Gobel v. Maricopa County

• Decision Date: 09 February 1989
• Docket Number: No. 87-2351,87-2351
• Citation: 867 F.2d 1201
• Parties: Earl Edwin GOBEL and Michael J. DeFranco, Plaintiffs-Appellants, v. MARICOPA COUNTY, Thomas E. Collins, David P. Stoller, and Frank Gary, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1201

867 F.2d 1201

Earl Edwin GOBEL and Michael J. DeFranco, Plaintiffs-Appellants, v. MARICOPA COUNTY, Thomas E. Collins, David P. Stoller, and Frank Gary, Defendants-Appellees.

No. 87-2351.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 18, 1988.

Decided Feb. 9, 1989.

Richard M. Gerry, Richard M. Gerry, P.C., Phoenix, Ariz., for plaintiffs-appellants.

Roger A. Burrell, former Deputy County Atty., and Cleon M. Duke, Deputy County Atty., Maricopa County Attorneys Office, Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before PREGERSON, CANBY and BEEZER, Circuit Judges.

PREGERSON, Circuit Judge:

Earl Edwin Gobel and Michael J. DeFranco appeal the district court's dismissal of their 42 U.S.C. Sec. 1983 action for failure to state a claim. Gobel and DeFranco alleged in their civil rights complaint that Maricopa County, two county attorneys, and an investigator violated their constitutional rights by arresting them without probable cause due to mistaken identifications, issuing false statements to the news media, and subjecting them to illegal conditions of confinement.

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse the judgment and remand for further proceedings.

BACKGROUND

Gobel and DeFranco were each arrested on August 24, 1985, and charged with issuing bad checks in violation of Ariz.Rev.Stat. Sec. 13-1807. ¹ Both men were wrongly arrested as a result of mistaken identifications, ² and the charges against both men were subsequently dropped.

On May 14, 1986, Gobel and DeFranco filed a civil rights action against Maricopa County, County Attorney Thomas Collins, Assistant County Attorney David Stoller, and investigator Frank Gary. Their amended complaint alleged that Collins ordered a public roundup of bad check offenders in order to enhance his public image and political career, and that, pursuant to this effort, the individual defendants caused criminal complaints and arrest warrants to be filed that resulted in Gobel and DeFranco's arrests without probable cause. ³ The complaint asserted that the defendants violated Gobel and DeFranco's constitutional rights by (1) having them arrested without probable cause, (2) issuing false statements to the news media, and (3) subjecting them to illegal conditions of post-arrest confinement. ⁴ The complaint sought damages and equitable relief in the form of a public apology.

The district court granted a Fed.R.Civ.P. 12(b)(6) dismissal as to Collins, Stoller, and Gary on the ground of absolute prosecutorial immunity. The district court also granted Maricopa County's dismissal motion

on the ground that the complaint failed to state a claim against the municipality. The court dismissed the action, and Gobel and DeFranco timely appeal.

DISCUSSION

We review de novo a district court's dismissal of an action for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Mir v. Little Company of Mary Hospital, 844 F.2d 646, 649 (9th Cir.1988). A Rule 12(b)(6) dismissal motion "can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980). We liberally construe civil rights complaints. Thomas v. Younglove, 545 F.2d 1171, 1172 (9th Cir.1976).

I Prosecutors

Gobel and DeFranco contend the district court erred in determining that county attorneys Collins and Stoller, and investigator Gary (hereafter collectively referred to as "the prosecutors") are protected by absolute prosecutorial immunity. Specifically, they contend that the prosecutors were not acting in their quasi-judicial capacities when they engaged in the allegedly wrongful conduct. ⁵ This contention is meritorious.

Prosecutors are generally immune from civil damages under section 1983 for actions taken in their official capacities. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 994-96, 47 L.Ed.2d 128 (1976); Ashelman v. Pope, 793 F.2d 1072, 1075-76 (9th Cir.1986) (en banc). ⁶ A prosecutor enjoys absolute immunity when he acts within the scope of his authority and in a quasi-judicial capacity. Ashelman, 793 F.2d at 1075; Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir.1984). ⁷ Quasi-judicial activities are those which are "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430, 96 S.Ct. at 995. "The focus of the [immunity] analysis ... is on the nature or function of the prosecutor's activity," and absolute immunity is warranted when the prosecutor acts as an advocate in initiating a prosecution and presenting the state's case. Ybarra, 723 F.2d at 678 (quoting Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-95). While a prosecutor's preparation for the initiation of the criminal process may require obtaining, reviewing, and evaluating evidence, at some point the prosecutor stops functioning as an officer of the court and loses the protection of absolute immunity. See Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. ⁸

