                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   February 14, 2012
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 JEREMY C. MYERS,

              Plaintiff - Appellee,

                                                         No. 11-1299
 v.                                         (D.C. No. 1:09-CV-02802-REB-MEH)
                                                        (D. Colorado)



 BRIAN KOOPMAN, Detective in the
 Loveland, Colorado Police Department
 in his individual capacity,

              Defendant - Appellant,

 CITY OF LOVELAND, Colorado, a
 municipality,

              Defendant.


                           ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and HOLMES, Circuit Judges.


      Plaintiff Jeremy C. Myers brought suit for malicious prosecution against

Officer Bryan Koopman under 42 U.S.C. § 1983 in the United States District

      *
        This order and judgment is not binding precedent except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Court for the District of Colorado. Koopman moved to dismiss on various

grounds, including absolute immunity, but the district court denied the motion.

On appeal he renews his claim of absolute immunity. We affirm because his

alleged misconduct was not committed in “performing the traditional functions of

an advocate.” Kalina v. Fletcher, 522 U.S. 118, 131 (1997). Koopman also

raises other arguments, but we do not consider their merits because they were not

preserved below.

I.    BACKGROUND

      Myers originally filed suit in Colorado state court, raising a number of

claims against ten defendants. The case was removed to federal court in late

2009. On February 11, 2011, the district court dismissed many of the claims but

granted permission to file an amended complaint with respect to several claims.

Myers filed an amended complaint on March 2, naming as defendants only

Koopman in his individual capacity and the City of Loveland.

      The sole claim in the amended complaint was a claim under

42 U.S.C. § 1983 for malicious prosecution in violation of Myers’s rights under

the Fourth and Fourteenth Amendments. It alleged that Koopman falsified and

omitted information in an affidavit for a search warrant, fabricated or improperly

manipulated evidence, falsified information in an affidavit for an arrest warrant,

and gave false testimony at a preliminary hearing.




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      The defendants moved to dismiss on several grounds. The district court

dismissed the claims against the City of Loveland and the substantive-due-process

claims against Koopman. But it rejected Koopman’s other arguments. In

particular, it concluded that Koopman was not entitled to absolute prosecutorial

immunity because he had not “adopted the role of a prosecutorial advocate” in

performing the activities alleged in the amended complaint. Stip. App. at 131–32

(Order Concerning Defs.’ Mot. to Dismiss at 11–12, Myers v. Koopman,

No. 09-02802 (D. Colo. June 16, 2011)). On appeal Officer Koopman argues that

all his actions qualify for absolute prosecutorial immunity and that, at a

minimum, he should have immunity for his preliminary-hearing testimony and his

actions after the initiation of legal process.

II.   ANALYSIS

      Ordinarily, the denial of a motion to dismiss is not a final order and

therefore not appealable. But under the collateral-order doctrine, denial of

absolute immunity is a final, appealable order because a person entitled to

absolute immunity is protected against being haled into court. See Chavez v.

Singer, 698 F.2d 420, 421 (10th Cir. 1983). Our review of an absolute-immunity

claim is de novo. See Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d

1306, 1313 (10th Cir. 1999).

      Koopman contends that he is entitled to absolute immunity for the “entire

single claim” of malicious prosecution. Aplt. Br. at 20. Noting that the claim

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against him is for malicious prosecution, Koopman argues that because he is

being sued for his prosecutorial role, he “should be entitled to share in the

prosecutor’s absolute immunity.” Id. at 22. He relies on Justice Ginsburg’s

concurrence in Albright v. Oliver, 510 U.S. 266 (1994), where she wrote:

      [Plaintiff’s] reliance on a ‘malicious prosecution’ theory [in pursuing
      a claim against a police officer], rather than a Fourth Amendment
      theory, is anomalous. . . . By focusing on the police officer’s role in
      initiating and pursuing a criminal prosecution, rather than his role in
      effectuating and maintaining a seizure, [the plaintiff’s] theory raises
      serious questions about whether the police officer would be entitled
      to share the prosecutor’s absolute immunity.

Id. at 279 n.5 (Ginsburg, J., concurring).

      This argument fails, however, because not even a prosecutor would be

immune in performing the acts alleged against Koopman. The question of

immunity turns on “the nature of the function performed.” Kalina, 522 U.S. at

127 (internal quotation marks omitted). “Testifying about facts” is not a function

protected by prosecutorial immunity. Id. at 130. The actions alleged

here—falsifying information in affidavits and giving false testimony in a

preliminary hearing—are not those of “an advocate initiating and presenting the

government’s case.” Mink v. Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007).

      Officer Koopman next argues that even if he does not qualify for immunity

for the entire claim, he should at least have immunity for his testimony at the

preliminary hearing. Immunity in that circumstance would largely depend on

whether he was a complaining witness. See Anthony v. Baker, 955 F.2d 1395,

                                         -4-
1401 (10th Cir. 1992) (deputy sheriff would not be entitled to absolute immunity

in a malicious-prosecution action if he gave testimony as a complaining witness at

a preliminary hearing). But we need not decide that question because Koopman

did not argue witness immunity in district court. We do not address theories

raised for the first time on appeal. See Bass v. Potter, 522 F.3d 1098, 1107 n.9

(10th Cir. 2008) (“Because the theory in question was not presented to the district

court, the issue is not properly before us and we need not comment further.”

(ellipsis and internal quotation marks omitted)). For the same reason, we do not

address Koopman’s argument that he has immunity for actions taken after the

initiation of legal process and his challenge to the constitutional basis for a

malicious-prosecution claim.

III.   CONCLUSION

       We AFFIRM the judgment of the district court.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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