Horn Jackson v. Stephenson

19-2418-cv; 19-2443-cv

Horn; Jackson v. Stephenson

In the

United States Court of Appeals

For the Second Circuit

________

AUGUST TERM 2020

ARGUED: SEPTEMBER 3, 2020

DECIDED: AUGUST 26, 2021

________

No. 19-2418-cv

VERNON HORN,

Plaintiff-Appellee,

v.

JAMES STEPHENSON,

Defendant-Appellant,

CITY OF NEW HAVEN, LEROY DEASE, PETISIA ADGER,

DARYLE BRELAND,

Defendants.

________

No. 19-2443-cv

MARQUIS JACKSON,

Plaintiff-Appellee,

v.

2 Nos. 19-2418, 19-2443

JAMES STEPHENSON,

Defendant-Appellant,

CITY OF NEW HAVEN, LEROY DEASE, PETISIA ADGER,

DARYLE BRELAND,

Defendants.

________

On Appeal from the United States District Court for the

District of Connecticut.

________

Before: LIVINGSTON, Chief Judge, WALKER and JACOBS, Circuit Judges.

________

After each serving more than 17 years in prison for a robbery

and murder they did not commit, plaintiffs Vernon Horn and

Marquis Jackson brought civil rights actions against the City of New

Haven and law enforcement officials under 42 U.S.C. § 1983. As

relevant here, plaintiffs alleged that police forensic examiner James

Stephenson violated their due process rights under the Fourteenth

Amendment by withholding exculpatory ballistics reports in

contravention of Brady v. Maryland. Stephenson moved to dismiss

both actions, asserting a defense of qualified immunity and, in Horn’s

case, a defense of absolute immunity. The district court (Jeffrey A.

Meyer, J.) denied both motions. On appeal, Stephenson argues (1)

that it was not clearly established by 1999 that police firearms

examiners have a duty of disclosure under Brady, and (2) that he

generated one of the reports at the prosecutor’s direction. For the

reasons that follow, we AFFIRM the rulings of the district court.

________

3 Nos. 19-2418, 19-2443

DOUGLAS E. LIEB (Ilann M. Maazel, on the brief),

Emery Celli Brinckerhoff & Abady LLP, New

York, NY, for Plaintiff-Appellee Vernon Horn.

KENNETH ROSENTHAL, Law Office of Kenneth

Rosenthal, New Haven, CT, for Plaintiff-Appellee

Marquis Jackson.

STEPHEN R. FINUCANE, Assistant Attorney General

(Clare Kindall, Solicitor General, on the brief), for

William Tong, Attorney General of the State of

Connecticut; for Defendant-Appellant.

________

JOHN M. WALKER, JR., Circuit Judge:

After each serving more than 17 years in prison for a robbery

and murder they did not commit, plaintiffs Vernon Horn and

Marquis Jackson brought civil rights actions against the City of New

Haven and law enforcement officials under 42 U.S.C. § 1983. As

relevant here, plaintiffs alleged that police forensic examiner James

Stephenson violated their due process rights under the Fourteenth

Amendment by withholding exculpatory ballistics reports in

contravention of Brady v. Maryland. Stephenson moved to dismiss

both actions, asserting a defense of qualified immunity and, in Horn’s

case, a defense of absolute immunity. The district court (Jeffrey A.

Meyer, J.) denied both motions. On appeal, Stephenson argues (1)

that it was not clearly established by 1999 that police firearms

examiners have a duty of disclosure under Brady, and (2) that he

4 Nos. 19-2418, 19-2443

generated one of the reports at the prosecutor’s direction. For the

reasons that follow, we AFFIRM the rulings of the district court.

BACKGROUND

In reviewing a dismissal under Federal Rule of Civil Procedure

12(b)(6), we draw our discussion of the facts from the complaint,

which must be taken as true. 1

On January 23, 1999, Vernon Horn and Marquis Jackson went

out on a Saturday night in downtown New Haven. The two teenagers

met up with friends at the Alley Cat nightclub and then stopped by

Dixwell Deli (the Deli), a 24-hour convenience store, at around 2:45

a.m. After purchasing a few items, they drove back to Jackson’s

apartment several blocks away.

Around 3:30 a.m., three masked robbers burst into the Deli and

opened fire. The shots hit an employee and a customer, Caprice

Hardy, who died shortly thereafter. After stealing a cellphone from a

store clerk and trying unsuccessfully to raid the cash register, the

robbers fled the scene.

A few minutes after the robbery, Horn walked back to the Deli.

