Opposition Brief — Lisa Price, as Personal Representative of the Estate of Nickie Miller, Petitioner v. Montgomery County, Kentucky, et al.

Supreme Court briefFeb 15, 2024

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No. 23-649

In the Supreme Court of the United States

LISA PRICE, AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF NICKIE MILLER,

Petitioner,

MONTGOMERY COUNTY, KENTUCKY, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION

OF KEITH CRAYCRAFT

Office of the Kentucky

Attorney General

700 Capital Avenue

Suite 118

Frankfort, KY 40601

(502) 696-5300

Matt.Kuhn@ky.gov

*Counsel of Record

February 15, 2024

MATTHEW F. KUHN*

Solicitor General

DANIEL J. GRABOWSKI

Assistant Solicitor General

QUESTIONS PRESENTED

This case presents two questions. First, does a

prosecutor have absolute immunity from a claim alleging that he advised a witness to destroy exculpatory

evidence?

Second, does a prosecutor have absolute immunity

from a claim alleging that he advised a witness to act

in a way that frustrates a court order to a third party?

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 2

ARGUMENT ................................................................ 8

No circuit split is cleanly presented here ............ 9

II. The decision below tracks this Court’s cases ..... 18

III. No other reason justifies review......................... 23

IV. This case is a poor vehicle .................................. 24

CONCLUSION .......................................................... 27

iii

TABLE OF AUTHORITIES

Cases

Annappareddy v. Pascale,

996 F.3d 120 (4th Cir. 2021) .................................. 10

Buckley v. Fitzsimmons,

509 U.S. 259 (1993) ............................................ 3, 18

Burns v. Reed,

500 U.S. 478 (1991) ............................ 2, 3, 18, 19, 24

Gagan v. Norton,

35 F.3d 1473 (10th Cir. 1994) .................... 13, 16–18

Hart v. Hodges,

587 F.3d 1288 (11th Cir. 2009) ........................ 14, 15

Heidelberg v. Hammer,

577 F.2d 429 (7th Cir. 1978) .................................. 10

Imbler v. Pachtman,

424 U.S. 409 (1976) ...................... 2, 3, 12, 18, 20, 26

Kalina v. Fletcher,

522 U.S. 118 (1997) ................................ 3, 18, 24, 26

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) ................................................ 24

Munchinski v. Solomon,

618 F. App’x 150 (3d Cir. 2015) ....................... 12, 15

Odd v. Malone,

538 F.3d 202 (3d Cir. 2008) ................. 10, 12, 13, 15

Rehberg v. Paulk,

566 U.S. 356 (2012) ...................................... 2, 23, 24

Reid v. New Hampshire,

56 F.3d 332 (1st Cir. 1995) .............................. 13–15

Tenney v. Brandhove,

341 U.S. 367 (1951) .................................................. 2

Van de Kamp v. Goldstein,

555 U.S. 335 (2009) ................................ 3, 19, 21, 22

Wallace v. Mahanoy,

2 F.4th 133 (3d Cir. 2021) ...................................... 13

Webster v. Gibson,

913 F.2d 510 (8th Cir. 1990) ............................ 14, 15

Yarris v. County of Delaware,

465 F.3d 129 (3d Cir. 2006) ................... 9, 10, 11, 20

Statutes

42 U.S.C. § 1983 ................................................ 2, 4, 24

INTRODUCTION

Lisa Price alleges that Keith Craycraft, while prosecuting a case against her father, advised a witness to

destroy exculpatory evidence. And she alleges that

Craycraft did so despite a court order that prison officials turn over that evidence to the defense. Now,

Craycraft did no such thing, as his sworn deposition

makes clear. But of course, when weighing absolute

immunity at the motion-to-dismiss stage, a complaint’s allegations are viewed as true. And it is those

allegations that matter—not Price’s current spin on

them.

In her petition, Price reframes the complaint’s allegations to bolster her chances of this Court granting

review. She characterizes the questions presented as

whether absolute immunity extends to the destruction

of exculpatory evidence and the defiance of a court order compelling specific action. But neither maps onto

what the complaint alleges. Obscuring those allegations lets Price do two things. First, it lets her argue

that both questions raise a circuit split. And second, it

allows her to present the lower court’s holdings as conflicting with her view of the cases extending absolute

immunity only to acts of “advocative discretion.”

As to the first argument, neither circuit split is

cleanly presented here. The Sixth Circuit’s holdings

based on what the complaint alleges do not conflict

with a decision of another circuit—not directly anyway. And as to Price’s second argument, the caselaw

does not grant absolute immunity only to acts of advocative discretion. That is not the dividing line. Yet

even if it were, the allegations here do not cross it.

Price still cannot overcome absolute immunity. Advising a witness about what to do with material evidence

for an ongoing prosecution that is the subject of a court

order is just the sort of act that is done as an advocate

and that requires discretion.

