Genzler v. Longanbach

FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID GENZLER, 
Plaintiff-Appellee,
v.
PETER J. LONGANBACH,
Defendant-Appellant, No. 02-56572
and
JEFFREY O’BRIEN; COUNTY OF SAN
 D.C. No.
CV-01-01462-JNK
DIEGO, a governmental entity; SAN
DIEGO COUNTY DISTRICT
ATTORNEY’S OFFICE; GREGORY
THOMPSON; JAMES PIPPEN; PAUL
PFINGST,
Defendants.


DAVID GENZLER, 
Plaintiff-Appellee,
No. 02-56573
v.
D.C. No.
PETER J. LONGANBACH; COUNTY OF
CV-01-01462-JNK
SAN DIEGO, a governmental entity;
SAN DIEGO COUNTY DISTRICT ORDER
ATTORNEY’S OFFICE,  WITHDRAWING
Defendants, OPINION AND
DENYING
and
PETITION FOR
JEFFREY O’BRIEN; GREGORY REHEARING AND
THOMPSON; JAMES PIPPEN; PAUL OPINION
PFINGST,
Defendants-Appellants.

6463
6464 GENZLER v. LONGANBACH
Appeal from the United States District Court
for the for the Southern District of California
Judith N. Keep, District Judge, Presiding

Argued and Submitted
December 2, 2003—Pasadena, California

Filed June 7, 2005

Before: Harry Pregerson, Robert E. Cowen,* and
William A. Fletcher, Circuit Judges.

Opinion by Judge W. Fletcher

*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
 GENZLER v. LONGANBACH 6467

COUNSEL

Robert L. Young, Edward Patrick Swan, Jr., Luce, Forward,
Hamilton and Scripps, San Diego, California, Jeffrey G. Car-
6468 GENZLER v. LONGANBACH
ver, San Diego, California, Morris G. Hill, Office of the
County Counsel, San Diego, California, for the appellants.

Patrick L. Hosey, Hosey & Bahrambeygui, San Diego, Cali-
fornia, for the appellee.

ORDER

The opinion filed on September 27, 2004, and published at
Genzler v. Longanbach, 384 F.3d 1092 (9th Cir. Sep 27,
2004), is withdrawn and replaced by the attached opinion.

With the filing of this new opinion, the panel has voted
unanimously to deny the petitions for rehearing. Judges Pre-
gerson and Fletcher have voted to deny the petitions for
rehearing en banc, and Judge Cowen so recommends.

The full court has been advised of the petitions for rehear-
ing en banc and no judge of the court has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.

The petitions for rehearing and the petitions for rehearing
en banc, filed by Appellants Longanbach and O’Brien, are
DENIED.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff David Genzler seeks damages under 42 U.S.C.
§ 1983 for violations of his constitutional rights during the
investigation and prosecution of his state criminal homicide
trial. Defendants San Diego County Deputy District Attorney
Peter Longanbach and Investigator Jeffrey O’Brien appeal
from the partial denial of their motions for summary judgment
 GENZLER v. LONGANBACH 6469
based on absolute official immunity. Defendant supervisors in
the San Diego County District Attorney’s Office — District
Attorney Paul Pfingst, Assistant District Attorney Gregory
Thompson, and Deputy District Attorney James Pippen —
appeal the district court’s complete denial of their motion for
summary judgment based on absolute and qualified immunity.

We affirm the district court’s partial denial of Longan-
bach’s and O’Brien’s motions. Evaluating the timing and
nature of their conduct, we conclude that there is a genuine
issue of material fact about whether they were engaged in
advocacy intimately associated with the judicial process when
they interviewed a key witness, Sky Blue Flanders. However,
we reverse the district court’s denial of the supervisors’
motion for summary judgment because we conclude that there
is no genuine dispute that their involvement in prosecutorial
decisions was advocacy intimately associated with the judicial
process.

