Donald T. Stapley v. Peter R. Pestalozzi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD T. STAPLEY, JR.; KATHLEEN No. 12-16145

STAPLEY,

Plaintiffs-Appellees, D.C. No.

2:10-cv-02756-

v. NVW

PETER R. PESTALOZZI; LISA

AUBUCHON,

Defendants,

and

ANDREW THOMAS; ANN THOMAS,

Defendants-Appellants.

DONALD T. STAPLEY, JR.; KATHLEEN No. 12-16146

STAPLEY,

Plaintiffs-Appellees, D.C. No.

2:10-cv-02756-

v. NVW

ANDREW THOMAS; ANN THOMAS,

Defendants, OPINION

and

2 STAPLEY V. PESTALOZZI

LISA AUBUCHON; PETER R.

PESTALOZZI,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

May 9, 2013—San Francisco, California

Filed August 16, 2013

Before: William A. Fletcher, Ronald M. Gould,

and Morgan Christen, Circuit Judges.

Opinion by Judge W. Fletcher

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial of former

Maricopa County prosecutors Andrew Thomas’s and Lisa

Aubuchon’s (and their spouses’) motions to dismiss based on

absolute immunity.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

STAPLEY V. PESTALOZZI 3

Former Maricopa County Board of Supervisors member

Donald T. Stapley, Jr. and his spouse (“plaintiffs”) brought

this lawsuit under 42 U.S.C. § 1983 and state law alleging

that Thomas and Aubuchon initiated a frivolous federal civil

racketeering (“RICO”) suit against Stapley to harass him as

part of an ongoing political war in Maricopa County

involving the Board of Supervisors, Sheriff Joe Arpaio, and

others. Thomas and Aubuchon were later disbarred, in part

for initiating the RICO suit in question. The panel held that,

under the circumstances, Thomas and Aubuchon were not

entitled to absolute immunity because their actions were not

sufficiently analogous to those of a prosecutor.

COUNSEL

Sarah Lynn Barnes (argued), Richard Edward Chambliss, and

Donald Wilson, Jr., Broening Oberg Woods & Wilson P.C.,

Phoenix, Arizona; Douglas V. Drury (argued) and James P.

Mueller, Mueller & Drury, P.C., Scottsdale, Arizona, for

Defendants-Appellants.

Larry Jay Wulkan (argued); Michael Charles Manning;

Stefan M. Palys, Stinson Morrison Hecker LLP, Phoenix,

Arizona; Merwin D. Grant, Kenneth Brent Vaughn, Grant &

Vaughn P.C., Phoenix, Arizona, for Plaintiffs-Appellees.

4 STAPLEY V. PESTALOZZI

OPINION

W. FLETCHER, Circuit Judge:

Former prosecutors Andrew Thomas and Lisa Aubuchon,

and their spouses, (“Defendants”) appeal the district court’s

partial denial of their motions to dismiss. Former Maricopa

County Board of Supervisors member Donald T. Stapley, Jr.

and his spouse (“Plaintiffs”) allege that Defendants initiated

a frivolous federal civil racketeering (“RICO”) suit against

Stapley to harass him. The suit was part of an ongoing

“political war” in Maricopa County between the Board of

Supervisors, Sheriff Joe Arpaio, and others. Thomas and

Aubuchon were later disbarred, in part for initiating the RICO

suit in question.

Thomas and Aubuchon argued that they are entitled to

absolute prosecutorial immunity from any claims arising out

of their filing of the civil RICO action. The district court

disagreed, denying Defendants’ motion to dismiss as to the

claims arising from the RICO suit. We affirm.

I. Factual Background

This case is before us on a Rule 12(b)(6) motion to

dismiss. We describe the facts using the allegations from

Stapley’s Second Amended Complaint.

A. General Background

Stapley is a member of the Maricopa County Board of

Supervisors (“the Board”). Thomas was the County

Attorney, heading the Maricopa County Attorney’s Office

(“MCAO”). Aubuchon was a Deputy County Attorney.

STAPLEY V. PESTALOZZI 5

Stapley and other supervisors clashed on a number of

occasions with Thomas, as well as County Sheriff Joe Arpaio,

former County Chief Deputy Sheriff David Hendershott, and

others. Thomas and Sheriff Arpaio resented Stapley’s

investigations into the expenditures of the MCAO and the

Maricopa County Sheriff’s Office (“MCSO”). On one

occasion, Stapley criticized Thomas’ excessive use of

expensive outside counsel, including Thomas’ former law

firm. Thomas responded by suing the Board to establish

himself as the sole decision maker for hiring outside counsel.