This raised the suspicions of the lead detective on the investigation,

who believed that perpetrators of homicides tended to return to crime

scenes. After interviewing Horn at the Deli and learning that he had

spent the night with Jackson, detectives in the New Haven Police

Department (NHPD) began building a case against the two teenagers.

1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

5 Nos. 19-2418, 19-2443

Numerous pieces of evidence, however, suggested that a group

of drug dealers in Bridgeport, Connecticut, not Horn or Jackson, was

responsible for the murder-robbery. Call records for the stolen

cellphone showed that four out of five calls made after the incident

were to the Bridgeport drug dealers or their associates. Because the

records did not support the case against Horn and Jackson, NHPD

officers suppressed the records for nearly 20 years, hiding them in the

basement of a detective’s house.

After identifying the first of the five callers as Steve Brown, one

of the Bridgeport drug dealers, NHPD detectives still continued to

press the case against Horn and Jackson. The detectives even went so

far as to coach Brown to provide a false statement implicating the two

teenagers in the robbery. According to the fabricated story, on the

night of the robbery, Horn and Jackson met Brown, all three of whom

are African-American, for the first time at an all-white Polish social

club, drove him to Dixwell Deli, and convinced him to participate in

the robbery.

Most relevant to this appeal, Brown claimed that Horn shot

Hardy, the Deli customer who died, using a Beretta handgun. Shortly

after the robbery, NHPD sent shell casings and bullet fragments from

the crime scene to the Connecticut State Police Forensic Science

Laboratory (State Police Laboratory) for analysis. Connecticut law

defines the State Police Laboratory’s role as providing “technical

assistance to law enforcement agencies in the various areas of

scientific investigation.” 2 On February 3, 1999, defendant James

Stephenson, the assigned firearms examiner, generated a General

Rifling Characteristics Report (the 1999 GRC Report) that listed all

firearm models that potentially matched the ballistics evidence, using

2 Conn. Gen. Stat. § 29-7b (1999).

6 Nos. 19-2418, 19-2443

a margin of error of +/- 2 thousandths of an inch. A Beretta handgun

was not among the possible matches.

The next day, Stephenson prepared a memo to the NHPD

based on the 1999 GRC Report. The memo stated, “The bullets and

bullet fragments are consistent with being 9mm caliber. They may

have been fired from but not limited to a self loading pistol

manufactured by Calico, FEG, Browning, Heckler & Koch,

Hungarian, Kassnar, Norinco, or Walther.” 3 This list matched the

firearm models in the 1999 GRC Report and made no mention of a

Beretta handgun. The memo—but not the underlying 1999 GRC

Report—was provided in a timely manner to the State’s Attorney’s

Office and to counsel for both Horn and Jackson.

In early 2000, while preparing for trial, Assistant State’s

Attorney Gary Nicholson noticed the inconsistency in the evidence:

Brown had identified the murder weapon as a Beretta handgun, but

Stephenson’s memo did not include a Beretta as a potential match to

the ballistics evidence. Nicholson called Stephenson and asked him

whether the murder weapon could have been a Beretta. On February

15, 2000, Stephenson generated a second GRC Report (the 2000 GRC

Report). This time, using a larger margin of error of +/- 4 thousandths

of an inch, the report listed multiple Beretta models as potential

matches. At no time prior to or during trial did Stephenson disclose

either the 1999 GRC Report or the 2000 GRC Report to the State’s

Attorney’s Office or to counsel for Horn or Jackson.

Horn and Jackson were tried together in 2000. Stephenson

testified at trial that the murder weapon could have been a Beretta,

based on “new information” that he said was provided by Nicholson.

3 Horn Compl. ¶ 160; Jackson Compl. ¶ 130.

7 Nos. 19-2418, 19-2443

He denied having created any “reports when he had gotten the new

information from the State’s Attorney’s Office.” 4 Horn was convicted

on all ten counts and sentenced to 70 years in prison. Jackson was

convicted on eight of ten counts and sentenced to 45 years in prison.

In 2018, as part of a re-examination of the case by the

Connecticut Federal Public Defender’s Office, the NHPD produced

the stolen cell phone’s call records and both the 1999 GRC Report and

the 2000 GRC Report. After reviewing the belatedly disclosed

evidence, the State’s Attorney’s Office successfully moved to vacate

the judgments of conviction for both men. In or around April 2018,

after serving 17 and 19 years in prison, 5 respectively, Horn and

Jackson were released.

