Adams v. Hanson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0246p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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LATASHA ADAMS,

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Plaintiff-Appellant,

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No. 09-2045

v.

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Defendant-Appellee. -

KAREN HANSON,

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Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 08-15028—John Corbett O’Meara, District Judge.

Argued: June 7, 2011

Decided and Filed: August 30, 2011

Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

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COUNSEL

ARGUED: Barry A. Wolf, Flint, Michigan, for Appellant. Mary Massaron Ross,

PLUNKETT COONEY, Detroit, Michigan, for Appellee. ON BRIEF: Barry A. Wolf,

Flint, Michigan, for Appellant. Mary Massaron Ross, PLUNKETT COONEY, Detroit,

Michigan, for Appellee. James J. Walsh, BODMAN LLP, Ann Arbor, Michigan, for

Amicus Curiae.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. After her arrest and incarceration

as a witness in a criminal proceeding, LaTasha Adams (“Adams”) brought suit in the

United States District Court for the Eastern District of Michigan pursuant to 42 U.S.C.

§ 1983 against Karen Hanson (“Hanson”), an assistant prosecutor in Genesee County,

Michigan, in her individual capacity. Hanson subpoenaed Adams to testify in state court

1

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during the preliminary examination of a criminal defendant. When Adams arrived at the

state courthouse, she and Hanson spoke about her possible testimony, and after their

discussions, Hanson informed the trial court that Adams was unwilling to testify. The

court ordered Adams detained based on Hanson’s representations without providing

Adams an opportunity to be heard or to post bond.

In her federal § 1983 suit, Adams claims that she was unlawfully detained for

twelve days as a result of Hanson’s false and misleading representations to the state trial

court regarding Adams’s availability as a witness. The district court granted Hanson’s

motion for summary judgment on the grounds that Hanson is entitled to absolute

immunity for conduct falling within her role as a prosecutor. Adams appeals, arguing

that Hanson acted as a complaining witness or, in the alternative, fulfilled an

administrative function. The American Civil Liberties Union Fund of Michigan filed an

amicus brief arguing that absolute immunity should not protect prosecutors from suits

filed by third-party witnesses.

When making statements at a preliminary examination about the availability of

a witness, Hanson functioned as an advocate for the State of Michigan and performed

acts intimately associated with the judicial process. Because she is absolutely immune

from suit for her prosecutorial conduct, we AFFIRM the district court’s grant of

summary judgment to Hanson.

I. BACKGROUND

Hanson, an assistant prosecutor, subpoenaed Adams to testify in a preliminary

examination in a gang-related racketeering case in state court. One of the defendants

charged in the case was Marquan Cager (“Cager”), the father of one of Adams’s

children. In 2006, Adams had filed a domestic violence complaint against Cager and

provided a statement to investigating officers describing Cager’s involvement in gang-

related murders and drug-trafficking activities. When Cager was charged with crimes

described in Adams’s statement, Hanson authorized a subpoena compelling Adams to

No. 09-2045 Adams v. Hanson Page 3

appear in court at a preliminary examination in order to testify about her knowledge of

the criminal enterprise.

Law-enforcement officers served the subpoena on Adams at her home the

morning she was set to appear at the preliminary examination. Adams, who was six-

and-a-half-months pregnant, arrived at the courthouse that afternoon and met with law-

enforcement personnel. She was then taken to meet Hanson, who provided her with a

copy of a report that documented her statements about Cager’s criminal activity.

Hanson advised Adams to review the report. She also told Adams that she would

return in about an hour and a half to bring Adams into the courtroom to testify in

conformity with her prior statements. Adams responded that she did not want to testify

and that she was under a doctor’s care due to a high-risk pregnancy. When Hanson

returned, Adams repeated her refusal to testify. Adams informed Hanson that she was

not going to testify in conformity with the report because she had not made the

statements attributed to her and the statements were not true.1

According to Adams, Hanson returned to the courtroom and advised the judge,

off the record, that Adams would not testify in accordance with the report, and that she

should be held in contempt. Based on the information provided by Hanson, the trial

judge signed a mittimus directing that Adams be held in jail until further order of the

court. After the judge signed the mittimus, two sheriff’s deputies confronted Adams and

asked her if she was going to testify. When she informed them that she was not going

to testify, she was handcuffed and taken to the Genesee County jail.

Adams was incarcerated for twelve days, during which she was allegedly held

in isolation for twenty-three hours a day. Before she was detained, Adams was never

brought before the court and questioned about her willingness to testify or her ability to

return to court to testify at a later date. She alleges that she was never given an

1

Adams described their ensuing exchange as “heated.” Denying that her behavior toward Adams

was confrontational, Hanson asserts that she gave Adams the option of testifying that her previous

statements were not true, but Adams flatly refused to appear in court and testify under any circumstances.

For purposes of summary judgment, however, Hanson stipulates to Adams’s version of the facts.

No. 09-2045 Adams v. Hanson Page 4

opportunity to obtain counsel or post bond, and that she was never advised of the basis

of her detention, of any right to be represented by counsel, or of any right to a hearing.