I. Factual Background

The underlying homicide giving rise to this § 1983 suit
occurred on April 18, 1996, when David Genzler stabbed
Dustin Harless during a fight. On April 19, Genzler learned
from a television news report that Harless had died from the
stabbing. Genzler turned himself into the police and was
arrested that day. After the arrest, Deputy District Attorney
Longanbach and Investigator O’Brien were assigned to the
case.

A criminal complaint was filed in Municipal Court on April
23, 1996, and Genzler’s bail hearing was held on April 29. On
May 23, a preliminary hearing was held in Municipal Court,
and the judge found probable cause to bind the case over for
trial. The criminal complaint was filed in Superior Court on
May 24.

The prosecution filed a pre-trial motion to compel produc-
tion of evidence from the defense. At the hearing on this
6470 GENZLER v. LONGANBACH
motion, Genzler’s ex-girlfriend, Sherry Logel, testified under
a grant of immunity that she had given a box of bloody cloth-
ing and a knife to Gerald Blank, Genzler’s retained counsel.
Blank said he had received the clothing and given it to the
prosecution, but he denied receiving the knife. Longanbach
then moved to recuse Blank as Genzler’s counsel. At the hear-
ing on this recusal motion, Logel testified that she had lied
about delivering the knife to Blank. The trial judge granted
the recusal motion after Longanbach said he planned to call
both Logel and Blank as witnesses at Genzler’s trial. In a let-
ter she later wrote to Genzler, Logel claimed that Longanbach
had pressured her to testify falsely about her communication
with Blank.

After trial, a jury convicted Genzler of second degree mur-
der of Harless. This conviction, however, was reversed by the
California Court of Appeal on the ground that the trial judge
had improperly recused Blank. The Court of Appeal also held
that Genzler was entitled to a jury instruction on involuntary
manslaughter because there was sufficient evidence to support
a finding of imperfect self-defense. Genzler had also alleged
prosecutorial misconduct in his first trial, but the Court of
Appeal did not reach this issue. The San Diego District Attor-
ney’s office recused itself from Genzler’s second trial, and
Genzler was prosecuted by the State Attorney General’s
office. On retrial, a second jury found Genzler guilty of invol-
untary manslaughter.

Sky Blue Flanders, Harless’s fiancée, was a key witness for
the prosecution in both trials. On the day of the stabbing,
Flanders had told the police that Genzler had approached her
in his car while she was walking across the street and had
asked her if she wanted a ride. According to Flanders, Harless
was zipping up his jacket on the other side of the street when
Genzler first spoke to her. She told police that Harless had
then crossed the street and knocked on Genzler’s window. As
Flanders described the events to police that day, Genzler got
out of the car, Harless and Genzler exchanged punches, Har-
 GENZLER v. LONGANBACH 6471
less “flipp[ed]” Genzler to the ground, and Genzler stabbed
Harless while Harless held Genzler on the ground. Flanders
also told police that day that Harless was a skilled wrestler
who had been involved in previous street fights. Police audio-
and video-taped the interview with Flanders. Flanders testi-
fied in a later hearing that she had repeated this version of
events — in which Harless was on top of Genzler when Gen-
zler stabbed him — to about 20 other people in the days fol-
lowing Harless’s death.

Sometime after Flanders spoke with police on the day of
the homicide, she met with Deputy District Attorney Longan-
bach and Investigator O’Brien. She met once separately with
O’Brien sometime during the week before April 29, and once
with Longanbach and O’Brien together on April 29. After
these meetings, Flanders changed her story. She testified at
the preliminary hearing on May 23 and at both trials that she
remembered little of the actual fight because she was dis-
tracted by the arrival of Scott Davis, the doorman at the bar
Flanders and Harless had left just before the stabbing. Flan-
ders further testified that she thought she remembered seeing
Davis pulling Genzler off Harless after the stabbing.