Horn and Jackson then each brought a federal civil rights action

separately under 42 U.S.C. § 1983 against the City of New Haven and

certain law enforcement officials. As regards Stephenson, plaintiffs

alleged that he violated their constitutional right to due process under

Brady v. Maryland 6 by withholding the 1999 and 2000 GRC Reports

from the State’s Attorney’s Office. Stephenson filed a motion to

dismiss in each case, asserting in both cases that he was entitled to

qualified immunity and, in Horn’s case, that he was entitled to

absolute immunity. The district court denied both motions, and this

appeal followed.

4 Horn Compl. ¶ 173.

5 Horn was briefly released for two years on a writ of habeas corpus,

before the Connecticut Supreme Court reversed that decision and

reinstated his convictions.

6 373 U.S. 83 (1963).

8 Nos. 19-2418, 19-2443

DISCUSSION

On appeal, Stephenson argues that: (1) he is entitled to

qualified immunity because it was not clearly established by 1999 that

“firearms examiners” had an obligation under Brady to turn over

exculpatory evidence to the prosecutor; and (2) he is entitled to

absolute immunity with respect to the 2000 GRC Report because he

prepared it at the prosecutor’s direction. We disagree. For the

reasons that follow, we conclude that, based on the facts alleged in

plaintiffs’ complaints, Stephenson cannot make out a defense of either

qualified immunity or absolute immunity.

I. Stephenson Is Not Entitled to Qualified Immunity

A person may bring an action under 42 U.S.C. § 1983 to seek

money damages from a government official who violates his or her

constitutional rights. “[T]o ensure that fear of liability will not unduly

inhibit officials in the discharge of their duties,” however, “the

officials may claim qualified immunity.” 7 Qualified immunity

shields the official from civil liability unless: “[1] the official violated

a statutory or constitutional right that [2] was clearly established at

the time of the challenged conduct.” 8 The doctrine aims to balance

“the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” 9

A right is clearly established if, at the time of the challenged

conduct, it was “sufficiently clear that every reasonable official would

7 Camreta v. Greene, 563 U.S. 692, 705 (2011) (internal quotation marks

and citation omitted).

8 Reichle v. Howards, 566 U.S. 658, 664 (2012).

9 Pearson v. Callahan, 555 U.S. 223, 231 (2009).

9 Nos. 19-2418, 19-2443

[have understood] that what he is doing violates that right.” 10

Because “[i]t is sometimes difficult for an officer to determine how the

relevant legal doctrine . . . will apply” in a particular factual

situation, 11 “clearly established law must be particularized to the facts

of the case.” 12 The Supreme Court “has repeatedly told courts . . . not

to define clearly established law at a high level of generality.” 13 This

standard “ensure[s] that the official being sued had ‘fair warning’ that

his or her actions were unlawful.” 14 Still, the plaintiff need not show

“a case directly on point,” as long as “existing precedent . . . placed

the statutory or constitutional question beyond debate.” 15

In determining the state of the law, we consider Supreme Court

and Second Circuit precedent existing at the time of the alleged

violation. 16 “Even in the absence of binding precedent, a right is

clearly established if ‘[t]he contours of the right [are] sufficiently clear

that . . . [t]he unlawfulness [is] apparent.’” 17 “[I]f decisions from this

or other circuits clearly foreshadow a particular ruling on the issue,”

we may treat the law as clearly established. 18

10 Reichle, 566 U.S. at 664 (internal quotation marks omitted).

11 Sloley v. VanBramer, 945 F.3d 30, 40 (2d Cir. 2019).

12 White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks

omitted).

13 Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation

marks omitted) (collecting cases).

14 Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (quoting Hope v.

Pelzer, 536 U.S. 730, 740 (2002)).

15 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

16 Terebesi, 764 F.3d at 231.

17 Townes v. City of New York, 176 F.3d 138, 144 (2d Cir. 1999) (first and

second alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)).

18 Terebesi, 764 F.3d at 231 (internal quotation marks omitted).

10 Nos. 19-2418, 19-2443

We review de novo a district court’s denial of a motion to

dismiss based on qualified immunity. 19 We hear such denials on

interlocutory appeal in light of the Supreme Court’s repeated

invocation of the “importance of resolving immunity questions at the

earliest possible stage [of the] litigation.” 20 While qualified immunity

may be “successfully asserted” on a motion to dismiss the

complaint, 21 the defense “faces a formidable hurdle” at the pleading

stage. 22 We may review a denial of a motion to dismiss on the basis

of immunity only to the extent that the denial turned on questions of

law. 23 The defendant “must therefore show not only that the facts

supporting the defense appear on the face of the complaint, but also

that it appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim that would entitle him to relief.” 24 Moreover,

“the plaintiff is entitled to all reasonable inferences from the facts

alleged,” including “those that defeat the immunity defense.” 25 If we

cannot decide the availability of qualified immunity as a matter of

law, we must dismiss the appeal. 26

19 Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.

