Sarah Patterson v. James Van Arsdel

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARAH JEAN PATTERSON, No. 15-35838

Plaintiff-Appellant,

D.C. No.

v. 3:14-cv-00501-BR

JAMES VAN ARSDEL, Personally,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted November 6, 2017

Portland, Oregon

Filed February 23, 2018

Before: Ferdinand F. Fernandez and William A. Fletcher,

Circuit Judges, and Jon S. Tigar,* District Judge.

Opinion by Judge W. Fletcher;

Dissent by Judge Fernandez

*

The Honorable Jon S. Tigar, United States District Judge for the

Northern District of California, sitting by designation.

2 PATTERSON V. VAN ARSDEL

SUMMARY**

Civil Rights

The panel reversed the district court’s dismissal of a

complaint in an action brought under 42 U.S.C § 1983

alleging that a pretrial release officer improperly procured a

warrant for plaintiff’s arrest in violation of her Fourth

Amendment right against unreasonable seizures, and

remanded.

The district court held that the defendant was entitled to

absolute prosecutorial immunity for the defective arrest

warrant. In reversing the district court, the panel stated that

the determinative question for absolute immunity was

whether defendant was engaged in prosecutorial advocacy.

The panel noted that pursuant to Oregon law and the relevant

procedures followed in the Yamhill County Circuit Court,

defendant had not been delegated authority to make release

decisions. Rather, he was authorized only to make

recommendations to a judge. The panel held that given the

similarities between defendant’s role and those of a parole

officer and a law enforcement officer, defendant’s action in

submitting a bare unsigned warrant to the judge should be

seen as making a recommendation that the warrant be signed,

just like a parole officer recommending revocation, as in

Swift v. California, 384 F.3d 1184, 1193 (9th Cir. 2004), or

like a police officer submitting documentation for an arrest

warrant to a judge, as in Malley v. Briggs, 475 U.S. 335

(1986). The panel concluded that defendant was not entitled

**

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

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

PATTERSON V. VAN ARSDEL 3

to absolute prosecutorial immunity and remanded the case for

further proceedings.

Dissenting, Judge Fernandez stated that the majority’s

determination that absolute prosecutorial immunity did not

apply at all was waived by plaintiff. On the merits, Judge

Fernandez stated that the panel should have adhered to the

long established rule that once the court grants that the

function in question is a prosecutorial function, it does not

matter if the person performing that function lacks the title of

“prosecutor.” Accordingly, Judge Fernandez believed that

the defendant in this case should have been accorded absolute

immunity for procuring the warrant.

COUNSEL

Leonard Randolph Berman (argued), Law Office of Leonard

R. Berman, Portland, Oregon, for Plaintiff-Appellant.

Cecil Renich-Smith (argued), Senior Assistant Attorney

General; Benjamin Gutman, Solicitor General; Ellen F.

Rosenblum, Attorney General; Oregon Department of Justice,

Salem, Oregon; for Defendant-Appellee.

4 PATTERSON V. VAN ARSDEL

OPINION

W. FLETCHER, Circuit Judge:

Sarah Patterson brought an action for damages under

42 U.S.C § 1983 against James Van Arsdel, the Release

Assistance Officer for the Circuit Court of Yamhill County,

Oregon. Patterson alleges that Van Arsdel improperly

procured a warrant for her arrest in violation of her Fourth

Amendment right against unreasonable seizures. The district

court held that Van Arsdel was entitled to absolute

prosecutorial immunity and dismissed with prejudice

Patterson’s second amended complaint. We reverse and

remand for further proceedings.

I. Background

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

dismiss. Fed. R. Civ. P. 12(b)(6). The following facts are

taken from Patterson’s complaint, which we accept as true at

this stage of the proceedings. See Kalina v. Fletcher,

522 U.S. 118, 122 (1997).

At all relevant times, James Van Arsdel was employed as

the Yamhill County Circuit Court Release Assistance Officer.

As part of his duties, Van Arsdel investigated and initiated

revocation of pretrial release for criminal defendants who

appeared to have violated the terms of their release

agreements. The usual procedure was for Van Arsdel to

recommend revocation either by placing a revocation form,

along with an unsigned arrest warrant, in the courthouse

mailbox for the judge responsible for such matters, or by

giving these documents to the judge’s judicial assistant. The

revocation form was a combined motion, affidavit, and order

PATTERSON V. VAN ARSDEL 5

that the Release Assistance Officer filled out and signed

under oath. The facts in the affidavit, if true, would support

revocation and arrest. At the bottom of the form was an order

revoking pretrial release, with a blank line for the judge’s

signature. Release Assistance Officers could also pursue

revocation by presenting a revocation form and warrant in

open court, but this procedure was not commonly used.

