                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                          _________________

                             No. 91-3757
                          _________________

                        THOMAS MARTIN MALINA
                                 and
                     MRS. THOMAS MARTIN MALINA,

                                           Plaintiffs-Appellants,

                                  VERSUS

                       JUDGE DOUGLAS GONZALES

                                           Defendant-Appellant.

         _________________________________________________

           Appeal from the United States District Court
             for the Eastern District of Louisiana
         _________________________________________________
                          (June 25, 1993)

Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY*,
District Judge:

JOHN D. RAINEY, District Judge:

      This is an appeal from the denial of a motion to dismiss based

on the district court's finding that a state district judge did not

have immunity for his actions.

      While driving home from work one night on Interstate 10,

Plaintiff-Appellee Thomas Malina passed to the right of a slow

moving vehicle. Malina honked his horn and motioned to the driver,

who   was   Defendant-Appellant    Judge   Douglas   Gonzales,    of   the

Nineteenth Judicial District court for the Parish of East Baton

Rouge, to move out of the "fast" lane.

      Upset by Malina's honking, Judge Gonzales placed a flashing

*District Judge of the Southern District of Texas, sitting by
designation
red light on his dashboard and pursued Malina's vehicle until

Malina pulled over to the side of the road.            Judge Gonzales opened

the passenger side door of Malina's car and demanded to see

Malina's driver's license.     In response, Malina asked to see Judge

Gonzales' identification.      Judge Gonzales showed Malina his court

I.D. and told Malina he had the authority to arrest him.               Malina

then drove off.

     Three hours later, a Baton Rouge city police officer appeared

at Malina's home and told Malina that Judge Gonzales wanted to see

him in his court at 9:30 a.m. the next day.              The officer stated

that he was there unofficially as a favor to Judge Gonzales, but

the Judge could issue a bench warrant for Malina's arrest if Malina

did not appear in court.

     Malina appeared at court the next morning, but found the

courtroom closed to the public.           When Judge Gonzales arrived, he

instructed Malina to wait in the empty courtroom.              A few minutes

later, Judge Gonzales, a bailiff, and a deputy sheriff entered the

courtroom.     The   bailiff   said   "all    rise,"    and   Judge   Gonzales

instructed Malina to approach the bench.         No audio or stenographic

record was made of the proceeding.

     According to Malina, the Judge read from a book and stated

that judges are police officers with the authority to arrest

individuals.   The Judge handed a green slip of paper to the bailiff

and told Malina to appear before the duty-judge on May 2, 1988,


                                      2
concerning traffic violations.       Malina asked with what he had been

charged, and Judge Gonzales responded with "fleeing to allude,"

"resisting   an   officer,"    "public   endangerment,"   "disobeying    an

officer," "reckless driving," and "leaving the scene."         The Judge

added that the charges would convince Malina to obey an order and

pull over the next time anyone with a flashing light pulled

alongside him.    Malina responded that he did not feel comfortable

stopping for unmarked vehicles with flashing lights because anyone

can buy such a light.

     At this point, Judge Gonzales cited Malina with contempt and

sentenced him to five hours in jail.            Malina was handcuffed,

fingerprinted, photographed, and imprisoned.

     Malina and his wife brought suit against Judge Gonzales in his

official capacity and individually.        In response, Judge Gonzales

filed a motion to dismiss based upon official immunity.                 The

District Court of the Eastern District of Louisiana denied Judge

Gonzales' motion to dismiss the claim against him in his individual

capacity, on the ground that the Judge was not entitled to judicial

or qualified immunity.        Judge Gonzales now appeals the denial of

his immunity claim.    We affirm in part and reverse in part.

                        I.     Standard of Review

     The denial of a motion to dismiss raising a colorable claim of

immunity is appealable under the collateral order exception to the

finality requirement of 28 U.S.C. § 1291.       Williams v. Brooks, 945

F.2d 1322, 1325 (5th Cir. 1991), cert. denied, 112 S. Ct. 1996

(1992).   The district court's denial of a motion to dismiss on


                                     3
immunity grounds presents a question of law, reviewable de novo.

