Petition for Writ of Certiorari — Knox v. Mink (No. 07-516)

ati z RUS.

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Sh G 07-5160CT16 2007

No. 07- OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

SUSAN KNOX, a Chief Deputy District Attorney

working for the 19% Judicial District Attorney’s Office,

in her individual capacity,

Petitioner,

v.

THOMAS MINK; THE HOWLING PIG,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED SratTes Court OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Davip R. BRoUGHAM

Counsel of Record

ANDREW D. RINGEL

HAL & Evans, L.L.C.

1125 17" Street, Suite 600

Denver, CO 80202-2052

(303) 628-3300

Attorneys for Petitioner

211659 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

2

QUESTION PRESENTED

Is a prosecutor entitled to absolute immunity from

a 42 U.S.C. § 1983 claim based on her review of a search

warrant for sufficiency of probable cause pursuant to a

specific state statute requiring her to do so before the

search warrant’s presentation to a judge by the police?

a1

LIST OF PARTIES TO THE PROCEEDING

1. Susan Knox, petitioner

2. Thomas Mink, respondent

3. The Howling Pig, respondent

John W. Suthers and Kenneth R. Buck , defendants

below, have no interest in this proceeding. The other

entities in the caption at the Tenth Circuit were amici.

ili

TABLE OF CONTENTS

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List of Parties to the Proceeding .............. ii

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Table of Cited Authorities ................+6-- vi

LIE EET POE OREO NS EOP OTF 1

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Constitutional and Statutory Provisions Involved

Taya EP ORS NAD RST EE HONS UUM RGN ESE Sere REI IE 1

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Reasons for Granting the Petition ............. 10

I. The United States Court Of Appeals For

The Tenth Circuit’s Decision Fails To

Follow Decisions From The Court ...... 10

II.

iv

Contents

A. The Court of Appeals Decision

Conflicts With Precedent from the

Court in Concluding Chief Deputy

District Attorney Knox’s Review and

Approval of the Search Warrant for

its Probable Cause Sufficiency Was

Not Undertaken in her Advocacy .

Role as an Officer of the Court .....

The Proceeding Involves A Question Of

Exceptional Importance, In That The

Result, If Undisturbed, Will Lead To

Significant Disruption For Prosecutors

Throughout The United States For

Defending Claims Pursuant To 42 U.S.C.

§ 1983 Because The Tenth Circuit’s

Decision Represents A Significant

Erosion In The Protections Afforded By

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TABLE OF APPENDICES

Appendix A — Opinion Of The United States

Court Of Appeals For The Tenth Circuit Filed

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Appendix B — Memorandum Order And Opinion

Of The United States District Court For The

District Of Colorado Dated And Filed October

SREP APt Cite ley Span er oleh em Nema orte s

Appendix C — Order Of The United States Court

Of Appeals For The Tenth Circuit Denying

Petition For Rehearing Filed July 19, 2007 ..

59a

vi

TABLE OF CITED AUTHORITIES

Page

Cases:

Antoine v. Byers & Anderson, Inc.,

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Buckley v. Fitzsimmons,

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Burns v. Reed,

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Cleavinger v. Saxner,

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Forrester v. White,

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Imbler v. Pachtman,

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Johnson v. Rex,

ee ee re SD ov ike viv odcs cs sccasddacurs

Kalina v. Fletcher,

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Stump v. Sparkman,

eR ane aor ir rn PES nore ER

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Cited Authorities

Page

STATUTES

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OPINIONS BELOW

The decision of the United States Court of Appeals has

been published at 482 F.2d 1244. App. la. The decision of

the United States District Court for the District of Colorado

has been published at 344 F. Supp.2d 1231. App. 39a. |

JURISDICTION

The opinion of the United States Court of Appeals for

the Tenth Circuit was issued on April 16, 2007. App. la.

Respondents Thomas Mink and The Howling Pig filed a

Motion for Extension of Time to File Petition for Rehearing

on April 26, 2007, which was granted by the Tenth Circuit

on April 27, 2007. On May 13, 2007, Respondents filed a

Petition for Panel Rehearing or Rehearing En Banc. The

United States Court of Appeals denied the Petition for

Panel Rehearing or Rehearing En Banc in an Order dated

July 19, 2007. App. 59a. The Court has jurisdiction to

entertain this petition for certiorari pursuant to the

provisions of 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fourth Amendment to the

United States Constitution:

The right of the people to be secure in their

persons, houses, papers and effects against

unreasonable searches and seizures shall not be

violated; and no warrant shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the place

to be searched, and the persons or things to be

seized.

