may not establish immunities from §1983 actions on 

the basis of public policy, state courts are not subject to the same constraints in 

addressing state law claims. 

Presumably, the McCollum Court was fully aware of this distinction 

yet nonetheless declined to extend prosecutorial immunity on public policy 

grounds. Instead, the McCollum Court approved the functional approach of 

Buckley in assessing the availability of prosecutorial immunity as entirely 

congruent with Dugger v. Off 2nd, Inc., 612 S.W.2d 756 (Ky. App. 1980), which 

held “that so long as a prosecutor acts within the scope of the duties imposed by 

law, quasi-judicial immunity is available, but otherwise it is not.” McCollum, 880 

S.W.2d at 534 (footnote omitted). In assessing the availability of immunity to 

Fitzsimmons, the Buckley Court stated: 

Fitzsimmons does not suggest that in 1871 there existed a 

common-law immunity for a prosecutor’s, or attorney’s, 

out-of-court statement to the press. . . . Indeed, while 

prosecutors, like all attorneys, were entitled to absolute 

immunity from defamation liability for statements made 

during the course of judicial proceedings and relevant to 

them, . . . most statements made out of court received 

only good-faith immunity. The common-law rule was 

that [t]he speech of a counsel is privileged by the 

occasion on which it is spoken . . . .

Comments to the media have no functional tie to the 

judicial process just because they are made by a 

prosecutor. At the press conference, Fitzsimmons did not 
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act in his role as advocate for the State[.] The conduct 

of a press conference does not involve the initiation of a 

prosecution, the presentation of the state’s case in court, 

or actions preparatory for these functions. Statements to 

the press may be an integral part of a prosecutor’s job, 

. . . and they may serve a vital public function. But in 

these respects a prosecutor is in no different position than 

other executive officials who deal with the press, and, . . .

qualified immunity is the norm for them.

Buckley, 509 U.S. at 277-78, 113 S. Ct. at 2617-18 (citations and internal quotation 

marks omitted).

The Buckley Court reiterated that “ʻ[t]he presumption is that qualified 

rather than absolute immunity is sufficient to protect government officials in the 

exercise of their duties. . . .’ Even if policy considerations allowed us to carve out 

new absolute immunities to liability for constitutional wrongs under § 1983, we see 

little reason to suppose that qualified immunity . . . would fail to provide sufficient 

protection in the present context.” Id., 509 U.S. at 278, 113 S. Ct. at 2618 

(citations and footnote omitted).

O’Connell, like other officials, is entitled only to the protections of 

qualified official immunity for his public statements which, arguably, are even less 

related to his function as County Attorney than the comments made by 

Fitzsimmons.

Because O’Connell is not entitled to absolute immunity from suit, the 

Jefferson Circuit Court’s order denying the motion to dismiss is affirmed. The 
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case is remanded for further proceedings to determine whether O’Connell is 

entitled to qualified official immunity, which requires a finding, established by 

direct or circumstantial evidence, Yanero, 65 S.W.3d at 523, that he acted without 

malice in making the allegedly defamatory statements about Thieneman.

The Jefferson Circuit Court’s order denying the motion to dismiss is 

affirmed and the case is remanded for further proceedings in accordance with this 

opinion.

DIXON, JUDGE, CONCURS IN RESULT ONLY.

MAZE, JUDGE, CONCURS AND FILES SEPARATE OPINION.

MAZE, JUDGE, CONCURRING: I agree with the reasoning and result of the 

majority opinion. However, I write separately to express my opinion that 

Kentucky should extend absolute prosecutorial immunity to the claims at issue in 

this case. Extending such immunity would allow prosecutors to keep the public 

informed about pending and completed prosecutions without fear of defending 

actions for defamation.

As an initial matter, I reluctantly agree with the majority that 

Thieneman’s complaint properly states a claim against O’Connell in both his 

individual and his official capacities. When sued in his representative capacity, 

O’Connell is entitled to the same immunity as the Office of the County Attorney 

itself would be. Yanero, 65 S.W.3d at 521. The County Attorney, as an agency of 
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a political subdivision of the state, is entitled to governmental immunity from tort 

liability when performing governmental functions. Id. at 519. But when sued in 

his individual capacity, O’Connell’s immunity is only qualified. Id. at 522.

The first question in this case, as addressed by the majority opinion, is 

whether Thieneman’s complaint states a claim against O’Connell in his official or 

in his individual capacity. Based on the analysis in McCollum, supra, and 

Edmonson, supra, I agree that the complaint states a basis for personal liability and 

seeks damages in an individual capacity. Thieneman’s complaint is very 

ambiguous concerning the claims asserted against O’Connell individually. The 

complaint only names O’Connell in his capacity as Jefferson County Attorney 

regarding actions taken performing the duties connected with that office. 

