     Case: 15-30535    Document: 00513524426     Page: 1   Date Filed: 05/27/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals

                                  No. 15-30535
                                                                           Fifth Circuit

                                                                         FILED
                                                                     May 27, 2016

KRISTIN LOUPE,                                                      Lyle W. Cayce
                                                                         Clerk
             Plaintiff - Appellant

v.

ROBIN O'BANNON; RICKY BABIN,

             Defendants - Appellees




                 Appeal from the United States District Court
                     for the Middle District of Louisiana


Before DENNIS, ELROD, and GRAVES, Circuit Judges.
DENNIS, Circuit Judge:
      The issues in this case are whether a state prosecuting attorney is
absolutely immune from suit for money damages for (1) ordering a sheriff’s
deputy to make a warrantless arrest without probable cause of a witness in
retaliation for the witness’s refusal to testify that her boyfriend had struck her
in the face during a domestic violence altercation, and (2) subsequently
maliciously prosecuting the witness for making a false report of domestic
violence. We conclude that the prosecuting attorney is absolutely immune
from liability for initiating an alleged malicious prosecution against the
witness but not absolutely immune from liability for ordering the officer to
make a warrantless arrest.
    Case: 15-30535    Document: 00513524426     Page: 2   Date Filed: 05/27/2016



                                No. 15-30535
                                       I
      Plaintiff-Appellant Kristin Loupe filed a civil rights action pursuant to
42 U.S.C. § 1983, and several Louisiana tort actions, against Ascension Parish
District Attorney Ricky Babin, Assistant District Attorney Robin O’Bannon,
Sheriff Jeffrey Wiley, and two sheriff’s deputies. Defendants Babin and
O’Bannon moved to dismiss Loupe’s complaint pursuant to Rule 12(b)(6) on
grounds of absolute prosecutorial immunity. The District Court granted the
motion to dismiss as to all claims against DA Babin and ADA O’Bannon.
Plaintiff-Appellant Loupe appealed only the dismissal of her federal and state
claims against O’Bannon on the grounds of absolute immunity.
      We review de novo the grant of a Rule 12(b)(6) motion to dismiss. Martin
K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004). “In determining immunity, we accept the allegations of [the plaintiff’s]
complaint as true.” Kalina v. Fletcher, 522 U.S. 118, 122, 118 S.Ct. 502, 139
L.Ed.2d 471 (1997).
                                           II
      The facts alleged in Loupe’s complaint are that: In January 2014, Kristin
Loupe was called as a witness in state court to testify at a bond hearing for
criminal defendant David Adams, Jr., who was her boyfriend at the time.
Robin O’Bannon, the Ascension Parish Assistant District Attorney prosecuting
the case, questioned Loupe about an incident that occurred approximately 18
months earlier, in which the Ascension Parish Sheriff’s Office responded to a
report of a domestic dispute between Loupe and Adams. Loupe could not recall
the incident in detail, but she did testify that “there was a dispute that went
too far and that David hurt her arm.” When O’Bannon asked Loupe if Adams
had hit her in the face, she answered, “No.” After further questioning, Loupe
continued to deny that Adams had hit her in the face. As a result, O’Bannon
asked the presiding judge to order that Loupe be arrested. The judge refused
                                      2
    Case: 15-30535    Document: 00513524426    Page: 3   Date Filed: 05/27/2016



                                No. 15-30535
O’Bannon’s request. O’Bannon then called Blake Prejean, the Sheriff’s Deputy
who completed the domestic dispute police report, to testify. Deputy Prejean
stated that Loupe did not tell him that Adams hit her in the face. O’Bannon
then ordered James Wolf, the Sheriff’s Deputy on duty at the courthouse, to
arrest Loupe for filing a false police report. Loupe was cuffed, escorted from
the building, and placed in a police vehicle, then transported to the Ascension
Parish Jail.
      Loupe was placed in a “small shower cell,” an unheated room with
cinderblock walls and a concrete floor that was covered with puddles of water.
Loupe was left in the cell for at least an hour with no shoes and only a very
thin jumpsuit. Loupe was eventually taken from the shower cell by another
Deputy, who advised her that she was being released on her own recognizance.
Loupe was finally released from the jail around 7:30 pm. Loupe was later
treated for paresthesia and the beginning stages of frostbite caused by the
conditions she experienced while in custody.
      The Ascension Parish District Attorney’s Office charged Loupe with
criminal mischief for filing a false police report. Loupe pleaded not guilty.
When the case went to trial, the District Attorney’s Office stipulated that
Loupe was not guilty of the charges, and Loupe was acquitted. On September
11, 2014, Loupe filed this suit in the United States District Court for the
Middle District of Louisiana.
      On May 19, 2015, the district court issued a ruling and order on
Defendant-Appellee O’Bannon’s motion to dismiss, which was based on a
claimed entitlement to absolute prosecutorial immunity. The court reasoned:
“As reprehensible as the allegations of maliciousness may be, if true, ADA
O’Bannon was acting within the broad purview of being an advocate for
Ascension Parish in ordering the arrest of Plaintiff for filing a false police
report, and subsequently pursuing the charges.” The court thus found that
                                      3
    Case: 15-30535     Document: 00513524426    Page: 4   Date Filed: 05/27/2016



