11-5386-cv
Simon v. City of New York, et al.




                                    UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT


                                            August Term, 2012

                         (Argued: February 6, 2013       Decided: August 16, 2013)

                                           Docket No. 11-5386-cv


                                             ALEXINA SIMON,

                                                                Plaintiff-Appellant,

                                                 — v. —

       CITY OF NEW YORK, ADA FRANCIS LONGOBARDI, DETECTIVE EVELYN ALEGRE,
                            DETECTIVE DOUGLAS LEE,

                                                                Defendants-Appellees.


B e f o r e:

                               WALKER, KATZMANN, and LYNCH, Circuit Judges.

                                           __________________

          Plaintiff-appellant Alexina Simon appeals from an order of the United States

District Court for the Eastern District of New York (Eric N. Vitaliano, Judge) denying her

motion for reconsideration of a previous order and judgment granting defendants-

appellees’ motion for summary judgment on the basis of absolute immunity. Simon


                                                     1
argues that the district court erred in finding that detaining an individual for two days

pursuant to a material witness warrant is a prosecutorial function entitled to absolute

immunity. We agree, and vacate the judgment of the district court and remand this case

for further proceedings consistent with this opinion.

       VACATED AND REMANDED.



              UGOCHUKWU UZOH, Ugo Uzoh, P.C., Brooklyn, New York, for Plaintiff-
                   Appellant.

              SUZANNE K. COLT, Assistant Corporation Counsel (Pamela Seider Dolgow, of
                   counsel), for Michael A. Cardozo, Corporation Counsel of the City of
                   New York, New York, New York, for Defendants-Appellees.

              KATHERINE DESORMEAU (Lee P. Gelernt, Esha Bhandari, on the brief), ACLU
                   Foundation Immigrants’ Rights Project, San Franciso California; Joel
                   B. Rudin, Vice-Chair, Amicus Curiae Committee, National Association
                   of Criminal Defense Lawyers, New York, New York; Richard D.
                   Willstatter, President, New York State Association of Criminal Defense
                   Lawyers, for Amici Curiae in support of Plaintiff-Appellant.

              Matthew M. Collette, Attorney, Appellate Staff, Civil Division, for Stuart F.
                    Delery, Assistant Attorney General, United States Department of
                    Justice, Washington, D.C.; Varuni Nelson, Assistant United States
                    Attorney, for Loretta E. Lynch, United States Attorney, Eastern District
                    of New York, Brooklyn, New York, for Amici Curiae in support of
                    Defendants-Appellees.




GERARD E. LYNCH, Circuit Judge:

       This case requires us to consider whether detaining an individual pursuant to a

material arrest warrant is a prosecutorial function entitled to absolute immunity. We hold

                                              2
that it is not. As the record is insufficient to determine whether defendants are entitled to

qualified immunity, we vacate the judgment of the United States District Court for the

Eastern District of New York (Eric N. Vitaliano, Judge) and remand this case for further

proceedings consistent with this opinion.

                                     BACKGROUND

       Plaintiff-appellant Alexina Simon commenced this action under 42 U.S.C. § 1983

following her arrest and detention pursuant to a material witness warrant. This case was

dismissed on grounds of absolute immunity before Simon was able to depose defendants-

appellees or otherwise conduct discovery. For purposes of this appeal, therefore, we take

as true the facts set forth in Simon’s complaint and deposition testimony. See Rolon v.

Henneman, 517 F.3d 140, 142 (2d Cir. 2008).

I.     Simon’s Arrest and Detention

       The chain of events leading to Alexina Simon’s detention began with an

investigation of whether a police officer named Shantell McKinnies falsely reported her

car stolen. Police sought to interview McKinnies’s friend “Alexandra Griffin,” allegedly

the last person to have seen the car. Over the course of the investigation, officials

confused Alexandra Griffin, McKinnies’s friend, with Alexina Simon, Alexandra’s

mother who lives at the same residence and is the plaintiff in this case. The confusion

may have arisen because Alexandra Griffin allegedly informed an NYPD detective that

she goes by the name “Alexandra Simon,” not “Alexandra Griffin.”