Id.



                       II.   Judicial Immunity

      Absolute judicial immunity extends to all judicial acts that

are not performed in the clear absence of all jurisdiction.   Adams

v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985), cert. denied, 474

U.S. 1101 (1986).   Thus, a judge has no immunity (1) for actions

taken outside of his judicial capacity, or (2) for actions that are

judicial in nature, but occur in the complete absence of all

jurisdiction.   Mireles v. Waco, 112 S.Ct. 286, 288 (1991).   Judge

Gonzales' actions form four separate incidents.   The first is the

stop on the highway.     The second is Judge Gonzales' use of an

officer to unofficially summon Malina.    The third is the charging

of Malina with various "crimes," and the fourth is the issuance of

the contempt citation and five hour jail sentence.

      In determining whether Judge Gonzales' actions were "judicial

in nature," this Court considers four factors:     (1) whether the

precise act complained of is a normal judicial function; (2)

whether the acts occurred in the courtroom or appropriate adjunct

spaces such as the judge's chambers; (3) whether the controversy

centered around a case pending before the court; and (4) whether

the acts arose directly out of a visit to the judge in his official

capacity. McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972).

The four factors are to be broadly construed in favor of immunity,

and immunity should not be denied where the denial carries the


                                  4
potential of raising more than a frivolous concern in a judge's

mind that to take proper action might expose him to personal

liability.    Adams, 764 F.2d at 297.         In some situations, immunity

is to be afforded even though one or more of the McAlester factors

is not met.    Id.

     The relevant inquiry regarding the first factor )) whether the

precise act complained of is a normal judicial function )) is to

examine the "nature and function" of the act, not the act itself.

Mireles, 112 S.Ct. at 288-89.              The Court is to look to the

particular act's relation to a general function normally performed

by a judge.    Id.

     Except for the issuance of the contempt citation and the

sentencing, none of Judge Gonzales' actions were judicial acts for

immunity purposes.          The first three incidents are not closely

related to a general judicial function.              Peace officers, not

judges, stop motorists on the highway, and prosecutors, not judges,

set the judicial machinery in motion by charging someone with a

crime.   It    is    well    settled   that   charging   a   defendant   is   a

prosecutorial function, not a judicial function.               See Lopez v.

Vanderwater, 620 F.2d 1229, 1235 (7th Cir.), cert. denied, 449 U.S.

1028 (1980).        Additionally, Judge Gonzales' private use of an

officer to unofficially summon Malina is not a judicial act, and is

not closely related to a general judicial function.            Consequently,

Judge Gonzales can claim judicial immunity for neither the stop,

the summons, nor the charging.

     Judge Gonzales can, however, claim judicial immunity for the


                                       5
issuance of the contempt citation and the five hour jail sentence.

     Citing someone for contempt is an act normally performed by a

judge.    Adams, 764 F.2d at 298.      Likewise, issuing a sentence is a

general judicial function.         Lopez, 620 F.2d at 1235 (judge immune

for actions of arraigning, convicting and sentencing).            Both the

contempt    citation   and   the    sentencing   were   "normal   judicial

functions."   Furthermore, the contempt citation and the sentencing

occurred in the courtroom and arose directly from Malina's visit to

the Judge in his official capacity.        Malina's appearance at court,

despite the Judge's highly irregular "summons," was a visit to the

Judge in his "official capacity" as a judge.        See, Adams, 764 F.2d

at 297.    Consequently, Judge Gonzales' actions pass the "judicial

nature" prong of the Mireles inquiry.