Thieneman also had the opportunity to amend his complaint to state a claim against 

O’Connell specifically in his individual capacity. Thieneman failed to do so.

Nevertheless, the complaint is substantively indistinguishable from 

the claims brought against the County Attorney in McCollum. As in that case, 

Thieneman’s complaint only references O’Connell and seeks damages only against 

him. CR 8.06 requires this Court to construe the complaint liberally according to 

its substance rather than its label or form. To construe this pleading as a claim 

against O’Connell solely in his official capacity would result in the claim being 

barred. While the rule does not require us to re-write the pleading, based on 
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McCollum I must agree that the complaint sufficiently states claims against 

O’Connell in his individual capacity.

Since this is an interlocutory appeal, the only questions properly 

presented involve the denial of a claim of absolute immunity. Prater, 292 S.W.3d

at 886. At this juncture, Thieneman’s allegations of malice are sufficient to 

preclude a finding that O’Connell is entitled to qualified immunity in his individual 

capacity. Martin, 507 S.W.3d at 5. Likewise, any arguments concerning privilege 

or whether his statements are defamatory are beyond the scope of this interlocutory 

appeal. This is a battle which will have to be fought at a later time.

However, this is not the end of our inquiry. Although O’Connell’s 

official immunity is only qualified, absolute immunity is also afforded to certain 

governmental actors. Yanero, 65 S.W.3d at 518. The immunity does not depend 

upon whether the official is sued in his or her representative or individual capacity, 

but upon the nature of the duties performed. Among other duties, the County 

Attorney is responsible for the prosecution of all offenses subject to the jurisdiction 

of the District Court. Kentucky Revised Statutes (KRS) 15.725(2). When acting 

in this role, the County Attorney is entitled to absolute prosecutorial immunity. 

Imbler v. Pachtman, 424 U.S. 409, 422-23, 96 S. Ct. 984, 991, 47 L. Ed. 2d 128 

(1976). 
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On the other hand, absolute immunity does not apply when the 

County Attorney is functioning as an administrator or an investigator. McCollum, 

880 S.W.2d at 534 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 

125 L. Ed. 2d 209 (1993)). Likewise, the County Attorney is not entitled to 

absolute immunity when he provides legal advice to or represents the interests of a 

consolidated local government. KRS 69.210. In those circumstances, the 

prosecutor’s immunity is limited to qualified immunity.

In Buckley v. Fitzsimmons, the United States Supreme Court held that 

a prosecutor’s comments to the media have no functional tie to the judicial process. 

509 U.S. at 277, 113 S. Ct. at 2618. While statements to the press may be an 

integral part of a prosecutor’s job, such functions are no different than other 

administrative functions performed by other executive officials. Consequently, the 

prosecutor is limited to qualified immunity for such statements. Id., 509 U.S. at 

278, 113 S. Ct. at 2618.

However, the claims in Buckley were brought under 42 U.S.C. §1983. 

Consequently, any immunities were limited to those in existence in 1871, when the 

Civil Rights Act was enacted. At common law, there was no recognized immunity 

for a prosecutor’s or an attorney’s out-of-court statements to the press. Id., 509 

U.S. at 277, 113 S. Ct. at 2617. The Supreme Court determined that it did not

“have a license to establish immunities from § 1983 actions in the interests of what 
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we judge to be sound public policy.” Id., 509 U.S. at 278, 113 S. Ct. at 2618

(citation omitted). On the other hand, state courts, ruling on state-law claims such 

as defamation, are not subject to this limitation.

Most notably, Indiana has adopted a rule providing that a prosecutor’s 

statements to the press regarding a pending case, if made within the scope of his 

authority, are absolutely immune. Foster v. Pearcy, 270 Ind. 533, 538, 387 N.E.2d 

446, 449 (1979). See also Sims v. Barnes, 689 N.E.2d 734, 737 (Ind. Ct. App. 

1997). A district of the Illinois Appellate Court adopted this rule in Bianchi v. 

McQueen, 58 N.E.3d 680, 701-02 (Ill. App. Ct. 2016). Connecticut has applied 

this rule to public statements made by the state Attorney General. Hultman v. 

Blumenthal, 67 Conn. App. 613, 623, 787 A.2d 666, 674 (2002). Similarly, 

Vermont, Pennsylvania, and Michigan extend their statutory absolute immunity to 

district attorneys’ public statements about a prosecution. See O’Connor v. 