In her testimony during Genzler’s second trial, Flanders
admitted that she had “answer[ed] evasively” in the first trial
about whether Harless had ever been involved in past fights
and explained that she had tried to answer questions to make
it seem that she was only aware of Harless’s participation in
organized wrestling matches, not of his past history of street-
fighting. She also testified in the second trial that she had felt
pressure from Longanbach and O’Brien not to disclose Har-
less’s history of street-fighting.

Davis, the doorman, testified at the preliminary hearing and
at both trials. In his interview with police the day after the
homicide, Davis stated that he saw Genzler jump out of his
car and chase Harless and Flanders as they walked away from
him, hand-in-hand. This account was manifestly inconsistent
6472 GENZLER v. LONGANBACH
with the account Flanders had given police on the day of the
homicide. Davis then met with O’Brien on April 25, and
changed his story. In a report summarizing this April 25 meet-
ing, O’Brien wrote that, “upon reflection,” Davis considered
that he had not seen the couple walking away from him hand-
in-hand. At the May 23 preliminary hearing, Davis testified
that Flanders and Harless were standing several feet apart
when the fight began.

According to Genzler’s version of events, the fight on April
18 began when Harless charged Genzler and punched him in
the face. Genzler said that Harless had grabbed him, slammed
his face to the ground and pinned his arm, and that Davis then
began kicking him in the head. Genzler said that he stabbed
Harless to defend himself from the attack.

After the second trial, Genzler was sentenced to six years
for involuntary manslaughter. With credit for time already
served, he was released on February 14, 2001.

II. The Present Action

After his release from prison, Genzler brought the present
§ 1983 action charging the defendants with prosecutorial mis-
conduct both preceding and during his first trial.1 The defen-
dants moved unsuccessfully to dismiss Genzler’s complaint
under Federal Rule of Civil Procedure 12(b)(6). They then
moved for summary judgment based on official immunity.
The district court granted Longanbach and O’Brien’s motions
for summary judgment except for claims based on an allega-
tion contained in paragraph 66 of Genzler’s complaint. This
paragraph alleges:

[Longanbach and O’Brien] suborned perjury. Specif-
1
Because Genzler does not allege conduct that would necessarily imply
the invalidity of his conviction after the second trial, this suit is not barred
by Heck v. Humphrey, 512 U.S. 477 (1994).
 GENZLER v. LONGANBACH 6473
ically, prior to the preliminary hearing and during
the initial investigation of the incident, Longanbach
and O’Brien met with Ms. Flanders and told her that
in order to secure a conviction she needed to lie
about what she saw on the night of the incident and
about Mr. Harless’ violent past.

The district court read paragraph 66 to state that Longanbach
and O’Brien were engaged in an investigative activity when
they convinced Flanders to change her version of the events
she witnessed. Relying on our opinion in Milstein v. Cooley,
257 F.3d 1004 (9th Cir. 2001), the district court considered
not only the nature of the defendants’ acts but also their tim-
ing, and held that Genzler had produced sufficient evidence
to create a genuine issue of material fact as to whether Lon-
ganbach and O’Brien had pressured Flanders to lie as part of
their initial investigation. The district court accordingly
denied this part of their motion.

The supervisory defendants also moved for summary judg-
ment based on absolute and qualified immunity. The district
court construed their motion to apply only to allegations con-
tained in three paragraphs of the complaint: paragraphs 74,
81, and 82.2 These paragraphs charged that Pfingst, Thomp-
2
The specific allegations are:
74. LONGANBACH and O’BRIEN’s misconduct did not
stop there. On August 22, 1996, at an evidentiary hearing held
before the Honorable Joan P. Weber, LONGANBACH granted
prosecution witness, Sherry Logel, immunity in exchange for tes-
timony favorable to the prosecution. This grant of immunity
included immunity from perjury and not just from past acts of
perjury, but was intended to cover future acts of lying on the
stand at the trial of plaintiff. In essence, LONGANBACH gave
Ms. Logel a “get out of jail free card” for lying on the stand. This
was done with the knowledge of PFINGST, THOMPSON and
PIPPEN.
81. Neither Mr. Blank nor Ms. Logel were called as trial wit-
nesses by LONGANBACH. It [sic] The entire presentation of
6474 GENZLER v. LONGANBACH
son, and Pippen knew that Longanbach had granted Logel
immunity in exchange for her perjured testimony, and that
they had condoned Longanbach’s tactics to force recusal of
Genzler’s counsel. The district court denied the supervisory
defendants’ motion in its entirety.

