                          UNITED STATES COURT OF APPEALS
                                  For the Fifth Circuit

                           ___________________________________

                                       No. 98-30595
                           ___________________________________

               Clarence Willard Spivey, Jr., doing business as Thrifty Instant Print;
                     Karon K. Spivey, doing business as Thrifty Instant Print,
                                      Plaintiffs-Appellees,

                                                 v.

                  Rickey Robertson, individually and in his official capacity as a
                         police officer for the State of Louisiana; et al,
                                           Defendants,

                      Charles F. Wagner; Thomas Yeager; Jerry Henderson,
                                    Defendants-Appellants.
                          ___________________________________

                           Appeal from the United States District Court
                              for the Western District of Louisiana
                           ___________________________________

                                        December 7, 1999

Before REYNALDO G. GARZA, JOLLY, and, DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

                              I. Factual and Procedural Background

       Mr. Spivey owns and operates Thrifty Instant Print, a photocopy business in Alexandria,

Louisiana. In his capacity as the operator of the print shop, he photocopied hundreds of driver’s

licenses belonging to minors who subsequently altered their original licenses with the Spivey
                                                                                                       2

photocopy so as to allow them to appear of legal age to purchase and consume alcohol or secure

admission to night clubs that served alcoholic beverages.

          As part of a crackdown on underage drinking and the use of fake IDs, the police visited

the Spivey shop after concluding that he was the exclusive source of the photocopies. Spivey

freely cooperated with police, even demonstrating his photocopier on a license. At this point in

time, Spivey was not a criminal target.

          After this visit, upon urging of their superiors, Officers Cook and Robertson visited the

District Attorney’s office to obtain advice on whether a person could be held liable for making

copies of drivers’ licenses that are then altered to make a minor appear to be of the legal drinking

age. Following a review of the law, the Assistant District Attorneys told the officers with what

crimes Spivey could be charged and instructed the officers to prepare for submission an affidavit

of probable cause for an arrest warrant for Spivey using the term “counterfeited.” Deposition

testimony of Officer Robertson demonstrates that the Assistant District Attorneys suggested

pursuing the source of the fake IDs, and that it was their suggestion to obtain an arrest warrant

for Spivey, including supplying the legal basis for such an arrest. Officer Robertson typed up the

warrant as suggested, the judge issued the arrest warrant, and charges were brought against

Spivey.

          State Police arrested Mr. Spivey, escorting him in handcuffs through the front door of his

business into the arms of an alerted media. He was charged with five counts of injuring public

records and one count of unlawful use of a license. Shortly thereafter, however, the District

Attorney’s office dropped all charges against him, the prosecuting district attorney stating that

there was “not a shred” of evidence to support the charges. The Spiveys then filed suit in the
                                                                                                        3

Ninth Judicial District Court, Parish of Rapides, against the officers. The suit was removed to the

United States District Court for the Western District of Louisiana. Based on deposition testimony

in that case, Spivey amended his complaint to include the Assistant District Attorneys on the

ground that they “prepared an embellished and false affidavit for [the police officers] to type and

prepare and to submit to the District Judge to obtain a warrant of arrest.”

       Subsequently, the defendants brought a 12(b)(6) motion, or in the alternative, a motion for

summary judgment pursuant to Fed.R.Civ.P. 56, asserting their entitlement to absolute, or in the

alternative, qualified immunity. The district court denied the motions. This appeal followed.

                                       II. Standard of Review

       We accept a plaintiff’s factual allegations as true when considering motions to dismiss

under Fed.R.Civ.P. 12(b)(6). Buckley v. Fitzsimmons, 509 U.S. 259, 261, 113 S.Ct. 2606, 2609

(1993); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Unless such allegations

show that the plaintiff has failed to state a claim upon which relief can be granted, this court will

not grant a motion to dismiss under 12(b)(6). Id. This court will not look beyond the face of the

pleadings to determine whether relief should be granted based on the alleged facts, St. Paul Ins.