     The second prong of the Mireles test states that a judge will

lose his immunity if his judicial act occurred in the complete

absence of all jurisdiction.           Thus, this Court must determine

whether Judge Gonzales had some subject-matter jurisdiction to

issue the contempt citation and sentence.1

     Where a court has some subject-matter jurisdiction, there is

sufficient jurisdiction for immunity purposes. Adams, 764 F.2d at

298. The question is whether Judge Gonzales merely acted in excess

of his authority in issuing the contempt citation and sentence, and

is thus protected by judicial immunity, or whether he acted in

     1
      Viewing the case as a question of subject-matter
jurisdiction is consistent with the position taken by a majority
of the Circuits and the Supreme Court. See, e.g., Adams, 764
F.2d at 298; Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982);
and Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871).

                                      6
clear absence of all jurisdiction.     See, My. Schwartz & J. Kirklin,

I Section 1983 Litigation § 9.3 at 451 (1911).     It is important to

note that "judicial immunity is not overcome by allegations of bad

faith or malice."    Mireles, 112 S.Ct. at 288.     It is the Judge's

actions alone, not intent, that we must consider.

      By law, a judge in Louisiana may hold someone in contempt and

sentence him for "[c]ontumacious, insolent, or disorderly behavior

toward the judge."    La. Code Civ. Proc. Ann. art. 222.       See also,

La. Code Civ. Proc. Ann. arts. 221 and 223.      Thus, Judge Gonzales

had some subject-matter jurisdiction over Malina's actions within

his courtroom.    Malina argues, however, that he was not sentenced

for his behavior within the courtroom, but that he was sentenced

for what occurred on the highway.

      The district court assumed Malina's version of the facts as

true, and found that Judge Gonzales essentially "sentenced" Malina

to jail for the "charges" brought against him.        It is not clear

from the record if charges were ever filed against Malina.       For the

purpose of a motion to dismiss, however, this Court must assume all

well-pleaded allegations as true.      Tanglewood East Homeowners v.

Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988).        Thus,

the question is whether Judge Gonzales acted with the complete

absence of all jurisdiction, having absolutely no subject matter

jurisdiction to sentence Malina for "fleeing to allude," "resisting

an   officer,"   "public   endangerment,"   "disobeying   an   officer,"

"reckless driving," and "leaving the scene."

      A review of the Louisiana Code reveals that Judge Gonzales did


                                   7
have some subject-matter jurisdiction over the case.    According to

Article 5, section 16 of the State Constitution, a district court

has original jurisdiction of all civil and criminal matters, except

as otherwise authorized by the Constitution.     The charges brought

against Malina did not fall within the "otherwise authorized"

exception.   Accordingly, Judge Gonzales had at least some subject-

matter jurisdiction over Malina's case.

     Judge Gonzales' illegitimate prior acts of arrest and summons

are ill-received by this Court, but they did not completely deprive

him of subject-matter jurisdiction.   See Lopez, 620 F.2d at 1233.

Even "grave procedural errors do not deprive a judge of all

jurisdiction."   Stamp v. Sparkman, 435 U.S. 349, 359 (1978).

     Judge Gonzales'   actions of citing Malina with contempt and

sentencing him to five hours in jail are judicial acts, and they

were not taken in the clear absence of subject-matter jurisdiction.

Thus, under no set of facts can Malina overcome Judge Gonzales'

entitlement to immunity for the contempt citation and sentence.

     Accordingly, we reverse on this point.

                     III.   Qualified Immunity

     Generally, the qualified immunity inquiry focuses on whether

the contours of the right allegedly violated were sufficiently

clear such that a reasonable official would understand that his

action violated that right.   Mouille v. City of Live Oak, 918 F.2d

548, 551 (5th Cir. 1990).      This Court must determine if Judge

Gonzales' actions violated a constitutional right, and if so, would

a reasonable person have known he was violating that right.


                                  8
      Because    we    have    found   that   Judge   Gonzales    had   absolute

judicial immunity in issuing the contempt citation, we do not need

to reach the qualified immunity inquiry.               We need only discuss

whether the stop on the interstate and the summons into court are

actions protected by qualified immunity.