STATEMENT OF THE CASE

1. Before jumping into the background of this case,

consider that of absolute immunity. The Court has

long held that 42 U.S.C. § 1983 does not grant a blanket right to sue state officials. Rehberg v. Paulk, 566

U.S. 356, 361 (2012). For nearly 75 years, the Court

has interpreted the statute to retain common-law immunities. See Tenney v. Brandhove, 341 U.S. 367, 376

(1951). And that “interpretation has been reaffirmed

by the Court time and again and is now an entrenched

feature of [its] § 1983 jurisprudence.” Rehberg, 566

U.S. at 361. Indeed, even some who have questioned

parts of that interpretation “would not abandon it” because of stare decisis. Burns v. Reed, 500 U.S. 478, 505

(1991) (Scalia, J., concurring in part).

One of the immunities the Court has long recognized is absolute immunity for prosecutors. See Imbler

v. Pachtman, 424 U.S. 409, 430 (1976). Like with other

immunities, the Court takes a functional approach to

whether it applies. Rehberg, 566 U.S. at 363. On a general level, that means comparing the specific act alleged to the common law (considering both analogous

acts at common law and the interests behind the common law’s grant of immunity). Id. at 363–66.

On a more granular level, that means considering

whether a prosecutor’s acts are “intimately associated

with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430. In other words, if a prosecutor

does something in the role of an advocate, then he gets

absolute immunity. But if he acts as an administrator

or investigator in a way not closely connected to the

judicial phase, then he doesn’t.

The cases repeatedly draw that line. For example,

in Imbler, absolute immunity applied to a prosecutor

offering false testimony and suppressing exculpatory

evidence. Id. at 416. Likewise, in Burns, it applied to

a prosecutor’s “appearance in court in support of an

application for a search warrant and the presentation

of evidence at that hearing.” 500 U.S. at 492. But such

immunity did not apply to giving legal advice to the

police during an investigation. Id. at 496. That was not

done in the role of an advocate.

The other cases hold similarly. Absolute immunity

does not apply to investigating and fabricating evidence before having probable cause. Buckley v. Fitzsimmons, 509 U.S. 259, 274–75 (1993). Nor does it apply to giving statements to the press about a prosecution because that is not part of an advocate’s role. Id.

at 278. And for the same reason, absolute immunity

does not apply to a prosecutor certifying that facts

given in support of probable cause are true. Kalina v.

Fletcher, 522 U.S. 118, 130–31 (1997). “Testifying

about facts is the function of the witness, not of the

lawyer.” Id. at 130.

But absolute immunity does apply to failing to

train or supervise prosecutors and failing to establish

an information system with impeachment material

about informants. Van de Kamp v. Goldstein, 555 U.S.

335, 339 (2009). Even though those acts are administrative, they are still closely connected to trial and involve legal knowledge and discretion. Id. at 344.

So the line is clear. Acts done in the role of an advocate get absolute immunity. Acts done in a different

role typically do not.

2. Now turn to this case. In November 2018, Price’s

father, Nickie Miller, filed a complaint under § 1983

against Kentucky state officials related to a murder

prosecution that was eventually dropped. Pet. App. 8a.

One of the state officials he sued was Craycraft, the

prosecutor in the case.

Miller’s claim against Craycraft had to do with alleged conduct by a potential codefendant and key witness against Miller, Natasha Martin. Id. at 5a–7a.

Martin had confessed to participating in the murder

and had told officers that Miller was the murderer. Yet

while in custody, Martin allegedly wrote jailhouse letters saying that her statement was false and her confession coerced. Id. at 7a. She also allegedly received

letters from another inmate and potential codefendant, which were exculpatory for Miller. Id.

During discovery in the ongoing prosecution

against Miller, his defense team tried to obtain those

letters by a court order to the jail officials. But that

effort did not succeed. The complaint alleges that the

defense never got the letters because Martin destroyed

them based on advice from Craycraft. Id.

Let’s step back and unpack that. The complaint

specifically alleges the following. First, the trial court

issued a sealed order requiring “any and all personnel

of the Montgomery County Detention Center” on being

presented with the order to “immediately go to Natasha Martin and retrieve from her all correspondence,

letters and emails written to her” or by her to another

inmate. Compl. 25, ECF No. 1. The order directed the

jail personnel to produce those materials to Miller’s

defense team. Id.

Second, because the order was sealed, limited people knew about it. But Craycraft was one of them. Id.

Third, someone from Miller’s defense team went to

the jail to execute the order. But he found out that

Martin had been released from custody. Id. at 25–26.

Fourth, after Martin found out about the court order, she “sought advice” from Craycraft “on what

should be done with the letters and correspondence at

issue.” Id. at 26.

Fifth, even though Craycraft knew the correspondence was exculpatory, he allegedly “participated in

[its] tampering and destruction” by “encouraging”

Martin to destroy the evidence. Id. And Craycraft allegedly “did so despite the court order” and despite

knowing that Miller had requested that such correspondence be maintained. Id. at 26–27.

Sixth, Craycraft allegedly “was well aware that he

was removing the most critical and probative evidence

remaining in the case” that revealed Miller was innocent and Martin’s statements were false. Id. at 27.

And seventh, according to the complaint that evidence was “successfully destroyed through the actions

of” Craycraft and Martin. Id. at 28. That’s it though.

That is everything relevant that the complaint alleges

about Craycraft’s role in the destruction of the evidence.

