Javier Torres v. Terry Goddard

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAVIER TORRES; LIA RIVADENEYRA, No. 12-17096

individually and on behalf of all

others similarly situated, D.C. No.

Plaintiffs-Appellants, 2:06-cv-02482-

SMM

v.

TERRY GODDARD, in his individual OPINION

capacity; COLIN HOLMES, in his

individual capacity as personal

representative of the estate of

Cameron Holmes; MARK BRNOVICH,

Attorney General of the State of

Arizona,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted

January 28, 2014—University of Nevada, Las Vegas

Filed July 16, 2015

Before: Stephen Reinhardt, Alex Kozinski,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Kozinski

2 TORRES V. GODDARD

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment, and remanded in an action

brought under 42 U.S.C. § 1983 against Arizona state

officials who executed over twenty warrants to seize

thousands of wire transfers that officials alleged were likely

to be connected to criminal conduct associated with the

smuggling of undocumented aliens into the United States.

The panel first held that absolute immunity is available to

prosecutors in the context of civil forfeiture proceedings. The

panel held that Arizona Assistant Attorney General Cameron

Holmes’s preparation of and application for the warrants were

intimately associated with the judicial phase of civil forfeiture

proceedings, and therefore protected by absolute immunity.

The panel held however that Holmes’s service and execution

of the seizure warrants were not protected by absolute

immunity because those acts are functions of police officers,

not the traditional functions of an advocate. The panel

expressed no opinion as to whether Holmes was entitled to

qualified immunity.

The panel held that Terry Goddard, in his individual

capacity as the Arizona Attorney General at the time the

seizure warrants were carried out, was protected by absolute

immunity for supervision of Holmes’s preparation of and

application for the warrants. Goddard could not claim

*

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

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

TORRES V. GODDARD 3

absolute immunity with respect to his supervision of

Holmes’s service and execution of the seizure warrants

because his supervision was a function of a supervising police

officer, not a supervising prosecutor.

The panel held that plaintiffs waived the issue of whether

the district court erred by granting summary judgment on the

official capacity claims against Thomas Horne, Goddard’s

successor as Arizona Attorney General. The panel expressed

no opinion as to whether the district court abused its

discretion by denying plaintiffs’ motion for class

certification.

COUNSEL

Matthew J. Piers, Joshua Karsh, Christopher J. Wilmes

(argued), Hughes Socol Piers Resnick & Dym, Ltd., Chicago,

Illinois, for Plaintiffs-Appellants.

Thomas C. Horne, Arizona Attorney General, David D.

Weinzweig (argued) and Evan Hiller, Assistant Attorneys

General, Phoenix, Arizona, for Defendants-Appellees.

4 TORRES V. GODDARD

OPINION

KOZINSKI, Circuit Judge:

The state of Arizona had a coyote problem: Not the four-

legged furry kind that occasionally abscond with pets, but the

kind who smuggle undocumented aliens into the United

States for a fee. As part of the effort to combat the

proliferation of coyotes, between 2001 and 2006 Arizona

officials executed over twenty warrants to seize thousands of

wire transfers that they claimed were highly likely to be

connected to criminal conduct. Plaintiffs sent money via

Western Union that was seized pursuant to two of these

warrants. They allege the seizures were unconstitutional and

seek damages, as well as injunctive and declaratory relief,

against the state officials they claim are responsible for the

seizures. We determine whether defendants’ actions are

protected by absolute immunity.

I. BACKGROUND

The warrant program was carried out by the Arizona

Financial Crimes Task Force. The Task Force consisted of

personnel from several public agencies including the Arizona

Attorney General’s Office. Cameron Holmes, an Assistant

Attorney General and civil forfeiture prosecutor, worked with

the Task Force. Holmes sought court approval for and

obtained seizure warrants pursuant to Arizona’s civil

forfeiture statutes. See Ariz. Rev. Stat. Ann. § 13-

4305(A)(1).

TORRES V. GODDARD 5

While some of the earlier warrants sought seizure of wire

transfers involving specific names listed in the warrants, later

warrants, or “sweeps,” authorized seizure of all wire transfers

that met certain specified criteria. The six “criteria-based”

warrants identified in plaintiffs’ complaint authorized the

seizure of every person-to-person Western Union wire

transfer that (1) was sent from certain states to Arizona or,

under one warrant, from certain states to Sonora, Mexico;

(2) met or exceeded a threshold amount ranging from $500 to

$2000; and (3) was made during a certain time period—

typically three or four weeks in the spring or fall.

Accompanying the warrant applications were factual

affidavits sworn to by Task Force detectives. The affidavits

claimed that any wire transfer that met the warrants’ criteria

had a very high likelihood, for some warrants as high as 97

percent, of being “directly involved in illegal drug and/or

human smuggling.”