                                              3
       After “Alexandra Simon” did not respond to a subpoena left in that name at the

women’s shared residence, Assistant District Attorney Francis Longobardi of the Queens

District Attorney’s Office (“Queens DA”) obtained a material witness warrant and order

for “Alexina Simon” on August 8, 2008. The material witness order instructed Simon to

appear before the court on August 11, 2008, at 10:00 a.m. for a hearing to establish

whether she possessed information material to the inquiry regarding McKinnies. As the

court determined that Simon would be unlikely to respond to an order demanding her

presence at the hearing, it also issued an “Arrest Warrant for Material Witness”

authorizing “any police officer in the State of New York” to “take the above-named

Alexina Simon into custody within the State of New York and bring her before this Court

in order that a proceeding may be conducted to determine whether she is to be adjudged a

material witness.” The arrest warrant specified that the hearing was to take place on

August 11, 2008 at 10:00 a.m.

       Detective Douglas Lee and Sergeant Evelyn Alegre1 (“the officers”) executed the

material witness warrant on the morning of August 11, 2008, at Simon’s workplace. The

parties’ accounts of the execution of the warrant differ dramatically. The officers

maintain that Simon consented to accompany them for questioning, while Simon

maintains that she accompanied the officers against her will. Simon testified at her

deposition that the investigators appeared at her workplace, asked if she was “Alexina


       1
         Although various documents in the record refer to this defendant as Sergeant
Allegre, defendants’ appellate brief clarifies that the correct spelling of her name is Alegre.

                                              4
Simon,” and told her that they had a warrant for her arrest and that she needed to come

with them. When asked at her deposition if she had agreed to go with the investigators,

she stated: “I asked them if I have to go. They said ‘Yes.’” Simon said that she asked to

see the warrant, and was shown “some paper with [her] name on it” that she didn’t read

closely. Simon testified that when she went with them she “assumed that [she] was under

arrest and [she] was going to jail, to be locked up or whatever,” and that she thought this

because the male investigator “told [her] that [she] was under arrest and if [she didn’t]

want them to put handcuffs on [her], [she] would come with them.”

       Simon stated that she was first taken to “the precinct” for several hours, during

which she waited in a room, then taken to another building that defendants identify as the

Queens District Attorney’s Office. There, she spoke briefly with “the district attorney or

something like that,” whom defendants identify as Longobardi. She testified that

Longobardi asked her about a stolen car, and that she told him that she didn’t know

anything. At approximately 8:00 p.m. that evening, the officers told Simon that she could

leave, but that she “ha[d] to be back the next day to answer some more questions.” The

next day, August 12, the officers picked her up at 9:00 a.m. at her house and brought her

back to “the precinct,” where they further questioned her. Simon did not meet with

Longobardi that day, and was allowed to leave at approximately 5:00 p.m. At no point

during the two days of detention was Simon brought before a grand jury or judge.2


       2
        Defendants, in contrast, claim that “when informed in person of the material witness
order and warrant, [Simon] agreed to accompany” them to the District Attorney’s Office for

                                              5
II.    District Court Proceedings

       Simon began the present action on March 27, 2009, and filed an amended

complaint on August 13, 2009, naming the City of New York, Lee, Alegre, and

Longobardi as defendants. The amended complaint, asserting various claims under 42

U.S.C. § 1983 and state law, alleged that defendants violated Simon’s rights by

“arresting, threatening, harassing and detaining [her] without justification, probable cause

or reasonable suspicion.”3 The amended complaint sought compensatory and punitive

damages, as well as any other relief that the court deemed necessary in the interest of

justice.