In the days following her arrest, Adams submitted a kite notifying the jail

authorities that she was willing to testify. In the meantime, however, the preliminary

examination had been continued. A week later, when proceedings resumed, Adams was

brought into the courtroom to testify, at which point several attorneys for the defendants

demanded an explanation for why she had been incarcerated. Hanson first explained that

Adams was held for contempt of court, but after reviewing the mittimus ordering

Adams’s arrest, she stated that Adams had been held, not for contempt, but as a material

witness, as indicated on the order. Adams was released from custody after she

completed her substantive testimony.

Adams claims that Hanson sought to secure her detention in order to coerce her

into testifying, and that she was detained for contempt of court at Hanson’s suggestion.

In Hanson’s account, the trial judge ordered Adams held as a material witness and

directed Hanson and an officer from the sheriff’s department to write out a mittimus to

that effect. Adams also asserts that Hanson made several false and misleading

statements in order to persuade the court to hold Adams. Hanson told the court that she

had been trying for three weeks to serve Adams with a subpoena, when efforts to serve

Adams had been underway for only two weeks. Furthermore, Hanson failed to disclose

to the court that Adams had been served with a subpoena only that morning and had

appeared at the courthouse voluntarily the same day, which would have demonstrated

to the court Adams’s willingness to comply with the court’s orders.

Adams subsequently brought suit against Hanson in federal district court

pursuant to 42 U.S.C. § 1983 for violations of her constitutional rights under the Fourth,

Fifth, and Fourteenth Amendments. Hanson filed a motion for summary judgment on

the basis of absolute prosecutorial immunity which the district court granted on May 28,

2009. On July 22, 2009, the district court denied Adams’s motion for relief from the

order of dismissal, construing it as a motion for reconsideration. Adams timely appealed

No. 09-2045 Adams v. Hanson Page 5

from the district court’s opinion and order denying relief from the order of dismissal, and

from the order granting Hanson’s motion for summary judgment.

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s grant of summary judgment, construing the

evidence and drawing all reasonable inferences in favor of the nonmoving party. Ireland

v. Tunis, 113 F.3d 1435, 1440 (6th Cir. 1997). Summary judgment is appropriate if

“there is no genuine issue as to any material fact and . . . the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c)(2) (2009). Hanson moved for

summary judgment, so we accept the facts as alleged by Adams and draw all reasonable

inferences in her favor.

B. Absolute Immunity

1. Functional Test

The district court granted summary judgment on the grounds that Hanson is

entitled to absolute immunity. “Whether a defendant is entitled to absolute or qualified

immunity from liability under 42 U.S.C. § 1983 is a legal question that [we] review[] de

novo.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (emphasis

omitted). A government officer is entitled to absolute immunity for performing

functions “intimately associated with the judicial phase of the criminal process.” Imbler

v. Pachtman, 424 U.S. 409, 430 (1976). Hanson, as “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).

In Imbler, the Supreme Court extended absolute immunity to prosecutors sued

for damages under 42 U.S.C. § 1983, holding that a prosecutor is entitled to absolute

immunity when he acts “within the scope of his duties in initiating and pursuing a

criminal prosecution.” 424 U.S. at 410. Absolute immunity for prosecutorial duties is

justified by the same considerations that supported prosecutorial immunity under the

No. 09-2045 Adams v. Hanson Page 6

common law. These include “concern that harassment by unfounded litigation would

cause a deflection of the prosecutor’s energies from his public duties, and the possibility

that he would shade his decisions instead of exercising the independence of judgment

required by his public trust,” id. at 423, thereby “prevent[ing] the vigorous and fearless

performance of the prosecutor’s duty that is essential to the proper functioning of the

criminal justice system,” id. at 427-28. Although absolute immunity “leave[s] the

genuinely wronged defendant without civil redress against a prosecutor whose malicious

or dishonest action deprives him of liberty,” “the broader public interest” would be

disserved if defendants could retaliate against prosecutors who were doing their duties.

Id. at 427.

Our cases since Imbler have employed a “functional approach” to determine

whether a prosecutor’s acts entitle her to absolute immunity. Burns, 500 U.S. at 486.

Under the functional approach, we “look[] to ‘the nature of the function performed, not

the identity of the actor who performed it’” when assessing whether conduct is

prosecutorial, and thus absolutely protected. Buckley v. Fitzsimmons, 509 U.S. 259, 269

(1993) (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Absolutely protected

acts of advocacy include those “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.” Id. at 273. A prosecutor is thus absolutely protected when she

appears in court in support of an application for a search warrant and presents evidence

at a probable cause hearing, Burns, 500 U.S. at 491-92, and when she prepares and files

unsworn documents in order to obtain an arrest warrant, Kalina v. Fletcher, 522 U.S.

118, 129 (1997). Absolute immunity also protects a prosecutor when she evaluates

evidence and presents that evidence at trial or before a grand jury, Buckley, 509 U.S. at

273; Higgason v. Stephens, 288 F.3d 868, 878 (6th Cir. 2002), prepares witnesses for

trial, Imbler, 424 U.S. at 430 n.32; Buckley, 509 U.S. at 273, and even elicits false

testimony from witnesses, Burns, 500 U.S. at 489-90; Buckley, 509 U.S. at 270-71. By

shielding prosecutors engaging in these activities, absolute immunity “serves the policy

of protecting the judicial process.” Burns, 500 U.S. at 492.