On January 30, 2012, Sarah Patterson was arrested on

charges of theft and possession of a controlled substance.

Patterson entered into a pretrial release agreement that

required her to comply with all laws while on release. On

March 17, 2012, while on pretrial release, Patterson was

arrested on domestic violence charges. She posted bail and

was released. On March 20, at Patterson’s arraignment on the

domestic violence charges, Van Arsdel moved in open court

for a revocation of Patterson’s pretrial release and for her

arrest.

Judge Stone, the criminal-calendar duty judge, orally

denied Van Arsdel’s motion, noting that Patterson had

already posted bail. The next day, Judge Stone signed the

revocation form and wrote “Denied” on both the form and the

arrest warrant.

Van Arsdel was visibly displeased with Judge Stone’s

oral ruling on March 20. Patterson’s attorney, Mark

Lawrence, had opposed Van Arsdel’s revocation motions in

the past, and had observed that Van Arsdel appeared to take

denials of such motions personally, would appear “sullen and

upset,” and would refuse to greet Lawrence in court or in the

hallway for a week afterwards.

6 PATTERSON V. VAN ARSDEL

Later on March 20, Van Arsdel provided to Judge

Tichenor, another judge on the Circuit Court, an unsigned

warrant for Patterson’s arrest. He did not attach a revocation

form, and did not disclose that Judge Stone had orally denied

the revocation motion and arrest warrant earlier in the day.

Judge Tichenor was not then assigned to the criminal duty

roster. Only judges on the criminal duty roster were

responsible for handling revocation matters.

Van Arsdel regularly socialized with Judge Tichenor

outside of work, including “Saturday golf games and weekly

Tuesday morning [B]ible study sessions.” Van Arsdel’s wife

was Judge Tichenor’s judicial assistant. Her typed or printed

initials, “cv,” appear on both the warrant denied by Judge

Stone and the warrant later submitted to Judge Tichenor.

Judge Tichenor signed the warrant on March 20.

On March 30, McMinnville police arrested and jailed

Patterson pursuant to the warrant signed by Judge Tichenor.

Patterson was released two days later, after Van Arsdel

confirmed to a deputy that the arrest warrant was defective.

Patterson filed a 42 U.S.C. § 1983 action against Van

Arsdel, arguing that he violated her Fourth Amendment right

to be free from unreasonable seizures. Van Arsdel moved to

dismiss the complaint, arguing that he was entitled to

absolute prosecutorial immunity. The district court held that

Van Arsdel was entitled to absolute immunity and dismissed

Patterson’s complaint with prejudice. Patterson timely

appealed.

PATTERSON V. VAN ARSDEL 7

II. Standard of Review

We review de novo a district court’s dismissal of a

complaint under Rule 12(b)(6). Botello v. Gammick,

413 F.3d 971, 975 (9th Cir. 2005). “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).

III. Discussion

The sole question presented by this appeal is whether Van

Arsdel is protected by absolute prosecutorial immunity.

Officials are absolutely immune against suits under 42 U.S.C.

§ 1983 that arise from their performance of prosecutorial

functions, even if the acts in question were committed in bad

faith. Imbler v. Pachtman, 424 U.S. 409, 422–29 (1976).

Such immunity “is an extreme remedy, and it is justified only

where ‘any lesser degree of immunity could impair the

judicial process itself.’” Lacey v. Maricopa County, 693 F.3d

896, 912 (9th Cir. 2012) (en banc) (quoting Kalina, 522 U.S.

at 127). The general presumption is that qualified immunity

provides sufficient protection to officials. Burns v. Reed, 500

U.S. 478, 486–87 (1991). An official seeking absolute

immunity bears the burden of showing that such immunity is

essential for the function in question. Id. at 486.

We take a functional approach when determining whether

a given action is protected by prosecutorial immunity.

Immunity flows from “the nature of the function performed,

not the identity of the actor who performed it.” Kalina,

522 U.S. at 127 (quoting Forrester v. White, 484 U.S. 219,

229 (1988)). In applying this approach, we distinguish

8 PATTERSON V. VAN ARSDEL

between acts of advocacy, which are entitled to absolute

immunity, and administrative and “police-type” investigative

acts which are not. To qualify as advocacy, an act must be

“intimately associated with the judicial phase of the criminal

process.” Imbler, 424 U.S. at 430. For such acts, absolute

immunity furthers the doctrine’s core goal of preventing

retaliatory lawsuits that may impose “unique and intolerable”

burdens upon prosecutors. Id. at 425–26. Actions classified

as “advocacy” include initiating a prosecution and presenting

the state’s case, Imbler, 424 U.S. at 431, appearing at a

probable cause hearing to support an application for a search

warrant, Burns, 500 U.S. at 491, and preparing and filing a

motion for an arrest warrant. Kalina, 522 U.S. at 129.