       Defendants moved for summary judgment arguing, in part, that they were entitled

to absolute immunity for the acts of obtaining and executing a material witness warrant,

and that in the alternative, they had qualified immunity for their actions. In an order

entered October 19, 2011, the district court granted defendants’ motion and dismissed the

complaint, holding that the individual defendants had absolute immunity or, in the

alternative, qualified immunity, and that Simon had not stated a cognizable claim against

the City under Monell v. Department of Social Services, 436 U.S. 658 (1978). Simon v.




questioning. Defendants claim that at the end of the first day of questioning, Simon
voluntarily agreed to return to the office for a second day. As with all the factual disputes,
for the purposes of this motion we take Simon’s testimony, which a jury would be entitled
to credit, as true.
       3
          Simon later withdrew all but her claims of “false arrest and [M]onell/municipal
liability” in an April 16, 2011 letter to the court.

                                              6
City of New York, 819 F. Supp. 2d 145 (E.D.N.Y. 2011). The district court concluded

that Longobardi had absolute prosecutorial immunity as an “official[] performing

discretionary acts of a judicial nature,” which also extended to the officers because their

actions “were executed under the direction of the prosecutor in the course of performing

functions closely tied to the judicial process as opposed to police functions.” Id. at 151

(internal quotation marks omitted).

       Simon moved for reconsideration, arguing that defendants were not entitled to

absolute immunity because they were engaged in investigatory activities. On December

16, 2011, the district court orally denied Simon’s motion for reconsideration, reiterating

its view that a prosecutor when “seeking a material witness order and executing a material

witness order is acting as advocate and therefore is entitled to absolute immunity.” On

December 27, 2011, Simon timely appealed the district court’s denial of her motion for

reconsideration as to the individual defendants.4

                                       DISCUSSION

I.     Standard of Review

       We review a district court’s denial of a motion for reconsideration for abuse of

discretion. Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011).



       4
         Simon did not appeal the district court’s denial of her motion for reconsideration as
to the City of New York. While Simon stated that she was also appealing the district court’s
original October 19 order, her notice of appeal was untimely and we do not have jurisdiction
to consider it as to that order. See Fed. R. App. P. 4(a)(1); Johnson v. Univ. of Rochester
Med. Ctr., 642 F.3d 121, 124 (2d Cir. 2011).

                                              7
“A court abuses it[s] discretion when (1) its decision rests on an error of law or a clearly

erroneous factual finding; or (2) cannot be found with the range of permissible decisions.”

Id. The issue on appeal is one of law, which we review de novo. See Giraldo v. Kessler,

694 F.3d 161, 165 (2d Cir. 2012).

II.      Absolute Immunity

         To determine whether an official enjoys absolute immunity we take a “functional

approach,” examining “the nature of the function performed, not the identity of the actor

who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal

quotation marks omitted). A prosecutor acting in the role of an advocate in connection

with a judicial proceeding is entitled to absolute immunity for all acts “intimately

associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S.

409, 430 (1976); see also Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011) (noting that

prosecutors receive absolute immunity “only when acting as advocates and when their

conduct involves the exercise of discretion”). These functions include deciding whether

to bring charges and presenting a case to a grand jury or a court, along with the tasks

generally considered adjunct to those functions, such as witness preparation, witness

selection, and issuing subpoenas. See Imbler, 424 U.S. at 431 n.33. Absolute immunity

also extends to persons “who act under [a prosecutor’s] direction in performing functions

closely tied to the judicial process.” Hill v. City of New York, 45 F.3d 653, 660 (2d Cir.

1995).



                                              8
       By contrast, prosecutors receive only qualified immunity when performing

“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 Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502 (2d Cir. 2004).

Investigation, arrest, and detention have historically and by precedent been regarded as

the work of police, not prosecutors, and “‘they do not become prosecutorial functions

merely because a prosecutor has chosen to participate.’” Day v. Morgenthau, 909 F.2d

75, 77-78 (2d Cir. 1990), quoting Robison v. Via, 821 F.2d 913, 918 (2d Cir. 1987).