      Judge Gonzales argues that he did not violate Malina's Fourth

Amendment rights on the interstate because no seizure occurred.                A

seizure can occur, however, through physical force or a "show of

authority."     California v. Hodari D., 111 S.Ct. 1547, 1552 (1991).

Judge Gonzales stopped Malina on the interstate by flashing a red

light, which is a show of authority.                  Thus, Judge Gonzales'

argument is without merit.

      Judge Gonzales further argues that even if a seizure occurred,

a   seizure     must   be     unreasonable    to   create   a    constitutional

violation.      See, Brower v. County of Inyo, 489 U.S. 593, 599,

(1989).   Again, accepting Malina's version of the facts as true,

the stop was unreasonable.         Judge Gonzales stopped Malina because

Malina honked his horn and motioned to the Judge to change lanes.

This does not give rise to probable cause or reasonable suspicion.

The facts simply do not support Judge Gonzales' contentions that

the stop was reasonable and proper.

      Because a constitutional violation occurred, we must address

the immunity inquiry.

      Ultimately, Judge Gonzales is not entitled to make a claim of

qualified immunity for he was not a peace officer authorized to

stop Malina.     Judge Gonzales is no different than any other person


                                         9
who purchases a red light and stops people on the interstate.       This

finding is consistent with our decision in Brewer, 692 F.2d at 396,

in which we held that a Justice of the Peace had no authority to

pursue and arrest the plaintiff, and thus no immunity for his

actions.

     Judge Gonzales attempts to show that he had authority under

Louisiana law to arrest Malina, but the Judge's argument fails.

The only authority cited by Judge Gonzales is Louisiana's murder

statute, which defines first degree murder as the killing of a

human being "when the offender has a specific intent to kill or to

inflict great bodily harm upon a . . . peace officer engaged in the

performance   of    his   lawful   duties."   La.   Rev.   Stat.   Ann.,

§ 30(A)(2).    The statute includes "judge" in its definition of

"peace officer," but specifically limits its definition of peace

officer "[f]or the purposes of" § 30(a)(2).     La. Rev. Stat. Ann.,

§ 30(b).   Thus, this statute has no bearing on the case before us.

     Moreover, under the "Peace Officer Standards and Training"

section of the Louisiana annotated statutes, "peace officer" is

defined as:

     any full-time appointed or commissioned employee of a
     sheriff's department, municipal police department, or the
     State Police, whose employment duties actually include
     the making of arrests, the performing of searches and
     seizures, or the execution of criminal warrants, and
     which is responsible for the prevention or detection of
     crime or for the enforcement of the penal, traffic, or
     highway laws of the state.

La. Stat. Ann., § 2402(1). Additionally, under section 2405, every

peace officer must "successfully complete a basic law enforcement

training course."    As the District Court noted, Judge Gonzales has

                                    10
not argued that he successfully completed any training course in

the area of law enforcement.

     Consequently, this Court finds that Judge Gonzales is not

entitled to claim qualified immunity, for under a fair, and even

charitable reading of Louisiana law, judges have no authority to

make arrests.   The district court correctly denied Judge Gonzales'

motion to dismiss on qualified immunity grounds with regard to the

interstate incident.

     Judge Gonzales has not claimed immunity for the coercive

summons by the police officer and the charging of Malina with

various offenses, and he does not argue that a constitutional

violation did not occur. Therefore, we affirm the district court's

denial of qualified immunity as to this aspect of the case as well.

                                IV.

     This case is affirmed in part and reversed in part.




                                 11
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part.