3. Craycraft then moved to dismiss the complaint

based on absolute immunity. And the district court

granted that motion. Pet. App. 90a. But because of the

other defendants, the case did not go on appeal yet.

Instead, discovery continued. As part of that discovery, Craycraft sat for a sworn deposition. During it, he

was directly asked whether he advised Martin “to get

rid of the letters in her possession.” Dep. 97, ECF No.

113-1. And his response was unequivocal: “Absolutely

not.” Id. All Craycraft told Martin when she asked

what to do about “an order or something for her stuff,”

was what any good lawyer would: “to call her attorney.” Id. at 77. And “that was it.” Id.; see also id. at

79–80, 88.

After discovery, the other defendants filed summary-judgment motions based on qualified immunity.

And the district court granted those motions. Miller

then appealed. While the appeal was pending, however, he passed away. Pet. App. 8a. So Price continued

as his estate’s representative.

4. On appeal, the Sixth Circuit affirmed. It held

that Craycraft is absolutely immune from the claim

alleged in the complaint. Id. at 17a. The court considered that claim in two ways. First, it considered

“Craycraft advising Martin to destroy evidence, advice

she acted upon.” Id. at 12a. The court reasoned that

Martin was a key witness in an ongoing prosecution

and that Craycraft was addressing matters with her

related to that prosecution. Id. So the communication

was “plainly within the prosecutorial role.” Id.

That Martin acted on Craycraft’s advice to “destroy

exculpatory evidence” changed nothing. Id. at 13a.

Just like withholding exculpatory evidence, destroying such evidence is a decision made in the capacity of

an advocate. Id. That meant “Craycraft’s role in the

destruction of evidence thus did not exceed the scope

of his immunity as a prosecutor.” Id. at 13a–14a. On

this point, the Sixth Circuit was not persuaded by the

Third Circuit’s distinction between withholding and

destroying exculpatory evidence. Id. at 14a–15a.

Second, the panel considered “Craycraft’s purported thwarting of a court order.” Id. at 15a. It reasoned that too was within the prosecutorial role. The

order “was naturally part of the prosecutorial process,” given that it governed procedures related to the

prosecution, was sought by Miller to defend himself in

the prosecution, and allegedly concerned highly relevant evidence to his defense. Id. The court found support in a decision from the Eighth Circuit but was

quick to note that its holding was not so broad. Id. at

15a–16a. While the Eighth Circuit grants absolute immunity to prosecutors for violating court orders directed to them, the Sixth Circuit left that question for

another case. Id. at 16a.

It did so because the complaint did not allege that

Craycraft violated an order directed to him. Rather,

the complaint alleged only that he “advis[ed] a witness

to act in unethical ways,” which frustrated a court order directed to a third party. Id. at 16a–17a.

The court also distinguished several decisions from

other circuits about prosecutors violating court orders.

It explained that those decisions did not involve active

prosecutions, while this one did. Id. at 17a.

5. Judge Nalbandian saw things a bit differently.

He parsed the allegations in the complaint as raising

three separate acts: advising a witness, destroying exculpatory evidence, and violating a court order. Id. at

36a. For the first two, he agreed with the majority.

Still, he suggested in a footnote that this Court “may

want to take a fresh look” at the exculpatory-evidence

issue. Id. at 39a n.6. He did so seemingly because of

two things. First, Judge Nalbandian reasoned that destroying exculpatory evidence “seems incongruous

with what ought to be our instincts about fairness and

justice.” Id. Even though such considerations “raise

the specter of unmoored judicial decision making,” he

did not view them as necessarily off limits in this context. Id. And second, Judge Nalbandian concluded

that members of this Court have suggested a “renewed

focus on the common-law foundations” of absolute immunity. Id.

For the third act he considered based on the complaint’s allegations, however, Judge Nalbandian disagreed with the majority. He reasoned that the court

order here “eliminated nearly all” of Craycraft’s discretion. Id. at 41a. So he was not “acting within his

discretion as an advocate when he violated” it. Id. And

that meant Craycraft should not receive absolute immunity. Id. at 45a. Yet Judge Nalbandian concurred

in the result on the court-order issue, reasoning that

qualified immunity would apply. Id. at 46a–47a.

And that brings us to this petition.

ARGUMENT

Price makes four arguments for why the Court

should grant review. The first two are the big ones.

She thinks that this case raises two circuit splits and

that the Sixth Circuit is on the wrong side of both. The

second two arguments are ancillary. Price thinks that

the questions presented are important and recurring

and that this case is a good vehicle to address them.

But Price is wrong across the board. Given the allegations in the complaint (and the holdings based on

them), no circuit split is cleanly presented here. The

Sixth Circuit’s decision got it right, correctly applying

this Court’s cases. That means Price’s main arguments for review come up short. And her subsidiary

ones fare no better. Nothing tips the scales in favor of

granting review. Plus, this case is a poor vehicle to resolve the questions presented.

I. No circuit split is cleanly presented here.

Price’s lead argument is that this case implicates

two circuit splits. It doesn’t, not directly anyway. To

be sure, there is some disagreement among the circuits about the scope of absolute immunity. But that

disagreement is not directly presented here—on either

question presented.

