                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 SARAH JEAN PATTERSON,                           No. 15-35838
             Plaintiff-Appellant,
                                                   D.C. No.
                    v.                        3:14-cv-00501-BR

 JAMES VAN ARSDEL, Personally,
            Defendant-Appellee.                    OPINION


        Appeal from the United States District Court
                 for the District of Oregon
         Anna J. Brown, District Judge, Presiding

          Argued and Submitted November 6, 2017
                     Portland, Oregon

                     Filed February 23, 2018

 Before: Ferdinand F. Fernandez and William A. Fletcher,
     Circuit Judges, and Jon S. Tigar,* District Judge.

                 Opinion by Judge W. Fletcher;
                  Dissent by Judge Fernandez




    *
      The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
2                  PATTERSON V. VAN ARSDEL

                            SUMMARY**


                             Civil Rights

    The panel reversed the district court’s dismissal of a
complaint in an action brought under 42 U.S.C § 1983
alleging that a pretrial release officer improperly procured a
warrant for plaintiff’s arrest in violation of her Fourth
Amendment right against unreasonable seizures, and
remanded.

    The district court held that the defendant was entitled to
absolute prosecutorial immunity for the defective arrest
warrant. In reversing the district court, the panel stated that
the determinative question for absolute immunity was
whether defendant was engaged in prosecutorial advocacy.
The panel noted that pursuant to Oregon law and the relevant
procedures followed in the Yamhill County Circuit Court,
defendant had not been delegated authority to make release
decisions. Rather, he was authorized only to make
recommendations to a judge. The panel held that given the
similarities between defendant’s role and those of a parole
officer and a law enforcement officer, defendant’s action in
submitting a bare unsigned warrant to the judge should be
seen as making a recommendation that the warrant be signed,
just like a parole officer recommending revocation, as in
Swift v. California, 384 F.3d 1184, 1193 (9th Cir. 2004), or
like a police officer submitting documentation for an arrest
warrant to a judge, as in Malley v. Briggs, 475 U.S. 335
(1986). The panel concluded that defendant was not entitled

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                PATTERSON V. VAN ARSDEL                       3

to absolute prosecutorial immunity and remanded the case for
further proceedings.

    Dissenting, Judge Fernandez stated that the majority’s
determination that absolute prosecutorial immunity did not
apply at all was waived by plaintiff. On the merits, Judge
Fernandez stated that the panel should have adhered to the
long established rule that once the court grants that the
function in question is a prosecutorial function, it does not
matter if the person performing that function lacks the title of
“prosecutor.” Accordingly, Judge Fernandez believed that
the defendant in this case should have been accorded absolute
immunity for procuring the warrant.


                         COUNSEL

Leonard Randolph Berman (argued), Law Office of Leonard
R. Berman, Portland, Oregon, for Plaintiff-Appellant.

Cecil Renich-Smith (argued), Senior Assistant Attorney
General; Benjamin Gutman, Solicitor General; Ellen F.
Rosenblum, Attorney General; Oregon Department of Justice,
Salem, Oregon; for Defendant-Appellee.
4               PATTERSON V. VAN ARSDEL

                        OPINION

W. FLETCHER, Circuit Judge:

    Sarah Patterson brought an action for damages under
42 U.S.C § 1983 against James Van Arsdel, the Release
Assistance Officer for the Circuit Court of Yamhill County,
Oregon. Patterson alleges that Van Arsdel improperly
procured a warrant for her arrest in violation of her Fourth
Amendment right against unreasonable seizures. The district
court held that Van Arsdel was entitled to absolute
prosecutorial immunity and dismissed with prejudice
Patterson’s second amended complaint. We reverse and
remand for further proceedings.

                      I. Background

    This case is before us on a Rule 12(b)(6) motion to
dismiss. Fed. R. Civ. P. 12(b)(6). The following facts are
taken from Patterson’s complaint, which we accept as true at
this stage of the proceedings. See Kalina v. Fletcher,
522 U.S. 118, 122 (1997).