       I concur in almost every aspect of the majority opinion except

one:       I would hold that Judge Gonzales is not absolutely immune

from prosecution for holding Malina in contempt of court.1                 This

case is not a case of "excess jurisdiction,"2 but rather a case of

"clear absence of all jurisdiction."3           Crucial are the following

      1
            I am acutely aware of the possible misuses of this dissent.    As
Judge Goldberg correctly pointed out:
       [T]he opening of any inroads weakening judicial immunity could
       have the gravest consequences to our system of justice. Every
       judicial act is done "under color of law;" absent the doctrine,
       every judicial error affecting a citizen's rights could thus
       ultimately subject the judge to section 1983 liability. To be
       sure, we can conjure converse chambers of horrors, but we cannot
       allow that to erode the necessary features of the immunity. That
       judicial immunity is sometimes used as an offensive dagger rather
       than a defensive shield must not justify derogating its
       inviolability. Even though there may be an occasional diabolical
       or venal judicial act, the independence of the judiciary must not
       be sacrificed one microscopic portion of a millimeter, lest the
       fears of section 1983 intrusions cow the judge from his duty.
McAlester v. Brown, 469 F.2d 1280, 1283 (5th Cir. 1970). And like Judge Hill,
I would caution those who read this opinion to be wary that this dissent "is
exceedingly narrow and is tailored to this, the rarest of factual settings."
Harper v. Merckle, 638 F.2d 848, 859 (5th Cir. 1981) (footnote omitted).
       2
            See Stump v. Sparkman, 435 U.S. 354, 356-357, 98 S. Ct. 1099,
1105, 55 L. Ed. 2d 331 (1978) ("A judge will not be deprived of immunity
because the action he took was in error, was done maliciously, or was in
excess of his authority; rather, he will be subject to liability only when he
has acted in the `clear absence of all jurisdiction.'" (citation and footnote
omitted)).
      3
            My disagreement with the majority opinion does not stem from the
standard of review. The majority correctly states that "[a]bsolute judicial
immunity extends to all judicial acts that are not performed in the clear
absence of all jurisdiction[,]" or, conversely, "a judge has no immunity (1)
for actions taken outside of his judicial capacity, or (2) for actions that
are judicial in nature, but occur in complete absence of all jurisdiction."
Maj. op. at 4 (citations omitted).
            The majority also properly focuses on the four factors first
articulated by Judge Goldberg in McAlester to determine whether Judge Gonzales
acted in his judicial capacity))(1) whether the precise act complained of is a
normal judicial function; (2) whether the acts occurred in the courtroom or
appropriate adjunct spaces such as the judge's chambers; (3) whether the
controversy centered around a case pending before the court; and (4) whether
the acts arose directly out of a visit to the judge in his official capacity.

                                      12
facts:4

     [A] Baton Rouge city police officer appeared at Malina's
     home and told Malina that Judge Gonzales wanted to see
     him in his court at 8:30 a.m. the next day. The Officer
     stated that he was there unofficially as a favor to Judge
     Gonzales, but the Judge could issue a bench warrant for
     Malina's arrest if Malina did not appear in court.


     Malina appeared at court the next morning, but found the
     courtroom closed to the public.     When Judge Gonzales
     arrived, he instructed Malina to wait in the empty
     courtroom.   A few minutes later, Judge Gonzales, a
     bailiff,   and    a   deputy    sheriff   entered    the
     courtroom. . . .

     [Judge Gonzales] read from a book and stated that judges
     are police officers with the authority to arrest
     individuals. The Judge handed a green slip of paper to
     the bailiff and told Malina to appear before the duty-
     judge on May 2, 1988, concerning traffic violations.
     Malina asked with what he had been charged, and Judge
     Gonzales responded with "fleeing to allude," "resisting
     an officer," "public endangerment," "disobeying an
     officer," "reckless driving," and "leaving the scene."
     The Judge added that the charges would convince Malina to
     obey an order and pull over the next time anyone with a
     flashing light pulled alongside him. Malina responded
     that he did not feel comfortable stopping for unmarked
     vehicles with flashing lights because anyone can buy such
     a light.

     At this point, Judge Gonzales cited Malina with contempt
     and sentenced him to five hours in jail.      Malina was
     handcuffed, fingerprinted, photographed, and imprisoned.