2001).

Liberian Cmty. Ass’n of Conn. v. Lamont, 970 F.3d 174, 186 (2d Cir.

20

2020) (alteration in original) (quoting Wood v. Moss, 572 U.S. 744, 755 n.4

(2014)).

21 McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004).

22 Id. at 434.

23 Hill v. City of New York, 45 F.3d 653, 659–60 (2d Cir. 1995).

24 Brown v. Halpin, 885 F.3d 111, 117 (2d Cir. 2018) (per curiam)

(internal quotation marks omitted).

25 McKenna, 386 F.3d at 436.

26 Brown, 885 F.3d at 117.

11 Nos. 19-2418, 19-2443

A. It Was Clearly Established by 1999 That Police Forensic

Examiners Must Disclose Exculpatory Information

In 1963, Brady v. Maryland established the affirmative duty of

the prosecution to turn over exculpatory evidence to the defense.

There, the Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.” 27 Brady specifically addressed the disclosure obligation

of the prosecution. In concluding that such a duty exists, the Supreme

Court relied on two prior cases that referenced a broad obligation on

the part of the state not to obtain a defendant’s conviction through

deception. In Mooney v. Holohan, the Supreme Court stated that “a

contrivance by a state to procure the conviction and imprisonment of

a defendant is . . . inconsistent with the rudimentary demands of

justice.” 28 And in Pyle v. State of Kansas, the Court held that “the

deliberate suppression by [state] authorities of evidence favorable to

[the defendant]” violates due process. 29

In 1995, the Supreme Court in Kyles v. Whitley confirmed that

the prosecutor “has a duty to learn of any favorable evidence known

to the others acting on the government’s behalf in the case, including

the police.” 30 As in Brady, Kyles focused on the obligation of the

prosecutor. 31 The Kyles Court also acknowledged, however, that the

Brady obligation is not limited to material initially in the possession of

27 Brady, 373 U.S. at 87.

28 Id. at 86 (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)).

29 Id. (quoting Pyle v. Kansas, 317 U.S. 213, 216 (1942)).

30 Kyles v. Whitley, 514 U.S. 419, 437 (1995).

31 Id.

12 Nos. 19-2418, 19-2443

the prosecution but also includes information in the hands of the

police. 32 Noting that “no one doubts that police investigators

sometimes fail to inform a prosecutor of all they know,” the Court

observed that the state may need to establish “‘procedures and

regulations . . . to carry [the prosecutor’s] burden and to [e]nsure

communication of all relevant information on each case to every

lawyer who deals with it.’” 33

Applying the teachings of Brady, in 1992, we recognized in

Walker v. City of New York that the government’s disclosure obligation

applied to the police when we held that “the police satisfy their

obligations under Brady when they turn exculpatory evidence over to

the prosecutors.” 34 That rule makes good sense, we reasoned, because

the police may lack “the requisite legal acumen” to determine

whether materials constitute Brady evidence, and therefore they

should not be charged with “mak[ing] separate, often difficult, and

perhaps conflicting, disclosure decisions.” 35

Stephenson does not dispute that Walker clearly established the

duty of police to share with the prosecutor any Brady evidence that is

favorable to the accused. Nor does he contest in this appeal that the

GRC Reports were material and exculpatory. He presses a qualified

immunity defense on the sole basis that Walker does not apply to a

firearms examiner employed by the State Police Laboratory. We

disagree and conclude that a police forensic examiner, whether an

analyst or technician fulfilling any of the roles associated with

forensic analysis, in 1999 reasonably would have understood that he

32 Id. at 437–38.

33 Id. at 438 (first alteration in original).

34 974 F.2d 293, 299 (2d Cir. 1992).

35 Id.

13 Nos. 19-2418, 19-2443

or she was required to turn over exculpatory information to the

prosecutor.