    At all relevant times, James Van Arsdel was employed as
the Yamhill County Circuit Court Release Assistance Officer.
As part of his duties, Van Arsdel investigated and initiated
revocation of pretrial release for criminal defendants who
appeared to have violated the terms of their release
agreements. The usual procedure was for Van Arsdel to
recommend revocation either by placing a revocation form,
along with an unsigned arrest warrant, in the courthouse
mailbox for the judge responsible for such matters, or by
giving these documents to the judge’s judicial assistant. The
revocation form was a combined motion, affidavit, and order
                PATTERSON V. VAN ARSDEL                     5

that the Release Assistance Officer filled out and signed
under oath. The facts in the affidavit, if true, would support
revocation and arrest. At the bottom of the form was an order
revoking pretrial release, with a blank line for the judge’s
signature. Release Assistance Officers could also pursue
revocation by presenting a revocation form and warrant in
open court, but this procedure was not commonly used.

    On January 30, 2012, Sarah Patterson was arrested on
charges of theft and possession of a controlled substance.
Patterson entered into a pretrial release agreement that
required her to comply with all laws while on release. On
March 17, 2012, while on pretrial release, Patterson was
arrested on domestic violence charges. She posted bail and
was released. On March 20, at Patterson’s arraignment on the
domestic violence charges, Van Arsdel moved in open court
for a revocation of Patterson’s pretrial release and for her
arrest.

    Judge Stone, the criminal-calendar duty judge, orally
denied Van Arsdel’s motion, noting that Patterson had
already posted bail. The next day, Judge Stone signed the
revocation form and wrote “Denied” on both the form and the
arrest warrant.

    Van Arsdel was visibly displeased with Judge Stone’s
oral ruling on March 20. Patterson’s attorney, Mark
Lawrence, had opposed Van Arsdel’s revocation motions in
the past, and had observed that Van Arsdel appeared to take
denials of such motions personally, would appear “sullen and
upset,” and would refuse to greet Lawrence in court or in the
hallway for a week afterwards.
6               PATTERSON V. VAN ARSDEL

    Later on March 20, Van Arsdel provided to Judge
Tichenor, another judge on the Circuit Court, an unsigned
warrant for Patterson’s arrest. He did not attach a revocation
form, and did not disclose that Judge Stone had orally denied
the revocation motion and arrest warrant earlier in the day.
Judge Tichenor was not then assigned to the criminal duty
roster. Only judges on the criminal duty roster were
responsible for handling revocation matters.

     Van Arsdel regularly socialized with Judge Tichenor
outside of work, including “Saturday golf games and weekly
Tuesday morning [B]ible study sessions.” Van Arsdel’s wife
was Judge Tichenor’s judicial assistant. Her typed or printed
initials, “cv,” appear on both the warrant denied by Judge
Stone and the warrant later submitted to Judge Tichenor.
Judge Tichenor signed the warrant on March 20.

    On March 30, McMinnville police arrested and jailed
Patterson pursuant to the warrant signed by Judge Tichenor.
Patterson was released two days later, after Van Arsdel
confirmed to a deputy that the arrest warrant was defective.

    Patterson filed a 42 U.S.C. § 1983 action against Van
Arsdel, arguing that he violated her Fourth Amendment right
to be free from unreasonable seizures. Van Arsdel moved to
dismiss the complaint, arguing that he was entitled to
absolute prosecutorial immunity. The district court held that
Van Arsdel was entitled to absolute immunity and dismissed
Patterson’s complaint with prejudice. Patterson timely
appealed.
                PATTERSON V. VAN ARSDEL                      7

                   II. Standard of Review

   We review de novo a district court’s dismissal of a
complaint under Rule 12(b)(6). Botello v. Gammick,
413 F.3d 971, 975 (9th Cir. 2005). “All allegations of
material fact are taken as true and construed in the light most
favorable to the nonmoving party.” Cousins v. Lockyer, 568
F.3d 1063, 1067 (9th Cir. 2009) (internal quotation marks
omitted).