No. 09-2045 Adams v. Hanson Page 7

Nonetheless, because “[a]bsolute immunity is designed to free the judicial

process,” not merely the prosecutor, “from the harassment and intimidation associated

with litigation,” absolute immunity protects “only . . . actions that are connected with the

prosecutor’s role in judicial proceedings, not . . . every litigation-inducing conduct.” Id.

at 494. Only qualified immunity is available to prosecutors when they perform

“investigative” or “administrative” functions unrelated to judicial proceedings. Id. at

483 n.2 (internal quotation marks omitted); see Buckley, 509 U.S. at 273; Holloway v.

Brush, 220 F.3d 767, 774-75 (6th Cir. 2000) (en banc). Investigative acts outside the

scope of absolute immunity include giving legal advice to the police during a pretrial

investigation, Burns, 500 U.S. at 494-96, conspiring to fabricate evidence during the

time before convening a grand jury, Buckley, 509 U.S. at 274-76, and making false

statements at a press conference, id. at 276-78. In addition, a prosecutor is entitled to

only qualified immunity when she acts as a complaining witness by making sworn

statements to the court in support of a criminal complaint. Kalina, 522 U.S. at 129-31.

In sum, “acts undertaken in direct preparation of judicial proceedings . . . warrant

absolute immunity, whereas other acts, such as the preliminary gathering of evidence

that may ripen into a prosecution, are too attenuated to the judicial process to afford

absolute protection.” Ireland, 113 F.3d at 1445; see Harris v. Bornhorst, 513 F.3d 503,

509-11 (6th Cir. 2008) (affirming denial of absolute immunity to a prosecutor who

instructed police to arrest suspect); Prince v. Hicks, 198 F.3d 607, 612-15 (6th Cir. 1999)

(affirming denial of absolute immunity to a prosecutor who undertook a preliminary

investigation and advised police that probable cause existed to arrest a suspect). In

categorizing a prosecutor’s acts, “the critical inquiry” for immunity purposes is thus

“how closely related . . . the prosecutor’s challenged activity [is] to his role as an

advocate intimately associated with the judicial phase of the criminal process.”

Holloway, 220 F.3d at 775 (internal quotation marks omitted) (emphasis omitted). “The

analytical key to prosecutorial immunity, therefore, is advocacy—whether the actions

in question are those of an advocate.” Id. (emphasis in original).

No. 09-2045 Adams v. Hanson Page 8

2. Prosecutorial Function

Because “[a]lmost any action by a prosecutor, including his or her direct

participation in purely investigative activity, could be said to be in some way related to

the ultimate decision whether to prosecute,” Burns, 500 U.S. at 495, we must identify

precisely the wrongful acts allegedly performed by Hanson, and classify those acts

according to their function. Adams claims that Hanson made false and misleading

factual representations to the state trial court, ex parte and off the record during a hearing

recess, regarding the availability of Adams as a witness, and that these statements led to

her unlawful arrest and detention. The district court determined that Hanson was entitled

to absolute immunity from suit because she was acting as an advocate for the state in

connection with a preliminary examination. Adams disagrees: she claims that Hanson

acted as a complaining witness, or, in the alternative, fulfilled an administrative function.

The case thus presents an issue of first impression in this circuit: whether a

prosecutor is entitled to absolute immunity for her false and misleading statements to a

trial court in the course of criminal proceedings about the availability of a witness. The

Michigan ACLU as Amicus argues that, as a rule, absolute immunity should not apply

to actions of a prosecutor with respect to a third-party witness. Under this view, actions

of a prosecutor vis-à-vis a criminal defendant should be distinguished from actions vis-à-

vis a third-party witness, and absolute immunity should not be extended to the latter

because the historical and policy rationales for absolute immunity do not apply with

equal force in the witness context.

Other circuits that have addressed the question have held that prosecutors are

ordinarily entitled to absolute immunity for conduct falling within a prosecutorial

function when they seek detention of a material witness pursuant to judicial order. See

Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984); Daniels v. Kieser, 586 F.2d 64, 68-69

(7th Cir. 1978), cert. denied, 441 U.S. 931 (1979); cf. Odd v. Malone, 538 F.3d 202, 212

(3d Cir. 2008) (plaintiff “acknowledge[d] that [prosecutor] was acting in her

prosecutorial capacity when she secured the material witness warrant”). The Third

Circuit has cautioned, however, that “policy considerations underlying prosecutorial

No. 09-2045 Adams v. Hanson Page 9

immunity counsel against recognizing absolute immunity” in material-witness cases.

Odd, 538 F.3d at 216; see also al-Kidd v. Ashcroft, 580 F.3d 949, 963 (9th Cir. 2009),

rev’d on other grounds,131 S. Ct. 2074 (2011) (holding that absolute immunity does not

attach to prosecutor’s solely investigative use of a material-witness warrant).2 We have

stated in dicta that absolute immunity protects a prosecutor seeking the incarceration of

a material witness, White by Swafford v. Gerbitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988),

cert. denied, 489 U.S. 1028 (1989), but not a prosecutor who fails to act timely to secure

a material-witness’s release after being ordered to do so by the court, id. The scope of

a prosecutor’s immunity in this context, however, has never been squarely addressed by

this court.