On another occasion, Stapley criticized the MCSO for using

County money to finance trips to Central America. Thomas

also believed that Stapley was interfering with Thomas’

ongoing anti-methamphetamine program. Eventually the

Board cut $6 million from the MCAO budget, and “[t]he

conflicts escalated into what has been called a ‘political

war.’”

Defendants initiated a campaign of harassment against

Stapley and his supporters. As part of their campaign,

Defendants launched baseless investigations into Stapley for

alleged wrongdoing. One investigation related to a

construction project for a new tower of the Maricopa County

Superior Court (the “Court Tower Project”). Defendants

reported possible wrongdoing by Stapley and others to the

U.S. Post Office and the Department of Justice. The U.S.

Attorney’s Office determined that there was no evidence of

wrongdoing, noting that “in several instances, the evidence

was so lacking as to make the theory of liability nearly

incomprehensible.” Sheriff Arpaio and Thomas later formed

what they called the Maricopa County Anti-Corruption

Enforcement unit (“MACE”), which they used to target their

political enemies with criminal investigations. Thomas

assigned Aubuchon to be MACE’s primary attorney.

6 STAPLEY V. PESTALOZZI

Defendants filed two baseless criminal complaints against

Stapley. While seeking the first indictment, Aubuchon

omitted or misrepresented facts and law to the grand jury.

Thomas issued a press release announcing the indictment, and

Thomas and Sheriff Arpaio also “sent a letter to the Secret

Service notifying it that [Stapley] was under indictment and

investigation.”

The State Bar investigated Thomas for ethical violations

in prosecuting Stapley. Judge Rebecca Albrecht, acting for

the State Bar, informed Thomas, “It is clear to me that under

the facts as they were presented in the pleadings there was a

clear issue of conflict of interest, which if borne out would

have led to a conclusion that you had violated Ethical Rules

1.7, 1.10 and 8.4(d).” Judge Albrecht stated that she would

close the investigation once Thomas confirmed that he was

no longer involved in the prosecution.

To avoid disciplinary proceedings, Thomas advised the

State Bar that he had transferred prosecution of the case and

ongoing investigations of Stapley to Yavapai County

Attorney, Sheila Polk. He announced that MCAO was to

have no further involvement in the case. However, after the

announcement, Aubuchon “continued to work on the

investigations,” reporting to Sheriff Arpaio and Thomas. All

118 counts of the first indictment were eventually dismissed

or voluntarily withdrawn by Polk. Sheriff Arpaio and

Hendershott complained to Polk that the dismissal would

embarrass them in the media.

Thomas and Aubuchon next filed a civil RICO suit

against Stapley and others, as discussed below. While this

civil suit was pending, Defendants initiated a second criminal

case against Stapley. Pima County Superior Court Judge

STAPLEY V. PESTALOZZI 7

John S. Leonardo dismissed a similar criminal case against a

different Board member, Mary Rose Wilcox, finding that

Thomas had numerous conflicts of interest related to his

“efforts to retaliate against members of the [Board]” and to

“gain political advantage by prosecuting those who oppose

him politically.” Special counsel for the State Bar also

informed Thomas and Aubuchon that filing criminal charges

while pursuing the civil RICO suit against Stapley created

ethical conflicts.

After Judge Leonardo dismissed the case against Wilcox,

Thomas, and Sheriff Arpaio announced that Thomas would

send the new criminal case against Stapley to Gila County

Attorney, Daisy Flores, for review. Flores refused to

prosecute any counts of the indictment due to the lack of

evidence. She noted that because of “the sordid tapestry of

how this case arose, . . . any subsequent prosecution of

[Stapley] would be our ratification of government misconduct

on the part of the MCAO and the MCSO.”

B. Civil RICO Suit

Thomas and Aubuchon filed a federal civil racketeering

suit against Stapley and others in late 2009. A number of

people had advised them not to file the suit. Aubuchon knew

that an outside law firm had evaluated the viability of a civil

RICO action in October 2009, and had concluded that “there

was insufficient evidence for such an action.” A RICO expert

in the Maricopa County Attorney’s Office, Peter Spaw,

informed Thomas and Aubuchon that there was no evidence

to justify a civil RICO action. Spaw refused to assist in

drafting the complaint. MCAO supervisors Barnett Lotstein

and Phil MacDonnell also told Thomas that “the RICO Suit

was not appropriate or viable based on the facts and

8 STAPLEY V. PESTALOZZI

circumstances.” Despite these warnings, Thomas and

Aubuchon actively participated in drafting the complaint

before filing it on December 1, 2009. Lotstein and

MacDonnell — who had “believed that Thomas had heeded

their advice not to pursue” the RICO suit — learned about the

filing only after Sheriff Arpaio and Thomas announced it to

the media.