2

This case also involves 42 U.S.C. § 1983:

Civil Action for Deprivation of Rights

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

For the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be considered to be a statute

of the District of Columbia.

This case also involves Colorado’s criminal libel

statute, C.R.S. § 18-13-105:

Criminal libel

(1) A person who shall knowingly publish

or disseminate, either by written instrument,

sign, pictures, or the like, any statement or

object tending to blacken the memory of one

who is dead, or to impeach the honesty,

integrity, virtue, or reputation or expose the

natural defects of one who is alive, and thereby

to expose him to public hatred, contempt, or

ridicule, commits criminal libel.

3

(2) It shall be an affirmative defense that

the publication was true, except libels tending

to blacken the memory of the dead and libels

tending to expose the natural defects of the

living.

(3) Criminal libel is a class 6 felony.

This case also involves a Colorado statute regarding review

by a district attorney of search warrant affidavits, C.R.S.

§ 20-1-106.1:

Preparaiion and review of affidavits and warrants

(1) The district attorneys of the several

judicial districts in the state of Colorado shall:

(a) Render, in their quasi-judicial

capacity, legal advice to peace officers,

upon the request of such officers or of the

court, pertaining to the preparation and

review of affidavits and warrants for

arrests, searches, seizures, nontestimonial

identification items, and court orders for

the production of records;

(b) Examine and evaluate each

affidavit for a no-knock search warrant

sought pursuant to part 3 of article 3 of

title 16, C.R.S., and render legal advice

regarding such affidavit to the peace

officer submitting the affidavit before such

affidavit is submitted to a judge.

A district attorney, including any assistant

4

district attorney, chief deputy district

attorney, or deputy district attorney, shall

indicate approval of an affidavit by placing

the date and his or her signature and

attorney registration number on the

affidavit as allowed by statute or court

rule. A district attorney shall only sign an

affidavit for a no-knock search warrant

sought pursuant to part 3 of article 3 of

title 16, C.R.S. upon satisfaction that the

information in such affidavit;

(I) Fulfills the requirements of

section 16-3-303, C.R.S.; and

(II) Supports the lawful issuance

of a search warrant pursuant to section

16-3-301, C.R.S.

(2) In the absence of the bad faith

performance of the duties specific in this section,

the district attorneys of the state of Colorado

shall be immune from liability for the

performance of said duties; except that such

immunity shall not apply to charges of perjury

in the first degree, perjury in the second degree,

or false swearing brought pursuant to section

18-8-502, 18-8-503, or 18-8-504, C.R.S.,

respectively.

(3) The division of criminal justice within

the Colorado department of public safety shall

review existing policies relating to the issuance

and use of no-knock search warrants pursuant

to section 24-33.5-503(1)(q), C.R.S.

5

STATEMENT OF THE CASE

Thomas Mink was a student at the University of

Northern Colorado (“UNC”). Mr. Mink published an

internet-based journal called The Howling Pig. Several

issues of The Howling Pig included Mr. Mink’s column

under the pen name “Jun’ is Puke,” which parodied the

views of an actual UNC professor named Junius Peake.

Professor Peake complained to the Greeley Police

Department who initiated an investigation of Mr. Mink

for potential violations of Colorado’s criminal libel

statute, C.R.S. § 18-13-105.

The Greeley Police Department sought a search

warrant to search Mr. Mink’s home. Pursuant to the

procedures of Colorado law, a police detective prepared

a search warrant affidavit and submitted the affidavit

to the office of the district attorney for legal review

pursuant to C.R.S. § 20-1-106.1. Chief Deputy District

Attorney Susan Knox reviewed and approved the search

warrant affidavit for its sufficiency for probable cause.

The search warrant affidavit was then presented to and

approved by a Colorado magistrate judge. With the

search warrant in hand, the Greeley Police Department

searched Mr. Mink’s home on December 12, 2003. The

police confiscated various computer and other materials

related to The Howling Pig. Ultimately, the District

Attorney determined not to prosecute Mr. Mink for

criminal libel.

Mr. Mink filed this lawsuit on January 8, 2004,

alleging Ms. Knox violated his constitutional rights

pursuant to 42 U.S.C. § 1983, as well as his statutory

rights under the Privacy Protection Act, 42 U.S.C.

