                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                     No. 10-14260                          MAY 24, 2011
                               ________________________                     JOHN LEY
                                                                             CLERK
                         D. C. Docket No. 2:09-cv-00150-RWS

JEFFREY H. HOLDEN,

                                                            Plaintiff-Appellant,

                                            versus

CLIFF STICHER, individually,

                                                            Defendant-Appellee.

                               _______________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________
                                    (May 24, 2011)

Before MARTIN and BLACK, Circuit Judges, and RESTANI,* Judge.

PER CURIAM:

       This case involves allegations that a prosecutor violated and conspired to


       *
          Honorable Jane A. Restani, Judge of the United States Court of International Trade,
sitting by designation.
violate Jeffrey Holden’s (“Holden” or “Appellant”) Fourth and First Amendment

rights by giving legal advice to the police officers resulting in Appellant’s arrest

for disorderly conduct and obstruction of justice and by causing a judge to issue a

bench warrant.1 In September 2007, Danny Payne, the chief of the McCaysville

Police Department, stopped Holden and asked Holden to come to the police

station to speak with Thomas Woody (“Woody”). At the police station, Woody

demanded Holden’s driver’s license and accused Holden of cursing at him from a

moving vehicle. When Holden went to his car to get his license, Woody ran at

Holden screaming and telling Holden he was going to jail. Holden closed his car

door. Woody pounded on the car and told Holden to get out. Holden initially

refused, then rolled down his window and Woody punched Holden. Payne told

Holden to “go home and forget this ever happened.” RE Tab 2, ¶ 68.

       The next day, Holden swore a warrant application against Woody for

assault. Defendant Cliff Sticher (“Appellee” or “Sticher”), Fannin County

Assistant District Attorney, met with Payne and Woody. With the knowledge that

Holden had sworn a warrant application against Woody, Sticher advised Payne

and Woody on how to fill out affidavits for arrest against Holden. Payne and



       1
         The facts are drawn from Holden’s complaints and are accepted as fact for the purposes
of the appeal.

                                               2
Woody swore out affidavits for arrest. Holden was arrested on September 11,

2007. The charges were dismissed in August 2009.

      In early 2007, Holden was arrested on unrelated charges of criminal

trespass. The charges were first “nolle prossed” because of lack of evidence,

subsequently they were presented to a grand jury. The grand jury indicted Holden

in 2007. Finally, the complaint alleges that on January 28, 2008, Sticher “caused a

Fannin county Superior Court Judge to issue an invalid bench warrant for

[Holden’s] arrest” on criminal trespass charges. RE Tab 2, at Ex. C.

      Holden filed a 42 U.S.C. § 1983 action against Sticher, Payne, Woody, and

others, alleging the arrests and prosecutions were made without probable cause in

violation of his Fourth Amendment rights and in retaliation for the exercise of his

First Amendment rights. Holden v. Ensley, No. 2:09:-CV-00150-RWS, 2010 WL

2557758, at *2 (N.D. Ga. June 18, 2010). The district court found that Holden’s

complaints alleged facts sufficient to meet the pleading requirements, but granted

Sticher’s motion to dismiss based on Sticher’s absolute immunity for both his role

in advising the police officers and in causing the January 2008 bench warrant to be

issued. Id. at *2, 4. The district court did not reach the issue of qualified

immunity. See id. Holden now appeals.




                                           3
      “We review a district court order granting a motion to dismiss de novo.”

Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). “We . . . accept as true the

facts as set forth in the complaint and draw all reasonable inferences in the

plaintiff’s favor.” Id.

                  Immunity for Legal Advice to Police Officers

                              A. Absolute Immunity

      The district court erred in granting Sticher absolute immunity for giving

legal advice to Payne and Woody. Absolute immunity for prosecutors turns on

whether the function performed is investigative or advocative. Mullinax v.

McElhenney, 817 F.2d 711, 715 (11th Cir. 1987). Prosecutors do not receive

absolute immunity for giving legal advice to police where a prosecutor guides

police rather than where a prosecutor prepares his or her own case. Burns v. Reed,

500 U.S. 478, 496 (1991). A prosecutor is not “an advocate before he has

probable cause to have anyone arrested.” al-Kidd v. Ashcroft, 580 F.3d 949, 959

n.9 (11th Cir. 2009) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993))

(internal quotation marks omitted).

      An affidavit for arrest under Georgia law may be procured by a prosecutor,

a law enforcement official, or even a private citizen. Cleland v. U.S. Fidelity &

Guaranty Ins. Co., 107 S.E.2d 904, 906 (Ga. Ct. App. 1959); see Ga. Code Ann. §

                                          4
17-4-41. Were Sticher to have signed the affidavit for arrest himself, he would not

have received absolute immunity because the document would have been a sworn

factual statement. See Kalina v. Fletcher, 522 U.S. 118, 127 n.14, 129 (1997) (a

prosecutor’s personal attestations in a certification were not protected by absolute

immunity); Malley v. Briggs, 475 U.S. 335, 340–41 (1986) (a police officer does

not receive absolute immunity for his signature on a sworn factual statement).