Sheriff Arpaio and Thomas were the plaintiffs in the civil

RICO suit. The complaint listed Thomas and Aubuchon as

plaintiffs’ attorneys. Aubuchon signed the complaint. The

complaint named fourteen individuals as defendants, as well

as the Maricopa County Board of Supervisors and a law firm.

The individual defendants included Stapley, other County

Board members, state court judges, and county employees.

The general theory of the RICO complaint was that

Stapley and the other RICO defendants had conspired to

implement the Court Tower Project and to thwart Thomas

and Sheriff Arpaio’s legitimate criminal investigations into

the activities of Stapley and others. The complaint alleged

that the RICO defendants cut funding to the MCAO,

intimidated and retaliated against prosecutors, improperly

evaded surveillance devices, filed frivolous State Bar

complaints against Thomas and his deputies, and committed

various criminal acts. The complaint further alleged that the

judicial defendants had been biased against Thomas and had

issued unfair rulings against him.

The complaint generally alleged two types of injuries.

First, it alleged that defendants cut funding for the MCAO,

thus depriving Sheriff Arpaio of legal services and preventing

the MCAO from fulfilling its duties. Second, the complaint

asserted injuries to Thomas and other MCAO attorneys

STAPLEY V. PESTALOZZI 9

related to the RICO defendants’ alleged efforts to deprive

them of their law licenses by reporting them to the bar

association. The complaint sought treble damages.

Thomas and Sheriff Arpaio voluntarily dismissed the

RICO suit on March 11, 2010, less than four months after

filing. The court had taken no action on the suit. The

dismissal notice stated that “having referred this matter to the

Public Integrity Section (“PIN”) of the United States

Department of Justice and having received their assurances

that PIN will review the matter, Plaintiffs [Sheriff Arpaio]

and [Thomas] . . . hereby voluntarily dismiss” the case.

Thomas and Sheriff Arpaio held a press conference where

Thomas announced “victory” in the RICO suit. With the

approval of Sheriff Arpaio and Thomas, Sheriff Arpaio’s

attorney, Robert Driscoll, stated at the conference that the

Department of Justice (“DOJ”) had agreed to investigate the

RICO Lawsuit defendants. DOJ had in fact made no such

agreement, but had informed Driscoll only that Thomas and

Sheriff Arpaio could submit a tip like any other citizen. DOJ

issued a statement two days later, rejecting the press

conference’s characterization of events and stating that it was

“dismayed to learn” that information received from DOJ had

been “used as a platform for a press conference.”

C. Disbarment of Thomas and Aubuchon

A disciplinary panel of the Arizona State Bar investigated

Thomas and Aubuchon related to the above incidents. The

panel found “overwhelming” evidence that Defendants had

abused their power and “spen[t] the public’s money for their

cause célèbre.” Noting that the “harm” done by Thomas and

Aubuchon “to the public, individuals, and the profession was

10 STAPLEY V. PESTALOZZI

stunning on every front,” the panel ordered them disbarred.

Aubuchon has appealed the ruling.

With respect to the RICO complaint, the bar panel noted

that Thomas and Aubuchon had filed suit despite numerous

warnings from other MCAO attorneys and from outside

counsel that the suit “would be a misuse of the law” and that

“sanctions for a frivolous lawsuit would likely be imposed.”

The panel determined that the complaint, in addition to being

“unintelligible or nonsensical” in places, did not state facts

sufficient to support any of its legal claims. The panel also

found that Thomas and Aubuchon made no effort to gather

evidence to support the suit, that they lacked authority under

Arizona law to file the suit, and that the suit caused severe

emotional damages to the RICO defendants.

II. Proceedings Below

Stapley, his spouse, and several other Board members,

judges, and County employees sued seeking monetary

damages. The suits named multiple defendants, including

Thomas, Aubuchon, Sheriff Arpaio, and Maricopa County

itself. Most of the parties have settled. The only remaining

plaintiffs in this appeal are Stapley and his spouse. Thomas,

Aubuchon, and their spouses are the only defendants.