“When a prosecutor steps outside of the advocate’s role,”

his or her conduct is protected only “to the extent that any

other individual would be protected performing the same

function.” Cruz v. Kauai County, 279 F.3d 1064, 1067 (9th

Cir. 2002). Prosecutors are protected by qualified, rather than

absolute, immunity when they perform activities outside their

core role as courtroom advocates. See, e.g., Burns, 500 U.S.

at 493 (qualified immunity for giving legal advice to police

officers); Kalina, 522 U.S. at 130–31 (qualified immunity for

attesting to facts in support of a search warrant).

The determinative question in this case is whether Van

Arsdel was engaged in prosecutorial advocacy, and therefore

protected by absolute immunity, when he provided Judge

Tichenor the bare unsigned warrant for Patterson’s arrest.

Patterson argues that he was not. We agree.

While this court has not yet addressed the precise

circumstances under which a pretrial release officer may be

entitled to prosecutorial immunity, our precedents regarding

PATTERSON V. VAN ARSDEL 9

the official immunity of parole officers are instructive.

Parole board members have absolute immunity for

adjudicative actions and for other discretionary decisions

related to the processing of parole applications. Sellars v.

Procunier, 641 F.2d 1295, 1302–03 (9th Cir. 1981).

However, parole officers, when responsible for investigating

potential parole violations and submitting recommendations

regarding revocation, have only qualified immunity. Swift v.

California, 384 F.3d 1184, 1193 (9th Cir. 2004). See also

Mee v. Ortega, 987 F.2d 423, 426–27 (10th Cir. 1992);

Nelson v. Balazic, 802 F.2d 1077, 1079 (8th Cir. 1986);

Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989). The

rationale is that a parole officer in the latter category fulfills

a function that is “more akin to a police officer seeking an

arrest warrant, than to a prosecutor exercising quasi-judicial

authority.” Swift, 384 F.3d at 1193.

Further, in Malley v. Briggs, 475 U.S. 335 (1986), the

Supreme Court considered whether a police officer was

entitled to prosecutorial immunity in a § 1983 action for false

arrest. The officer had presented a magistrate with felony

complaints charging various individuals with violating

controlled substance laws, with unsigned warrants, and with

affidavits that did not establish probable cause. Id. at 338.

The officer argued that he was entitled to absolute immunity

because his actions were equivalent to those of “a prosecutor

who asks a grand jury to indict a suspect.” Id. at 341. The

Court rejected the argument, holding that the officer’s acts

were “further removed from the judicial phase of criminal

proceedings” and did not implicate the policy concerns that

necessitate absolute immunity for prosecutorial functions. Id.

at 342.

10 PATTERSON V. VAN ARSDEL

Because immunity depends on an official’s function

rather than his or her job title, Kalina, 522 U.S. at 127, we

look to Van Arsdel’s functions under Oregon law. Oregon

Revised Statutes provide that Release Assistance Officers

such as Van Arsdel “shall, except when impracticable,

interview every person detained” and “verify release criteria

information.” ORS § 135.235(1)–(2). After conducting this

investigation, Release Assistance Officers may submit formal

recommendations to a judge, but may make release decisions

only if “delegated release authority by the presiding circuit

judge for the judicial district.” ORS § 135.235(b)(3). Under

the procedures followed in the Yamhill County Circuit Court,

Van Arsdel had not been delegated authority to make “release

decisions.” Rather, Van Arsdel was authorized only to make

recommendations to a judge.

Given the similarities between Van Arsdel’s role and

those of a parole officer and a law enforcement officer, we

conclude that Van Arsdel’s action in submitting the bare

unsigned warrant to Judge Tichenor should be seen as making

a recommendation that the warrant be signed, just like a

parole officer recommending revocation, as in Swift, or like

a police officer submitting documentation for an arrest

warrant to a judge, as in Malley. Accordingly, Van Arsdel is

not entitled to absolute immunity.

In arguing to the contrary, Van Arsdel relies on Cruz v.

Kauai County, 279 F.3d 1064 (9th Cir. 2002). In Cruz, a

prosecutor filed a motion to revoke a defendant’s bail,

attaching an affidavit in which he personally testified to facts

supporting revocation. Id. at 1066. We held that the

prosecutor was not entitled to absolute immunity because he

“stepped outside of his prosecutorial role, and into the role of

witness, when he personally attested to the truth of facts in

PATTERSON V. VAN ARSDEL 11

the affidavit.” Id. at 1067. In a footnote, we wrote that the

prosecutor would have been entitled to absolute immunity for

the decision solely to file the revocation motion because such

an action is “a traditional prosecutorial function.” Id. at 1067

n.3 (citing Pinaud v. County of Suffolk, 52 F.3d 1139, 1149

(2d Cir. 1995)) (emphasis in original). Van Arsdel argues

that his actions were functionally indistinguishable from that

of a prosecutor who files a motion to revoke bail, as

hypothesized in Cruz.