Longanbach, O’Brien, and the supervisory defendants
timely appealed. Whether official immunity applies is a ques-
tion of law we review de novo. Milstein, 257 F.3d at 1007.
We have jurisdiction over interlocutory denials of motions for
summary judgment based on official immunity “to the extent
that [the district court’s decision] turns on a question of law.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Wil-
kins v. City of Oakland, 350 F.3d 949, 951 (9th Cir. 2003)
(quoting Mitchell). We construe all facts in the light most
favorable to Genzler, the non-moving party, in deciding
whether a dispute of fact is material and thereby precludes
summary judgment. See Butler v. San Diego County Dist.
Attorney’s Office, 370 F.3d 956, 963 (9th Cir. 2004).

III. Discussion

[1] A prosecutor is protected by absolute immunity from
liability for damages under § 1983 “when performing the tra-
ditional functions of an advocate.” Kalina v. Fletcher, 522
U.S. 118, 131 (1997). However, “the actions of a prosecutor
are not absolutely immune merely because they are performed

false evidence and perjured testimony was nothing but an attempt
to remove GENZLER’s attorney from the case so as to improp-
erly influence the outcome of the case which LONGANBACH
had promised PFINGST, THOMPSON, and PIPPEN he would
win.
82. LONGANBACH was excited by the recusal ploy he used.
It became one of his favorite tactics. He tried the same tactic in
other cases and on other attorneys. PFINGST, THOMPSON and
PIPPEN were aware of what he was doing and how he was doing
it, but continued to condone and ratify his conduct, because it
worked.
 GENZLER v. LONGANBACH 6475
by a prosecutor.” Buckley v. Fitzimmons, 509 U.S. 259, 273
(1993). Prosecutorial immunity depends on “the nature of the
function performed, not the identity of the actor who per-
formed it.” Kalina, 522 U.S. 118 at 127 (quoting Forrester v.
White, 484 U.S. 219, 229 (1988)). Prosecutors are entitled to
qualified immunity, rather than absolute immunity, when they
perform administrative functions, or “investigative functions
normally performed by a detective or police officer.” Id. at
126. See also Burns v. Reed, 500 U.S. 478, 494-96 (1991).
For convenience, we shall refer to the latter activities as “po-
lice type investigative work.”

The Supreme Court has consistently “emphasized that the
official seeking absolute immunity bears the burden of show-
ing that such immunity is justified for the function in ques-
tion.” Id. at 486. Further, “the presumption is that qualified
rather than absolute immunity is sufficient to protect govern-
ment officials in the exercise of their duties.” Id. at 486-87.
Finally we note that the Supreme Court has “been quite spar-
ing in [its] recognition of absolute immunity, and ha[s]
refused to extend it any further than its justification would
warrant.” Id. at 487 (citations and quotation marks omitted).