1. Start with Price’s argument that the decision below deepened the split about whether absolute immunity applies to the knowing destruction of exculpatory evidence. Pet. 12–14. She says that the Sixth Circuit joined the Fourth and Seventh Circuits in their

disagreement with the Third Circuit.

True, the circuits disagree on this issue. The Third

Circuit disagrees with the Fourth and Seventh Circuits. And the decision below aligns closer with the latter two. But at bottom, the Sixth Circuit answered a

different legal question than those other cases, based

on the complaint’s allegations. That difference could

well be material, making the split not cleanly presented here. Besides, even if the split were well presented, the Third Circuit—almost by its own admission—diverges from this Court’s cases. One circuit in

clear conflict with this Court is little reason to grant

review.

Take a closer look. Price points to the Third Circuit’s decision in Yarris v. County of Delaware, 465

F.3d 129 (3d Cir. 2006). There, the court considered

whether prosecutors were absolutely immune for deliberately destroying exculpatory evidence. Id. at 136.

It held that doing so “is not related to a prosecutor’s

prosecutorial function.” Id. As the court saw it, that’s

because the decision happens after a prosecutor decides not to produce the evidence. Id. at 136–37. So the

decision to destroy involves no prosecutorial discretion. But later, the Third Circuit glossed its holding as

based on the act’s level of egregiousness. See Odd v.

Malone, 538 F.3d 202, 211 (3d Cir. 2008). As the Third

Circuit made clear, deliberately destroying exculpatory evidence “fall[s] wholly outside the prosecutorial

role no matter when or where” committed, “presumably by virtue of [the act’s] egregiousness.” Id.

Price is right that Yarris conflicts with the Fourth

Circuit’s decision in Annappareddy v. Pascale, 996

F.3d 120 (4th Cir. 2021). There, the Fourth Circuit

held that the act of a prosecutor and other defendants

“purposefully shredd[ing] three boxes of evidence” because of their exculpatory nature was entitled to absolute immunity. Id. at 141–42. And Yarris also conflicts

with the Seventh Circuit’s decision in Heidelberg v.

Hammer, 577 F.2d 429 (7th Cir. 1978). There, the Seventh Circuit held that prosecutors were absolutely immune from the claim that they destroyed certain evidence. Id. at 432.

2. But Price is wrong that Yarris conflicts with the

decision below. There is no direct conflict. Recall the

complaint’s allegations. It alleges that, after Martin

called Craycraft for “advice,” he “participated” in the

destruction of exculpatory evidence by “encouraging”

Martin to destroy the letters. Compl. 26, ECF No. 1.

Based on those allegations, the Sixth Circuit held that

Craycraft was entitled to absolute immunity. It expressly focused on the facts that Martin was a key witness, that she sought advice from him, and that the

two were discussing matters related to an ongoing

prosecution. Pet. App. 12a. That is markedly different

from the other decisions that consider a prosecutor

personally destroying exculpatory evidence unrelated

to advising a key witness in the prosecution to do so.

To be sure, the Sixth Circuit considered the Third,

Fourth, and Seventh Circuits’ views. Id. at 13a–14a. It

found support in the latter two and was unpersuaded

by Yarris. But its holding based on the complaint’s allegations does not necessarily conflict with Yarris’s.

There is a plain distinction between the two. And perhaps that distinction between a prosecutor advising a

witness to destroy evidence and himself personally doing so without giving such advice is dispositive. Or

perhaps not. The point is just that there is a material

difference between this case and the other cases Price

identifies.

In other words, the Court could resolve the question presented in this case—whether absolute immunity applies to advising a witness to destroy exculpatory

evidence—without resolving the circuit split on a prosecutor himself destroying such evidence. So the split

is not cleanly presented here.

But even if it were, that split weighs little in favor

of a grant. The Third Circuit’s views diverge starkly

from this Court’s, and that limits the value of the

Court stepping in here. Remember, the typical line for

whether absolute immunity applies is if a prosecutor

does something in the role of an advocate. And destroying exculpatory evidence falls easily within it.

More on that later. For now, just consider the Third

Circuit’s own gloss of its holding: deliberately destroying exculpatory evidence does not get absolute immunity because of how egregious it is. Odd, 538 F.3d at

211. That is a far cry from this Court’s functional approach. That approach does not consider how bad an

act is. What matters is if something is done in the role

of an advocate. Indeed, offering false testimony and

suppressing exculpatory evidence are both plenty

egregious. But both get absolute immunity. Imbler,

424 U.S. at 416, 430. In short, the Third Circuit’s view

strays from this Court’s cases. True, the Court could

fix that with a grant. But correcting one circuit in clear

conflict with the caselaw hardly seems worth it here.

3. On to Price’s second split. She says that the circuits disagree on whether absolute immunity applies

to a prosecutor’s defiance of a court order eliminating

all discretion. Pet. 14–21. Here again, the circuits do

seem to disagree some. But just like with the first

question, that disagreement is not cleanly presented

here.

In fact, even less so than the first. All the cases

Price identifies save one involve a prosecutor violating

a court order directed to him. Yet the complaint here

alleges only that Craycraft advised a witness to act in

a way that frustrated a court order to a third party. At

most, that means the decision below could diverge

from one case Price raises. But even that case is materially distinguishable. Again, take a closer look.