To begin, plaintiffs affirmatively pleaded that Stephenson was

a member of the state police department who examined crime scene

evidence on the NHPD’s behalf. Specifically, the complaints alleged

that Stephenson was employed as a forensic and firearms examiner

in the Connecticut State Police Forensic Science Laboratory, which

“served as the forensics arm of the NHPD.” 36 The State Police

Laboratory is statutorily charged with “provid[ing] technical

assistance to law enforcement agencies,” 37 principally for the

purposes of determining “(1) [t]hat a crime was committed [or]

(2) [t]hat the crime is connected to the victim or perpetrator(s).” 38 In

the criminal investigation against Horn and Jackson, Stephenson

fulfilled precisely that role: plaintiffs alleged that the NHPD sent

Stephenson shell casings and bullet fragments from the crime scene

for testing, and that Stephenson analyzed this evidence in order to

help identify the perpetrator. As an employee of a division of the

Connecticut State Police whose principal function was to assist law

enforcement in carrying out its investigative efforts, Stephenson

reasonably would have understood himself to be a member of the

police to whom Brady applies.

That Stephenson was a technical specialist, and not a sworn

officer, does not place him beyond the scope of Walker. It is well

settled that the absence of precedent involving “fundamentally

similar” facts is not fatal to a finding that the law is clearly

36 Jackson Compl. ¶ 128; see also Horn Compl. ¶¶ 157, 276.

37 Conn. Gen. Stat. § 29-7b (1999).

38 Jackson Compl. ¶ 127.

14 Nos. 19-2418, 19-2443

established. 39 “[T]he salient question . . . is whether the state of the

law . . . gave [the defendant] fair warning that [his] alleged treatment

of [the plaintiff] was unconstitutional.” 40 Here, no reasonable police

forensic examiner would have understood Walker to turn on the

distinction between sworn and unsworn police officers advanced by

Stephenson. While that case involved alleged misconduct by a sworn

police detective, 41 it did not distinguish between sworn and unsworn

police officers, and Stephenson puts forward no compelling

explanation for why the sworn / unsworn distinction would be at all

relevant to the decision’s constitutional holding. Regardless of

whether the police official concealed material that he collected as a

sworn officer or material that he analyzed as an unsworn forensic

examiner, “a contrivance by a state to procure the conviction and

imprisonment of a defendant” 42 violates due process all the same.

That the police official in Walker was a sworn officer is as irrelevant to

the Brady analysis as the fact that he happened to be a police detective,

as opposed to a patrol officer.

If anything, it is Stephenson’s interpretation, if accepted, that

would require officials to parse the factual nuances of Brady and its

progeny. Jackson alleged that the State Police Laboratory staffs its

forensic examiners with former, sworn detectives from the NHPD,

and that Stephenson himself was an NHPD detective immediately

prior to joining the State Police Laboratory. There is no suggestion in

the relevant case law that these forensic examiners would have

somehow relinquished their Brady obligations upon transferring from

the NHPD to the State Police Laboratory. To the contrary, these

39 Hope, 536 U.S. at 741.

40 Id.

41 Walker, 974 F.2d at 295.

42 Brady, 373 U.S. at 86 (quoting Mooney, 294 U.S. at 112).

15 Nos. 19-2418, 19-2443

allegations further support the conclusion that no reasonable forensic

examiner in Stephenson’s position would have drawn a distinction

between sworn and unsworn officers in understanding the duty of

disclosure established in Walker.

Our conclusion, based on Walker, that Brady applies to forensic

examiners in state crime laboratories is reinforced by decisions of our

sister circuits that by 1999 had reached the same conclusion. The Fifth

Circuit found that “the law was sufficiently clear in 1984 that a state

crime lab technician would have known that suppression of

exculpatory . . . test results would violate a defendant’s rights.” 43 The

Sixth Circuit observed that, “at least as early as April or May of 1990,”

the legal norm that “a forensic expert may be subject to suit under §

1983 for deliberately withholding the existence of exculpatory

forensic evidence” was clearly established. 44 The Tenth Circuit stated

that it had “no doubt that . . . an official in [a state crime lab chemist’s]

position in 1986 had ‘fair warning’ that the deliberate or reckless

falsification or omission of evidence was a constitutional violation.” 45

This pattern of decisions is not undermined by the single,

Eighth Circuit case cited by Stephenson for support. 46 In Villasana v.

Wilhoit, the crime laboratory technician concealed reports from the

prosecutor in accordance with agency policy. 47 Focusing on the issue

of fault, the court concluded that the technician was entitled to

43 Brown v. Miller, 519 F.3d 231, 238 (5th Cir. 2008).

44 Moldowan v. City of Warren, 578 F.3d 351, 397 (6th Cir. 2009).

45 Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004); see also Jones

v. City of Chicago, 856 F.2d 985, 993, 995 (7th Cir. 1988) (Posner, J.) (affirming

jury’s verdict that a police laboratory technician was liable under 42 U.S.C.