We conclude that Hanson’s statements before the trial court at the preliminary

examination regarding Adams’s availability as a witness fell within her role as an

advocate for the State of Michigan and are therefore absolutely protected. The

prosecutorial function includes initiating criminal proceedings, appearing before the

court at a probable cause hearing or before a grand jury, seeking an arrest warrant, and

preparing witnesses. Imbler, 424 U.S. at 431 & n.33; Burns, 500 U.S. at 489-92;

Buckley, 509 U.S. at 270-71, 73; Kalina, 522 U.S. at 129. Hanson’s challenged conduct

involved the analogous acts of appearing at a preliminary examination and making

statements about her discussions with a potential witness—activities “closely related . . .

to h[er] role as an advocate” before the court in criminal proceedings. Holloway, 220

F.3d at 775 (emphasis in original) (internal quotation marks omitted). Furthermore,

because the issuance of either a material-witness warrant or an order of contempt “is

unquestionably a judicial act,” a prosecutor’s statements to the court regarding the

availability of a witness are “‘intimately associated with the judicial phase of the

criminal process’ . . . . [and are] connected with the initiation and conduct of a

prosecution, particularly where,” as here, “the hearing occurs after arrest [of the

2

The Supreme Court recently declined to address whether the United States Attorney General’s

conduct in relation to material witnesses was protected by absolute immunity. See infra n.4.

No. 09-2045 Adams v. Hanson Page 10

defendant]” in the criminal proceedings.3 Burns, 500 U.S. at 492 (internal citation

omitted).

It is especially instructive that, under Michigan law, it is the prosecutor’s

particular, non-delegable duty to “make a diligent good-faith effort to find and produce”

witnesses in criminal prosecutions. People v. Dye, 427 N.W.2d 501, 510 (Mich. 1988).

Although the parties dispute whether Hanson sought to hold Adams as a material witness

or in contempt of court, there is no dispute that Hanson sought to secure Adams’s

testimony as a witness in a criminal prosecution, a province of the prosecutor. That

Hanson allegedly acted outside of formal judicial proceedings, in an off-the-record

discussion with the trial judge, does not strip her automatically of immunity for this

conduct. “[T]he duties of the prosecutor in his role as advocate for the State involve

actions preliminary to the initiation of a prosecution and actions apart from the

courtroom.” Imbler, 424 U.S. at 431 n.33. Specifically, conduct related to the

preparation and presentation of witness testimony may be protected whether it occurs

in or out of court. See id. at 430 n.32 (holding that prosecutor was entitled to absolute

immunity for making statements to police regarding the questioning of a witness during

a courtroom recess); cf. Buckley, 509 U.S. at 277-78 (denying prosecutor absolute

immunity for making out-of-court statements at a press conference). In fulfilling her

prosecutorial duties, Hanson’s conduct constituted an “effort to control the presentation

of [a] witness’ testimony” which is “fairly within [her] function as an advocate.” Imbler,

424 U.S. at 430 n.32.

3

Material-witness arrests in Michigan are governed by the Michigan material-witness statute,

which outlines the process to be undertaken by a court ordering a material witness’s detention. The

Michigan material-witness statute states:

When it appears to a court of record that a person is a material witness in a criminal case

pending in a court in the county and that there is a danger of the loss of testimony of the

witness unless the witness furnishes bail or is committed if he or she fails to furnish bail,

the court shall require the witness to be brought before the court. After giving the

witness an opportunity to be heard, if it appears that the witness is a material witness

and that there is a danger of the loss of his or her testimony unless the witness furnishes

bail or is committed, the court may require the witness to enter into a recognizance with

a surety in an amount to be determined by the court for the appearance of the witness

at an examination or trial. If the witness fails to recognize, he or she shall be committed

to jail by the court, until he or she does recognize or is discharged by order of the court.

MICH. COMP. LAWS ANN. § 767.35.

No. 09-2045 Adams v. Hanson Page 11

Because Hanson’s actions fell within her prosecutorial role, she is entitled to

absolute immunity even if her statements were false or misleading. As this court has

recently emphasized, “prosecutors do not forfeit their absolute immunity when they

knowingly make false statements while advocating before the court,” Pittman v.

Cuyahoga Cnty. Dep’t of Children & Family Servs., 640 F.3d 716, 725 (6th Cir. 2011),

“‘so long as the statements were related to the proceeding[s]’” in which they were made,

id. (quoting Burns, 500 U.S. at 490). Therefore, even if Hanson made false

representations to the trial judge regarding Adams’s availability, she is protected by

absolute immunity because she was “serving as an advocate in judicial proceedings,”

Kalina, 522 U.S. at 125, when she made statements “related to th[ose] proceedings,”

Burns, 500 U.S. at 490.

Hanson’s allegedly improper motive in seeking and securing Adams’s detention

does not alter our conclusion that Hanson’s acts served a prosecutorial function.

Suggesting an investigative purpose, Adams claims that Hanson sought her detention in

order to coerce her into testifying in accordance with the 2006 statement. “As the line

of absolute-immunity cases make clear, however, a prosecutor’s allegedly improper

motive alone is not enough to defeat absolute immunity, so long as the general nature

of his actions falls within the scope of his duties as an advocate for the state.” Cady v.