On one side, Price puts the Third and Tenth Circuits (and says that the First Circuit implicitly

agrees). For the Third Circuit, she identifies two cases:

Odd and Munchinski v. Solomon, 618 F. App’x 150 (3d

Cir. 2015). But the latter is an unpublished decision

with no precedential force. See Wallace v. Mahanoy,

2 F.4th 133, 144 n.16 (3d Cir. 2021). So consider Odd.

There, the allegations were that a prosecutor got a

bench warrant to ensure a witness would testify. Odd,

538 F.3d at 205. The judge issuing the bench warrant

ordered the prosecutor to notify him of any delay or

continuance in the prosecution. Id. But the prosecutor

failed to do so. Id. at 206. The Third Circuit held that

absolute immunity did not apply because the prosecutor’s obligation to notify the judge was administrative

due to the order. Id. at 213. In support, the court noted

that it could “imagine few circumstances under which

[it] would consider the act of disobeying a court order

or directive to be advocative.” Id. at 214.

For the Tenth Circuit, Price points to Gagan v.

Norton, 35 F.3d 1473 (10th Cir. 1994). There, in a habeas proceeding, a court ordered a court reporter to

prepare certain transcripts. Id. at 1474–75. But despite the court order, the prosecutor directed the court

reporter not to prepare them. Id. at 1475. The Tenth

Circuit held that absolute immunity did not apply. It

explained that the prosecutor’s contravening the

court’s authority “in regard to the defense of a civil action” did not “constitute the kind of advocacy related

to the initiation and prosecution of criminal proceedings” for which absolute immunity applies. Id. at 1476.

And for the First Circuit, Price suggests that Reid

v. New Hampshire, 56 F.3d 332 (1st Cir. 1995), implicitly agrees. She does not, however, include it in her

count of the split. For good reason: the court in Reid

held that absolute immunity applied because discovery orders did not do away with a prosecutor’s discretion. Id. at 337. But the Court never answered

whether such immunity would have applied to an order eliminating all discretion. So Reid cannot help bolster Price’s alleged split.

On the other side, Price puts the Eighth and Eleventh Circuits and would include the Sixth Circuit now

too. In Webster v. Gibson, the Eighth Circuit considered whether a prosecutor violated a court order to file

“an information” immediately or release a detained individual. 913 F.2d 510, 512 (8th Cir. 1990). The prosecutor waited 56 days before filing the information,

while keeping the individual detained. Id. The Eighth

Circuit held that the prosecutor’s disregarding of the

court order did “not place him outside the scope of his

prosecutorial duties,” so absolute immunity applied.

Id. at 514.

And in Hart v. Hodges, the Eleventh Circuit considered whether absolute immunity applied to a prosecutor disobeying a court order that a defendant was

not to serve any time in state prison once released

from federal prison. 587 F.3d 1288, 1292, 1296 (11th

Cir. 2009). The Eleventh Circuit said yes. It reasoned

that the alternative would not comply with the functional analysis and purpose behind absolute immunity. Id. at 1298.

4. To be sure, the Third and Tenth Circuits on the

one hand and the Eighth and Eleventh Circuits on the

other seem to disagree in some respects. But that disagreement again is not directly presented here. Price

is wrong to slot the decision below as right in line with

those of the Eighth and Eleventh Circuits.

That’s because the Sixth Circuit did not address

whether a prosecutor has immunity for violating a

court order directed to him that eliminated all his discretion. Remember what the complaint alleges: that

the trial court issued an order requiring “any and all

personnel of the Montgomery County Detention Center” on being presented with the order to “immediately

go to” Martin and retrieve certain letters. Compl. 25,

ECF No. 1. It was an order directed to jail personnel—

not to Craycraft. The order did not affect his discretion

one way or another. He was not required to do anything under it nor play any role in executing it. Instead, it was the defense team that brought the order

to the jail personnel who were then to produce the materials. Id.

All Craycraft is alleged to have done is advise Martin to act in a way that frustrated that order to the jail

personnel. Id. at 26–28. Yet that is materially different from the court-order violations discussed above. In

all but one of those cases the order was directed to the

prosecutor. In Odd, the prosecutor was ordered to notify the judge of a delay. 538 F.3d at 205, 213. In Webster, the prosecutor was ordered to file an information

or release a detainee. 913 F.2d at 512. And in Hart,

the prosecutor, at least by necessary implication, was

ordered not to detain a defendant in state prison after

his release from federal prison. 587 F.3d at 1292, 1296.

(For what it’s worth, the same goes for Reid, 56 F.3d

at 337, and Munchinski, 618 F. App’x at 155.)

That means each of those decisions is materially

different from that below. It is an altogether different

question whether a prosecutor has absolute immunity

for violating a court order eliminating his discretion

from whether he has immunity for advising a witness

to act in a way that frustrates a court order directed

to a third party.

And the Sixth Circuit recognized as much. It expressly left for another day whether a prosecutor has

absolute immunity for violating a court order directed

to him. Pet. App. 16a. So the decision below does not

take sides on the disagreement Price puts forward.

