and Submitted November 6, 2017 Portland, Oregon
from the United States District Court for the District of
Oregon D.C. No. 3:14-cv-00501-BR Anna J. Brown, District
Leonard Randolph Berman (argued), Law Office of Leonard R.
Berman, Portland, Oregon, for Plaintiff-Appellant.
Renich-Smith (argued), Senior Assistant Attorney General;
Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,
Attorney General; Oregon Department of Justice, Salem,
Oregon; for Defendant-Appellee.
Before: Ferdinand F. Fernandez and William A. Fletcher,
Circuit Judges, and Jon S. Tigar, [*] District Judge.
panel reversed the district court's dismissal of a
complaint in an action brought under 42 U.S.C § 1983
alleging that a pretrial release officer improperly procured
a warrant for plaintiff's arrest in violation of her
Fourth Amendment right against unreasonable seizures, and
district court held that the defendant was entitled to
absolute prosecutorial immunity for the defective arrest
warrant. In reversing the district court, the panel stated
that the determinative question for absolute immunity was
whether defendant was engaged in prosecutorial advocacy. The
panel noted that pursuant to Oregon law and the relevant
procedures followed in the Yamhill County Circuit Court,
defendant had not been delegated authority to make release
decisions. Rather, he was authorized only to make
recommendations to a judge. The panel held that given the
similarities between defendant's role and those of a
parole officer and a law enforcement officer, defendant's
action in submitting a bare unsigned warrant to the judge
should be seen as making a recommendation that the warrant be
signed, just like a parole officer recommending revocation,
as in Swift v. California, 384 F.3d 1184, 1193 (9th
Cir. 2004), or like a police officer submitting documentation
for an arrest warrant to a judge, as in Malley v.
Briggs, 475 U.S. 335 (1986). The panel concluded that
defendant was not entitled to absolute prosecutorial immunity
and remanded the case for further proceedings.
Judge Fernandez stated that the majority's determination
that absolute prosecutorial immunity did not apply at all was
waived by plaintiff. On the merits, Judge Fernandez stated
that the panel should have adhered to the long established
rule that once the court grants that the function in question
is a prosecutorial function, it does not matter if the person
performing that function lacks the title of
"prosecutor." Accordingly, Judge Fernandez believed
that the defendant in this case should have been accorded
absolute immunity for procuring the warrant.
FLETCHER, Circuit Judge
Patterson brought an action for damages under 42 U.S.C §
1983 against James Van Arsdel, the Release Assistance Officer
for the Circuit Court of Yamhill County, Oregon. Patterson
alleges that Van Arsdel improperly procured a warrant for her
arrest in violation of her Fourth Amendment right against
unreasonable seizures. The district court held that Van
Arsdel was entitled to absolute prosecutorial immunity and
dismissed with prejudice Patterson's second amended
complaint. We reverse and remand for further proceedings.
case is before us on a Rule 12(b)(6) motion to dismiss.
Fed.R.Civ.P. 12(b)(6). The following facts are taken from
Patterson's complaint, which we accept as true at this
stage of the ...