                                                                F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
              UNITED STATES COURT OF APPEALS
                                                                 May 21, 2007
                             TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                 Clerk of Court


DO NN A M . AU GU STE,

      Plaintiff-Appellee,

v.

JA M ES A. ALDERDEN, individually
and in his official capacity as Sheriff
of Larimer County; JAM ES
SULLIV AN, individually and in his
official capacity as Investigator,
Larimer County Sheriff’s Office;
JOHN NEW HOUSE, individually and
in his official capacity as
Investigator, Larimer County
Sheriff’s O ffice; R OG ER BA RTRAM
                                                     No. 05-1450
individually and in his official
                                          (D.C. No. 03-cv-2256 W YD PAC)
capacity as Investigator, Larimer
                                                    (D. Colorado)
C ounty Sheriff’s O ffice; TH O M AS
W ILSON, individually and in his
official as capacity Investigator,
Office of the District Attorney, Santa
Clara County,

      Defendants,

and

BENJAM IN FIELD, individually and
in his official capacity as D eputy
District Attorney for Santa Clara
County,

      Defendant-Appellant.
                         ORDER AND JUDGMENT *


Before L UC ER O, SE YM OU R, and O’BRIEN, Circuit Judges.




      Benjamin Field, a D eputy District Attorney in Santa C lara County

California, appeals the district court’s denial of his summary judgment motion

seeking absolute immunity from a civil rights suit brought by Donna Auguste.

W e affirm.

      In August of 1998, Damon Auguste was convicted in Santa Clara County,

California and sentenced to 18 years and 8 months imprisonment. Benjamin Field

prosecuted M r. Auguste and later participated in the state’s defense of a habeas

action filed by M r. Auguste. In the process of preparing the state’s habeas

defense, M r. Field and Thomas W ilson, an investigator w ith the Santa Clara

District Attorney’s Office, executed five search warrants against M r. Auguste’s

family members and potential witnesses and their families in California. During a

search of M r. Auguste’s mother’s home on July 17, 2003, M r. W ilson seized a

letter from M r. Auguste addressed to Donna M . Auguste, M r. Auguste’s aunt,

postmarked September 30, 1998. In the letter, M r. Auguste expressed his interest


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH C IR . R. 32.1.

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in persuading a juror from his original trial to allege misconduct and proposed a

plan to bribe jurors if he were retried.

       After finding the letter, M r. Field sought assistance from the Larimer

County, Colorado Sheriff’s Office in executing a warrant authorizing a search of

Donna Auguste’s C olorado home. At M r. Fields’s behest, a Larimer County

Sheriff’s Office investigator submitted an affidavit to the Larimer County District

Court in support of the issuance of a warrant. The affidavit recited information

relayed by M r. W ilson. The Colorado court authorized a search warrant which

was executed at M s. Auguste’s home on July 24, 2003.

      Prior to the execution of the Donna Auguste warrant, on July 18, 2003, the

state trial judge presiding over M r. Auguste’s habeas proceedings was apprised of

the government’s use of search warrants as a means of discovery. In response,

the state court “ordered Respondent go through this Court exclusively for any

further search warrants.” Rec., vol. II at 364. M r. Field “replied that he would

abide by this order,” but, according to the court, “[d]espite [M r. Field]’s promise

to the Court, four days later, on July 22, 2003, [M r. Field and M r. W ilson]

permitted a Colorado judge to execute a search warrant on” M s. Auguste’s

residence. Id. The court noted that “the search of [M r.] Auguste’s aunt’s

residence . . . was made in violation of this Court’s order to cease any further

warrants without this Court’s prior approval,” id. at 366, and ordered all evidence

obtained from all the searches be excluded from an evidentiary hearing in the

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habeas proceeding.