That leaves just Gagan—the only case in which an

order was not directed to the prosecutor. At most, the

decision below could present a one-to-one split with

the Tenth Circuit. But it doesn’t even do that. Remember, in Gagan the court order was to a court reporter

that the prosecutor directed the reporter not to follow.

35 F.3d at 1475. So as here, the order was to a third

party that the prosecutor then allegedly helped to

frustrate. Still, Gagan is materially different from the

decision below.

For one thing, the Tenth Circuit keyed to the fact

that the order was in a habeas proceeding. Id. at 1476.

So the prosecutor’s act did not “constitute the kind of

advocacy related to the initiation and prosecution of

criminal proceedings” for which absolute immunity

applies. Id. That is different from here, where there

was an ongoing prosecution. And for another, directing a court reporter not to provide hearing transcripts

is not analogous to advising a witness about handling

evidence in an ongoing prosecution. The latter falls directly in the heart of an advocate’s role.

Put differently, just as with the first question presented, the Court could decide this one and not resolve

any circuit split. It could answer the second question

and not abrogate Gagan or any other case. That means

no split about disobeying a court order is cleanly presented here.

5. Price pushes back. First, she says that the order

below was directed to the prosecution. Pet. 21. But notice the sleight of hand. Just like throughout her petition, Price does not rely on the order’s language alleged in the complaint. Rather, she just puts forward

Judge Nalbandian’s views. Id. Those views, however,

are hard to square with the complaint’s allegations. As

alleged, the order directed jail personnel to do something—not the State, not Craycraft. Compl. 25, ECF

No. 1. And based on those allegations, Craycraft could

not have violated the order. All he could do is what the

majority said: “advis[e] a witness to act in unethical

ways,” which frustrated the order directed to a third

party. Pet. App. 16a–17a.

Second, Price says that the Sixth Circuit’s reasoning was broad, extending “absolute immunity to all

‘matters related to a court order in a criminal case.’”

Pet. 21 (citing Pet. App. 15a). But the Sixth Circuit relied on more than that statement for its holding. Pet.

App. 15a–16a. And the court expressly left open the

question of a prosecutor “violat[ing] a court order directed to him.” Id. at 16a. It was clear that its holding

went only to Craycraft allegedly advising a witness to

act in a way that frustrated a court order to a third

party. Id. That holding does not take sides in the circuit split Price identifies.

Third, Price points out that Gagan considered a

court order to a third party. Pet. 21. And she disagrees

with the Sixth Circuit’s distinguishing that case as involving a civil proceeding, arguing that the Sixth Circuit views habeas proceedings like active prosecutions. Pet. 20. Even so, there are big differences between directing a court reporter to violate a court or-

der and advising a witness to frustrate an order directed to a third party. And Price cannot get around

that the Tenth Circuit thought it material in Gagan

that there was no ongoing prosecution, only a habeas

civil proceeding. 35 F.3d at 1476. Even if the Sixth Circuit might not credit that distinction in all circumstances, it mattered to the Tenth Circuit. And so that

fact further distinguishes Gagan from the decision below.

At bottom, no circuit split is cleanly presented

here. Price’s lead argument does not support this

Court reviewing the case.

II. The decision below tracks this Court’s cases.

The same goes for Price’s second argument. She argues that the Court should grant review because of

how the Sixth Circuit resolved both questions presented. Pet. 21–29. On this, Price hangs her hat on her

position that absolute immunity applies only to acts of

advocative discretion. But the Court’s cases do not

draw that line. Acting in the role of an advocate is the

typical line. Besides, even if a prosecutor must act as

an advocate and with discretion, what the complaint

alleges Craycraft did easily qualifies.

1. Go back to the caselaw. Time and again, the

Court has explained that acts “intimately associated

with the judicial phase of the criminal process” get absolute immunity. Imbler, 424 U.S. at 430. Usually,

whether an act falls in that category is determined by

whether a prosecutor is acting in the role of an advocate or in some other role like an administrator or investigator. Burns, 500 U.S. at 492, 496; Buckley, 509

U.S. at 274–75; Kalina, 522 U.S. at 130–31. But at

times, even if an act is done in a different role than an

advocate, it can still get absolute immunity. For example, an administrative act can qualify if it is closely

connected to trial and involves legal knowledge and

discretion. Van de Kamp, 555 U.S. at 344. But the

Court has never held that absolute immunity applies

only if an act is both done as an advocate and involves

the exercise of discretion. Indeed, the phrase “advocative discretion” appears nowhere in the cases.

Still, Price puts that forward as the test. She

latches onto the point about administrative acts in

Van de Kamp and cherry-picks phrases out of the

other cases. See Pet. 22. As she tells it, a prosecutor

can only act as an advocate when he is exercising discretion. Now, no doubt, if a prosecutor is exercising

discretion related to an ongoing prosecution, then he

is acting as an advocate. But he can also act as one

without exercising discretion.

For example, in Burns the Court held that absolute

immunity applied both to a prosecutor’s “appearance

in court in support of an application for a search warrant and the presentation of evidence at that hearing.”

500 U.S. at 492 (emphasis added). Of course, appearing at a hearing involves little (if any) discretion. The

prosecutor just has to show up. But he still acts as an

advocate when he does so.