[2] To qualify as advocacy, an act must be “intimately
associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Kalina, 522
U.S. at 125 (quoting Imbler); Buckley, 509 U.S. at 270
(same); Burns, 500 U.S. at 479 (same); see also Milstein, 257
F.3d at 1009 (prosecutorial immunity protects “the prosecu-
tor’s actions [that] are closely associated with the judicial pro-
cess”) (citing Imbler). Such activity is sometimes called
“quasi-judicial” conduct. E.g., Broam v. Bogan, 320 F.3d
1023, 1029 (9th Cir. 2003) (“[I]n deciding whether to accord
a prosecutor immunity from a civil suit for damages, a court
must first determine whether a prosecutor has performed a
quasi-judicial function. If the action was part of the judicial
process, the prosecutor is entitled to the protection of absolute
immunity whether or not he or she violated the civil plaintiff’s
6476 GENZLER v. LONGANBACH
constitutional rights.”) (citation and internal quotation marks
omitted). In Imbler, the Court observed that absolute “immu-
nity . . . leave[s] the genuinely wronged defendant without
civil redress against a prosecutor whose malicious or dishon-
est action deprives him of liberty.” 424 U.S. at 432. However,
the Court explained that absolute immunity for prosecutorial
advocacy is justified because, “the alternative of qualifying a
prosecutor’s immunity would disserve the broader public
interest” in protecting the prosecutor’s abilities to exercise
independent judgment and to advocate vigorously without the
threat of retaliation. Id. at 429; see also Milstein, 257 F.3d at
1007-08. Thus, a prosecutor enjoys absolute immunity from
a suit alleging that he maliciously initiated a prosecution, used
perjured testimony at trial, or suppressed material evidence at
trial. Imbler, 424 U.S. at 430. A prosecutor is also absolutely
immune for direct participation in a probable cause hearing,
Burns, 500 U.S. at 491, and for preparing and filing charging
documents, Kalina, 522 U.S. at 130.

In Buckley, the Supreme Court explored the limits of pro-
secutorial absolute immunity. The Court denied absolute
immunity to prosecutors who had fabricated evidence “during
the early stage of the investigation” when “police officers and
assistant prosecutors were performing essentially the same
investigatory functions.” 509 U.S. at 273. The Buckley Court
also denied absolute immunity to prosecutors accused of hold-
ing a defamatory press conference — an activity which “had
no functional tie to the judicial process.” Id. at 277. In other
cases, the Court has held that a prosecutor does not have abso-
lute immunity for providing legal advice to police that proba-
ble cause exists to arrest a suspect, Burns, 500 U.S. at 491, or
for personally attesting to the truth of evidence in support of
charging documents, Kalina, 522 U.S. at 130.

The analysis of whether prosecutorial acts constitute advo-
cacy or police-type investigative work is complicated by the
fact that the Supreme Court has resisted any attempt to draw
a bright-line between the two. In Buchanan, the court noted
 GENZLER v. LONGANBACH 6477
that “[a] prosecutor neither is, nor should consider himself to
be, an advocate before he has probable cause to have anyone
arrested.” 509 U.S. at 274. This might suggest that once prob-
able cause is present, or once an arrest has been made, a pros-
ecutor assumes an advocacy-related role and enjoys absolute
immunity. However, in a note appended to the quoted pas-
sage, the Court rejected this approach, explaining that “a
determination of probable cause does not guarantee a prosecu-
tor absolute immunity for liability for all actions taken after-
wards. Even after that determination . . . a prosecutor may
engage in ‘police investigative work’ that is entitled to only
qualified immunity.” Id. at 274 n.5.

[3] The Court has also rejected the idea that prosecutors are
only entitled to qualified immunity when they are engaged in
investigation. In Buchanan, the Court said that “evaluating
evidence and interviewing witnesses” in preparation for trial
is advocacy. Id. at 273. This is true, notwithstanding the fact
that some of the activities a prosecutor takes in preparation for
trial, like the interview of witnesses, may be investigatory in
nature. The question is whether a prosecutor’s investigation is
of the type normally done by police, in which case prosecu-
tors enjoy only qualified immunity, or whether an investiga-
tion is bound up with the judicial process, thus affording
prosecutors the heightened protection of absolute immunity.
With this framework in mind, we consider the specific allega-
tions against the defendants.