The seizures followed the same basic pattern. Holmes

supervised the preparation of the seizure warrants and warrant

applications. Holmes also reviewed the factual affidavits

sworn to by Task Force detectives “in order to satisfy

[himself] that the seizure warrant[s] being applied for [were]

supported by probable cause.” Holmes then sought approval

of the warrants before a state court judge. Once the warrants

were approved, Holmes served them on Western Union’s

corporate headquarters. The warrants were “effective upon

receipt” by Western Union. They required Western Union to

identify all wire transfers that met the listed criteria and

“cause the transaction[s] to be ‘force paid’ to a detention

account” maintained for the state by Western Union. Western

6 TORRES V. GODDARD

Union seized the funds on the state’s behalf by loading the

criteria into its computer system. When a wire transfer that

met all the criteria listed in a warrant was initiated, Western

Union’s computer system automatically diverted the transfer

to Arizona’s detention account. While the seized funds were

held by Western Union, they were considered to be in the

“constructive custody of the law enforcement agency making

the seizure for forfeiture.”

Although the affidavits claimed that a wire transfer that

met the warrants’ criteria had a high likelihood of being

subject to forfeiture, they acknowledged that some transfers

detained by Western Union may “not [be] involved in the

conduct described in the affidavit.” The warrants therefore

required the state to notify the consignee of the seizure and

staff a 24-hour hotline. Arizona officials operated this “call

center” and “[made] decisions as to whether particular money

transfers could be released from seizure.” See Ariz. Rev.

Stat. Ann. § 13-4306(A). If the call center official was

satisfied that the transfer was for a legitimate purpose, the

funds were released. If the official was not so convinced, or

if the call center wasn’t contacted about the seized transfer,

the funds remained in the detention account. The funds were

detained by Western Union for the period of the warrant plus

twenty-one days. At the end of the detention period, the

warrants required Western Union to convey all unreleased

funds to a bank account maintained by the Maricopa County

TORRES V. GODDARD 7

Superior Court.1 Holmes subsequently brought civil

forfeiture proceedings against these funds.

Plaintiffs Javier Torres and Lia Rivadeneyra sent funds

via Western Union that were seized pursuant to two of the

warrants. Their section 1983 complaint alleges that

defendants, “both personally and through agents or

representatives,” “served and executed” the criteria-based

warrants and “have illegally seized more than $9 million in

interstate and international money transfers.” Plaintiffs allege

that the seizures were unconstitutional because they were

1

The funds detained by Sweep 21, the warrant that authorized seizure

of funds sent from outside Arizona to Sonora, Mexico, never made it into

state custody. As soon as this warrant was served, Western Union

challenged it on the ground that Arizona lacked in rem jurisdiction over

these funds. The Maricopa County Superior Court quashed the warrant,

thereby preventing Western Union from transferring the funds detained

pursuant to Sweep 21 to the State of Arizona. The Arizona Supreme

Court agreed and held that Arizona couldn’t exercise in rem jurisdiction

over funds transferred from other states to Sonora because those funds

were never present in Arizona. State v. W. Union Fin. Servs., Inc.,

208 P.3d 218, 223–27 (Ariz. 2009) (citing Shaffer v. Heitner, 433 U.S.

186, 212 (1977)).

The other warrants were limited to funds sent to Arizona and weren’t

challenged on that ground. Despite the differences between Sweep 21 and

the other warrants identified in the complaint, our absolute immunity

analysis is the same because plaintiffs allege that defendants performed

the same functions with respect to all of the warrants. See pp. 13–25

infra; Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (whether absolute

immunity applies depends on “the nature of the function performed”

(internal quotation marks and citation omitted)). But that’s not necessarily

true of qualified immunity. That protection depends on “whether the right

at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation

omitted). We leave the qualified immunity question to the district court

on remand. See pp. 20–21, 25–26 infra.

8 TORRES V. GODDARD

conducted without “particularized probable cause” to believe

that their wire transfers “were involved in,” or “were the

fruits or instrumentalities of, any of the stated criminal

offenses” in the warrants. They seek damages and restitution

of the seized funds, as well as injunctive and declaratory

relief. They also seek to represent a Rule 23(b)(3) class

consisting of all persons whose wire transfers were seized

pursuant to the six criteria-based warrants.

The complaint initially named two defendants: Holmes,

in his individual capacity, and Terry Goddard, Arizona’s

Attorney General at the time the seizure warrants were

carried out and at the time the complaint was filed, in his

individual and official capacities. Holmes died while this

appeal was pending, and was replaced as a defendant by the

personal representative of his estate, Colin Holmes. Goddard

was succeeded by Thomas Horne as Arizona’s Attorney

General after the lawsuit was filed, and Horne replaced

Goddard as a defendant in his official capacity. Horne was

succeeded by Mark Brnovich while this appeal was pending,

and Brnovich replaced Horne as a defendant in his official

capacity. Horne is no longer a defendant and Goddard

remains a defendant in his individual capacity only.

