     11-2367-cv
     Giraldo v. Kessler, et al.


 1                     UNITED STATES COURT OF APPEALS

 2                         FOR THE SECOND CIRCUIT
 3                              August Term, 2012

 4   (Argued:   June 12, 2012                Decided: September 14, 2012)

 5                          Docket No. 11-2367-cv

 6   - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
 7   KARLA GIRALDO,
 8        Plaintiff-Cross-Defendant-Appellee,
 9
10                              - v. -
11
12   SCOTT EVAN KESSLER, Assistant District Attorney, Bureau Chief of
13   Domestic Violence, individually and in his official capacity,
14   KESHIA ESPINAL, Assistant District Attorney, in her official
15   capacity,
16        Defendants-Cross-Defendants-Appellants,
17
18
19   CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, SEAN WARD,
20   Detective, in his official and individual capacity, THOMAS
21   FITZGERALD, P.O., in his official and individual capacity,
22        Defendants-Cross-Defendants,
23
24
25   SAFE HORIZON, INC., ENIDIA SEOANE, RICHARD A. BROWN, Queens
26   County District Attorney, individually and as the District
27   Attorney of Queens County, NORTH SHORE LONG ISLAND JEWISH HEALTH
28   SYSTEM, INC., DAWNE KORT, M.D., SUSAN CABIBBO, R.N., DANIEL
29   FROGEL, DR.,
30        Defendants-Cross-Defendants-Cross-Claimants.
31
32   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
33
34   B e f o r e:    WINTER, CABRANES, and CARNEY, Circuit Judges.
35

36

37

                                         1
 1   Appeal from a denial of absolute prosecutorial immunity by the

 2   United States District Court for the Eastern District of New York
 3   (John Gleeson, Judge).      We vacate and remand.

 4                                       ELIZABETH S. NATRELLA (Leonard
 5                                       Koerner, on the brief), of counsel,
 6                                       for Michael A. Cardozo, Corporation
 7                                       Counsel of the City of New York,
 8                                       New York, New York, for Defendants-
 9                                       Appellants.
10
11                                       CHRISTOPHER BELLISTRI, Cronin &
12                                       Byczek LLP, Lake Success, New York,
13                                       for Plaintiff-Appellee.
14
15                                       Janet DiFiore, District Attorney,
16                                       Anthony J. Servino, Richard
17                                       Longworth Hecht, Steven A. Bender,
18                                       Assistant District Attorneys, of
19                                       counsel, Westchester County
20                                       District Attorney’s Office, White
21                                       Plains, New York, for Amicus Curiae
22                                       District Attorneys Association of
23                                       the State of New York in support of
24                                       Defendants-Appellants.
25
26   WINTER, Circuit Judge:

27         Queens County Assistant District Attorneys Scott Evan

28   Kessler and Keshia Espinal appeal from Judge Gleeson’s denial of
29   absolute immunity in an action brought under, inter alia, 42
30   U.S.C. § 1983.     Karla Giraldo, the plaintiff-appellee, alleged in

31   her complaint that appellants’ interrogation of her following the

32   arrest of her boyfriend, former New York State Senator Hiram

33   Monserrate, violated her civil rights.1         We vacate and remand.

34

           1
            Although appellee did not identify her “boyfriend” by name in the
     complaint, the district court took judicial notice that the references are to
     Monserrate. No party disputes the truth of that conclusion.

                                           2
 1                                 BACKGROUND

 2        We view the facts alleged in the complaint in the light most
 3   favorable to appellee.    See Warney v. Monroe County, 587 F.3d
 4   113, 116 (2d Cir. 2009).    We also take judicial notice of

 5   relevant matters of public record.     See, e.g., Shmueli v. City of

 6   New York, 424 F.3d 231, 233 (2d Cir. 2005); Fed. R. Evid. 201(b)

 7   (permitting judicial notice of facts “not subject to reasonable

 8   dispute”).