Absolute immunity is also not available “for the act of giving legal advice to the police in

the investigative phase of a criminal case, or for assisting in a search and seizure or

arrest.” Hill, 45 F.3d at 661 (citation omitted); see also Kalina v. Fletcher, 522 U.S. 118,

130-31 (1997) (holding that prosecutor was not entitled to absolute immunity for acting

as a complaining witness); Buckley, 509 U.S. at 277-78 (holding that prosecutor was not

entitled to absolute immunity for holding a press conference); Barr v. Abrams, 810 F.2d

358, 362 (2d Cir. 1987) (recognizing “meaningful” distinction “between filing the

criminal information and procuring an arrest warrant, on the one hand, and executing the

arrest warrant, on the other”).

       “[T]he official seeking absolute immunity bears the burden of showing that such

immunity is justified for the function in question,” Burns v. Reed, 500 U.S. 478, 486

(1991), and “[t]he ultimate question [] is whether the prosecutors have carried their

burden of establishing that they were functioning as advocates when they engaged in the

                                              9
challenged conduct,” Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996) (internal

quotation marks omitted).

III.   Absolute Immunity for Simon’s Detention

       We have previously held that when a prosecutor seeks a material witness warrant,

he does so as an advocate and is immune from suit. Flagler, 663 F.3d at 548-49. Any

alleged misstatements by Longobardi in his application for the material witness warrant

therefore cannot form the basis for liability.

       However, defendants do not have absolute immunity for their detention of Simon

against her will for two full days.5 The execution of a material witness warrant is a police

function, not a prosecutorial function, as New York’s material witness statute, and the

warrant issued in this case, explicitly state. While under New York law a prosecutor is

responsible for seeking a material witness warrant, only police officers, not prosecutors,

are authorized to execute the warrant by arresting people. See N.Y. Crim. Proc. Law §

620.30(2)(b) (“[T]he court may issue a warrant directed to a police officer, directing such

officer to take such prospective witness into custody . . . .”). Accordingly, the warrant

issued by the court in this case was directed to “any police officer in the State of New

York.” The arrest of Simon and her detention for questioning were thus police functions,

not prosecutorial ones.


       5
         Defendants contend that Simon consented to accompany them for questioning on
August 11 and to return on August 12. At this stage of the proceeding, however, we look
only to the complaint and Simon’s deposition, which consistently allege that Simon was
brought to the District Attorney’s office against her will.

                                                 10
       Far from taking actions “intimately associated with the judicial phase of the

criminal process,” Imbler, 424 U.S. at 430, defendants were actively avoiding the court-

ordered material witness hearing. New York procedure requires that an arrested material

witness be brought “before the court forthwith,” N.Y. Crim. Proc. Law § 620.30(2)(b),

and the warrant here directed the executing officers to arrest Simon and bring her before

the court at 10:00 a.m. on August 11 for a hearing on whether she could properly be

considered a material witness. In arresting Simon and taking her into custody, the

officers acted under the protection of the warrant; had they complied with the terms of the

warrant by bringing her promptly before the court, no liability could attach to their

actions, regardless of whether Simon assented to accompany them. Under New York

law, when an individual apprehended pursuant to a material witness warrant is presented

before the court, the court must inform him of the nature and purpose of the proceeding

and afford him the opportunity to obtain counsel, seek bail, call other witnesses, and

move to vacate the warrant order. Id. §§ 620.40-60. Because the defendants did not

comply with the terms of the material witness order and warrant and never presented

Simon before the court, she had no way of contesting her detention.

       Once defendants decided that Simon should be detained for questioning by

Longobardi and the officers, however, and compelled her attendance at the Queens DA

for two days of intermittent questioning, rather than bringing her before the court to have

her status settled, their actions fell outside the protection of the warrant. They were not

acting in the role of advocate in connection with a judicial proceeding. A material

                                             11
witness warrant secures a witness’s presence at a trial or grand jury proceedings; it does

not authorize a person’s arrest for purposes of subjecting that person to extrajudicial

interrogation by a prosecutor.