The district court granted summary judgment to Holmes

and Goddard, finding their actions protected by absolute

immunity. In the district court’s view, “government attorneys

are absolutely immune from liability under [section 1983] for

acts involving or related to litigation,” and all of Holmes’s

and Goddard’s actions were so related. The district court also

granted summary judgment to Horne (the Attorney General

at the time) on plaintiffs’ official capacity claim because

plaintiffs hadn’t “alleged or argued how the Attorney

General’s office violated their constitutional rights.” We

TORRES V. GODDARD 9

have jurisdiction pursuant to 28 U.S.C. § 1291 and review

claims of absolute immunity de novo. See Genzler v.

Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).

II. ABSOLUTE IMMUNITY

In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme

Court held that criminal prosecutors may claim absolute

immunity from damages liability for actions “intimately

associated with the judicial phase of the criminal process,”

such as the prosecutor’s initiation of a prosecution and

presentation of the state’s case. Id. at 430. Absolute

prosecutorial immunity is meant to “protect[] the prosecutor

from harassing litigation that would divert his time and

attention from his official duties” and to “enabl[e] him to

exercise independent judgment when ‘deciding which suits to

bring and in conducting them in court.’” Kalina v. Fletcher,

522 U.S. 118, 125 (1997) (quoting Imbler, 424 U.S. at 424);

see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir.

2012) (en banc).

But “the actions of a prosecutor are not absolutely

immune merely because they are performed by a prosecutor.”

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Because

absolute prosecutorial immunity stems from “the interest in

protecting the proper functioning of the office, rather than the

interest in protecting its occupant,” the touchstone is “the

nature of the function performed, not the identity of the actor

who performed it.” Kalina, 522 U.S. at 125, 127 (quoting

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

quotation marks omitted). A prosecutor is absolutely immune

“when performing the traditional functions of an advocate.”

Id. at 131. However, he is not entitled to such protection

when he is “cast [] in the role of an administrator or

10 TORRES V. GODDARD

investigative officer rather than that of advocate.” Id. at 125

(quoting Imbler, 424 U.S. at 430–31) (internal quotation

marks omitted). We must therefore focus “on the conduct for

which immunity is claimed, not on the harm that the conduct

may have caused or the question whether it was lawful.”

Buckley, 509 U.S. at 271.

A. Absolute Immunity in the Civil Forfeiture Context

While Imbler arose in the context of a criminal

prosecution, this lawsuit arises from a civil forfeiture

proceeding. Therefore, before considering the specific

actions of Holmes and Goddard, we must determine whether

absolute immunity is available at all to a prosecutor

conducting a civil forfeiture proceeding. Although the

Supreme Court hasn’t directly addressed this question, it has

extended the reasoning of Imbler to agency officials

“performing certain functions analogous to those of a

prosecutor.” Butz v. Economou, 438 U.S. 478, 515 (1978).

The plaintiff in Butz was a commodities merchant who

claimed that officials from the Department of Agriculture

vindictively instituted administrative proceedings against him

in retaliation for his criticism of the agency. Id. at 480. He

brought damages claims against a number of federal officials,

including the Department of Agriculture attorney who

prosecuted the enforcement proceeding, alleging that the

officials violated his constitutional rights. Id. at 481–82.

The Court held that “adjudication within a federal

administrative agency shares enough of the characteristics of

the judicial process that those who participate in such

adjudication” are entitled to absolute immunity. Id. at

512–13. Consequently, absolute immunity extends to

“agency officials performing certain functions analogous to

TORRES V. GODDARD 11

those of a prosecutor.” Id. at 515. That’s because, just like

a criminal prosecutor, “[t]he discretion which executive

officials exercise with respect to the initiation of

administrative proceedings might be distorted” in the absence

of absolute immunity. Id. (citing Imbler, 424 U.S. at 426

n.24). An agency official’s decision to initiate proceedings

must be able to be made “free from intimidation or

harassment.” Id. at 516. And the procedural safeguards

available to the defendant give him an “ample opportunity to

challenge the legality of the proceeding” and “provide

sufficient checks on agency zeal.” Id. at 515–16; see also Fry

v. Melaragno, 939 F.2d 832, 836–38 (9th Cir. 1991).

The reasoning of Butz applies with equal or greater force

in the civil forfeiture context. In rem proceedings seeking the

forfeiture of property connected to criminal activity are

functionally analogous to criminal proceedings. See United

States v. U.S. Coin & Currency, 401 U.S. 715, 719 (1971).

They are frequently brought in connection with, or

immediately followed by, a criminal prosecution. A

government attorney in a forfeiture proceeding prosecutes

and seeks to establish “the ‘guilt’ of the property seized.”