And Van de Kamp does not change that. The Court

there focused in part on discretion and legal

knowledge because the alleged acts were done in the

role of an administrator, not an advocate. Van de

Kamp, 555 U.S. at 344. It merely explained that if an

administrative act is closely connected to a criminal

trial and involves legal knowledge and discretion, then

absolute immunity applies. That does not, however,

mean that acts done in an advocate’s role must involve

legal knowledge and discretion.

In short, Price’s argument that the Sixth Circuit

got it wrong because the acts at issue did not involve

advocative discretion has a faulty premise. To receive

absolute immunity, the acts just needed to be done in

the role of an advocate.

2. And they were. The Sixth Circuit got that exactly

right. Advising a witness in an ongoing prosecution to

destroy exculpatory evidence is done in the role of an

advocate. See Pet. App. 12a–15a. How could it not be

when withholding exculpatory evidence is done in that

role? See Imbler, 424 U.S. at 416, 430.

To be sure, the Third Circuit tries to distinguish

the two acts, saying that withholding involves discretion but destroying does not. Yarris, 465 F.3d at 136–

37. But that distinction makes no sense. Whether to

destroy evidence involves the same type of determinations as whether to produce it. For example, is the evidence material? Is it exculpatory? Is there a legal

duty to maintain it? A prosecutor is not done making

such determinations after deciding not to produce the

evidence. In fact, it could be the case that the prosecution never had the evidence to turn over at first—exactly what’s alleged here.

Plus, all that does not account for the complaint alleging that the evidence was destroyed because

Craycraft advised a witness. Giving advice in an ongoing prosecution to a witness related to evidence is a

common task for a prosecutor. In sum, the alleged act

here was done in the role of an advocate. The Sixth

Circuit got it right: absolute immunity applies.

Besides, that holds even under Price’s theory of absolute immunity requiring an act to be done as an advocate and with discretion. Price tries to argue otherwise by characterizing the act only as a prosecutor destroying exculpatory evidence. And she argues that

destroying evidence is an administrative task done

within the prosecutor’s office. Pet. 23–24. Two points

there.

First, the complaint does not allege that Craycraft

himself destroyed the evidence. It alleges that he advised a witness to do so. Giving advice to a witness

both involves discretion and is done in the role of an

advocate. Consider it this way. What if Craycraft were

alleged to have told Martin to hold onto the evidence

because it was material and potentially exculpatory?

No doubt, that involves “advocative discretion.” It is

giving legal advice to a witness in an ongoing prosecution about preserving exculpatory evidence. Giving

the opposite advice is no different. It still involves discretion and still is done as an advocate.

Second, the characterization of destroying evidence

as a pure administrative task makes no sense here.

There is no allegation that the evidence was destroyed

as part of routine document-retention processes. The

allegation is that Craycraft “was well aware that he

was removing the most critical and probative evidence

remaining in the case.” Compl. 27, ECF No. 1. He allegedly singled out this evidence. That is not done as

an administrator.

On top of that, even assuming that destroying evidence could be an administrative task, such an act is

just like those in Van de Kamp. Destroying evidence

related to an ongoing prosecution is closely connected

to trial and involves legal knowledge and discretion.

Van de Kamp, 555 U.S. at 344. Doing so requires determining whether the evidence is material or exculpatory, whether there is a duty to maintain, and so on.

The Sixth Circuit got the first question presented

right, no matter whether Price’s framing of the law is

correct.

3. And it got the second question right too. The

Sixth Circuit correctly held that absolute immunity

applies to advising a witness to act in a way that frustrates a court order to a third party. Pet. App. 15a–

17a. The same above analysis holds. The complaint alleges only that a prosecutor in an ongoing prosecution

advised a witness on what to do with evidence subject

to a court order to a third party. Giving such advice is

done as an advocate. And the act requires discretion,

if that matters.

Again, consider if the allegations were the opposite: that Craycraft advised Martin to hold onto the

evidence because of the court order. That’s giving legal

advice to a witness in an ongoing prosecution to ensure

that an order in that prosecution is effective. Doing so

falls squarely in the role of an advocate and requires

the exercise of discretion. And if advising a witness

like that gets absolute immunity, then advising a witness the other way does too. This question is straightforward whether Price’s advocative-discretion theory

applies or not.

All in all, Price’s view of the merits is no reason to

grant review here. The Sixth Circuit followed this

Court’s cases and correctly held that absolute immunity applies.

III. No other reason justifies review.

After her main arguments, Price offers some secondary ones. She says that the questions presented

are important and recurring. Pet. 29–32. More specifically, she argues that prosecutorial misconduct is “far

from rare,” that the alleged conduct here is particularly egregious, and that absolute immunity has shaky

historical foundations. Id. But none of her arguments

justify granting certiorari.

Start with her claim that prosecutorial misconduct

keeps happening. There of course are bad actors out

there. But that general point cannot justify review

here, not given the specific allegations in the complaint. Put differently, the questions presented—

properly framed—are not recurring. Price offers no

other example of a prosecutor allegedly advising a witness to destroy exculpatory evidence and frustrate a

court order directed to a third party. Indeed, as shown

above, she cannot even find a circuit decision with a

similar fact pattern. So if the Court grants review and

answers the questions presented by the complaint’s allegations, its resolution could have little legal effect on

other cases of alleged prosecutorial misconduct.