6

§ 2000aa, and the Electronic Communications Privacy Act,

18 U.S.C. § 2703. The operative complaint in this matter is

Mr. Mink’s First Amended and Supplemented Complaint

dated February 19, 2004. App. 7a. Ms. Knox filed a Motion

to Dismiss or in the Alternative for Summary Judgment

on April 9, 2004. On October 26, 2004, United States Chief

District Judge Lewis T. Babcock issued his Memorandum

Order and Opinion granting Ms. Knox’s Motion to Dismiss.

App. 39a. The District Court concluded Mr. Mink failed to

state any cognizable Privacy Protection Act or Electronic

Communications Act claim. App. 46a & App. 57a.

The District Court also held Ms. Knox was entitled to

absolute immunity from Mr. Mink’s 42 U.S.C. § 1983 Fourth

Amendment claim because she acted in a quasi-judicial

capacity when she reviewed and approved the search

warrant affidavit for the Greeley Police Department.

App. 5la. In pertinent part, the District Court reasoned:

Ms. Knox’s review of the warrant affidavit

was a proximate (and commendable) precursor

to the presentation of the affidavit before the

magistrate, an undisputedly quasi-judicial

activity. Had Ms. Knox herself presented the

warrant affidavit to the magistrate after

reviewing and approving it, all of her actions

undoubtedly would have fallen within the

immunity in Burns and Roberts. I cannot see

how her delegation of the latter task to a police

officer affects her immunity for the former. It is

not too much to presume that the police brought

the affidavit to Ms. Knox for approval in her

capacity as an “officer of the court.” Pfeiffer, 929

F.2d at 1490.

7

The rationale underlying absolute

prosecutorial immunity counsels in favor of

recognizing it in this case. The Jmbler Court

explained that the immunity of a prosecutor

is based upon the same considerations that

underlie the common-law judicial immunities

that judges and grand jurors enjoy. Imbler,

424 U.S. at 422-423. Subjecting prosecutors to

liability for prosecuting unsuccessful cases

would, the Court reasoned, undermine

performance of the prosecutor’s duties; the

“public trust of the prosecutor’s office would

suffer if he were constrained in making every

decision by the consequences in terms of his

own potential liability in a suit for damages.”

Imbler, 424 U.S. 424-425. “Further, if the

prosecutor could be made to answer in court

each time such a person charged him with

wrongdoing, his energy and attention would

be diverted from the pressing duty of

enforcing the criminal law.” Imbler, 424 U.S.

at 425.

Police ought to be encouraged to bring

warrant affidavits to prosecutors before

entreating magistrates. Such a practice

promotes reliability and judicial economy.

Prosecutors are expected to be as

knowledgeable as judges concerning the legal

requirements of probable cause and are

qualified to make the fundamentally judicial

determination that an affidavit does or does

not meet the legal standard. Prosecutors in

such circumstances must, if the practice is to

8

produce just results, be immunized from suit

for their decisions as are judges. And

prosecutors ought not be discouraged from

performing such reviews by the prospect of

suit.

An additional consideration for the Imbler

Court was the heightened difficulty an honest

prosecutor would face in asserting a qualified

immunity defense because in a vacuum, many

decisions that a prosecutor makes can be

perceived as constitutional deprivations.

Imbler, 424 U.S. at 425-426. Qualifying a

prosecutor’s immunity “would prevent the

vigorous and fearless performance of the

prosecutor’s duty to the proper functioning of

the criminal justice syste'a.” Imbler, 424 U.S.

at 427-428. Of course, when viewed in context,

a prosecutor’s advocacy for the state is often

counterbalanced by the advocacy of the

defense. If a prosecutor presents a witness of

dubious credibility, for example, the defense

is free to impeach that witness through cross-

examination. That countervailing force is

absent in this case. However, many adversarial

acts of prosecutors—such as presenting

evidence for search warrant applications,

appearing before grand juries, and swearing

out criminal complaints—meet no resistance

from defense attorneys, but warrant absolute

immunity nonetheless because they are

essential to the efficient functioning of the

criminal justice system.

9

Ms. Knox cites to Colorado Revised

Statutes Section 20-1-106.1 (“Immunity Act”)

as a basis of absolute immunity. As state law,

the Immunity Act cannot immunize Ms. Knox

from a 42 U.S.C. § 1983 claim. See Howlett v.