United States v. One 1985 Mercedes, 917 F.2d 415, 419 (9th

Cir. 1990) (citation omitted). Like a criminal prosecutor, a

civil forfeiture prosecutor is “likely to provoke ‘with some

frequency’ retaliatory suits by angry defendants.” Butz,

438 U.S. at 510 (quoting Imbler, 424 U.S. at 425). Providing

a civil forfeiture prosecutor with only qualified immunity

“might have an adverse effect on the functioning” of the civil

forfeiture system by “discouraging the initiation of [in rem

civil forfeiture] prosecutions” and impacting the manner in

which the attorney conducts a forfeiture prosecution. Id.

12 TORRES V. GODDARD

In rem civil forfeiture proceedings like those conducted

by Holmes in this case also carry sufficient procedural

safeguards “to reduce the need for private damages actions as

a means of controlling unconstitutional conduct.” Id. at 512.

All persons known to have an interest in the seized property

are entitled to reasonable notice of pending forfeiture. See

Ariz. Rev. Stat. Ann. §§ 13-4306(C), 13-4307. The property

owners may appear in court and challenge a proposed

forfeiture. See, e.g., id. §§ 13-4309, 13-4310. The forfeiture

proceedings are conducted before an impartial state court

judge. See, e.g., id. § 13-4311. In such a proceeding, anyone

disputing the forfeiture may testify, introduce evidence and

present and cross-examine witnesses. See, e.g., id. § 13-

4311(L).

We therefore hold that absolute immunity is available to

prosecutors in the context of civil forfeiture proceedings. In

doing so, we join every other circuit that has addressed this

question. See Schrob v. Catterson, 948 F.2d 1402, 1411–13

(3d Cir. 1991); see also Cooper v. Parrish, 203 F.3d 937,

947–48 (6th Cir. 2000); Mendenhall v. Goldsmith, 59 F.3d

685, 691 (7th Cir. 1995); Ehrlich v. Giuliani, 910 F.2d 1220,

1222–24 (4th Cir. 1990).

B. Holmes in His Individual Capacity

We now turn to whether absolute immunity attaches to

the specific actions taken by Holmes. Like a criminal

prosecutor, a civil forfeiture prosecutor isn’t entitled to

absolute immunity merely because of his status as a

prosecutor. Rather, we must evaluate each act a civil

forfeiture prosecutor took and determine whether the

prosecutor was performing a function that’s protected by

absolute immunity. See Milstein v. Cooley, 257 F.3d 1004,

TORRES V. GODDARD 13

1011–13 (9th Cir. 2001) (evaluating absolute immunity act by

act). The “official seeking absolute immunity bears the

burden of showing that such immunity is justified for the

function in question.” Burns v. Reed, 500 U.S. 478, 486

(1991).

1. Preparation and Application

Holmes oversaw the preparation of the warrants, warrant

applications and factual affidavits. He also reviewed and

edited the factual affidavits that were sworn to by Task Force

detectives to satisfy himself that the warrants were supported

by probable cause. He then presented the warrant

applications to a state court judge for approval.

Whether a prosecutor’s application for a warrant is

protected by absolute immunity depends on the function the

warrant serves. The prosecutor in Kalina had “commenced

a criminal proceeding against [the plaintiff] by filing three

documents”: “an information charging [the plaintiff] with

burglary”; “a motion for an arrest warrant”; and a probable

cause certification that “summarized the evidence supporting

the charge.” 522 U.S. at 120–21. The Supreme Court held

that the prosecutor’s “activities in connection with the

preparation and filing of” the information and the motion for

an arrest warrant were protected by absolute immunity. Id. at

129. These activities were “the work of an advocate and

[were] integral to the initiation of the prosecution.” Id. at

130. And in KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004),

we held that a prosecutor was entitled to absolute immunity

when procuring a search warrant, when the warrant “sought

evidence to prosecute the crimes charged in the indictment.”

Id. at 1112. Because the prosecutor obtained the warrant to

14 TORRES V. GODDARD

“marshal evidence for trial,” he was performing a “traditional

function of an advocate for the [s]tate.” Id. at 1112–13.

However, a warrant may also be sought for an

investigative purpose. See Genzler, 410 F.3d at 638 (citing

KRL, 384 F.3d at 1110–16). In KRL, we held that the

prosecutor wasn’t entitled to absolute immunity when he

sought a search warrant that “went beyond any legitimate

preparation to prosecute” the plaintiff for the crimes charged,

and was instead part of a “collateral investigation into new

crimes.” 384 F.3d at 1113–14. We treated this second

warrant differently, not because the prosecutor’s acts were

different, but because the prosecutor sought the warrant for a

different purpose. Id.; Genzler, 410 F.3d at 642–43. Thus,

when evaluating an act such as the procurement of a warrant,

we “take into account the goal of performing [the] action to

determine function.” al-Kidd v. Ashcroft, 580 F.3d 949, 960

(9th Cir. 2009), rev’d on other grounds, 131 S. Ct. 2074

(2011).