 9        On December 19, 2008, appellee suffered a laceration above

10   her left eye requiring twenty stitches to close.    Monserrate

11   brought her to a hospital emergency room for treatment.       There,

12   she was seen by defendants Dr. Kort and Dr. Frogel.    Appellee

13   told them that she was injured as a result of an “accident” that

14   occurred when her boyfriend brought her a glass of water that

15   broke, causing shards to fly and cut her forehead.     Doctors Kort

16   and Frogel suspected domestic abuse and contacted the New York

17   City Police Department.    Appellee also told Nurse Susan Cabibbo

18   that she was not in need of protection and that she was not

19   involved in an altercation.    The nurse nevertheless contacted the

20   police and informed them that appellee was a victim of domestic

21   violence.

22        Soon afterward, Police Officer Fitzgerald and another

23   unidentified officer arrived at the hospital and interviewed

24   Monserrate and appellee separately.    Officer Fitzgerald then

25   arrested Monserrate.     After the completion of appellee’s

                                        3
 1   treatment, Kort and Frogel did not allow appellee to leave and

 2   had her transported to the 105th Precinct where she was kept for

 3   more than five hours.      At the precinct, Detective Ward

 4   interrogated appellee regarding her injury, and she consistently

 5   responded that it was the result of an accident.            Detective Ward

 6   then “ordered” appellee to sign a statement accusing Monserrate

 7   of assaulting her, but she refused.         Appellee continued to be

 8   interrogated by police personnel.

 9         After the police interrogation, appellee was taken against

10   her will to the Queens District Attorney’s office, where she was

11   interviewed by appellants.       Appellee states she told appellants

12   that she did not want to talk, but that they nevertheless

13   continued to interrogate her.        After two hours of interrogation

14   by appellants, appellee was released.

15         Meanwhile, on the day of the injury and arrest, Monserrate

16   was arraigned and     bail was posted.      See People v. Hiram

17   Monserrate, Docket Number 2008QN067420 (felony complaint filed

18   and dated December 19, 2008, charging two counts of felony
19   assault in the second degree and one count of misdemeanor

20   criminal possession of a weapon in the fourth degree; Monserrate

21   posted bail on December 19, 2008); see also Shmueli, 424 F.3d at

22   233 (“The New York State . . . prosecution of Shmueli is a matter

23   of public record, of which we take judicial notice.”); cf.

24   Warney, 587 F.3d at 118 (taking judicial notice of federal habeas
25   corpus petition on appeal).2


           2
             We may also take notice of the fact that Monserrate was convicted of
     third-degree assault in connection with the incident. See People v.
     Monserrate, 90 A.D.3d 785, 785-86, 934 N.Y.S.2d 485, 487-88 (2d Dep’t 2011),

                                           4
 1         Appellants moved to dismiss the complaint on various

 2   grounds, including absolute immunity.         The district court denied

 3   the motion.    On the merits, the court held that appellee’s

 4   allegations of being “unlawfully detained, held against her will

 5   and maliciously interrogated” by appellants in violation of her

 6   right to be free from unreasonable seizures stated plausible

 7   Section 1983 claims.      The court also held that appellee could

 8   bring claims against appellants in their individual capacities,

 9   but that she could not proceed against them in their official

10   capacities because doing so would constitute an impermissible

11   action against the Queens District Attorney’s office.        Finally,

12   on the issue before us, the court rejected appellants’ argument

13   that absolute immunity shielded them from liability, finding that

14   their “conduct in this case [was] more closely linked to the

15   prosecutor[s’] investigative duties [rather] than to [their] role

16   as government litigator[s] . . . .”
17         This appeal followed.

18                                    DISCUSSION
19         This is, of course, an interlocutory appeal.        However,

20   because prosecutorial immunity is intended to shield prosecutors

21   from legal proceedings, as well as liability, a denial of

22   immunity is final as to the need to proceed with the action and,

23   at least as to matters of law, is reviewable under the collateral

24   order doctrine.     See, e.g., Hill v. City of New York, 45 F.3d
25   653, 659-60 (2d Cir. 1995); Kaminsky v. Rosenblum, 929 F.2d 922,

26   925-26 (2d Cir. 1991); see also Nixon v. Fitzgerald, 457 U.S.

     lv. denied, 18 N.Y.3d 996, 968 N.E.2d 1007 (2012).