                       III. Discussion

    The sole question presented by this appeal is whether Van
Arsdel is protected by absolute prosecutorial immunity.
Officials are absolutely immune against suits under 42 U.S.C.
§ 1983 that arise from their performance of prosecutorial
functions, even if the acts in question were committed in bad
faith. Imbler v. Pachtman, 424 U.S. 409, 422–29 (1976).
Such immunity “is an extreme remedy, and it is justified only
where ‘any lesser degree of immunity could impair the
judicial process itself.’” Lacey v. Maricopa County, 693 F.3d
896, 912 (9th Cir. 2012) (en banc) (quoting Kalina, 522 U.S.
at 127). The general presumption is that qualified immunity
provides sufficient protection to officials. Burns v. Reed, 500
U.S. 478, 486–87 (1991). An official seeking absolute
immunity bears the burden of showing that such immunity is
essential for the function in question. Id. at 486.

    We take a functional approach when determining whether
a given action is protected by prosecutorial immunity.
Immunity flows from “the nature of the function performed,
not the identity of the actor who performed it.” Kalina,
522 U.S. at 127 (quoting Forrester v. White, 484 U.S. 219,
229 (1988)). In applying this approach, we distinguish
8               PATTERSON V. VAN ARSDEL

between acts of advocacy, which are entitled to absolute
immunity, and administrative and “police-type” investigative
acts which are not. To qualify as advocacy, an act must be
“intimately associated with the judicial phase of the criminal
process.” Imbler, 424 U.S. at 430. For such acts, absolute
immunity furthers the doctrine’s core goal of preventing
retaliatory lawsuits that may impose “unique and intolerable”
burdens upon prosecutors. Id. at 425–26. Actions classified
as “advocacy” include initiating a prosecution and presenting
the state’s case, Imbler, 424 U.S. at 431, appearing at a
probable cause hearing to support an application for a search
warrant, Burns, 500 U.S. at 491, and preparing and filing a
motion for an arrest warrant. Kalina, 522 U.S. at 129.

    “When a prosecutor steps outside of the advocate’s role,”
his or her conduct is protected only “to the extent that any
other individual would be protected performing the same
function.” Cruz v. Kauai County, 279 F.3d 1064, 1067 (9th
Cir. 2002). Prosecutors are protected by qualified, rather than
absolute, immunity when they perform activities outside their
core role as courtroom advocates. See, e.g., Burns, 500 U.S.
at 493 (qualified immunity for giving legal advice to police
officers); Kalina, 522 U.S. at 130–31 (qualified immunity for
attesting to facts in support of a search warrant).

    The determinative question in this case is whether Van
Arsdel was engaged in prosecutorial advocacy, and therefore
protected by absolute immunity, when he provided Judge
Tichenor the bare unsigned warrant for Patterson’s arrest.
Patterson argues that he was not. We agree.

    While this court has not yet addressed the precise
circumstances under which a pretrial release officer may be
entitled to prosecutorial immunity, our precedents regarding
                 PATTERSON V. VAN ARSDEL                        9

the official immunity of parole officers are instructive.
Parole board members have absolute immunity for
adjudicative actions and for other discretionary decisions
related to the processing of parole applications. Sellars v.
Procunier, 641 F.2d 1295, 1302–03 (9th Cir. 1981).
However, parole officers, when responsible for investigating
potential parole violations and submitting recommendations
regarding revocation, have only qualified immunity. Swift v.
California, 384 F.3d 1184, 1193 (9th Cir. 2004). See also
Mee v. Ortega, 987 F.2d 423, 426–27 (10th Cir. 1992);
Nelson v. Balazic, 802 F.2d 1077, 1079 (8th Cir. 1986);
Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989). The
rationale is that a parole officer in the latter category fulfills
a function that is “more akin to a police officer seeking an
arrest warrant, than to a prosecutor exercising quasi-judicial
authority.” Swift, 384 F.3d at 1193.