Plaintiffs argue that the warrants here fall on the

investigative side of the line. They point out that, unlike the

prosecutor in Kalina, Holmes prepared and applied for the

warrants before he filed any forfeiture complaints against the

seized property. And, because the Task Force set up a call

center to help weed out legal transfers, Holmes never filed

forfeiture complaints against some of the funds. They argue

that this multi-step process—a seizure warrant, followed by

the call center, followed by a forfeiture complaint only in

some cases—raises an issue of fact as to whether Holmes

applied for the warrants in order to initiate forfeiture

proceedings or instead used the warrants as an investigative

tool.

TORRES V. GODDARD 15

But plaintiffs’ position misapprehends the role of a court-

issued seizure warrant in Arizona’s civil forfeiture process.

While seizure for forfeiture can be accomplished in several

ways, see Ariz. Rev. Stat. Ann. § 13-4305(A), the warrants

Holmes prepared and applied for required a prior judicial

determination of probable cause that the property was subject

to forfeiture. See id. §§ 13-4305(A)(1), 13-4310(B). The

seizure warrants couldn’t be used to conduct an investigation

that might lead to a probable cause determination. Rather, in

order for the warrants to be issued, the attorney for the state

was first required to make that determination, prepare a

warrant with a supporting factual affidavit and seek issuance

of the warrant by a judge. That’s why the seizure warrants

issued in this case stated that there was “probable cause to

believe that conduct giving rise to forfeiture has occurred

with respect to all of the property” covered by the warrants,

and that “forfeiture is authorized pursuant to” Arizona’s

forfeiture statutes. Thus, Holmes wasn’t performing the

“detective’s role in searching for the clues and corroboration

that might give him probable cause.” Kalina, 522 U.S. at 126

(quoting Buckley, 509 U.S. at 273). Rather, upon review of

the factual affidavits sworn to by Task Force detectives,

Holmes determined that there was probable cause to believe

that the property covered by the warrants was subject to

forfeiture. Only then did Holmes apply for the warrants.

Moreover, seizure of the property is “integral to the

initiation of” an in rem civil forfeiture proceeding, id. at 130,

because it’s a “prerequisite to the court’s jurisdiction,” State

v. One Single Family Residence at 1810 E. Second Ave.,

969 P.2d 166, 169 (Ariz. Ct. App. 1997) (citing Republic

Nat’l Bank of Miami v. United States, 506 U.S. 80, 84

(1992)). Although the court’s issuance of a seizure warrant

doesn’t constitute a civil forfeiture complaint, “[t]he in rem

16 TORRES V. GODDARD

complaint and the seizure warrant are intimately connected—

one follows the other and effectuates it.” Schrob, 948 F.2d at

1416. Holmes’s preparation of and application for seizure

warrants is the civil forfeiture analog to the prosecutor’s

application for an arrest warrant in Kalina. These actions are

likewise shielded by absolute immunity and may not form the

basis of a claim for damages.

Arizona’s insertion of an intermediate step that allowed

for the rapid release of some seized funds doesn’t change the

character of Holmes’s actions. While Arizona law authorizes

the release of property seized for forfeiture “if forfeiture or

retention is unnecessary,” Ariz. Rev. Stat. Ann. § 13-

4306(A), nothing prevented Arizona from seeking forfeiture

of every seized wire transfer. When a prosecutor decides to

initiate a criminal proceeding, he is surely aware that he may

have to terminate the proceeding if the factual allegations that

supported probable cause turn out to be untrue. That doesn’t

mean that the prosecutor’s initiation of the proceeding (or the

acts he takes in preparation for it) aren’t protected by absolute

immunity. In Kalina, for example, the Supreme Court held

that the prosecutor’s preparation and filing of the arrest

warrant were protected by absolute immunity even though the

criminal charges were subsequently dismissed. 522 U.S. at

122. State officials do not lose absolute immunity by

constructing an additional step in the civil forfeiture process

to avoid unnecessary judicial proceedings.

2. Service and Execution

If Holmes’s actions were limited to preparing and

applying for the warrants, our analysis of his absolute

immunity could end there. However, plaintiffs also allege

that “defendants served and executed” the warrants and

TORRES V. GODDARD 17

“illegally seized” the funds. Plaintiffs argue that, even if we

find that Holmes’s preparation and application for the seizure

warrants were acts of advocacy protected by absolute

immunity, serving and executing of seizure warrants are acts

that “could have been performed by police officers” and thus

can’t be shielded by absolute immunity. Because we must

evaluate absolute immunity act by act, we must also consider

whether absolute immunity bars damages claims based on a

forfeiture prosecutor’s service and execution of the seizure

warrants he applied for.

Arizona’s civil forfeiture statutes make clear that the

seizure of property pursuant to a seizure warrant is the

function of police officers, not prosecutors. The “[a]ttorney

for the state” is designated to “investigate, commence and

prosecute an action under this chapter,” Ariz. Rev. Stat. Ann.