McAlester, 469 F.2d at 1282. I also agree that these four factors should be
broadly construed and that immunity may be afforded although one or more
factors is not met. See Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985).
The question presented is not whether Judge Gonzales' action in holding Malina
in contempt and sentencing him to five hours in jail was "judicial in nature,"
but rather whether it occurred "in complete absence of all jurisdiction." But
see infra n.7.
     4
            The district court correctly held, in "deciding this [Rule
12(b)(6)] motion to dismiss, the court must accept `all allegations of the
complaint . . . as true, along with any reasonable inferences that may be
drawn therefrom.'" See Record Excerpts for Gonzales tab 4, at 6 (quoting
Watts v. Grayes, 720 F.2d 1416, 1419 (5th Cir. 1983)). And so must we. See
Tanglewood East Homeowners v. Charles Thomas, Inc., 849 F.2d 1568, 1572 (5th
Cir. 1988).

                                     13
Maj. op. at 2-3.

     Although I agree that Judge Gonzales, as a Louisiana state

judge, had the power to punish for contempt, see La. Code Civ.

Proc. Ann. art. 222 (West 1960), and that the issuance of the

contempt citation occurred within a courtroom, no case was pending

before   Judge   Gonzales.5      He   therefore     lacked   subject    matter

jurisdiction6 for the purpose of judicial immunity.           See Bradley v.

Fisher, 80 U.S. (13 Wall.) 335, 351 (1871); Adams, 764 F.2d at 298;

Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982).           Moreover, Judge

Gonzales' exercise of his contempt power presupposed, rather than

conferred subject-matter jurisdiction.7

     The only reason Malina was in the courtroom was because a

Baton Rouge police officer))on an unofficial visit on behalf of

Judge    Gonzales))asked    Malina    to   appear   the   next   day.     The

jurisdiction prong for judicial immunity requires that judges


     5
            Judge Gonzales' finding of contempt was a direct result of
Malina's reaction to the charges and Judge Gonzales' admonition "that the
charges would convince Malina to obey an order and pull over the next time
anyone with a flashing light pulled alongside him." See Maj. op. at 5. "It
is well settled that charging a defendant is a prosecutorial function, not a
judicial function." Id., (citing Lopez v. Vanderwater, 620 F.2d 1129, 1235
(7th Cir.), cert. denied, 449 U.S. 1028 (1980)). As a prosecutor, Judge
Gonzales had no authority to hold Malina in contempt.
      6
            See La. Code Civ. Proc. Ann. art. 2 (West 1960) ("Jurisdiction
over the subject matter is the legal power and authority of a court to hear
and determine a particular class of actions or proceedings, based upon the
object of the demand, the amount in dispute, or the value of the right
asserted.").
      7
            See La. Code Civ. Proc. Ann. art. 221 (West 1960) ("A contempt of
court is any act or omission tending to obstruct or interfere with the orderly
administration of justice, or to impair the dignity of the court or respect
for authority."); see also La. Code Crim. Proc. Ann. art. 20 (West 1991)
(same). See also Detournion v. Dormenon, 1 Mart., O.S. (1810) (holding that
an insult to a parish judge acting as an auctioneer, is not a contempt of him
in his judicial capacity, and cannot be punished); Junius Hart Piano House v.
Ingman, 44 So. 850, 852 (citing with approval Detournion).

                                      14
possess the authority to perform actions relating to a matter

before them.    See, e.g., Mireles v. Waco, ___ U.S. ___, 112 S. Ct.