                                 No. 15-30535
O’Bannon was entitled to absolute prosecutorial immunity from civil liability
in her individual capacity with respect to all claims against her. The district
court therefore granted the motion to dismiss in full.
                                      III
      Section 1983 creates a private right of action to vindicate violations of
“rights, privileges, or immunities secured by the Constitution and laws” of the
United States. 42 U.S.C. § 1983. Yet despite its broad reach, the Supreme
Court “has long recognized that the statute was not meant to effect a radical
departure from ordinary tort law and the common-law immunities applicable
in tort suits.” Rehberg v. Paulk, 132 S. Ct. 1497, 1502 (2012). Sixty-five years
ago, in Tenney v. Brandhove, 341 U.S. 367 (1951), the Court held that § 1983
did not abrogate the absolute immunity enjoyed by legislators for actions taken
within the legitimate sphere of legislative authority. Immunities “well
grounded in history and reason,” the Court wrote, were not eliminated “by
covert inclusion in the general language” of § 1983.         Id. at 376. “This
interpretation has been reaffirmed by the Court time and again and is now an
entrenched feature of our § 1983 jurisprudence.” Rehberg, 132 S. Ct. at 1502
(citing, e.g., Pierson v. Ray, 386 U.S. 547, 554-555 (1967) (“The legislative
record gives no clear indication that Congress meant to abolish wholesale all
common-law immunities. Accordingly, this Court held ... that the immunity of
legislators for acts within the legislative role was not abolished. The immunity
of judges for acts within the judicial role is equally well established, and we
presume that Congress would have specifically so provided had it wished to
abolish the doctrine.”)).
      In Rehberg, the Supreme Court explained that because Congress
intended § 1983 to be understood in light of common law principles, “the Court
has looked to the common law for guidance in determining the scope of the
immunities available in a § 1983 action.” Id. Yet the Court has made clear
                                       4
     Case: 15-30535       Document: 00513524426          Page: 5     Date Filed: 05/27/2016



                                       No. 15-30535
that, although the common law is used to determine the scope of the absolute
immunity available under § 1983, the federal civil rights statute is not “simply
a federalized amalgamation of pre-existing common-law claims, an all-in-one
federal claim encompassing the torts of assault, trespass, false arrest,
defamation, malicious prosecution, and more.” Id. at 1504. Rather, “[t]he new
federal claim created by § 1983 differs in important ways from those pre-
existing torts. It is broader in that it reaches constitutional and statutory
violations that do not correspond to any previously known tort.” Id. at 1504-
1505 (citing Kalina, 522 U.S. at 123). “But it is narrower in that it applies only
to tortfeasors who act under color of state law.” Id. at 1505 (citing Briscoe v.
LaHue, 460 U.S. 325, 329 (1983)). Section 1983 “ha[s] no precise counterpart
in state law . . . [I]t is the purest coincidence when state statutes or the common
law provide for equivalent remedies; any analogies to those causes of action
are bound to be imperfect.” Id. (citing Wilson v. Garcia, 471 U.S. 261, 272
(1985) (internal quotation marks and citation omitted)). “Thus, both the scope
of the new tort and the scope of the absolute immunity available in § 1983
actions differ in some respects from the common law.” Id. 1
       When determining who is entitled to absolute immunity, the Court has
taken what has been termed a “functional approach.” Rehberg, 132 S. Ct. at
1503 (citing Forrester v. White, 484 U.S. 219, 224 (1988); Burns v. Reed, 500
U.S. 478, 486 (1991)). The Court “consult[s] the common law to identify those
governmental functions that were historically viewed as so important and




       1  In the present case, however, it is important to note that the Louisiana Supreme
Court has endorsed the functional approach employed by the Supreme Court and held that
under Louisiana law “granting absolute immunity to prosecutors from malicious prosecution
suits is appropriate when the activities complained of fall within the scope of the prosecutor's
role as an advocate for the state and are intimately associated with the conduct of the judicial
phase of the criminal process.” Knapper v. Connick, 681 So. 2d 944, 950 (La. 1996).