§ 13-4301(1), whereas the “[s]eizing agency” “employs the

peace officer who seizes property for forfeiture,” id. § 13-

4301(8). “Seizure for forfeiture” is “seizure of property by a

peace officer coupled with an assertion by the seizing agency

or by an attorney for the state that the property is subject to

forfeiture.” Id. § 13-4301(9). Consistent with the civil

forfeiture statutes, the seizure warrants themselves directed

police officers, not the attorney for the state, to seize the

subject property. The warrants authorized “[a]ny peace

officer” to “seize all of the property” that met the criteria “for

forfeiture pursuant to” Arizona’s civil forfeiture statutes.

And, as the warrant applications explained, “the peace

officers [would] carry out th[e] warrant[s] by serving [them]

on Western Union at its corporate offices, requiring Western

Union to transfer the described funds to the clerk of the

Maricopa County Superior Court.”

18 TORRES V. GODDARD

Nevertheless, it was Holmes, not Arizona police officers,

who “carr[ied] out” the warrants in the manner described

above.2 In doing so, Holmes “performed an act that any

[Arizona police officer] might have performed.” Kalina,

522 U.S. at 129–30. And “[w]hen the functions of

prosecutors and [police officers] are the same, as they were

here, the immunity that protects them is also the same.”

Buckley, 509 U.S. at 276; see also Burns, 500 U.S. at 492–96.

Because Holmes went beyond the “traditional functions of an

advocate” and “carr[ied] out” the warrants, he was only

entitled to the qualified immunity that a police officer would

receive when doing so.

Defendants argue that such a result “mistakenly focus[es]

on the description of [the] alleged misconduct alone rather

than the function being performed.” They insist that absolute

immunity extends to Holmes’s service of the warrants

because service is “an essential step in the initiation of a

forfeiture action,” and “was not an investigative technique.”

In other words, defendants argue that Holmes was performing

a “prosecutorial function” when he served the warrants

because service is a prerequisite to forfeiture.

2

Defendants claim that, because plaintiffs’ response to their cross-

motion for summary judgment states that Holmes “reviewed, approved,

procured and served” the warrants, plaintiffs waived the right to contest

Holmes’s absolute immunity with respect to “execution.” But plaintiffs

have never conceded that any of Holmes’s actions are protected by

absolute immunity. Moreover, on the record before us, a distinction

between “service” and “execution” of the warrants is only semantic. The

warrants were “effective upon receipt” by Western Union. They required

Western Union to seize all transfers that met their criteria on the state’s

behalf. Regardless of whether Holmes’s actions are characterized as

“service and execution” of the warrants or, as the warrant applications

state, “carry[ing] out” the warrants, plaintiffs haven’t waived the right to

contest Holmes’s immunity with respect to his role in the actual seizures.

TORRES V. GODDARD 19

This argument can’t be squared with the Supreme Court’s

reasoning in Kalina, where the Court distinguished between

the prosecutor’s preparation and filing of the information and

motion for an arrest warrant (which were shielded by absolute

immunity), and her personal attestation to the factual

allegations in the probable cause certification (which was

not). 522 U.S. at 130. Although all of the prosecutor’s acts

were prerequisites to the initiation of the prosecution,

personally attesting to the factual allegations contained in the

certification cast the prosecutor in the role of a witness, not

an attorney. Id. at 131. The Court’s distinction between this

act, and the other protected acts, didn’t depend on whether it

was “investigative.”3 Rather, absolute immunity didn’t attach

because the prosecutor wasn’t performing the function of an

advocate. The Court rejected the prosecutor’s argument that

absolute immunity applied because her personal attestation to

the factual allegations “was just one incident in a presentation

that, viewed as a whole, was the work of an advocate and was

integral to the initiation of the prosecution.” Id. at 130. We

similarly reject the analogous argument defendants advance

here. Serving and executing seizure warrants are the

functions of police officers, not the “traditional functions of

3

That doesn’t mean that whether a prosecutor’s act was investigative is

irrelevant to absolute immunity. In Buckley, the Court held that a

prosecutor wasn’t entitled to absolute immunity because his actions were

“investigative functions normally performed by a detective or police

officer.” 509 U.S. at 273; see also Burns, 500 U.S. at 492–96. Therefore,

if a prosecutor acts in an investigative capacity, he’s not protected by

absolute immunity. But under Kalina, the fact that a prosecutor’s act isn’t

investigative, and may be necessary to the commencement of a

prosecution, doesn’t guarantee absolute immunity. Rather, absolute

immunity only applies when the prosecutor is performing the “traditional

functions of an advocate.” Kalina, 522 U.S. at 131.

20 TORRES V. GODDARD

an advocate,” id. at 131, and thus under Kalina are functions

that aren’t protected by absolute immunity.