§ 1983 for omitting exculpatory information from a lab report).

46 See Villasana v. Wilhoit, 368 F.3d 976 (8th Cir. 2004).

47 Id. at 980.

16 Nos. 19-2418, 19-2443

qualified immunity because “there [wa]s no evidence the defendants

acted in bad faith, that is, engaged in ‘a conscious effort to suppress

exculpatory evidence.’” 48 Nowhere in Villasana did the court hold or

suggest that Brady is limited to certain subgroups of police officers.

To the contrary, it assumed that state crime laboratory technicians

have a constitutional duty not to withhold exculpatory information

intentionally. 49

Finally, we easily reject Stephenson’s argument that he was

simply a “forensic witness[]” or “lay expert.” 50 Plaintiffs alleged that

he was employed by the State Police Laboratory and was responsible

for analyzing physical evidence exclusively on behalf of the police. In

the criminal cases against plaintiffs, he is alleged to have worked

closely with the police and the prosecutor, including by testing

ballistics evidence, authoring multiple reports, and assisting the lead

prosecutor in preparing for trial. His role went beyond that of a third-

party expert witness retained to “help the trier of fact . . . understand

the evidence or to determine a fact in issue.” 51 For the reasons set

forth above, we conclude that Stephenson is not entitled to qualified

immunity based on the facts appearing on the face of the complaints.

48 Id. (quoting California v. Trombetta, 467 U.S. 479, 488 (1984)).

49 Id. at 980–81 (affirming the grant of qualified immunity on the basis

that “Villasana failed to establish the bad faith required . . . to recover § 1983

damages from the Crime Laboratory officials”).

50 Appellant’s Br. 19, 28.

51 Fed. R. Evid. 702(a).

17 Nos. 19-2418, 19-2443

II. Stephenson Is Not Entitled to Absolute Immunity

Stephenson asserts in the action brought by Horn that he has

absolute immunity for his role in creating the 2000 GRC Report. 52

Absolute immunity protects “acts undertaken by a prosecutor in

preparing for the initiation of judicial proceedings or for trial, and

which occur in the course of his role as an advocate for the State.” 53

The prosecutor is not immune for acts performed in an administrative

or investigative capacity. 54 As relevant here, absolute immunity

extends “also [to] individual employees who assist . . . an official

[shielded by absolute immunity] and who act under that official’s

direction in performing functions closely tied to the judicial

process.” 55

We need not reach the question of whether Stephenson

generated the 2000 GRC Report in furtherance of the prosecutor’s

advocacy function because there is no allegation that Nicholson

requested a new report. Horn pleaded simply that the “Assistant

State’s Attorney Nicholson . . . called . . . [and] asked Stephenson

whether it was possible the murder weapon could have been a

Beretta.” 56 Then, “[o]n February 15, 2000, Stephenson generated a

new General Rifling Characteristics Report, this time manipulating

the report to increase the margin of error to +/- 4.” 57 Even if we

concluded that adjusting the margin of error constituted prosecutorial

52 Stephenson did not assert an absolute immunity defense in

Jackson’s case because Jackson’s complaint did not reference any

communication between Stephenson and the prosecutor.

53 Kalina v. Fletcher, 522 U.S. 118, 126 (1997).

54 Hill, 45 F.3d at 661.

55 Id. at 660.

56 Horn Compl. ¶ 166.

57 Id. ¶ 167.

18 Nos. 19-2418, 19-2443

advocacy, the complaint nowhere alleges that Nicholson asked, much

less instructed, Stephenson to create a new GRC Report using a larger

margin of error. Moreover, Horn affirmatively alleged that Nicholson

never saw the 2000 GRC Report prior to trial, which further suggests

it was not created at his request.

Undeterred, Stephenson asks us to make that inference based

on the timing and context of Nicholson’s phone call. This we cannot

do. In reviewing a motion to dismiss, we draw all reasonable

inferences in the plaintiff’s favor, including those that defeat an

immunity defense. 58 The allegations here are consistent with Horn

and Jackson’s theory that Stephenson independently decided to

manipulate the margin of error upon learning that the memo based

on the 1999 GRC Report would weaken the state’s case against Horn

and Jackson. For these reasons, we conclude that Stephenson is not

entitled to an absolute immunity defense based on Horn’s pleadings.

CONCLUSION

For the foregoing reasons, we AFFIRM the rulings of the

district court.

58 McKenna, 386 F.3d at 436.