Arenac Cnty., 574 F.3d 334, 341 (6th Cir. 2009). “[T]he general nature of [Hanson’s]

actions” in making unsworn representations to the court regarding Adams’s availability

to testify “f[ell] within the scope of h[er] duties as an advocate for the state,” and are

therefore absolutely protected whatever Hanson’s motive was in making them. Id.4

4

Reviewing whether a material-witness arrest was reasonable, the Supreme Court recently held

that the Fourth Amendment is not violated by a material-witness arrest made pursuant to an otherwise valid

warrant simply because the arrest was made for an investigative purpose. Ashcroft v. al-Kidd, 563 U.S.

----, 131 S. Ct. 2074, 2085 (2011). Without examining what renders a material-witness warrant

constitutionally valid, the Court assumed that the warrant for al-Kidd was lawful absent the allegedly

improper pretext. Id. at 2083. Because the warrant was supported by individualized suspicion that the

witness was material and soon to be unavailable, the government’s motive in obtaining the warrant was

deemed irrelevant to the Fourth Amendment analysis. Id. at 2082-83. Disposing of al-Kidd’s claims on

qualified immunity grounds, the Court held that Ashcroft did not violate clearly established law when he

authorized the pretextual use of material-witness warrants, id. at 2083-85, and declined to “address the

more difficult question whether [Ashcroft] enjoys absolute immunity,” id. at 2085.

No. 09-2045 Adams v. Hanson Page 12

Absolute immunity would be defeated if Hanson’s acts and omissions were

instead administrative—i.e., if representing that Adams refused to testify without also

securing her appearance in court served an administrative rather than prosecutorial

function. We held in Holloway v. Brush that a social worker’s “out-of-court actions,

misinforming [a party] and failing to inform the court of the [party’s] appearance,”

which led to the severing of the party’s parental rights, were administrative acts rather

than the conduct of an advocate. 220 F.3d at 776 (emphasis omitted). Adams, in

contrast, admitted that she told Hanson and the sheriffs that she would not appear in the

courtroom and testify, and Hanson presented this information to the trial court. Unlike

the social worker in Holloway, Hanson did not “appropriate[] the entire judicial process

to herself by hiding [Adams] and the court from each other,” but rather, the trial court

itself proceeded without providing Adams an opportunity to be heard. Id. at 777.

Significantly, the Michigan statute assigns responsibility for material-witness

protections to the court. The statute provides that, “[w]hen it appears to a court” that the

appropriate conditions are met, then “the court shall require the witness to be brought

before [it].” MICH. COMP. LAWS ANN. § 767.35 (emphasis added). The responsibility

is thereby placed with the court to provide a witness the opportunity to be heard and to

assess itself the materiality of her testimony and the likelihood that she would fail to

appear. Id. Because this judicial process was not followed in this case, Adams was not

provided the opportunity to be heard or to furnish bail before the trial court ordered her

detained. Although we remain seriously troubled by the abrogation of Adams’s

procedural rights, Adams’s “experience illustrates the importance of vigilant exercise

of this checking role by the judicial officer to whom the warrant application is

presented,” not that prosecutors must be held accountable for judicial error. Al-Kidd,

131 S. Ct. at 2088 n.2 (Ginsburg, J., concurring).

Along the same lines, this case is readily distinguishable from Odd v. Malone,

in which the Third Circuit characterized as administrative the defendant-prosecutors’

actions vis-à-vis detained material witnesses and denied absolute immunity. 538 F.3d

at 217. One prosecutor had failed to inform the judge that the case for which the witness

No. 09-2045 Adams v. Hanson Page 13

was detained had been continued, per the judge’s order and per local custom. Id. at 212-

13. Another failed to seek the release of a third-party witness in state custody after the

termination of the proceedings in which he was to testify. Id. at 215. The Third Circuit

held that these actions were not acts of advocacy related to conducting a prosecution for

the state but rather were administrative tasks which the prosecutors failed to complete.

Id. at 217. Hanson’s actions, in contrast, occurred while seeking a witness’s detention,

not after the detention had commenced, and Adams has not alleged that Hanson defied

the court’s instructions. In this case, moreover, the court was complicit in the alleged

denial of Adams’s procedural rights. Unlike the incarcerations in Odd, which were

prolonged past the intention of the court due to prosecutorial oversight, it was left to the

state trial court in this case “to determine whom to incarcerate and for what length of

time.”5 Id. at 214.

Our opinion does not foreclose the possibility that Adams’s constitutional rights

were violated6 or that a prosecutor’s actions in relation to a witness may be

5

In its most recent pronouncement on absolute prosecutorial immunity, the Supreme Court held

that a prosecutor is entitled to absolute immunity even when performing an “administrative activit[y]” if

the act is done in the performance of an advocacy function. Van de Kamp v. Goldstein, 555 U.S. 335, 129

S. Ct. 855, 861 (2009). Certain kinds of administrative obligations are “directly connected with the

prosecutor’s basic trial advocacy duties,” id. at 863, and “require legal knowledge and the exercise of

related discretion,” id. at 862. Thus, a supervisory prosecutor is entitled to absolute immunity when she

has engaged in these types of “administrative” tasks because prosecutors are “immune in a suit directly

attacking their actions related to an individual trial” which are “‘intimately associated with the judicial

phase of the criminal process.’” Id.