We acknowledge that our application of the functional

approach means that Holmes is entitled to absolute immunity

with respect to some acts but not others, even though all of

plaintiffs’ claims are predicated on the same constitutional

violation: seizure of their funds without probable cause.

However, the result we reach is the “essence of the function

test” because absolute immunity is based on the nature of the

function performed, not the underlying constitutional claim.

Buckley, 509 U.S. at 274 n.5. Critically, if Holmes’s service

and execution of the warrants were acts protected by absolute

immunity, we’d be faced with an “incongruous” result where

a prosecutor performing the function of a police officer would

be entitled to absolute immunity merely because of his status

as a prosecutor. See id. at 275 n.6 (quoting Burns, 500 U.S.

at 495). Service of the self-executing seizure warrants merely

carried out the command of the warrants; it wasn’t a

“function[] that require[s] the exercise of prosecutorial

discretion.” Kalina, 522 U.S. at 125. Extending absolute

immunity to this type of police activity would be inconsistent

with the distinction drawn by the Supreme Court in Kalina.

We express no opinion as to whether Holmes is entitled

to qualified immunity. Although defendants raised qualified

immunity in their cross motion for summary judgment, the

district court didn’t reach the issue because it held that

absolute immunity barred all of plaintiffs’ claims. The

parties did not brief the issue on appeal. We therefore

remand to the district court to determine, in the first instance,

whether Holmes’s actions in serving and executing the

warrants are protected by qualified immunity. If the district

court determines that any of Holmes’s actions aren’t

TORRES V. GODDARD 21

protected by qualified immunity, it must then go on to assess

whether those unprotected acts (and only those acts) give rise

to a cause of action for damages against Holmes under

section 1983. See Buckley, 509 U.S. at 274 n.5.

C. Goddard in His Individual Capacity

Goddard was Arizona’s Attorney General at the time the

warrants were carried out and at the time the complaint was

filed. He was succeeded by Horne (and Horne by Brnovich)

while this lawsuit was pending. Goddard thus remains a

defendant only in his individual capacity. Unlike an official

capacity claim, where the constitutional injury “must be

attributable to [an] official policy or custom,” an individual

capacity claim “hinges upon [the individual defendant’s]

participation in the deprivation of constitutional rights.”

Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir.

1991). Plaintiffs don’t allege Goddard was directly involved

in the preparation, filing, service or execution of the warrants.

They nevertheless claim that Goddard “could have stopped

the criteria-based warrant program but chose not to.”

Plaintiffs argue that Goddard had a duty to exercise his

supervisory authority over the Arizona officials who were

responsible for procuring and carrying out the seizure

warrants and, by failing to do so, is also subject to section

1983 liability for the seizures. See Cunningham v. Gates,

229 F.3d 1271, 1292 (9th Cir. 2000).

1. Preparation and Application

Holmes’s preparation of and application for the warrants

were “intimately associated with the judicial phase” of the

civil forfeiture proceedings, Imbler, 424 U.S. at 430, and

therefore protected by absolute immunity. Goddard’s

22 TORRES V. GODDARD

supervision of these activities is likewise protected by

absolute immunity under Van de Kamp v. Goldstein, 555 U.S.

335, 345 (2009). In Van de Kamp, Goldstein had alleged that

the trial prosecutors who conducted his case didn’t tell him

that a jailhouse informant who testified against him at his trial

previously received favorable treatment in exchange for his

testimony. Id. at 339. Goldstein sued the county district

attorney and his chief deputy, alleging that the trial

prosecutors’ failure to disclose the informant’s treatment

resulted from their supervisors’ failure to “adequately [] train

and [] supervise” subordinate prosecutors and their “failure to

establish an information system about informants.” Id. at

340. Goldstein didn’t claim that the supervisory prosecutors

personally erred in his trial, but rather argued that they were

liable because their “general methods of supervision” caused

a “consequent error by an individual prosecutor” at his trial.

Id. at 346.

The Supreme Court held that absolute immunity barred

Goldstein’s claims. In doing so, the Court considered a

“hypothetical case” in which the failure to disclose the

informant’s treatment arose from a prosecutor’s “specific

supervision or training related to a particular case.” Id. at

345–46. The Court concluded that the trial and supervisory

prosecutors in that case would both be entitled to absolute

immunity. The decision to disclose (or to not disclose) an

informant’s favorable treatment is an act that’s “‘intimately

associated with the judicial phase of the criminal process’