Donovan, 191 Vt. 412, 424, 48 A.3d 584, 592 (2012), Pickering v. Sacavage, 164 

Pa. Cmwlth. 117, 126, 642 A.2d 555, 559 (1994), and Bischoff v. Calhoun Cty. 

Prosecutor, 173 Mich. App. 802, 806, 434 N.W.2d 249, 251 (1988). 

“The rationale for absolute immunity for the performance of 

legislative, judicial and prosecutorial functions is not to protect those individuals 

from liability for their own unjustifiable conduct, but to protect their offices against 

the deterrent effect of a threat of suit alleging improper motives where there has 
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been no more than a mistake or a disagreement on the part of the complaining 

party with the decision made.” Yanero, 65 S.W.3d at 518 (citation omitted). I 

believe that this reasoning is equally applicable to the case at hand. Prosecutors 

have a duty to inform the public as to their investigative, administrative, and 

prosecutorial activities. Foster, 387 N.E.2d at 449. Statements to the media and to 

the public at large further this significant role. 

To be clear, I do not believe that every public statement by a 

prosecutor is subject to absolute immunity. However, prosecutors are frequently 

called upon to speak on matters relating to pending or completed prosecutions. 

During the pendency of a prosecution or trial, a court may reasonably restrict the 

parties from making public statements which may prejudice the outcome. But in 

the absence of such a restriction or once the prosecution is completed, a prosecutor 

should be entitled to make public statements concerning the facts of the 

prosecution and conviction. Such statements are reasonably attendant to the 

prosecutorial function. To hold otherwise, in my opinion, would have a 

devastating and chilling effect on public officials. 

In this case, Thieneman’s complaint alleges that O’Connell defamed 

him by referencing his prior prosecution and conviction for second-degree wanton 

endangerment and by stating that he was a danger to the community as a result. 

O’Connell spoke about his office’s prior prosecution of Thieneman for assault and 
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conviction for second-degree wanton endangerment. When speaking about this 

prosecution, O’Connell referred to the actions and position of the County 

Attorney’s Office. He specifically referred to “my office, and my prosecutors, 

[and] the women in my office . . . .” 

I concede that O’Connell conflated the nature of Thieneman’s 

offenses with the allegations posted on the billboard – he twice referred to 

Thieneman as a “sexual predator.” This was clearly an inaccurate statement of the 

facts surrounding the conviction. But O’Connell specifically noted the facts 

supporting the conviction and he corrected his prior mischaracterization of 

Thieneman’s actions near the close of his remarks. Although I believe that 

O’Connell’s remarks were ill-considered, I would nonetheless hold that they were 

subject to absolute prosecutorial immunity. 

In context, I would find that O’Connell was addressing the official 

position of his office regarding a completed prosecution. While that prosecution 

was completed, the County Attorney is entitled to publicly address the fact of a 

conviction. His office prosecuted Thieneman for attempting to choke his thengirlfriend. That prosecution resulted in a conviction which was upheld on appeal. 

Making public statements about the result of the County Attorney’s 

prosecution of particular individuals is reasonably within the scope of O’Connell’s 

prosecutorial role. It also furthers the purpose of affording immunity to such 
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actions – protecting a prosecutor from liability for engaging in the necessary 

functions of the prosecutorial role. Furthermore, O’Connell was entitled to express 

his opinion about Thieneman to the extent that it was based on the disclosed and 

accurate facts surrounding the prosecution and conviction. Yancey v. Hamilton, 

786 S.W.2d 854, 857 (Ky. 1989).

Nevertheless, I must recognize that Kentucky has not adopted 

absolute immunity for prosecutors to this degree. While I believe that there are 

compelling public policy reasons to do so, it is not the role of this Court to adopt 

such a rule for the first time. I must also recognize that O’Connell has not asked 

this Court to do so. Thus, while I believe that the claims against O’Connell should 

be barred by absolute immunity, I must agree with the majority that O’Connell 

only has qualified immunity from defamation claims brought against him in his 

individual capacity. Therefore, I concur in the majority’s decision to affirm the 

denial of his motion to dismiss.
-23-

BRIEFS FOR APPELLANT:

Michael J. O’Connell

Kristie B. Walker

Louisville, Kentucky

ORAL ARGUMENT FOR 

APPELLANT:

Kristie B. Walker

Louisville, Kentucky

BRIEF FOR APPELLEE:

Thomas A. McAdam, III

Louisville, Kentucky

ORAL ARGUMENT FOR 

APPELLEE:

Mary E. Eade

Louisville, Kentucky