                                           5
 1   731, 742-43 (1982) (jurisdiction to review denial of absolute

 2   immunity under the collateral order doctrine if the denial

 3   involves only a question of law).      We review such issues of law

 4   de novo.     See Warney, 587 F.3d at 120.

 5           Absolute immunity bars a civil suit against a prosecutor for

 6   advocatory conduct that is “intimately associated with the

 7   judicial phase of the criminal process.”     Imbler v. Pachtman, 424

 8   U.S. 409, 430 (1976).    This immunity attaches to conduct in

 9   court, as well as conduct “preliminary to the initiation of a
10   prosecution and actions apart from the courtroom.”     Id. at 431
11   n.33.

12           An official claiming immunity bears the burden of showing

13   that the particular immunity claimed applies.     See Burns v. Reed,

14   500 U.S. 478, 486-87 (1991).    In determining whether absolute

15   prosecutorial immunity attaches, we apply a “functional

16   approach.”    Hill, 45 F.3d at 660.    “Prosecutorial immunity from

17   § 1983 liability is broadly defined, covering ‘virtually all

18   acts, regardless of motivation, associated with [the
19   prosecutor’s] function as an advocate.’”     Id. at 661 (quoting
20   Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)).      The Supreme Court

21   has explained that a prosecutor’s functions preliminary to the

22   initiation of proceedings include “whether to present a case to a

23   grand jury, whether to file an information, whether and when to

24   prosecute, whether to dismiss an indictment against particular

25   defendants, which witnesses to call, and what other evidence to

26   present.”    Imbler, 424 U.S. at 431 n.33.



                                        6
 1        Analysis of a claim of immunity requires us to view the

 2   relevant circumstances as would a reasonable official in the

 3   claimant’s position.3     See Hill, 45 F.3d at 662 (“[T]he

 4   ‘functional’ test for absolute immunity is an objective one; it

 5   does not depend upon the state actor’s subjective intent.”);

 6   Dory, 25 F.3d at 83; see also Burns, 500 U.S. at 487-88

 7   (allegations that prosecutor “deliberately misled the Court”

 8   during preliminary hearing were deemed irrelevant where the

 9   prosecutor’s objective act –- presenting evidence at the hearing

10   –- enjoyed absolute immunity).       The relevant question, therefore,

11   is whether a reasonable prosecutor would view the acts challenged

12   by the complaint as reasonably within the functions of a

13   prosecutor.    If the generic acts are within those functions,

14   absolute immunity applies to protect the prosecutor even in the

15   face of a complaint’s allegations of malicious or corrupt intent
16   behind the acts.     See id. at 489-90.      Otherwise, the absolute

17   immunity would not be absolute.

18        Under a functional approach, actions are not shielded by
19   absolute immunity merely because they are performed by a

20   prosecutor.    “A prosecutor’s administrative duties and those

21   investigatory functions that do not relate to an advocate’s

22   preparation for the initiation of a prosecution or for judicial
23   proceedings are not entitled to absolute immunity.”           Buckley v.

24   Fitzsimmons, 509 U.S. 259, 273 (1993).         In Buckley, the plaintiff


           3
             In many cases, of course, the underlying circumstances may be in
     dispute. See, e.g., Grp. Health Inc. v. Blue Cross Ass’n, 793 F.2d 491, 497
     (2d Cir. 1986) (dismissing defendant’s claim of absolute immunity on appeal
     where questions of fact were at issue). However, the allegations of the
     complaint here are sufficient to resolve the issues in this case.

                                          7
 1   sought damages from prosecutors for, inter alia, allegedly

 2   “fabricating evidence during the preliminary investigation of a

 3   crime.”   Id. at 261.   In holding that the prosecutors were not

 4   entitled to absolute immunity, the Court stated that a prosecutor

 5   “neither is, nor should consider himself to be, an advocate

 6   before he has probable cause to have anyone arrested.”      Id. at

 7   274.

 8          “[A]ctions taken as an investigator enjoy only qualified
 9   immunity.”    Zahrey v. Coffey, 221 F.3d 342, 346 (2d Cir. 2000).