because it concern[s] the evidence presented at trial.” Id. at

345 (quoting Imbler, 424 U.S. at 430). If a supervisory

prosecutor wasn’t entitled to absolute immunity for this

conduct, such a rule would implicate “all of the

considerations” that counseled in favor of immunity in

Imbler, including “Imbler’s basic fear . . . that the threat of

TORRES V. GODDARD 23

damages liability would affect the way in which prosecutors

carried out their basic court-related tasks.” Id.4

Plaintiffs’ claims against Goddard are analogous to the

hypothetical case discussed in Van de Kamp. They don’t

arise from Goddard’s “general methods of supervision,” but

rather arise from Goddard’s “acequisece[nce]” and

“ratifi[cation]” of Holmes’s procurement of particular seizure

warrants. Under Van de Kamp, the absolute immunity that

protects Holmes’s preparation and application for the

warrants also protects Goddard’s decision to permit Holmes

to do so. There is no functional difference between a civil

forfeiture prosecutor’s preparation and application for seizure

warrants, and his supervisor’s decision to allow him to

engage in those activities. A supervisor’s decision to permit

a subordinate prosecutor to prepare and apply for seizure

warrants is an “act[] undertaken by [the supervisor] in

preparing for the initiation of judicial proceedings,” and

“occur[s] in the course of [the supervisor’s] role as an

advocate for the [s]tate.” Kalina, 522 U.S. at 126 (internal

quotation marks omitted). Indeed, if the rule were otherwise,

a plaintiff could just “restyle a complaint charging a trial

failure so that it becomes a complaint charging a failure of

training or supervision” and thereby “eviscerate Imbler.” Van

de Kamp, 555 U.S. at 347.

4

Goldstein’s complaint was different from the hypothetical case because

his claims arose from defendants’ “general methods of supervision.” Van

de Kamp, 555 U.S. at 346. But, as the Court explained, Goldstein’s

“general” claims nevertheless “rest[ed] in necessary part upon a

consequent error by an individual prosecutor in the midst of trial.” Id.

The challenged procedures related to “how and when to make

impeachment information available at a trial.” Id. They were “directly

connected with the prosecutor’s basic trial advocacy duties,” and under

Imbler were protected by absolute immunity. Id.

24 TORRES V. GODDARD

2. Service and Execution

Plaintiffs also allege that Goddard “culpably acquiesced

in and subsequently ratified the service of warrants and the

seizure” of their funds. We hold that service and execution

of seizure warrants, even when performed by a prosecutor,

aren’t protected by absolute immunity because those acts are

functions of police officers, not prosecutors. See Kalina,

522 U.S. at 130–31. Under Kalina, Goddard’s supervision of

Holmes’s service and execution of seizure warrants is

likewise a function of a supervising police officer, not a

supervising prosecutor. Service and execution aren’t

“intimately associated with the judicial phase” of the

proceedings. Goddard therefore can’t claim absolute

immunity with respect to his supervision of the service and

execution of the seizure warrants.

Van de Kamp doesn’t countenance a different result. The

supervisor’s activities in Van de Kamp were protected by

absolute immunity not because they were the actions of a

supervisor or a prosecutor, but because they “concerned the

evidence presented at trial.” 555 U.S. at 345. The

presentation of evidence is “intimately associated with the

judicial phase” of the criminal proceeding whether it’s

conducted in a direct or supervisory capacity. Id. But

nothing in Van de Kamp permits us to grant a supervising

prosecutor absolute immunity for supervising an activity

that’s not protected by absolute immunity under Imbler and

its progeny. Such a result would eviscerate the distinction

drawn by the Supreme Court in Kalina. Absolute immunity

would turn on whether a prosecutor was a supervisor, instead

of on whether the function performed was that of an advocate

for the state. Rather, Kalina controls Goddard’s immunity

TORRES V. GODDARD 25

with respect to service and execution. Under Kalina those

functions aren’t protected by absolute immunity.

III. OFFICIAL CAPACITY CLAIM AGAINST

BRNOVICH

The district court granted summary judgment to Horne

(who was then Arizona’s Attorney General) on the basis that

plaintiffs hadn’t “alleged or argued how the Attorney

General’s office violated their constitutional rights.” The

district court addressed the claim on the merits even though

“[d]efendants considered this claim abandoned and did not

respond” in their filings on summary judgment. Although

plaintiffs list the grant of summary judgment in favor of the

Attorney General among the issues presented on appeal, their

brief does not argue the point or cite any authorities in

support of their official capacity claims against the Attorney

General. Because plaintiffs didn’t “specifically and distinctly

argue” in their opening brief that the district court’s grant of

summary judgment in favor of the Attorney General was

incorrect, this issue is waived. See Wagner v. Cnty. of

Maricopa, 747 F.3d 1048, 1059 (9th Cir. 2013).

IV. CLASS CERTIFICATION

Plaintiffs also argue that the district court abused its

discretion in denying their motion for class certification. We

express no opinion on the class certification issue. The class

certification question may be answered quite differently after

our opinion and any ruling by the district court on Holmes’s

26 TORRES V. GODDARD

or Goddard’s qualified immunity. The parties may raise the

class certification issue in any subsequent appeal.

AFFIRMED in part, REVERSED in part and

REMANDED.

The parties shall bear their own costs on appeal.