Co. of Bellaire, Texas v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991), cert.

denied, 502 U.S. 1030 (1992), and will construe all factual allegations in the light most favorable

to the plaintiffs, Rubinstein v. Collins, 20 F.3d 160, 166 (5th Cir. 1994).

       We review de novo the denial of motions for summary judgment on the grounds of

qualified or absolute immunity. Hart v. O’Brian, 127 F.3d 424, 437 (5th Cir. 1997). We will

grant a motion for summary judgment under Fed.R.Civ.P. 56 only if the pleadings, answers to

interrogatories, admissions and affidavits on file indicate no genuine issues as to any material fact.
                                                                                                    4

Fed.R.Civ.P. 56. When the burden at trial rests on the nonmovant, the movant must merely

demonstrate an absence of evidentiary support in the record for the nonmovant’s case. Celotex

Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

       Courts of Appeals consider the evidence in the light most favorable to the nonmovant, yet

the nonmovant may not rely on mere allegations in the pleadings; rather, the nonmovant must

respond to the motion for summary judgment by setting forth particular facts indicating that there

is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). After

the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable

juror could find for the nonmovant, summary judgment will be granted. Celotex Corp., 477 U.S.

at 322; Fed.R.Civ.P. 56(c).

                                            III. Analysis

       We are presented in the instant case with an opportunity to clarify the effect of the

Supreme Court’s opinion in Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502 (1997), on the Fifth

Circuit’s decision in Hart v. O’Brien 127 F.3d 424. Both courts apply a functional approach to

absolute immunity. See Hart, 127 F.3d at 439 (holding that a prosecutor enjoys absolute

immunity when he acts as an advocate for the state, but does not enjoy such immunity for acts of

investigation or administration); see also Kalina 118 S.Ct. at 509 (emphasizing the functional

approach to determining absolute immunity, and explaining that absolute immunity protects the

prosecutor’s role as an advocate1). The courts differ, however, as to their analysis of the



       1
          The line between prosecutor as advocate and prosecutor as investigator, administrator,
and/or complaining witness rests, in turn, in part on the policy interest in enabling [the prosecutor]
to exercise independent judgment when ‘deciding which suits to bring and in conducting them in
court.’” Id. at 507 (quoting Imbler v. Pachtman, 424 U.S. 409 (1976)).
                                                                                                       5

threshold timing of prosecutorial absolute immunity.

       In Hart, this court held that the earliest time that absolute immunity may attach to a

prosecutor’s activities is when charges are filed. 2 Shortly after this court’s opinion in Hart, the

Supreme Court decided Kalina. In Kalina, the Supreme Court found that a prosecutor has

absolute immunity when acting as an advocate in supplying legal advice to support an affidavit for

an arrest warrant,3 unless that prosecutor personally attests to the truth of the evidence presented

to a judicial officer, or exercises judgment going to the truth or falsity of evidence. 4 Hart is in

conflict with Kalina, because a prosecutor may select the facts to include in the certification prior


       2
             In Hart, the Affidavit of Probable Cause supporting the arrest warrant contained two
factual errors supplied by the prosecutor. This court stated that, “until charges have been filed
against an individual, a prosecutor is not absolutely immune for cooperating with law enforcement
officers in obtaining a search warrant against that person based on false information.” Id. at 439.
       3
            The Court concluded:

        These cases make it quite clear that petitioner’s activities in connection with the
preparation and filing of two of the three charging documents -- the information and              the
motion for an arrest warrant -- are protected by absolute immunity. Indeed,              except for her
act in personally attesting to the truth of the averments in the                certification, it seems
quite clear that the preparation and filing of the third document       in the package was part of the
advocate’s function as well. The critical question, however, is whether she was acting as a
complaining witness rather than a lawyer         when she executed the certification “[u]nder penalty
of perjury.”