Stapley has alleged twelve causes of action under

42 U.S.C. § 1983 and state law. His claims include wrongful

institution of civil proceedings, malicious prosecution, false

imprisonment and arrest, intentional infliction of emotional

distress, unlawful search, equal protection and other

constitutional violations, and conspiracy to violate § 1983.

Stapley alleged that Defendants’ filing of the RICO suit

caused some of his injuries.

STAPLEY V. PESTALOZZI 11

Defendants moved to dismiss on multiple grounds. They

contend, inter alia, that they are entitled to absolute immunity

from claims arising out of their initiation of the RICO suit.

The district court partially granted and partially denied

Defendants’ motions. See Donahoe v. Arpaio, 869 F. Supp.

2d 1020, 1078–79 (D. Ariz. 2012). Relevant here, the district

court rejected Defendants’ assertion of absolute immunity

from claims arising out of the RICO suit. Id. at 1054–56.

The court noted that absolute immunity for government

attorneys is generally limited to those attorneys’ actions that

are “‘intimately associated with the judicial phase of the

criminal process.’” Id. at 1055 (quoting Imbler v. Pachtman,

424 U.S. 409, 430 (1976)). The court held that the civil

RICO suit was not sufficiently analogous to criminal

proceedings to qualify for absolute immunity. The court

emphasized that the civil RICO statute does not give any

special authority to county officials to bring RICO suits. Id.

at 1056. Rather, Defendants had filed suit under a provision

authorizing any member of the public to sue. Since

Defendants were on the same footing as private lawyers in

bringing the suit, the court concluded, they were not entitled

to absolute immunity. Id.

Defendants timely appealed the denial of absolute

immunity from claims arising out of the civil RICO suit.

III. Jurisdiction

We have jurisdiction under 28 U.S.C. § 1291. A district

court order denying absolute immunity on a motion to

dismiss constitutes an immediately appealable final decision.

See Will v. Hallock, 546 U.S. 345, 350 (2006).

12 STAPLEY V. PESTALOZZI

Stapley contends that we lack jurisdiction because the

immunity question turns on disputed facts. We disagree. As

discussed below, we consider the facts as alleged in the

complaint. We then apply the law to those alleged facts to

determine whether Defendants are entitled to absolute

immunity. Cf. Mathews v. Chevron Corp., 362 F.3d 1172,

1180 (9th Cir. 2004) (performing de novo review of mixed

questions of law and fact).

IV. Standard of Review

We review de novo the denial of absolute immunity on a

Rule 12(b)(6) motion to dismiss. See Miller v. Davis,

521 F.3d 1142, 1145 (9th Cir. 2008); Cervantes v. United

States, 330 F.3d 1186, 1187 (9th Cir. 2003). “All allegations

of material fact are taken as true and construed in the light

most favorable to the nonmoving party.” Cousins v. Lockyer,

568 F.3d 1063, 1067 (9th Cir. 2009) (internal quotation marks

omitted). We are “not bound to accept as true a legal

conclusion couched as a factual allegation.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation

marks omitted). The complaint “must contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted).

V. Discussion

The sole issue before us is whether Defendants are

absolutely immune from suit under 42 U.S.C. § 1983 for their

actions in filing the civil RICO complaint. The parties agree

that state-law prosecutorial immunity from the state-law

claims is the same as federal-law immunity from claims

STAPLEY V. PESTALOZZI 13

under § 1983. We hold that Defendants are not entitled to

absolute immunity.

A. Supreme Court Precedent

In Imbler, the Court held that prosecutors have absolute

immunity under § 1983 for a decision to initiate a criminal

prosecution. 424 U.S. at 430–31. The Court noted the

common law rationales for granting immunity, including

insulating prosecutors from harassment and allowing them to

make independent decisions without fear of litigation. Id. at

422–24. The Court determined that the same concerns

warranted absolute immunity under § 1983. Id. at 424. The

Court acknowledged that absolute immunity comes at the

price of “leav[ing] the genuinely wronged defendant without

civil redress.” Id. at 427. It nonetheless concluded that

absolute immunity was the best “balance between the evils”

in the criminal context. Id. at 428 (internal quotation marks

omitted).

The Court in Imbler did not define the precise scope of

prosecutorial immunity. It held only that absolute immunity

applied to a prosecutor’s “activities . . . intimately associated

with the judicial phase of the criminal process.” Id. at 430.