    Further, in Malley v. Briggs, 475 U.S. 335 (1986), the
Supreme Court considered whether a police officer was
entitled to prosecutorial immunity in a § 1983 action for false
arrest. The officer had presented a magistrate with felony
complaints charging various individuals with violating
controlled substance laws, with unsigned warrants, and with
affidavits that did not establish probable cause. Id. at 338.
The officer argued that he was entitled to absolute immunity
because his actions were equivalent to those of “a prosecutor
who asks a grand jury to indict a suspect.” Id. at 341. The
Court rejected the argument, holding that the officer’s acts
were “further removed from the judicial phase of criminal
proceedings” and did not implicate the policy concerns that
necessitate absolute immunity for prosecutorial functions. Id.
at 342.
10              PATTERSON V. VAN ARSDEL

    Because immunity depends on an official’s function
rather than his or her job title, Kalina, 522 U.S. at 127, we
look to Van Arsdel’s functions under Oregon law. Oregon
Revised Statutes provide that Release Assistance Officers
such as Van Arsdel “shall, except when impracticable,
interview every person detained” and “verify release criteria
information.” ORS § 135.235(1)–(2). After conducting this
investigation, Release Assistance Officers may submit formal
recommendations to a judge, but may make release decisions
only if “delegated release authority by the presiding circuit
judge for the judicial district.” ORS § 135.235(b)(3). Under
the procedures followed in the Yamhill County Circuit Court,
Van Arsdel had not been delegated authority to make “release
decisions.” Rather, Van Arsdel was authorized only to make
recommendations to a judge.

    Given the similarities between Van Arsdel’s role and
those of a parole officer and a law enforcement officer, we
conclude that Van Arsdel’s action in submitting the bare
unsigned warrant to Judge Tichenor should be seen as making
a recommendation that the warrant be signed, just like a
parole officer recommending revocation, as in Swift, or like
a police officer submitting documentation for an arrest
warrant to a judge, as in Malley. Accordingly, Van Arsdel is
not entitled to absolute immunity.

    In arguing to the contrary, Van Arsdel relies on Cruz v.
Kauai County, 279 F.3d 1064 (9th Cir. 2002). In Cruz, a
prosecutor filed a motion to revoke a defendant’s bail,
attaching an affidavit in which he personally testified to facts
supporting revocation. Id. at 1066. We held that the
prosecutor was not entitled to absolute immunity because he
“stepped outside of his prosecutorial role, and into the role of
witness, when he personally attested to the truth of facts in
                PATTERSON V. VAN ARSDEL                      11

the affidavit.” Id. at 1067. In a footnote, we wrote that the
prosecutor would have been entitled to absolute immunity for
the decision solely to file the revocation motion because such
an action is “a traditional prosecutorial function.” Id. at 1067
n.3 (citing Pinaud v. County of Suffolk, 52 F.3d 1139, 1149
(2d Cir. 1995)) (emphasis in original). Van Arsdel argues
that his actions were functionally indistinguishable from that
of a prosecutor who files a motion to revoke bail, as
hypothesized in Cruz.

    We are not persuaded. Van Arsdel never submitted a
motion to Judge Tichenor. He had earlier presented a motion
to Judge Stone. But the bare unsigned warrant he later
provided to Judge Tichenor was not itself a motion. Nor was
it accompanied by the Circuit Court’s normal form motion,
affidavit and proposed order.