In Schneyder v. Smith, --- F.3d ---, No. 10-2367, 2011 WL 3211504, at *13-16 (3d Cir. July 29,

2011), the Third Circuit reconsidered its holding in Odd in light of Van de Kamp, and reaffirmed the denial

of absolute immunity to the prosecutor. The Third Circuit emphasized that the prosecutor’s failure to

advise the state trial judge of the status of the detained witness was “neither discretionary nor advocative,

but . . . instead . . . purely administrative,” and thus not protected by absolute immunity. Id. at *16.

Like the administrative acts in Van de Kamp, Hanson’s conduct before the state trial court, to the

extent it can be characterized as administrative, was “directly connected with [her] basic trial advocacy

duties,” 129 S. Ct. at 863, and “require[d] legal knowledge and the exercise of related discretion,” id. at

862. Hanson’s discretionary and advocative statements when appearing before the state trial court were

“integral to [the] advocacy function” of procuring a witness’s testimony. Warney v. Monroe Cnty., 587

F.3d 113, 124 (2d Cir. 2009).

6

It stands to reason that “the rights of a material witness, charged with no wrongdoing, to be

brought before a magistrate certainly are at least equivalent to those of a person charged with a crime.”

Stone v. Holzberger, No. 92-3675, 1994 WL 175420, at *3 (6th Cir. Jan. 6, 1994) (unpublished opinion).

Although the Supreme Court has never comprehensively addressed the statutory and constitutional

requirements for a valid material-witness warrant, some federal courts have applied wholesale the Fourth

Amendment’s warrant requirement to a material-witness arrest because “the essential element” in

analyzing a seizure of the person “is the physical restraint placed upon the person, not the purpose behind

the restraint.” Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971).

If the warrant requirement is adapted to the material-witness context, an application for a material-

witness warrant under the federal material-witness statute “must establish probable cause to believe that

No. 09-2045 Adams v. Hanson Page 14

administrative or investigative in another context.7 If Hanson had detained Adams

without a court order, she likely would have been engaging in an “investigative act[]

antecedent . . . to the judicial process” rather than absolutely protected prosecutorial

activity. Ireland, 113 F.3d at 1445. If police had detained Adams unilaterally, or

misrepresented the facts when applying for a warrant, she may have been able to bring

a viable § 1983 claim against them. See al-Kidd, 131 S. Ct. at 2089 (Ginsburg, J.,

concurring). In fact, however, Adams was arrested pursuant to a signed order from the

trial judge, and while it was Hanson’s job to present information about witnesses to the

court, it was the court’s duty to respond with appropriate protections. Therefore,

whether or not Adams’s detention violated her constitutional rights, Hanson’s acts are

protected by absolute immunity.

3. Complaining Witness

Adams asks us to view Hanson’s acts differently: she claims that Hanson was

acting as a complaining witness, not a prosecutor. At common law, witnesses testifying

in court received absolute immunity, Burns, 500 U.S. at 489-90, but complaining

witnesses—those swearing to the facts in the initial complaint—did not, Kalina, 522

(1) the witness’s testimony is material, and (2) it may become impracticable to secure the presence of the

witness by subpoena.” United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003) (emphasis added); see

White by Swafford v. Gerbitz (II), 892 F.2d 457, 460-61 (6th Cir. 1989) (reviewing whether probable cause

existed for warrantless material-witness detention); Stone, 1994 WL 175420, at *3-4 (concluding that

police officers did not provide witness with a probable-cause hearing within a reasonable time).

The probable-cause standard may be inapplicable, however, because “[t]he typical arrest warrant

is based on probable cause that the arrestee has committed a crime,” which is not the standard for the

issuance of material-witness warrants. Al-Kidd, 131 S. Ct. at 2086 (Kennedy, J., concurring) (emphasis

added). “If material witness warrants do not qualify as ‘Warrants’ under the Fourth Amendment” such that

they are not subject to a probable-cause requirement, they “might still be governed by the Fourth

Amendment’s separate reasonableness requirement for seizures of the person.” Id.; see Schneyder, 2011

WL 3211504, at *4-8 (concluding that Fourth Amendment reasonableness requirement, but not probable-

cause standard, applies to material-witness detention, and finding Fourth Amendment violation). For a

Fourth Amendment analysis of the federal material-witness statute, see Donald Q. Cochran, Material

Witness Detention in a Post-9/11 World: Mission Creep or Fresh Start?, 18 GEO. MASON L. REV. 1, 16-24

(2010).

7

As the ACLU noted in its brief, Adams provided an affidavit to the district court from an

attorney who met with Adams and who claimed to have left a message for Hanson the day after Adams

was detained, informing her that Adams was willing to testify. The parties failed to mention, much less

brief, this fact before the district court or on appeal, and there is therefore nothing in the record regarding

whether Hanson received the voicemail or passed it on to the proper authorities. As a result, we cannot

speculate as to whether Hanson acted properly on this information or engaged in administrative oversight

by failing to notify the trial court of Adams’s willingness to testify.