Rose, 496 U.S. 356, 376, 110 S. Ct. 2430, 110

L.Ed. 2d 332 (1990). However, in the absence

of clear Federal law on the question, the

Immunity Act provides a persuasive

understanding of what constitutes a quasi-

judicial act. It provides that, in the absence of

bad faith, prosecutors “shall be immune from

liability for the performance of” various

“quasi-judicial” duties, including examination

and evaluation of an affidavit for a search

warrant “before such affidavit is submitted to

a judge.” Colo. Rev. Stat. § 20-1-106.1 (1 and

2). This rule is consistent with the ends

outlined in Jmbler.

Ms. Knox is absolutely immune from

liability on the Third Claim.

App. 49a-5la. Judgment was entered by the District

Court on October 27, 2004.

On November 24, 2004, Mr. Mink filed his Notice of

Appeal to appeal the District Court’s grant of the

motions to dismiss in favor of all of the Defendants,

including Ms. Knox. The United States Court of Appeals

for the Tenth Circuit, in an Opinion dated April 16, 2007,

reversed the District Court’s grant of absolute immunity

to Ms. Knox on Mr. Mink’s 42 U.S.C. § 1983 Fourth

Amendment claim. App. la.

10

REASONS FOR GRANTING THE PETITION

I. The United States Court Of Appeals For The

Tenth Circuit’s Decision Fails To Follow

Decisions From The Court

The Court of Appeals’ decision fails to follow

decisions from the Court in two respects. First, the Court

of Appeals’ analytical approach is not faithful-to this

Court’s functional approach for making absolute

immunity decisions. The Court of Appeals, rather than

analyzing the function of Ms. Knox’s review and approval

of the search warrant affidavit in the context of the

applicable Colorado statute and the practice of the

judicial district where she worked, instead narrowly

focused on whether Ms. Knox’s activities could be

characterized as advocacy. The Court of Appeals’ failure

to follow a functional analysis and to analyze the purpose

of Ms. Knox’s activities against the background of the

real world is inconsistent with this Court’s prior

approach. Second, the Court of Appeals’ decision failed

to evaluate Ms. Knox’s actions based on the undisputed

fact that her only action with respect to the search

warrant affidavit was to conduct a review of it for its

legal sufficiency from a Fourth Amendment probable

cause perspective pursuant to Colorado law. The failure

by the Court of Appeals to understand the importance

of why Ms. Knox conducted the legal sufficiency review

she did is also inconsistent with this Court’s approach.

1]

A. The Court of Appeals Decision Conflicts With

Precedent From the Court in Concluding Chief

Deputy District Attorney Knox’s Review and

Approval of the Search Warrant for its Probable

Cause Sufficiency Was Not Undertaken in her

Advocacy Role as an Officer of the Court

The Court of Appeals incorrectly determined Ms.

Knox was not entitled to absolute immunity for her action

of reviewing the sufficiency of the arrest warrant

presented to her by the police for her review pursuant

to Colorado law. Both the Court of Appeals’ analysis and

its holding are in conflict with prior decisions of this

Court providing absolute immunity to prosecutors in

their advocacy role and as officers of the court.

The starting place for any analysis of Ms. Knox’s

entitlement to absolute immunity should be this Court’s

decision in Jmbler v. Pachtman, 424 U.S. 409 (1976).

There, this Court held that “in initiating a prosecution

and in presenting the State’s case, the prosecutor is

immune from a civil suit for damages under § 1983.”

Id. at 481. In Jmbler, this Court at least hinted that a

“functional approach” should be used in evaluating the

activities of a prosecutor to determine whether absolute

immunity applied. /d. at 430-431. Following /mbler, this

Court has unambiguously adopted a functional approach

to addressing absolute immunity issues. See, e.g.,

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36

(1993); Forrester v. White, 484 U.S. 219, 223-24 (1988);

Cleavinger v. Saxner, 474 U.S. 193, 201-202 (1985).

The Court next addressed absolute immunity for

prosecutors in Burns v. Reed, 500 U.S. 478 (1991). In

12

Burns, this Court addressed whether a state prosecuting

attorney was absolutely immune from liability for

damages in a 42 U.S.C. § 1983 case inter alia for

participating in a probable cause hearing before a county

court judge seeking to obtain a search warrant to search

a criminal suspect’s house and car. /d. at 481-482. The

Court concluded the prosecutor’s participation in the

probable cause hearing where he examined a witness and

successfully obtained a search warrant from the county

court warranted absolute immunity. Jd. at 487-492.