    We note that if Van Arsdel had filed an actual motion, he
would not have been entitled to absolute prosecutorial
immunity. Under Yamhill County Circuit Court procedures,
a revocation motion must be accompanied by an affidavit in
which a Release Assistance Officer such as Van Arsdel
would have recited facts supporting the issuance of the
warrant. It is settled law that an official may not receive
absolute prosecutorial immunity for reciting facts in support
of an arrest warrant. Cruz, 279 F.3d at 1068; Kalina,
522 U.S. at 129–31. If Van Arsdel were protected by absolute
immunity for presenting a bare unsigned warrant, but would
not be so protected if he had used proper procedures and had
pursued revocation with a motion and supporting affidavit,
the result would be anomalous.

    Mindful of the Supreme Court’s warning to avoid
extending absolute immunity “further than its justification
12               PATTERSON V. VAN ARSDEL

would warrant,” we hold that Van Arsdel is not entitled to
absolute prosecutorial immunity. Burns, 500 U.S. at 487.

                           Conclusion

   We reverse the district court’s dismissal of Patterson’s
complaint. Because the district court resolved Van Arsdel’s
motion to dismiss only on the basis of absolute prosecutorial
immunity, we remand for further proceedings.

     REVERSED and REMANDED.



FERNANDEZ, Circuit Judge, dissenting:

    Although I fully understand the majority’s desire to offer
Patterson relief from the alleged unconscionable actions of
Van Arsdel, I cannot agree that we should make law out of
these bad facts.

    In the first place, Patterson did not argue the point which
forms the foundation of the majority’s opinion. She neither
did so in the district court, nor in her brief, nor for that matter
at oral argument. She admitted that Van Arsdel’s duty of
submitting applications for warrants to judges of the court for
which he worked was a prosecutorial function, but argued
that absolute immunity applies to courtroom activity only and
that Van Arsdel had acted outside his jurisdiction when he
submitted the warrant at hand outside of the courtroom. The
majority’s determination that absolute prosecutorial immunity
does not apply at all was therefore waived by Patterson, and
we should not rule on it at this time. See Smith v. Marsh,
                PATTERSON V. VAN ARSDEL                      13

194 F.3d 1045, 1052 (9th Cir. 1999); Crawford v. Lungren,
96 F.3d 380, 389 n.6 (9th Cir. 1996).

     Secondly, if we do take up the merits, we should adhere
to the long established rule that once we grant that the
function in question is a prosecutorial function, it does not
matter if the person performing that function lacks the title of
“prosecutor.” See, e.g., Miller v. Gammie, 335 F.3d 889, 897
(9th Cir. 2003) (en banc); Meyers v. Contra Costa Cty. Dep’t
of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987); see also
KRL v. Moore, 384 F.3d 1105, 1110–11 (9th Cir. 2004)
(preparing and filing an arrest warrant is a prosecutorial
function). In addition, even when the function is performed
in a negligent or unreasonable or even intentionally wrong
way, absolute immunity applies. See Burns v. Reed, 500 U.S.
478, 489–92, 111 S. Ct. 1934, 1940–42, 114 L. Ed. 2d 547
(1991) (knowing presentation of false testimony); Imbler v.
Pachtman, 424 U.S. 409, 424–27, 96 S. Ct. 984, 992–93,
47 L. Ed. 2d 128 (1976) (malicious or dishonest actions);
McCarthy v. Mayo, 827 F.2d 1310, 1315 (9th Cir. 1987)
(filing criminal charges knowing them to be barred);
Ashelman v. Pope, 793 F.2d 1072, 1075, 1078 (9th Cir. 1986)
(en banc) (conspiracy with court to harm defendant). Again,
I do agree that what Van Arsdel is alleged to have done falls
within one of those categories. I do not agree, however, that
we should undermine existing law for the purpose of righting
Patterson’s wrong and punishing Van Arsdel’s alleged
malversation. True, Patterson may be “without civil redress”
even if she was “genuinely wronged,” but in principle she
must abide that evil to safeguard the overall “broader public
interest.” Imbler, 424 U.S. at 427, 96 S. Ct. at 993.

   Thus I respectfully dissent.