Because Sticher’s actions were not in preparation of the prosecutor’s own case,

were not part of the judicial process, and Sticher would not have received absolute

immunity had he signed the documents himself, the district court erred in granting

Sticher absolute immunity for giving legal advice to the police.

                                   B. Qualified Immunity

       Holden urges this court, in the absence of absolute immunity, to find that

Sticher has no qualified immunity as to his actions with regard to the affidavits for

arrest and obstruction of justice.2 We find that Sticher is entitled to qualified

immunity.

       First, Holden alleges that Sticher is not entitled to qualified immunity


       2
         Although the district court did not reach the issue of qualified immunity, this court may
affirm based on the record below. See Fishermen Against the Destruction of the Env’t, Inc. v.
Closter Farms, Inc., 300 F.3d 1294, 1296 (11th Cir. 2002). Both parties ask the court to decide
the issue of qualified immunity, rather than remand the issue to the district court, should there be
no absolute immunity.

                                                 5
because Sticher’s legal advice to the police caused an arrest for disorderly conduct

which lacked probable cause, violating Holden’s First and Fourth Amendment

rights. Because discretionary authority is not contested,3 Holden must show that

Sticher violated a constitutional right and that constitutional right was clearly

established. Durruthy v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003). Here,

Holden failed to specify how Sticher’s legal advice or involvement in Holden’s

arrest for either disorderly conduct or obstruction could strip Sticher of his

qualified immunity. Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999) (“a

plaintiff cannot strip a § 1983 defendant of his qualified immunity by citing to

general rules or abstract rights”).

       Second, Holden alleges that “Sticher is not entitled to qualified immunity

with respect to his conduct in facilitating the issuance of the first arrest warrant,”

because “the officers had no reason to detain Holden and it would have been

within his right to simply leave.” Br. of Appellant 25. Again, Holden offers no

specific facts relating Sticher’s actions to the purported constitutional violation.

See Jones, 174 F.3d at 1282. Additionally, Holden offers no law showing a




       3
         Holden does not contest that Sticher was acting within the scope of his discretionary
authority.

                                                6
constitutional right has been violated or how this right is clearly established.4 Id.

       Sticher therefore is entitled to qualified immunity for giving legal advice to

police officers regarding their affidavits for arrest.

                              Immunity for Bench Warrant

       Holden also alleges that the district court erred in granting Sticher absolute

immunity for signing the bench warrant. Specifically, Holden alleges Sticher’s

signature on the bench warrant equates to testimony as a complaining witness, not

as an advocate of the state. This claim lacks merit.

       Absolute immunity extends to false statements made before the court on

warrant applications. Fullman v. Graddick, 739 F.2d 553, 558–59 (11th Cir.

1984) (granting absolute immunity where the prosecutor signed an arrest warrant

without probable cause and on the basis of evidence which the prosecutor

allegedly fabricated). Complaining witnesses, however, regardless of whether or

not they are attorneys, do not receive absolute immunity. Kalina, 522 U.S. at 127

n.14; Malley, 475 U.S. at 340–41. In Kalina, the Supreme Court held that an

attorney’s “preparation and filing of two of the three charging documents”

including the motion for an arrest warrant are protected by absolute immunity, but


       4
         Holden relies solely on a state appellate case, State v. Fisher, 666 S.E.2d 594, 598 (Ga.
App. Ct. 2008), which cannot be used to strip a prosecutor of qualified immunity. Rowe, 279
F.3d at 1280.

                                                 7
that the attorney’s “act in personally attesting to the truth of the averments in the

certification” were not covered by absolute immunity. Kalina, 522 U.S. at 129–30

(noting that “[t]estifying about facts is the function of the witness, not of the

lawyer”). In Rivera v. Leal, 359 F.3d 1350, 1355 (11th Cir. 2004), the Eleventh

Circuit held that the prosecutor in making unsworn false statements to the court

did not act as a complaining witness and therefore received absolute immunity. Id.

(finding the “sworn/unsworn distinction . . . determinative”).

      Here, Holden claims “Sticher affirmatively misrepresented the status of a

criminal prosecution of Holden in support of a second warrant application.” Br. of

Appellant 18. The bench warrant, however, signed by a superior court judge and

Sticher, is nearly entirely procedural and requires the signature of an “Assistant

District Attorney.” RE Tab 3, at Ex. C. The only line asserting any information

beyond case numbers, names, dates, addresses, and requests for bond amounts is:

“Heretofore arrest warrant . . . was dismissed.” Id. The paperwork in question

bears significant similarity with the information and motion for an arrest warrant

in Kalina, both protected by absolute immunity, rather than a personal attestation

to the truth of averments in a supplementary certification. See Kalina, 522 U.S. at

129. In any case, because the warrant was in fact dismissed previously, the

statement at issue is true. The district court is therefore affirmed.

                                           8
AFFIRMED.




            9