In so doing, this Court noted that “the issuance of a

search warrant is unquestionably a judicial act.” Jd. at

492 (citing Stump v. Sparkman, 435 U.S. 349, 363 n. 12

(1978)). Further, this Court also observed that “the duties

of the prosecutor in his role as advocate for the State

involve actions preliminary to the initiation of a

prosecution.” Jd. at 492 (quoting /mbler, 424 U.S. at 431

n. 33). However, with respect to the search warrant, this

Court carefully examined what was at issue and noted

“({ajn examination of petitioner’s complaint, the decisions

by both the District Court and the Seventh Circuit, and

the questions presented in the petition for a writ of

certiorari in this Court reveals that petitioner has

challenged only respondent’s participation in the

hearing, and not his motivation in seeking the search

warrant or his conduct outside of the courtroom related

to the warrant.” Id. at 487 (emphasis and alteration

added).' Thus, the issue presented in this case was

expressly left open in Burns.

1. Indeed, the scope of what was at issue with the

petitioner’s claims in Burns was in dispute between this Court

and the dissent. Compare Burns, 500 U.S. at 487-489 & n. 5 with

Burns, 500 U.S. at 496-505 (Scalia, J. dissenting).

13

Following Burns, this Court in Buckley v.

Fitzsimmons, 509 U.S. 259 (1993), reaffirmed the

principle that a prosecutor may be entitled to absolute

immunity for activities preliminary to the actual

initiation of a prosecution. In Buckley, this Court

concluded:

We have not retreated, however, from the

principle that acts undertaken by a prosecutor

in preparing for the initiation of judicial

proceedings or for trial, and which occur in the

course of his role as an advocate for the State,

are entitled to the protections of absolute

immunity. Those acts must include the

professional evaluation of the evidence

assembled by the police and appropriate

preparation for its presentation at trial or

before a grand jury after a decision to seek an

indictment has been made.

Buckley, 509 U.S. at 278. Ultimately, in Buckley, the

Court determined the prosecutors were not entitled to

absolute immunity because their activities at issue in that

case were investigatory in nature and did not relate to

their professional role as advocates and officers of the

court. Buckley, 509 U.S. at 274.

In Kalina v. Fletcher, 522 U.S. 118 (1997), whether a

prosecutor was entitled to absolute immunity was again

presented to this Court. In Kalina, the state prosecutor

commenced a criminal proceeding by filing three

documents with the state district court—an information,

a motion for an arrest warrant, and Certification for

Determination of Probable Cause. At issue in Kalina

14

was the prosecutor’s completion of the Certification of

Probable Cause because it included a sworn statement

by the prosecutor herself vouching for the truth of the

facts set forth in the certification as supporting probable

cause. Kalina, 522 U.S. at 120-121. This Court concluded

that the prosecutor’s execution of the certification under

penalty of perjury made her a complaining witness and

not an advocate and therefore she was not entitled to

absolute immunity. Kalina, 522 U.S. at 129-131. However,

in reaching this conclusion, this Court’s analysis in

Kalina addressed a variety of issues of critical

importance to any determination of Ms. Knox’s absolute

immunity in this case that were ignored by the Court of

Appeals below.

Initially, the Court in Kalina made clear that the

prosecutor’s activities in evaluating the evidence to

determine whether sufficient probable cause existed and

even drafting the Certification of Probable Cause were

conducted in her role as an advocate. See Kalina, 522

U.S. at 129 (“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 third document in the package was part

of the advocate’s function as well.”); Kalina, 522 U.S. at

130 (“indeed, even the selection of the particular facts

to include in the certification to provide the evidentiary

support for the finding of probable cause required the

exercise of the judgment of an advocate.”). Review of

Kalina unequivocally demonstrates it was the

prosecutor’s taking on the role of a witness by swearing

to the facts contained in the Certification for Probable

15

Cause that rendered her actions not within the scope of

her advocacy role as an officer of the court.

Testifying about facts is the function of a

witness, not of the lawyer. No matter how brief

oe it may be, the evidentiary

ponent of an application for an arrest

warrant is a distinct and essential predicate

for a finding of probable cause. Even 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.

Kalina, 522 U.S. at 130-131.

Further, the Court in Kalina evaluated the prosecutor’s

absolute immunity in that case in the context of the legal

requirements and practice of the prosecutors in her

jurisdiction, as follows:

Although the law required that document to

be sworn or certified under penalty of perjury,

neither federal nor state law made it necessary

for the prosecutor to make that certification.

In doing so, petitioner performed an act that any

competent witness might have performed. Even

if she may have been following a practice that

was routinely employed by her colleagues and

predecessors in King County, Washington, that

practice is surely not prevalent in other parts of

the country and is not even mandated by law in

King County. Neither petitioner nor amici argue

that prosecutors routinely follow the King

16

County practice. Indeed, tradition, as well as the

ethics of our profession, generally instruct

counsel to avoid the risks associated with

participating as both advocate and witness in the

same proceeding.

Kalina, 522 U.S. at 129-130.

The Court of Appeals acknowledged this Court’s

cases cited above, but concluded that Ms. Knox’s role in

reviewing the search warrant affidavit and evaluating

its probable cause sufficiency pursuant to her specific

obligation under Colorado law did not involve advocacy,

but instead “her function was to provide legal advice

outside the courtroom to aid a nascent investigation.”

App. 36a. This analysis and conclusion by the Court of

Appeals is fundamentally at odds with this Court’s

absolute immunity precedent.

First, the Court of Appeals, while paying lip service

to this Court’s functional approach to absolute immunity

questions, actually analyzed Ms. Knox’s entitlement to

absolute immunity by determining whether her state-

law mandated review of the search warrant affidavit

constituted “advocacy” or “investigation.” App. 34a-37a.

The Court of Appeals’ binary approach is inconsistent

with this Court’s long-standing functional approach.

Fundamentally, the problem with the Ccurt of Appeals’

approach in this case is that Ms. Knox’s review of the

search warrant is not easily categorized as either

“advocacy” or “investigation.” The Court of Appeals’

categorical approach drove its conclusion that Ms. Knox

was not acting as an advocate in reviewing the search

warrant affidavit so she must have been acting in an

17

investigatory capacity. The failure by the Court of

Appeals to employ the type of nuanced functional

approach adopted by this Court led the Court of Appeals

astray in both its analysis and its conclusion. The proper

approach to evaluating Ms. Knox’s entitlement to

absolute immunity in reviewing the search warrant

affidavit is to focus on how her actions relate to the

judicial process and whether her actions were uniquely

delegated to prosecutors under Colorado law. See, e.g.,

Burns, 500 U.S. at 495 (“Rather, as in /mbler, we inquire

whether the prosecutor’s actions are closely associated

with the judicial process.”); Burns, 500 U.S. at 494

(“Absolute immunity is designed to free the judicial

process from the harassment and intimidation associated

with litigation. That concern therefore justifies absolute

prosecutorial immunity only for actions that are

connected with the prosecutor’s role in judicial

proceedings, not for every litigation-inducing conduct.”;

emphasis in original).

Applying a functional approach to Ms. Knox’s action

in reviewing the search warrant affidavit in this case

pursuant to Colorado law prior to its submission to the

magistrate judge demonstrates its close association with

the judicial process. As the District Court recognized,

“Ms. Knox’s review of the warrant affidavit was a

proximate (and commendable) precursor to the

presentation of the affidavit before the magistrate, an

undisputably quasi-judicial activity.” App. 49a. Ms. Knox

reviewed the search warrant affidavit not as part of any

investigation in conjunction with the police, but instead

as part of her role as a deputy district attorney to

determine whether the facts presente’ in the search

werrant af idavit met the Fourth Amendment probable

18

cause legal standard. Nothing about what Ms. Knox did

was to assist the police in any investigatory activity.

Instead, she provided a prior legal review of the search

warrant affidavit in her role as a prosecutor and an

officer of the court. No allegations have been raised that

Ms. Knox had any involvement whatsoever in the

gathering of evidence by the police or that she provided

any legal advice to the police about their investigatory

activities. “Nothing in the Amended Complaint indicates

Ms. Knox discussed with police the advisability of

searching the Mink residence or that she assisted the

police in drafting the warrant in such a way as to increase

the likelihood that the magistrate would find probable

cause. Instead, the Plaintiffs allege only that Ms. Knox

‘reviewed and approved the affidavit submitted to the

state district court in support of the warrant to search

the Minks’ home.’ Amended Complaint, 16.” App. 47a-

48a. As this excerpt from the District Court’s opinion

makes clear, in a fashion never rebutted by the Court of

Appeals, Ms. Knox was not attempting to guide the

police. Instead, she reviewed the search warrant affidavit

to assist the court by screening it prior to its submission

by the police. Again, the District Court’s analysis of both

the nature of Ms. Knox’s role and the inherent utility of

this type of pre-court review is worth quoting in full in

this context:

Police ought to be encouraged to bring

warrant affidavits to prosecutors before

entreating magistrates. Such a practice

promotes reliability and judicial economy.

Prosecutors are expected to be as

knowledgeable as judges concerning the legal

requirements of probable cause and are

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qualified to make the fundamentally judicial

determination that an affidavit does or does

not meet the legal standard. Prosecutors in

such circumstances must, if the practice is to

produce just results, be immunized from suit

for their decisions as are judges. And

prosecutors ought not be discouraged from

performing such reviews by the prospect of

suit.

App. 50a. The District Court’s approach, not that of the

Court of Appeals, appropriately analyzes the absolute

immunity issue under the functional approach mandated

by this Court.

Further, the Court of Appeals’ analysis fails to

account for the nature of Ms. Knox’s review of the search

warrant affidavit in terms of its sufficiency for meeting

the legal standard for probable cause. Ms. Knox did not

review the search warrant affidavit to determine its

sufficiency in terms of its evidence or to evaluate the

investigatory efforts of the police. Instead, and in sharp

contrast, Ms. Knox reviewed the search warrant affidavit

to determine if it met the legal requirements for probable

cause. This type of exercise of the professional judgment

of a prosecutor, as the District Court recognized, is all

together different and demonstrates a close association

with the judicial process itself. See, e.g., Kalina, 522 U.S.

at 130 (noting that the prosecutor’s “determination that

the evidence was sufficiently strong to justify a probable-

cause finding” was the work of an advocate).

Second, the Court of Appeals ignored how this

Court’s analysis in Kalina is germane to evaluating Ms.

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Knox’s actions as a function of Colorado law. It is

undisputed that Ms. Knox reviewed the search warrant

affidavit presented to her by the police because of the

requirements of Colorado law found at C.R.S. § 20-1-

106.1. Based on this statute, Ms. Knox was required as

part of her official duties and responsibilities as a district

attorney, to review any search warrant affidavits

presented to her by law enforcement to determine

whether they met the legal requirements of probable

cause. It is significant that Ms. Knox’s activities were

pursuant to this specific Colorado statute. In Kalina, as

quoted above, this Court specifically noted that the

prosecutor’s swearing of the facts in the Certification

for Probable Cause was not required by any state or

federal statute. Kalina, 522 U.S. at 129-130. This Court’s

reference to a potential statutory requirement

demonstrates that the existence of the type of specific

statutory requirement as C.R.S. § 20-1-106.1 presents a

different circumstance than Kalina. Indeed, at least by

implication, this Court’s analysis in Kalina strongly

suggests had the prosecutor in that case sworn the

Certification for Probable Cause pursuant to a specific

Washington statute she would have been entitled to

absolute immunity. The Court of Appeals never

considered this aspect of either Kalina or how Ms.

Knox’s activities pursuant to this Colorado statute

differentiated this situation and made it subject to

absolute immunity.

Instead, the Court of Appeals discounted the import

of C.R.S. § 20-1-106.1 by suggesting that state law cannot

create immunity for a federal 42 U.S.C. § 1983 claim.

App. 37a. The Court of Appeals’ analysis is perfunctory.

Ms. Knox relies on C.R.S. § 20-1-106.1 to provide the

21

context for her actions and to demonstrate that under

Kalina her actions in reviewing the search warrant

affidavit pursuant to a specific requirement of Colorado

law is qualitatively different than simply doing so at the

instigation of the police. Indeed, as stated in Ms. Knox’s

affidavit filed with the District Court in support of her

motion, Ms. Knox related she reviewed the search

warrant affidavit in this case pursuant to the practice of

the county and district judges in the judicial district who

requested review of search warrant affidavits by the

district attorney’s office prior to their submission to a

judge. Ms. Knox’s actions pursuant to Colorado law and

the explicit court-mandated practice of her judicial

district makes this situation the equivalent of what this

Court explained would be different in Kalina. The Court

of Appeals’ failure to analyze Ms. Knox’s absolute

immunity in these terms is inconsistent with Kalina.*

Under this Court’s functional approach, in

determining whether a prosecutor’s actions are subject

to absolute immunity, a court should ask whether the

action is one that is normally undertaken by a prosecutor

or by a police officer. Here, there can be no question,

2. Moreover, at least three prior members of this Court

previously raised an analogous issue. See Johnson v. Rex, 474 U.S.

967, 967 (1985) (Burger, C.J., joined by Rehnquist and O’Connor,

J.J., dissenting from denial of certiorari)

Here the prosecutor was acting as an officer of the court

in ensuring compliance with the Miranda [v. Arizona,

384 U.S. 436 (1966)] requirements, and I would grant

the petition for certiorari in order to define the

applicability of absolute immunity in this context; surely

the prosecutor’s action was well within his function as

a prosecutor and officer of the court.

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particularly in light of C.R.S. § 20-1-106.1 and the explicit

practice of the applicable judicial district, that the act of

reviewing a search warrant affidavit for its legal sufficiency

for probable cause prior to its submission to a judge is a

uniquely prosecutorial role, and not one that is either

normally performed, or even could be performed, by a

police officer. Ms. Knox is therefore entitled to absolute

immunity from any claim arising from her action in

reviewing the search warrant, and the Court of Appeals’

determination to the contrary is incorrect and must be

reviewed by this Court.

II. The Proceeding Involves A Question Of Exceptional

Importance, In That The Result, If Undisturbed,

Will Lead To Significant Disruption For

Prosecutors Throughout The United States For

Defending Claims Pursuant To 42 U.S.C.

§ 1983 Because The Tenth Circuit’s Decision

Represents A Significant Erosion In The

Protections Afforded By Absolute Immunity

As the Court has repeatedly and consistently

recognized, important public policy reasons exist for

affording prosecutors absolute immunity from subsequent

civil suits related to their activities as a prosecutor. “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.” /mbler, 424 U.S. at

423. Indeed, the Court has also recognized that the unique

role of the prosecutor means that affording prosecutors

only qualified immunity would be an inadequate protection

for them from the threat and distraction inherent in

23

litigation challenging their prior prosecutorial decisions.

Imbler, 424 U.S. at 425.

The policy concerns animating this Court’s absolute

immunity jurisprudence apply with equal force under these

circumstances. Ms. Knox reviewed the search warrant

affidavit pursuant to Colorado law and the explicit practice

of the judges in the judicial district where she worked. The

clear rationale behind both these statutory and judicial

requirements were to have prosecutors review the search

warrant affidavits as officers of the court to assist the court

in its efforts to review warrant applications under the

Fourth Amendment. Thus, the operations of the judiciary

are unmistakably implicated by the process followed by

Ms. Knox in this case. If absolute immunity is not afforded

to Ms. Knox, prosecutors may not be willing to engage in

this type of review and the judicial system will

unnecessarily suffer as a result. As the District Court

recognized in this case, the salutary purpose of the

statutory review by prosecutors would be undermined by

a conclusion that absolute immunity does not attach to this

type of review of a search warrant affidavit by a prosecutor.

Overall, the public policy benefit of having prosecutors

review search warrant affidavits for their legal sufficiency

under the Fourth Amendment outweighs the competing

concerns of allowing disaffected persons who aré the

subject of such search warrants to sue the prosecutor. As

the Court has recognized in this context, a variety of

different other avenues exist for a disaffected person to

seek relief from inappropriate prosecutorial actions. Here,

the balance must be struck in favor of affording Ms. Knox

absolute immunity from the Plaintiffs’ 42 U.S.C. § 1983

claims for her action in reviewing the search warrant

presented to her by the police pursuant to Colorado law

24

and the policy of the judicial district where she worked as

a prosecutor. The Court should take this case to provide it

with an opportunity to reaffirm the important absolute

immunity principles present here.

CONCLUSION

In conclusion, for all of the foregoing reasons,

Petitioner Susan Knox, a Chief Deputy District Attorney

working for the 19“ Judicial District Attorney’s Office,

in her individual capacity, respectfully requests this

Court grant her Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit.

Respectfully submitted,

Davip R. BROUGHAM

Counsel of Record

ANDREW D. RINGEL

Hai & Evans, L.L.C.

1125 17" Street, Suite 600

Denver, CO 80202-2052

(803) 628-3300

Attorneys for Petitioner