Id. 118 S.Ct. at 508. Before coming to this conclusion, the Court noted that “her drafting of the
certification, her determination that the evidence was sufficiently strong to justify a probable cause
finding, her decision to file charges, and her presentation of the information and motion to the
court” could appropriately be characterized as the work of an advocate. Id. “Each of the
matters involved the exercise of the professional judgment; indeed, even the selection of the
particular facts to include in the certification to provide the evidentiary support for the finding of
probable cause required the exercise of the judgment of the advocate.” Id.
       4
            The Court stated in reference to the immediately above-cited statement: “[T]hat
judgment could not affect that truth or falsity of the factual statements themselves. Testifying
about facts is the function of the witness, not of the lawyer.” Id. at 510.
                                                                                                      6

to when charges are filed. The starting point must be earlier than the formal onset of judicial

proceedings, at least encompassing preparatory moments.

        Kalina now governs when absolute immunity may apply, thus the district court erred in

applying Hart’s chronological analysis to the facts of the instant case. Hart is no longer valid law

regarding the threshold timing for absolute immunity. The district court, however, expressly

applied Kalina to the facts, deciding that the Assistant District Attorneys were not entitled to

absolute immunity because they had manufactured evidence for the police to place in an affidavit

for probable cause. Therefore, under Kalina the Assistant District Attorneys were acting not as

advocates but as complaining witnesses. Pursuant to Kalina, this would be a legally correct

conclusion. We must disagree, however, with the district court’s factual conclusion.

       The district court’s finding under Kalina that the Assistant District Attorneys in the instant

case acted as complaining witnesses rather than as advocates turned entirely on the finding of

manufactured evidence. However, the facts do not support a finding of manufactured evidence,

but instead a reasonable inference that an individual repeatedly photocopying other persons’

licenses for the same small set of individuals, and selling them laminating paper, might know of

the ultimate use and thus be charged as a principal in falsifying public records. The Assistant

District Attorneys point to deposition testimony of one of the officers involved that a limited set

of individuals -- two or three people -- were purchasing all the photocopies, bringing in three or

four licenses at a time, all belonging to minors and all not belonging to the purchaser, to be copied

by Spivey, and that their photocopy purchase included laminating paper. This evidence either

contradicts or undermines the district court’s finding that the prosecutors “[told] the officers to

include certain facts (which, we note, did not even exist in reality or even in the minds of the
                                                                                                        7

Troopers) and swear to them . . .” and that “it was the ADA’s who creatively ‘filled in the gaps’

in the evidence and decided a warrant could be gotten.” Indeed, the district court stated, “[i]n

doing so, the ADA’s were not merely evaluating existing evidence and deciding what would best

support an arrest warrant.” On the basis of the above-stated facts, that conclusion is in error.

       The prosecutors were not creating or manufacturing new facts for the police officers to

include in an affidavit for an arrest warrant, but suggesting legal conclusions on the facts already

given to them by the police. Under Kalina, a prosecutor acts as an advocate in supplying legal

advice to support an affidavit for an arrest warrant and is entitled to absolute immunity as long as

a prosecutor does not personally attest to the truth of the evidence presented to a judicial officer,

or exercise judgment going to the truth or falsity of evidence. Because the prosecutors were

acting as advocates in supplying legal advice based on facts provided by police officers to support

an affidavit for an arrest warrant, the prosecutors in the instant case are absolutely immune.

       In conclusion, we hold, in light of the Supreme Court’s decision in Kalina, that the district

court erred by ruling that absolute immunity does not attach until charges have been filed. The

district court also erred in finding that the prosecutors acted as complaining witnesses rather than

advocates. Thus, the Appellants are entitled to absolute immunity for their role in providing legal

advice based on facts provided to them by police officers in preparation of an arrest warrant.

Accordingly, we REVERSE AND RENDER, dismissing Spivey’s suit on the grounds of absolute

immunity.

       The two pending motions that were carried with the case are hereby denied.