       Longobardi’s participation in the detention does not transform Simon’s detention

into a prosecutorial function.6 See Day, 909 F.2d at 77-78; Barr, 810 F.2d at 361. The

prosecutorial function may encompass questioning a witness for a brief period before

presentation to determine whether, in the prosecutor’s judgment, the witness’s testimony

should still be pursued or whether the witness should be released without further action.

Based on Simon’s testimony, however, a reasonable jury could find that the detention and

interrogation went beyond what could reasonably be construed as clarifying Simon’s

status or “preparing” her for a grand jury appearance, and became an investigative

interview.7 Under New York law, as under federal law, a prosecutor has no power to

subpoena a witness to appear outside of judicial proceedings to answer questions from the

prosecution or the police. A material witness warrant serves the purpose of securing a



       6
          Giraldo does not hold otherwise. There, we held that officials who detained and
interviewed a victim of domestic violence were entitled to absolute immunity because “legal
decisions at the core of prosecutorial function – pursuit of the charges, arraignment, bail, etc.
– had to be made [by the officials] and made quickly.” 694 F.3d at 167. But there is nothing
in this case to indicate that Longobardi was making a decision that was similarly at the core
of the prosecutorial function. See id. at 166 (“To be sure . . . even the presence of probable
cause does not guarantee a prosecutor absolute immunity from liability for all actions taken
afterwards.”).
       7
         Indeed, on Simon’s account, the entire second day of her detention involved
interrogation only by the officers, without any further questioning by the prosecutor.

                                               12
witness’s presence at a trial or grand jury proceeding. It does not authorize a person’s

arrest and prolonged detention for purposes of investigative interrogation by the police or

a prosecutor.

       That Simon might eventually have been called to testify in a judicial proceeding

does not make her detention a prosecutorial function.8 See Buckley, 509 U.S. at 275-76

(noting that a prosecutor cannot receive absolute immunity for investigative work merely

because the work may later “be retrospectively described as ‘preparation’” for a judicial

proceeding). As the Supreme Court has pointed out, “[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,” but absolute

immunity is not so expansive. Burns, 500 U.S. at 495.

       Therefore, the officers are not entitled to absolute immunity for their execution of

the material witness warrant, even if they were following Longobardi’s instructions.

Police officers and a prosecutor who engage in extended detention and interrogation –

including requiring attendance for a second full day – of a material witness whom the

court has ordered to be brought before the court to determine whether she should be



       8
         Defendants contend that Longobardi was preparing Simon to testify before a grand
jury. Simon argues that no grand jury was empaneled, and that the grand jury subpoenas
issued by Longobardi, stating that she was to appear before the grand jury on the mornings
of August 11 and 12, 2008, were not give to her until after her detention ended on the
evening of August 12. It is not for us to resolve this factual dispute, but it makes no
difference to our disposition of this appeal. Detaining a witness for two days, even to prepare
for the possibility of bringing her before a grand jury, is not a prosecutorial function.

                                              13
detained or bailed as a material witness are, as a matter of law, engaged in an

investigative function that entitles them to, at most, qualified immunity.

       We emphasize the limited nature of the question we address today. We do not

decide, and express no view regarding, the legality of defendants’ actions under federal or

New York law. Nor do we decide whether some or all of the defendants are entitled to

qualified immunity.9 In the absence of any discovery by Simon, the record is

insufficiently developed at this stage of the case to permit a ruling on that question. We

hold only that defendants are not entitled to absolute prosecutorial immunity with respect

to Simon’s allegation that she was unlawfully detained for investigative interrogation.

                                      CONCLUSION

       Accordingly, the judgment is VACATED and REMANDED for further

proceedings consistent with this opinion.




       9
         The district court ruled that defendants had qualified immunity, but its analysis was
limited to the execution of the arrest pursuant to the warrant, and did not address Simon’s
continued detention and interrogation.

                                             14