No. 09-2045 Adams v. Hanson Page 15

U.S. at 130-31. But see id. at 133-35 (Scalia, J., concurring) (disputing that complaining

witness was a meaningful label at common law).

A complaining witness is not entitled to absolute immunity, Malley v. Briggs,

475 U.S. 335, 340-45 (1986), nor is a prosecutor who performs the same role, Kalina,

522 U.S. at 129-31. Hanson, however, was not acting as a complaining witness. In

Kalina, the Supreme Court assessed whether a prosecutor acted as a complaining witness

when she undertook three separate acts: filing an information, a motion for an arrest

warrant, and a sworn affidavit, in which she swore that the underlying facts provided to

the court to support the arrest warrant were true. Id. at 121. An arrest warrant was

issued on the basis of the prosecutor’s sworn statements. Id. The Supreme Court

determined that all these acts were prosecutorial except for swearing to the underlying

facts in the affidavit, id. at 129-31, in which the prosecutor “personally vouched for the

truth of the facts set forth in the certification under penalty of perjury,” id. at 121. By

offering sworn testimony, the prosecutor “performed an act that any competent witness

might have performed.” Id. at 129-30. “Testifying about facts is the function of the

witness, not of the lawyer,” and therefore, “[e]ven when the person who makes the

constitutionally required ‘Oath or affirmation’ is a lawyer, the only function that she

performs in giving sworn testimony is that of a witness.” Id. at 130-31.

Advocating before the trial court in order to procure witness testimony, as

Hanson did, is more analogous to the application for a warrant that the Court held to be

prosecutorial than the acts of a complaining witness. First, as described supra, Hanson’s

conduct fell within her prosecutorial role. Second, there is no allegation that Hanson

provided sworn testimony. Adams asserts that the distinction between a prosecutor’s

unsworn representations and a witness’s sworn representations is a distinction without

a difference. But the Supreme Court in Kalina found determinative that a prosecutor

was testifying to facts “under penalty of perjury” or giving “sworn testimony.” Id. at

129, 131 (emphasis added). The Court explained:

Indeed, except for her act in personally attesting to the truth of the

averments in the certification, it seems equally clear that the preparation

and filing of the [sworn affidavit] was part of the advocate’s function as

No. 09-2045 Adams v. Hanson Page 16

well. The critical question, however, is whether she was acting as a

complaining witness rather than a lawyer when she executed the

certification “[u]nder penalty of perjury.”

Id. at 129 (emphasis added). Following Kalina, the Eleventh Circuit in Rivera

concluded that a prosecutor who provided the court with mistaken information, causing

the wrong man to be arrested, did not act as a complaining witness because he did not

provide sworn testimony. Rivera v. Leal, 359 F.3d 1350, 1354-55 (11th Cir. 2004); see

id. at 1355 (“The sworn/unsworn distinction is more than critical; it is determinative.”).

A prosecutor’s acts in preparing and presenting to the court information in

support of an arrest, and a witness’s acts in swearing to the truth of the facts supporting

criminal charges, serve distinct and essential functions. See Kalina, 522 U.S. at 129;

Ireland, 113 F.3d at 1447 (holding that prosecuting attorneys who prepared and

presented the contents of a criminal complaint were entitled to absolute immunity). In

this case, Hanson’s unsworn statements during a “pretrial court appearance[] by the

prosecutor in support of taking criminal action against a suspect,” are acts of advocacy

protected by absolute immunity.8 Burns, 500 U.S. at 492; see also Sanders v. City &

Cnty. of San Francisco, 226 F. App’x 687, 690 (9th Cir. 2007) (unpublished opinion)

(holding that a prosecutor’s statements before a grand jury did not render him a

complaining witness, and so deprive him of absolute immunity, because “word choice

in the course of advocacy cannot turn a prosecutor into a witness”).

8

Hanson argues that there is an additional way in which Adams’s complaining-witness argument

fails: because Adams was not arrested on criminal charges, Hanson could not have been a complaining

witness. Hanson did not “initiate[] or procure[] a criminal prosecution” against Adams; rather, she sought

to detain Adams in the course of the criminal prosecution of another defendant. Kalina, 522 U.S. at 132

(Scalia, J., concurring). In Kalina, by contrast, the prosecutor provided a sworn affidavit in support of

criminal charges.

It is not clear, however, that this distinction precludes Hanson from qualifying as a complaining

witness. An individual who testifies in support of an arrest warrant is a complaining witness. See Malley,

475 U.S. at 340-41(“[O]ne who procured the issuance of an arrest warrant by submitting a complaint could

be held liable if the complaint was made maliciously and without probable cause.”). We need not and do

not decide whether to apply a different label to an individual who testifies in support of a material-witness

warrant as opposed to an arrest warrant for criminal activity. See al-Kidd, 131 S. Ct. at 2086 (Kennedy,

J., concurring) (comparing constitutional requirements governing typical arrest warrants with material-

witness warrants). Hanson does not qualify as a complaining witness because she did not provide sworn

testimony and was acting within her prosecutorial role.