We are not persuaded. Van Arsdel never submitted a

motion to Judge Tichenor. He had earlier presented a motion

to Judge Stone. But the bare unsigned warrant he later

provided to Judge Tichenor was not itself a motion. Nor was

it accompanied by the Circuit Court’s normal form motion,

affidavit and proposed order.

We note that if Van Arsdel had filed an actual motion, he

would not have been entitled to absolute prosecutorial

immunity. Under Yamhill County Circuit Court procedures,

a revocation motion must be accompanied by an affidavit in

which a Release Assistance Officer such as Van Arsdel

would have recited facts supporting the issuance of the

warrant. It is settled law that an official may not receive

absolute prosecutorial immunity for reciting facts in support

of an arrest warrant. Cruz, 279 F.3d at 1068; Kalina,

522 U.S. at 129–31. If Van Arsdel were protected by absolute

immunity for presenting a bare unsigned warrant, but would

not be so protected if he had used proper procedures and had

pursued revocation with a motion and supporting affidavit,

the result would be anomalous.

Mindful of the Supreme Court’s warning to avoid

extending absolute immunity “further than its justification

12 PATTERSON V. VAN ARSDEL

would warrant,” we hold that Van Arsdel is not entitled to

absolute prosecutorial immunity. Burns, 500 U.S. at 487.

Conclusion

We reverse the district court’s dismissal of Patterson’s

complaint. Because the district court resolved Van Arsdel’s

motion to dismiss only on the basis of absolute prosecutorial

immunity, we remand for further proceedings.

REVERSED and REMANDED.

FERNANDEZ, Circuit Judge, dissenting:

Although I fully understand the majority’s desire to offer

Patterson relief from the alleged unconscionable actions of

Van Arsdel, I cannot agree that we should make law out of

these bad facts.

In the first place, Patterson did not argue the point which

forms the foundation of the majority’s opinion. She neither

did so in the district court, nor in her brief, nor for that matter

at oral argument. She admitted that Van Arsdel’s duty of

submitting applications for warrants to judges of the court for

which he worked was a prosecutorial function, but argued

that absolute immunity applies to courtroom activity only and

that Van Arsdel had acted outside his jurisdiction when he

submitted the warrant at hand outside of the courtroom. The

majority’s determination that absolute prosecutorial immunity

does not apply at all was therefore waived by Patterson, and

we should not rule on it at this time. See Smith v. Marsh,

PATTERSON V. VAN ARSDEL 13

194 F.3d 1045, 1052 (9th Cir. 1999); Crawford v. Lungren,

96 F.3d 380, 389 n.6 (9th Cir. 1996).

Secondly, if we do take up the merits, we should adhere

to the long established rule that once we grant that the

function in question is a prosecutorial function, it does not

matter if the person performing that function lacks the title of

“prosecutor.” See, e.g., Miller v. Gammie, 335 F.3d 889, 897

(9th Cir. 2003) (en banc); Meyers v. Contra Costa Cty. Dep’t

of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987); see also

KRL v. Moore, 384 F.3d 1105, 1110–11 (9th Cir. 2004)

(preparing and filing an arrest warrant is a prosecutorial

function). In addition, even when the function is performed

in a negligent or unreasonable or even intentionally wrong

way, absolute immunity applies. See Burns v. Reed, 500 U.S.

478, 489–92, 111 S. Ct. 1934, 1940–42, 114 L. Ed. 2d 547

(1991) (knowing presentation of false testimony); Imbler v.

Pachtman, 424 U.S. 409, 424–27, 96 S. Ct. 984, 992–93,

47 L. Ed. 2d 128 (1976) (malicious or dishonest actions);

McCarthy v. Mayo, 827 F.2d 1310, 1315 (9th Cir. 1987)

(filing criminal charges knowing them to be barred);

Ashelman v. Pope, 793 F.2d 1072, 1075, 1078 (9th Cir. 1986)

(en banc) (conspiracy with court to harm defendant). Again,

I do agree that what Van Arsdel is alleged to have done falls

within one of those categories. I do not agree, however, that

we should undermine existing law for the purpose of righting

Patterson’s wrong and punishing Van Arsdel’s alleged

malversation. True, Patterson may be “without civil redress”

even if she was “genuinely wronged,” but in principle she

must abide that evil to safeguard the overall “broader public

interest.” Imbler, 424 U.S. at 427, 96 S. Ct. at 993.

Thus I respectfully dissent.