      M s. Auguste subsequently filed this § 1983 action against the Sheriff of

Larimer County, Colorado, his investigators, and members of the Santa Clara

District Attorney’s Office, including M r. Field, in both their official and

individual capacities. Specifically, M s. Auguste alleged the search warrant

executed at her home was obtained through intentional and false

misrepresentations in violation of her constitutional rights under 42 U.S.C. §§

1981, 1983, and 1985(3). Both the Colorado and California defendants asserted

they were entitled to summary judgment based on the doctrines of qualified and

absolute immunity. The district court dismissed the § 1985(3) and § 1981 claims

for all defendants, and denied claims against all defendants in their official

capacities and against all defendants other than M r. W ilson, M r. Field, and James

Sullivan, a Larimer County investigator, in their personal capacities. The only

issue raised in this interlocutory appeal is M r. Field’s contention that the district

court erred in denying him the legal protections of absolute immunity.

      Although interlocutory appeals are typically disfavored, a public official

may appeal the denial of absolute immunity before final judgment. See M itchell

v. Forsyth, 472 U.S. 511, 525 (1985). The “official seeking absolute immunity

bears the burden of showing that such immunity is justified for the function in

question.” Burns v. Reed, 500 U .S. 478, 486 (1991). On appeal, we “review de

novo a district court’s conclusion on the question of absolute immunity.” Gagan

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v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994).

      Prosecutors are absolutely immune from suit under § 1983 for activities

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

Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Actions more fittingly

characterized as investigative or administrative are protected by absolute

immunity only when those acts are “necessary so that a prosecutor may fulfill his

function as an officer of the court.” Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d

1484, 1490 (10th Cir. 1991) (quoting Snell v. Tunnell, 920 F.2d 673, 693 (10th

Cir. 1990)). “Indeed, we have repeatedly found investigative and administrative

actions taken by state prosecutors to be adequately protected by the doctrine of

qualified immunity . . . .” Gagan, 35 F.3d at 1475.

      In drawing the line between absolute and qualified immunity for

prosecutors, “we have held the determinative factor is advocacy because that is

the prosecutor’s main function.” Id. (quotation omitted). To help define the line,

      we have applied a continuum-based approach to these decisions,
      stating the more distant a function is from the judicial process and
      the initiation and presentation of the state’s case, the less likely it is
      that absolute immunity will attach.

Id.

      In Gagan, we considered the applicability of absolute immunity to a

prosecutor who disregarded a state court order made in connection with a federal

habeas proceeding. M r. Gagan had filed pro se a habeas action seeking to



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overturn his state court conviction. He filed a motion in state court requesting

preparation of transcripts necessary to the development of his federal habeas

petition. The state judge granted the motion, but the Assistant Attorney General

(AAG) defending the state “allegedly ordered the court reporter not to prepare the

transcripts, notwithstanding the state court judge’s order to the contrary.” Gagan,

35 F.3d at 1475. M r. Gagan filed a § 1983 claim, asserting the AAG’s “actions in

countermanding the state court judge’s order” resulted in a violation of his

constitutional rights. Id. The district court did not consider the underlying

constitutional claim, but concluded instead that the AAG was shielded from §

1983 liability by “the protective umbrella of absolute immunity.” Id.

      M r. Gagan appealed the district court’s application of absolute immunity,

and we reversed. In so doing, we stated:

             W e find it difficult to see how a prosecutor’s actions in
      contravening the authority of the judicial branch of state government
      in regard to the defense of a civil action constitute the kind of
      advocacy related to the initiation and prosecution of criminal
      proceedings, even under the most generous interpretation of that
      phrase, to which absolute immunity attaches. Stated alternatively, the
      actions at issue in this case are simply too far removed on the
      continuum from the core prosecutorial functions of initiating and
      pursuing criminal prosecutions to be covered by absolute immunity.
      W e therefore conclude that the Assistant Attorney General has failed
      to carry her burden of demonstrating her entitlement to absolute
      immunity . . . .

Id. at 1476 (citations omitted). W e thus held the AAG in Gagan was not entitled

to absolute immunity where she defied a Colorado state court order while



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defending a federal habeas action.

      In the present case, while defending against M r. Auguste’s state habeas

petition, M r. Field ordered a search warrant executed in Colorado despite the

California state court order to the contrary. Our holding in Gagan directly

addressed the inapplicability of absolute immunity in cases where, like here, the

prosecutor defied a state court order in the course of defending against a habeas

petition. In light of this directly controlling precedent, we conclude M r. Field is

not entitled to the protection of absolute immunity.

      Accordingly, we A FFIR M .

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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