No. 09-2045 Adams v. Hanson Page 17

4. Policy Considerations

Finally, in addition to the prosecutorial nature of Hanson’s actions, the policy

justifications underlying prosecutorial immunity support absolute immunity in this case.

To determine whether a function is protected by absolute immunity, the Supreme Court

considers whether: “(1) there is a common law tradition of according immunity in

similar situations; (2) denying immunity would subject the prosecutor to the chilling

influence of vexatious lawsuits; and (3) there exist adequate checks on prosecutorial

abuse other than individual suits against the prosecutor.” Odd, 538 F.3d at 216.

First, regarding the common law, we find support for prosecutorial immunity in

the Court’s conclusion that “prosecutors . . . were absolutely immune from damages

liability at common law for making false or defamatory statements in judicial

proceedings (at least so long as the statements were related to the proceeding).” Burns,

500 U.S. at 489-90. “This immunity extended to ‘any hearing before a tribunal which

perform[ed] a judicial function.’” Id. at 490. In advocating before the trial court at a

preliminary examination, Hanson made statements related to judicial proceedings that

fall within this protection.

Second, regarding vexatious litigation, “pretrial court appearances by the

prosecutor in support of taking criminal action against a suspect,” which include the

summoning of witnesses to a preliminary examination, “present a substantial likelihood

of vexatious litigation that might have an untoward effect on the independence of the

prosecutor.” Id. at 492. To be sure, a flood of litigation is less likely to arise from

detained witnesses than defendants, if for no other reason than that witness detention is

relatively rare.9 But in cases like this one, involving witnesses to gang activity, a

prosecutor seeking to secure a witness’s appearance may be subject to harassment by

9

In 2004, United States magistrate judges conducted 4882 material-witness hearings. Charles

Doyle, Cong. Research Serv., RL 33077, Arrest and Detention of Material Witnesses 3 n.10 (2005),

available at http://www.au.af.mil/au/awc/awcgate/crs/r133077.pdf. Detentions in the context of

immigration proceedings make up the bulk of material-witness arrests. See Adam Liptak, For Post-9/11

Material Witness, It is a Terror of a Different Kind, N.Y. Times, Aug. 19, 2004, available at

http://www.nytimes.com/2004/08/19/us/threats-responses-detainees-for-post-9-11-material-

witness-it-terror-different.html?src=pm.

No. 09-2045 Adams v. Hanson Page 18

either witnesses or defendants seeking to deter witness testimony, which would interfere

with the integrity of the criminal proceedings. Absolute immunity for advocacy before

a trial court to procure witness testimony thus “serves the policy of protecting the

judicial process.” Id. at 492.

Third, regarding checks on prosecutorial abuse, the judicial process is available

as a check on prosecutorial actions, and these “safeguards . . . tend to reduce the need

for private damages actions as a means of controlling unconstitutional conduct.” Butz

v. Economou, 438 U.S. 478, 512 (1978). As discussed, supra, although it did not prevent

the claimed violations in this case, the Michigan material-witness statute provides a

judicial process for protecting a witness’s rights. In addition, material witnesses may

petition for habeas relief or move to quash their arrest warrants.10 Other checks on

prosecutorial misconduct are provided by professional disciplinary actions and the

criminal prosecution of prosecutors.11 Imbler, 424 U.S. at 429.

We recognize that witnesses are particularly vulnerable because they are “not

entitled to the protections available to criminal defendants, including the appellate

process,” Odd, 538 F.3d at 217, but application of the analytical framework outlined by

the Supreme Court dictates absolute immunity for Hanson. Threats to the independence

of the prosecutor, other means to protect witnesses’ rights, and, most importantly, the

prosecutorial function served by Hanson’s conduct counsel in favor of the grant of

absolute immunity. Absent direction from the Supreme Court, we decline to make a

categorical exception to traditional absolute immunity analysis for prosecutorial actions

with respect to third-party witnesses. Accordingly, we hold that Prosecutor Hanson is

10

See Carolyn B. Ramsey, In the Sweat Box: A Historical Perspective on the Detention of

Material Witnesses, 6 OHIO ST. J. CRIM. L. 681 nn. 60 & 123 (2009) (discussing habeas relief from

material-witness detention and witness-detention lawsuits against police departments); Stacey M. Studnicki

& John P. Apol, Witness Detention and Intimidation: The History and Future of Material Witness Law,

76 ST. JOHN’S L. REV. 483, 499-502 (2002) (collecting cases reviewing the validity of material-witness

warrants).

11

Such a check was apparently available here. Although there is no information in the record

regarding the resolution of the complaint, the State of Michigan’s Attorney Grievance Commission

received a request for investigation of Hanson arising out of Adams’s detention, and Hanson filed an

answer detailing her conduct in the case.

No. 09-2045 Adams v. Hanson Page 19

entitled to absolute prosecutorial immunity for her acts of advocacy before the state trial

court in seeking to procure witness testimony at a preliminary examination.

III. CONCLUSION

When making statements at a preliminary examination about the availability of

a witness, Hanson functioned as an advocate for the State of Michigan and performed

actions intimately associated with the judicial process. Because she is absolutely

immune from suit for her prosecutorial conduct, we AFFIRM the district court’s grant

of summary judgment to Hanson.