                                               5
     Case: 15-30535        Document: 00513524426          Page: 6     Date Filed: 05/27/2016



                                        No. 15-30535
vulnerable to interference by means of litigation that some form of absolute
immunity from civil liability was needed to ensure that they are performed
‘with independence and without fear of consequences.’” Id. (quoting Pierson,
386 U.S. at 554).        Following this approach, the Court has identified the
following functions that are absolutely immune from liability for damages
under § 1983: actions taken by legislators within the legitimate scope of
legislative authority, Tenney, 341 U.S. at 397; actions taken by judges within
the legitimate scope of judicial authority, Pierson, 386 U.S. at 554; the giving
of testimony by witnesses at trial, Briscoe, 460 U.S. at 334; and, relevant to
this case, actions taken by prosecutors in their role as advocates in the judicial
process, Imbler v. Pachtman, 424 U.S. 409, 430-431 (1976). 2
       A prosecutor enjoys absolute immunity when her actions are “intimately
associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at
430. Absolute prosecutorial immunity is meant to “protect[] the prosecutor
from harassing litigation that would divert his time and attention from his
official duties” and to “enabl[e] him to exercise independent judgment when
‘deciding which suits to bring and in conducting them in court.’” Kalina, 522
U.S. at 125 (quoting Imbler, 424 U.S. at 424). The Supreme Court has made
clear that “it is the interest in protecting the proper functioning of the office,
rather than the interest in protecting its occupant, that is of primary
importance.” Id. Thus, “the actions of a prosecutor are not absolutely immune



       2 By contrast, the Court has found no absolute immunity for the acts of the chief
executive officer of a state, the senior and subordinate officers of a state’s National Guard, or
the president of a state university, Scheuer v. Rhodes, 416 U.S. 232, 247-248 (1974); school
board members, see Wood v. Strickland, 420 U.S. 308, 318 (1975); the superintendent of a
state hospital, see O’Connor v. Donaldson, 422 U.S. 563, 577 (1975); police officers, see
Pierson, 386 U.S. at 555; prison officials and officers, Procunier v. Navarette, 434 U.S. 555,
561 (1978); and private co-conspirators of a judge, see Dennis v. Sparks, 449 U.S. 24, 27
(1980).

                                               6
    Case: 15-30535     Document: 00513524426       Page: 7   Date Filed: 05/27/2016



                                   No. 15-30535
merely because they are performed by a prosecutor.” Buckley v. Fitzsimmons,
509 U.S. 259, 273 (1993).
      Rather, when deciding whether absolute immunity applies, pursuant to
the Court’s cases, we must apply the functional approach, looking “to the
nature of the function performed, not the identity of the actor who performed
it.” Id. at 269 (internal citations and quotation marks omitted). A prosecutor
is absolutely immune for initiating and pursuing a criminal prosecution, for
actions taken in her role as “advocate for the state” in the courts, or when her
conduct is “intimately associated with the judicial phase of the criminal
process.” See Hart v. O’Brien, 127 F.3d 424, 439 (5th Cir. 1997), abrogation on
other grounds recognized by Spivey v. Robertson, 197 F.3d 772, 775-76 (5th Cir.
1999). On the other hand, a prosecutor is afforded only qualified immunity for
acts performed in the course of “administrative duties and those investigatory
functions that do not relate to an advocate’s preparation for the initiation of a
prosecution or for judicial proceedings.” Buckley, 509 U.S. at 273; see also
Hoog-Watson v. Guadalupe, 591 F.3d 431, 438 (5th Cir. 2009) (“When a
prosecutor performs the investigative functions normally performed by a
detective or police officer, it is ‘neither appropriate nor justifiable that, for the
same act, immunity should protect the one and not the other.’” (quoting
Buckley, 509 U.S. at 273)).
      Under the functional approach, a prosecutor is entitled to absolute
immunity when, for example, she receives information regarding the violation
of criminal law and subsequently obtains an arrest warrant, Rykers v. Alford,
832 F.2d 895, 897 (5th Cir. 1987), but not when she “advis[es] the police in the
investigative phase” of a criminal case, Burns, 500 U.S. at 493. In Rykers, “the
federal prosecutors received information from Louisiana authorities alleging a
violation of Louisiana criminal law; translated that information into the
federal charge of interstate flight to avoid prosecution under 18 U.S.C. § 1073;
                                         7
    Case: 15-30535     Document: 00513524426     Page: 8   Date Filed: 05/27/2016