A. False Arrest

The complaint alleged that, due to an inadequate pre-arrest investigation, the prosecutors failed to ascertain the correct identity of the persons meant to be arrested, and thereby caused Gobel and DeFranco to be arrested without probable cause. An arrest without probable cause violates the fourth amendment and gives rise to a claim for damages under section 1983. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir.1984).

"[A]bsolute prosecutorial immunity attaches to the actions of a prosecutor if those actions were performed as part of the prosecutor's preparation of his case, even if they can be characterized as 'investigative' or 'administrative.' " Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir.1984), cert. denied, 469 U.S. 1127, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985). See also Freeman ex rel. the Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir.1983) ("Investigative functions carried out pursuant to the preparation of a prosecutor's case ... enjoy absolute immunity."). However, where a prosecutor commits acts that are usually related to routine police activity, as opposed to judicial activity, absolute immunity does not apply. See Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978) (prosecutors, who joined police in implementing a wiretap to uncover information about a possible kidnapping, were not entitled to absolute immunity), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); Robichaud v. Ronan, 351 F.2d 533, 536-37 (9th Cir.1965) (prosecutors who allegedly directed police to coerce confession from suspect not entitled to absolute immunity because interrogation is ordinarily a police activity).

Numerous courts have held that prosecutors are not entitled to absolute immunity when they take part in the preliminary gathering of evidence that may ripen into a potential prosecution. See Barbera v. Smith, 836 F.2d 96, 100 (2d Cir.1987) (prosecutor not entitled to absolute immunity when acquiring evidence that might be used in a prosecution, as opposed to organizing, evaluating and marshalling this evidence to facilitate seeking a warrant or indictment), petition for cert. filed, June 13, 1988; Joseph v. Patterson, 795 F.2d 549, 555 (6th Cir.1986) (remand for further development of factual record to determine whether prosecutor's interrogation of witness was to prepare testimony for case presentation or for police-like investigation), cert. denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987); Rex v. Teeples, 753 F.2d 840, 844 (10th Cir.) (prosecutor's interrogation of a general suspect was police-type work), cert. denied, 474 U.S. 967, 106 S.Ct. 332, 88 L.Ed.2d 316 (1985); McSurely v. McClellan, 697 F.2d 309, 320 (D.C.Cir.1982) (distinguishing decision to initiate prosecution from earlier, preliminary gathering of evidence that may blossom into a prosecution); Marrero v. City of Hialeah, 625 F.2d 499, 510 (5th Cir.1980) ("a prosecutor who participates in a search and seizure is essentially performing functions analogous to those of a policeman ferreting out crime and consequently is making the same kinds of decisions which a policeman makes"), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Jacobson, 592 F.2d at 524 (no absolute immunity for prosecutors who joined sheriffs in implementing a wiretap).

Gobel and DeFranco have alleged that the prosecutors acted in a non-prosecutorial investigatory role. Given the limited factual record at this point in the proceedings, it does not appear beyond doubt that the plaintiffs will be unable to prove that the prosecutors were engaging in police-type investigative work. In a memorandum in support of their dismissal motion, the defendants described the genesis of a bad check prosecution in Arizona as follows: when a check that has been returned for insufficient funds is presented by a merchant to the county attorney's office, the county attorney investigates to determine who wrote the check, files charges if warranted, and then goes to a magistrate for Therefore, the district court erred in dismissing the false arrest claims against Collins, Stoller, and Gary.

issuance of an arrest warrant. Gobel and DeFranco may be able to prove that the initial investigation to determine who wrote the bad checks is a police function that is preliminary to and separate from the subsequent quasi-judicial determination to prosecute. If they also demonstrate that the prosecutors' misconduct during this police-like investigative stage caused their false arrest, Gobel and DeFranco will have proved a claim that falls outside the scope of absolute prosecutorial immunity.

B. False Statements to News Media

The complaint alleged that Collins and Stoller violated the plaintiffs' constitutional right to notice and opportunity to be heard before invading their privacy and defaming them. Gobel alleged that he...