10   “Although all investigative activity could be considered in some

11   sense to be ‘prepar[ation] for the initiation of judicial

12   proceedings,’ the Supreme Court has sought to draw a line between

13   those preparatory steps that a prosecutor takes to be an

14   effective advocate of a case already assembled and those
15   investigative steps taken to gather evidence.”      Smith v.
16   Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (quoting Buckley, 509

17   U.S. at 273).   The Supreme Court “has identified ‘evaluating

18   evidence and interviewing witnesses’ as falling on the absolute

19   immunity side of the line, leaving ‘searching for the clues and

20   corroboration’ that might lead to a recommendation for an arrest
21   on the qualified immunity side.”       Id. at 94 (quoting Buckley, 509

22   U.S. at 273).

23          Therefore, not every interview, interrogation, or other act

24   by a prosecutor with the potential of revealing new information

25   is an investigative act entitled to only qualified immunity.      See

26   Warney, 587 F.3d at 124 (prosecutors’ actions to deal with post-

27   trial initiatives challenging a criminal conviction, even though

                                        8
 1   they could be seen as investigative and administrative, were

 2   “also integral to the overarching advocacy function”).    Good

 3   prosecutors may –- usually should –- perform acts reasonably

 4   characterized as investigative at all phases of a criminal

 5   proceeding.   The investigative acts that are entitled to only

 6   qualified immunity are those undertaken in the phase of law

 7   enforcement that involves the gathering and piecing together of

 8   evidence for indications of criminal activities and determination
 9   of the perpetrators.   Smith, 147 F.3d at 94.
10          In contrast, investigative acts reasonably related to

11   decisions whether or not to begin or to carry on a particular

12   criminal prosecution, or to defend a conviction, are shielded by

13   absolute immunity when done by prosecutors.     To be sure, as the

14   Supreme Court cautioned in Buckley, even the presence of probable

15   cause “does not guarantee a prosecutor absolute immunity from

16   liability for all actions taken afterwards.”    509 U.S. at 274

17   n.5.   Such acts are shielded by absolute immunity only when they

18   are of a kind reasonably related to the ordinary functions of a
19   prosecutor with such probable cause.

20          Viewed through the eyes of a reasonable prosecutor,

21   appellants’ acts in the present case were well within their

22   legitimate functions as prosecutors.   Monserrate had been

23   arrested prior to appellants’ interview of appellee.    Once the

24   arrest took place, legal decisions at the core of the

25   prosecutorial function -- pursuit of the charges, arraignment,

26   bail, etc. -- had to be made by appellants and made quickly.      The

27   interview of appellee was clearly in a “pending or in preparation

                                       9
 1   [of] a court proceeding in which the prosecutor acts as an

 2   advocate.”    Warney, 587 F.3d at 123.

 3          Appellee was obviously an important witness with regard to

 4   the proceeding against Monserrate.    That she claimed her injuries

 5   resulted from an accident hardly weighed against interviewing

 6   her.   Viewing the circumstances objectively, her claim that her

 7   injuries were the result of an accident might well cause a

 8   reasonable prosecutor to believe that interrogation was even more

 9   necessary than would have been the case in more common

10   circumstances.   A reasonable prosecutor easily could –- should –-

11   have viewed a first-hand interview and personal weighing of the

12   credibility of appellee’s self-propelled-shattering-glass story

13   as necessary.    While questioning an important witness may

14   accurately be described as investigative, appellants’ interview

15   was an integral part of appellants’ advocatory function as
16   prosecutors protected by absolute immunity.   See, e.g., Imbler,
17   424 U.S. at 430.

18          Because the objective circumstances triggered absolute

19   immunity, appellee’s allegations that the interview was in

20   furtherance of a conspiracy to “create statements that would

21   falsely implicate [Monserrate] of a crime and falsely state

22   comments that were allegedly made by [appellee]” are irrelevant.

23   See, e.g., Hill, 45 F.3d at 662.

24

25

26

27

                                      10
1                            CONCLUSION

2        For the foregoing reasons, the order of the district court

3   dated May 27, 2011, denying absolute immunity to the appellants

4   is vacated and remanded for proceedings consistent with this

5   opinion.

6




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