                                  No. 15-30535
and obtained a federal arrest warrant.” 832 F.2d at 897. We observed that “a
clearer case of initiating a prosecution can scarcely be imagined,” despite the
fact that charges against the plaintiff were later dropped. Id. In Burns, the
plaintiff sought to hold a state prosecutor liable under § 1983 for advice he gave
the police that plaintiff’s confession under hypnosis constituted probable cause.
500 U.S. at 482. The Supreme Court rejected the argument that “giving legal
advice is related to a prosecutor’s roles in screening cases for prosecution and
in safeguarding the fairness of the criminal judicial process.”       Id. at 495.
Observing that “[a]lmost any action by a prosecutor, including his or her direct
participation in purely investigative activity, could be said to be in some way
related to the ultimate decision whether to prosecute,” the Court concluded
that what matters is whether the prosecutor’s actions “are closely associated
with the judicial process.” Id. at 495 (emphasis added).
      Applying the principles of absolute immunity and the functional
approach prescribed by the Supreme Court’s decisions, we conclude that
O’Bannon is absolutely immune from suit for money damages based on her
alleged malicious prosecution of Loupe. Our decisions applying those of the
Supreme Court make clear that “[p]rosecutors enjoy absolute immunity for
acts taken to initiate prosecution,” Rykers, 832 F.2d at 897 (citing Imbler, 424
U.S. at 430-431), and that this “[a]bsolute immunity shelters prosecutors even
when they act “maliciously, wantonly or negligently.” Id. (quoting Morrison v.
City of Baton Rouge, 761 F.2d 242, 248 (5th Cir. 1985)).
      However, applying the Supreme Court’s decisions, we conclude that
O’Bannon is not absolutely immune from Loupe’s federal and state actions
based on O’Bannon’s alleged order of Loupe’s warrantless arrest, as that
conduct was not part of O’Bannon’s prosecutorial function. In Burns, the
Supreme Court held that giving legal advice to police, including advice as to
whether there is probable cause to arrest a suspect, is not a function protected
                                        8
     Case: 15-30535      Document: 00513524426         Page: 9    Date Filed: 05/27/2016



                                      No. 15-30535
by absolute immunity. 500 U.S. at 493-96. “The mere rendering of legal advice
is not so closely connected to the judicial process that litigation concerning that
advice would interfere with it.” Id. at 493-94. 3 The same is true when a
prosecutor orders a warrantless arrest. In doing so, the prosecutor:
       acts directly to deprive someone of liberty; he steps outside of his
       role as an advocate of the state before a neutral and detached
       judicial body and takes upon himself the responsibility of
       determining whether probable cause exists, much as police
       routinely do. Nothing in the procuring of immediate, warrantless
       arrests is so essential to the judicial process that a prosecutor must
       be granted absolute immunity.
Lacey v. Maricopa Cty., 693 F.3d 896, 914 (9th Cir. 2012). Indeed, the aberrant
nature of O’Bannon’s conduct is emphasized by the fact that O’Bannon ordered
Loupe’s arrest immediately after the court refused her request to issue such
an order. See id. (“[T]he aberrant nature of [the prosecutor’s] behavior is
evinced by the fact that he ordered the arrests while he had a request for arrest
warrants pending before a judge.”).           Ordering a warrantless arrest is not
intimately associated with the judicial phase of the criminal process; it is
conduct outside the judicial process and therefore is not protected by absolute
immunity. 4 Accord Lacey, 693 F.3d at 914; Harris v. Bornhorst, 513 F.3d 503,
511 (6th Cir. 2008) (prosecutor was acting in an administrative or investigative
capacity when he ordered the plaintiff’s arrest after listening to a tape of his
confession); Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir. 1990) (prosecutor was


       3  The Court in Burns also observed that in Mitchell v. Forsythe, 472 U.S. 511, 521
(1985), the Court denied immunity to the United States Attorney General for claims arising
out of his authorization of a warrantless wiretap—“[e]ven though the wiretap was arguably
related to a potential prosecution”—because the Attorney General “was not acting in a
prosecutorial capacity” when he authorized the wiretap. 500 U.S. at 495-96.
        4 Contrary to O’Bannon’s assertions, it makes no difference that she ordered Loupe’s

arrest while in a courtroom. Just as “the actions of a prosecutor are not absolutely immune
merely because they are performed by a prosecutor,” Buckley, 509 U.S. at 273, a prosecutor’s
conduct is not intimately associated with the judicial phase of the criminal process merely
because it takes place in a courtroom.
                                             9
   Case: 15-30535     Document: 00513524426      Page: 10   Date Filed: 05/27/2016



                                  No. 15-30535
not acting within his prosecutorial function when he directed a court officer to
arrest the plaintiff); Snell v. Tunnell, 920 F.2d 673, 693 (10th Cir. 1990) (“[A]
prosecutor who . . . orders a warrantless arrest ordinarily will not be entitled
to absolute immunity.”).
                                       IV
      For these reasons, we AFFIRM the district court’s dismissal of the
malicious prosecution claim but otherwise VACATE the district court’s grant
of O’Bannon’s motion to dismiss Loupe’s suit for money damages based on her
alleged wrongful arrest and REMAND Loupe’s federal and state claims in that
respect to the district court for further proceedings.




                                       10