The Court has since confirmed that the functional nature of

the activities being performed, not the status of the person

performing them, is the key to whether absolute immunity

attaches. See Forrester v. White, 484 U.S. 219, 229 (1988)

(holding that“the nature of the function performed, not the

identity of the actor who performed it,” informs the absolute

immunity analysis).

In Butz v. Economou, 438 U.S. 478, 511–14 (1978), the

Court extended Imbler beyond criminal prosecutions to

14 STAPLEY V. PESTALOZZI

administrative enforcement proceedings. In Butz, the Court

held that “agency officials performing certain functions

analogous to those of a prosecutor should be able to claim

absolute immunity with respect to such acts.” Id. at 515.

Noting again that functional comparisons are key and that it

is the “characteristics of the judicial process rather than its

location” that matters, id. at 512, the Court concluded that

agency enforcement actions are sufficiently analogous to

criminal prosecutions that agency officials who initiate

enforcement actions are protected by absolute immunity. Id.

at 516–17. The Court emphasized that qualified immunity is

the norm for government officials except in “exceptional

situations where it is demonstrated that absolute immunity is

essential for the conduct of the public business.” Id. at 507.

B. Ninth Circuit Precedent

In two early cases, we granted absolute immunity to IRS

attorneys who initiated civil tax-collection lawsuits. See Fry

v. Melaragno, 939 F.2d 832, 838 (9th Cir. 1991); Flood v.

Harrington, 532 F.2d 1248, 1252 (9th Cir. 1976). We used

broad language in Flood, stating that we did not “see any

significant reason to distinguish actions involving civil

claims” from criminal prosecutions. Flood, 532 F.2d at 1251.

Similarly, in Fry we stated broadly that government attorneys

are entitled to absolute immunity in all litigation contexts:

Whether the government attorney is

representing the plaintiff or the defendant,

or is conducting a civil trial, criminal

prosecution or an agency hearing,

absolute immunity is “necessary to assure

that . . . advocates . . . can perform their

respective functions without harassment or

STAPLEY V. PESTALOZZI 15

intimidation.” Butz, 438 U.S. at 512. Given

the similarity of functions of government

attorneys in civil, criminal and agency

proceedings, and the numerous checks on

abuses of authority inherent in the judicial

process, we reiterate our statement in Flood

that “[t]he reasons supporting the doctrine of

absolute immunity apply with equal force

regardless of the nature of the underlying

action.” 532 F.2d at 1251 (citation omitted).

Fry, 939 F.2d at 837 (omissions and alteration in original)

(parallel citation omitted). Defendants contend, based on this

language, that prosecutors are entitled to absolute immunity

in any civil litigation, and that this immunity extends to

claims arising from the civil RICO action at issue here.

We do not believe that Flood and Fry require absolute

immunity in all civil suits. Flood and Fry both involved suits

brought against government attorneys who had brought civil

tax enforcement proceedings. The scope of immunity for

other types of civil suits was not at issue. The broad reading

of Fry and Flood for which Defendants advocate would go

well beyond what is required under Supreme Court precedent.

The Court has emphasized that qualified immunity is the

norm for government officials, and that absolute immunity

exists only in “exceptional situations” where it is “essential

for the conduct of the public business.” Butz, 438 U.S. at

507; see also Burns v. Reed, 500 U.S. 478, 487 (1991) (“We

have been quite sparing in our recognition of absolute

immunity, and have refused to extend it any further than its

justification would warrant.” (internal quotation marks and

citation omitted)). The Court has never stated that

government attorneys receive absolute immunity for all

16 STAPLEY V. PESTALOZZI

litigation-related conduct, even in criminal cases. Rather, the

Court has repeatedly stated that only certain actions taken by

prosecutors receive absolute immunity, and that a functional

comparison of the activities performed is critical. See Imbler,

424 U.S. at 430 (finding absolute immunity for “activities . . .

intimately associated with the judicial phase of the criminal

process”); Butz, 438 U.S. at 515 (finding absolute immunity

for “functions analogous to those of a prosecutor”).

We recently rejected a prosecutor’s claim of absolute

immunity in Lacey v. Maricopa County, 693 F.3d 896,

912–14 (9th Cir. 2012) (en banc). The county attorney in

Lacey was another ally of Sheriff Arpaio in his wars against

political adversaries. See id. at 909. The county attorney had

issued subpoenas against newspaper publishers who had

offended Sheriff Arpaio by publishing articles that criticized

him. Id. at 913–14. The subpoenas were invalid because

they had been issued without approval from or notice to the

grand jury. Id. at 913. The attorney thereby violated Arizona

statutes requiring either grand jury approval or notification.