286, 289, ___ L. Ed. 2d ___ ("[S]uch an action))taken in the very

aid of the judge's jurisdiction over a matter before him))cannot be

said to have been taken in the absence of jurisdiction." (emphasis

added)); Stump v. Sparkman, 435 U.S. 349, 351-52, 98 S. Ct. 1099,

1102-03, 55 L. Ed. 2d 331 (1978) (stating that sterilization

petition was before state court judge); Adams, 764 F.2d at 298

(stating that the objectionable contempt order arose out of a

criminal case involving the plaintiff's sons, over which the judge

presided).    Moreover, Judge Gonzales's actions did not occur while

he had subject matter jurisdiction over any other claim.                See

Adams, 764 F.2d at 297 n.2 (citing as an example of a judicially

immune action, the situation where a judge cites a person raising

a   disturbance   immediately    outside    his   courtroom    window   for

contempt,    assumedly   while   ongoing   proceedings   are   before   the

judge).     Therefore, at the time Judge Gonzales cited Malina for

contempt, he was acting in "clear absence of all jurisdiction."8

      8
          I am also somewhat skeptical of the majority's
conclusion that the issuance of the contempt citation was a
judicial act. An application of the four McAlester factors
reveals that the issuance of the contempt citation did not arise
from:   (1) a case pending before Judge Gonzales; or (2) a visit
to Judge Gonzales in his official capacity. Although Malina was
told))by a Baton Rouge police officer on an unofficial visit))to
report to Judge Gonzales's courtroom, Malina was never told why
he was being "summoned," or that he was going to be charged with
a crime. In a case involving similarly egregious facts, we
focused on these particular McAlester factors to support our
holding that certain actions by a judge were not "judicial acts."
See Harper, 638 F.2d at 858-59 (emphasizing third and fourth
McAlester factors because the determination of what constitutes a
"judicial act," must include a consideration of the "expectations

                                    15
     Furthermore, the factors that support immunity for judicial

acts are not implicated by Judge Gonzales's conduct.           As Chief

Justice Warren stated:

     It is a judge's duty to decide all cases within his
     jurisdiction that are brought before him, including
     controversial cases that arouse the most intense feelings
     in the litigants. His errors may be corrected on appeal,
     but he should not have to fear that unsatisfied litigants
     may hound him with litigation charging malice or
     corruption.    Imposing such a burden on judges would
     contribute not to principled and fearless decisionmaking
     but to intimidation.

See Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218, 18 L.

Ed. 2d 288 (1967); see also Thomas v. Sams, 734 F.2d 185, 189 (5th

Cir. 1984) (quoting Pierson).       There was no case pending before

Judge Gonzales when he held Malina in contempt.         Thus, the policy

behind    judicial       immunity))encouragement        of     "fearless

decisionmaking"   free     from    the   intimidation     of   vexatious

litigation))has   no     bearing   on    Judge   Gonzales's     conduct.

Conversely, the dangers implicit in his conduct))over-reaching from

the joinder of executive and judicial powers))have been apparent

since before the Constitution.      See The Federalist No. 47, at 303

(James Madison) (Clinton Rossiter ed., 1961) ("Were the power of

judging joined . . . to the executive power, the judge might behave

with all the violence of an oppressor."      (quoting Montesquieu)).

     I would therefore hold that Judge Gonzales is not judicially

immune for the issuance of the contempt citation and sentencing,



of the parties"). But see Adams, 764 F.2d at 298 n.4 (noting
that Harper's reliance on the personal motivation of the judge in
arriving at its holding was inconsistent with Supreme Court and
Fifth Circuit precedent).

                                   16
because these "actions . . . [were] taken in the complete absence

of all jurisdiction."     Mireles, ___ U.S. at ___, 112 S. Ct. at 288.

Accordingly, I would affirm the district court's denial of the

motion to dismiss in its entirety.9




      9
            For the reasons stated in this dissent, I would also affirm the
district court's holding denying Judge Gonzales qualified immunity on the
issue of Malina's contempt and sentence. See Anderson v. Creighton, 483 U.S.
635, 646, 107 S. Ct. 3034, 3042, 97 L. Ed. 2d 523 (1987) (stating that an
official is protected by qualified immunity if his actions were reasonable
under the law).

                                     17