Similarly, the egregiousness of the alleged conduct

here adds little support for a grant. That is almost always true of absolute-immunity cases. And the whole

point of absolute immunity is to prevent suits against

a prosecutor from interfering with the time and judgment needed to do his job. See Rehberg, 566 U.S. at

365–66. That covers all alleged acts done in close connection to the judicial process—without regard to how

bad the allegations are.

And that leaves just the point about absolute immunity’s historical foundations. For that, Price echoes

Judge Nalbandian’s suggestion that the Court “take a

fresh look” at the doctrine. Pet. App. 39a n.6. Yet the

suggestion overlooks that the Court has held that

§ 1983 did not eliminate common-law immunities for

almost 75 years and absolute immunity in particular

for almost 50. See Rehberg, 566 U.S. at 361. It fails to

appreciate that the Court has reaffirmed the doctrine

time and again. Id. And it ignores that stare decisis

should well apply to the doctrine. See Burns, 500 U.S.

at 505 (Scalia, J., concurring in part). That is all the

more so because the question is one of statutory interpretation. See, e.g., Kimble v. Marvel Ent., LLC, 576

U.S. 446, 456 (2015).

Plus, Judge Nalbandian’s mention of what “seems

incongruous with what ought to be our instincts about

fairness and justice,” Pet. App. 39a n.6, goes against

this Court’s frequent reminder. Whether absolute immunity applies is not “a freewheeling policy choice.”

Rehberg, 566 U.S. at 363 (citation omitted). Absolute

immunity applies based on a comparison to the common law, including the considerations underlying its

grant of immunity. Id. at 363–66; Kalina, 522 U.S. at

123–24. That does not consider notions of fairness and

justice, which Judge Nalbandian correctly noted “raise

the specter of unmoored judicial decision making.”

Pet. App. 39a. n.6.

IV. This case is a poor vehicle.

Finally, consider Price’s vehicle argument. Pet. 32–

33. Of course, this argument alone cannot justify the

Court granting review. It matters only if Price’s other

arguments hit the mark. And they don’t. Even still,

this case is a poor vehicle to address the questions presented.

For starters, if we’re talking about the questions

presented as Price frames them, see Pet. i, neither is

cleanly presented here. This case does not directly

raise whether absolute immunity applies to a prosecutor destroying exculpatory evidence or violating a

court order. So if the Court wants to consider those

questions, it should wait for a case that better presents

them.

But the case is also a poor vehicle to resolve the

questions actually presented—for two reasons. First,

at a minimum qualified immunity will apply. Judge

Nalbandian easily concluded that. Pet. App. 46a–47a.

True, the parties did not address that at the Sixth Circuit because only absolute immunity was at issue on

appeal. But that just means if the Court grants review

and holds absolute immunity inapplicable, the case

will end up back in district court. There, Craycraft will

be able to raise qualified immunity, at the very least

in a motion for summary judgment. And the doctrine

is going to apply. Sure, the Court could still grant review to resolve the absolute-immunity question. But it

makes less sense to do so when it will ultimately make

little difference in the case.

Second, this case is a poor vehicle because

Craycraft did not do what the complaint alleges. Recall, there is sworn deposition testimony in the record

showing just that. Craycraft could not have been

clearer in his answer when asked whether he had advised Martin to destroy evidence: “Absolutely not.”

Dep. 97, ECF No. 113-1. He told Martin “to call her

attorney,” and “that was it.” Id. at 77.

Of course, in deciding whether absolute immunity

applies, we assume that the complaint’s allegations

are true. Kalina, 522 U.S. at 122. So if the Court decides to review this case, the deposition testimony will

not technically be in play. But that doesn’t mean in

considering whether to grant certiorari the Court

should ignore the real-world ramifications of doing so.

Granting certiorari here would only further tarnish Craycraft’s reputation as a prosecutor. He will be

memorialized in the U.S. Reports, with the notoriety

only this Court’s cases get, as the prosecutor who purportedly advised a witness to destroy exculpatory evidence and to frustrate a court order. Yet taken at his

sworn word, Craycraft did no such thing. And the reputational harm from such allegations is no small matter, especially given that many readers will fail to appreciate that the Court is bound by Price’s allegations.

No doubt, even if the Court grants, Craycraft will

continue to do his job with the “courage and independence” required of his office. Imbler, 424 U.S. at 423 (citation omitted). He will do so despite the further damage to his reputation as a prosecutor. But he shouldn’t

have to.

In the end, Price offers nothing that justifies a

grant of certiorari. The circuit splits she identifies are

not cleanly presented here. The decision below does

not directly raise whether a prosecutor has absolute

immunity for destroying exculpatory evidence or violating a court order directed to him. All it raises is

whether a prosecutor has such immunity for advising

a witness to destroy evidence and to act in a way that

frustrates a court order to a third party. And the decision below got the answers right. Absolute immunity

applies.

CONCLUSION

The Court should deny the petition for a writ of certiorari.

Respectfully submitted,