We held that the attorney was not entitled to absolute

immunity from § 1983 claims brought by the improperly

subpoenaed publishers. Id. We emphasized that the county

attorney had avoided judicial scrutiny by acting unilaterally:

“Where the prosecutor has side-stepped the judicial process,

he has forfeited the protections the law offers to those who

work within the process.” Id. at 914.

C. Absolute Immunity for Thomas and Aubuchon

The question here is whether, in the circumstances of this

case, Thomas and Aubuchon are entitled to absolute

immunity from claims arising out of their initiation of the

civil RICO suit. Defendants have the burden of showing that

STAPLEY V. PESTALOZZI 17

they are entitled to absolute immunity. See Burns, 500 U.S.

at 486. We conclude that Defendants have not carried their

burden.

Because the RICO suit was civil, see 18 U.S.C. § 1961, et

seq., it was not “intimately associated with the judicial phase

of the criminal process.” Imbler, 424 U.S. at 430 (emphasis

added). Defendants therefore try to analogize this case to

Butz, where absolute immunity was extended in the civil

context to “functions analogous to those of a prosecutor.”

Butz, 438 U.S. at 515. We conclude that Defendants’ actions

here were not “analogous to those of a prosecutor” for two

reasons. See id.

First, the federal RICO statute does not provide any

special authorization for county attorneys to file civil RICO

suits. County attorneys may file civil RICO suits under

18 U.S.C. § 1964(c), but they have no status as plaintiffs

different from private citizens. Compare § 1964(b)

(authorizing the United States Attorney General to initiate a

RICO suit), with § 1964(c) (authorizing “[a]ny person injured

in his business or property” to sue under the RICO statute).

As the district court noted, Thomas and Aubuchon were thus

“in the same position as . . . private lawyers” in bringing the

RICO suit. 869 F. Supp. 2d at 1056. This case is therefore

distinguishable from all cited cases where a government

attorney was granted absolute immunity. In those cases, the

government attorney was taking action that only a legal

representative of the government could take. See, e.g.,

Imbler, 424 U.S. at 410 (criminal prosecution); Butz,

438 U.S. at 480 (federal agency enforcement action); Fry,

939 F.2d at 834 (civil tax collection proceeding); Flood,

532 F.2d at 1249 (same). Inasmuch as Defendants did not act

in a uniquely governmental role in filing their civil RICO

18 STAPLEY V. PESTALOZZI

suit, their actions were not “analogous to those of a

prosecutor.” Butz, 438 U.S. at 515.

Second, the circumstances of this case indicate that the

civil RICO suit was not “analogous” to a criminal

prosecution. Rather, Defendants filed the RICO suit as part

of their long-running “political war” against members of the

Board of Supervisors, judges, and others. The suit was

essentially a harassing public-relations ploy. Defendants

filed baseless criminal suits against Stapley and others both

before and after filing the RICO suit, seeking media publicity

for their actions in connection with these suits. Before

initiating the civil RICO suit, Defendants received warnings

from attorneys both inside and outside their office that the

suit had no basis in fact or law and would likely result in

sanctions. Defendants had also been warned of ethical

conflicts related to filing the suit.

Defendants nonetheless filed the RICO suit, announcing

it to the media immediately after filing. Then, before the

court had any opportunity to assess its validity, Defendants

voluntarily dismissed the suit. After dismissing the suit,

Defendants held a press conference, announcing that the

Department of Justice had agreed to investigate the RICO

Lawsuit defendants. The DOJ had, in fact, made no such

agreement, and it later announced that it was “dismayed to

learn” of the press conference. Through these actions,

Defendants deliberately “side-stepped the judicial process,”

like the prosecutor in Lacey who avoided judicial scrutiny

and thereby lost the protections of absolute immunity. Lacey,

693 F.3d at 914.

We need not determine whether each of the distinguishing

characteristics here, standing alone, would be sufficient to

STAPLEY V. PESTALOZZI 19

defeat absolute immunity. We hold only that, under the

circumstances presented here, Defendants are not entitled to

absolute immunity because their actions were not sufficiently

“analogous to those of a prosecutor.” Butz, 438 U.S. at 515.

Conclusion

We affirm the district court’s denial of Defendants’

motions to dismiss based on their asserted absolute immunity

from claims arising out of their civil RICO suit.

AFFIRMED.