A. Longanbach and O’Brien

1. Witness Interviews: The Functional Analysis

The claim against Longanbach and O’Brien that survived
summary judgment is that “prior to the preliminary hearing
and during the initial investigation of the incident . . . [they]
met with Ms. Flanders and told her that in order to secure a
conviction she needed to lie about what she saw on the night
of the incident and about Mr. Harless’ violent past.” Like the
6478 GENZLER v. LONGANBACH
district court, we understand this claim to state that as part of
the initial investigation Longanbach and O’Brien coerced or
encouraged Flanders to lie.

[4] Witness interviews may serve either an investigative or
an advocacy-related function, as may other methods of gath-
ering or manufacturing evidence prior to trial. See KRL v.
Moore, 384 F.3d 1105, 1110-16 (9th Cir. 2004) (holding that
pre-trial evidence gathering intimately associated with the
judicial process was protected by absolute immunity, while
evidence gathering for a collateral investigation was not).
Viewing the evidence in the light most favorable to Genzler,
we must decide whether Longanbach and O’Brien were
engaged in an advocacy-related function “intimately associ-
ated with the judicial phase of the criminal process” when
they met with Flanders, or whether they were engaged in
police-type investigative work. Imbler, 424 U.S. at 430; see
also Milstein, 257 F.3d at 1009; Broam, 320 F.3d at 1029. If
the former, they are absolutely immune. If the latter, they are
entitled only to qualified immunity.

[5] If not done in a quasi-judicial capacity, the acquisition
or manufacturing of evidence is not protected by absolute
immunity. Milstein, 257 F.3d at 1011 (“acquiring known false
statements from a witness for use in a prosecution is . . . fabri-
cating evidence that is unprotected by absolute immunity”). In
Moore v. Valder, 65 F.3d 189, 194-95 (D.C. Cir. 1995), the
D.C. Circuit held that a prosecutor had not met his burden to
show that he was entitled to absolute immunity for acts of
intimidating and coercing witnesses into changing their testi-
mony before a grand jury. The court held that such activity
constitutes

a misuse of investigative techniques legitimately
directed at exploring whether witness testimony is
truthful and complete and whether the government
has acquired all incriminating evidence. It therefore
 GENZLER v. LONGANBACH 6479
relates to a typical police function, the collection of
information to be used in a prosecution.

Id. at 194 (citing Barbera v. Smith, 836 F.2d 96, 100 (2d Cir.
1987)).

[6] Prosecutors are, however, absolutely immune “for gath-
ering additional evidence after probable cause is established
or criminal proceedings have begun when they are performing
a quasi-judicial function.” Broam, 320 F.3d at 1030 (empha-
sis added). As the Court in Buckley explained,

[t]here is a difference between the advocate’s role in
evaluating evidence and interviewing witnesses as he
prepares for trial, on the one hand, and the detec-
tive’s role in searching for clues and corroboration
that might give him probable cause to recommend
that a suspect be arrested, on the other hand. When
a prosecutor performs the investigative functions
normally performed by a police officer, it is neither
appropriate nor justifiable that, for the same act,
[absolute] immunity should protect the one and not
the other.

509 U.S. at 273. A prosecutor gathering evidence is more
likely to be performing a quasi-judicial advocacy function
when the prosecutor is “organiz[ing], evaluati[ng], and mar-
shaling [that] evidence” in preparation for a pending trial, in
contrast to the police-like activity of “acquiring evidence
which might be used in a prosecution.” Barbera, 836 F.2d at
100.

[7] The timing of evidence gathering is a relevant fact in
determining how closely connected that conduct is to the offi-
cial’s core advocacy function in the judicial process, and thus
informs the inquiry into whether the official’s conduct is pro-
tected by absolute immunity. The Supreme Court has held
that when a witness is being coached at or during a break in
6480 GENZLER v. LONGANBACH
trial, the prosecutor is protected by absolute immunity even if
he or she is instructing the witness to lie. