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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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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

Page
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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
SC, OE CEOS ioe sb vcicnacnccdocvaees 5
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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Vv

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,
ee ED wo beds kos aue rrcwe eden

Johnson v. Rex,
ee ee re SD ov ike viv odcs cs sccasddacurs

Kalina v. Fletcher,
EE os oe ctcbavckeneaees

Stump v. Sparkman,
eR ane aor ir rn PES nore ER

vil

Cited Authorities

Page
STATUTES
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$6 6.5 > SE 8 ee er erry 3, 5, 20, 21, 22
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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

19

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.

20

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.

22

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1593%3A1. Public record. Not legal advice.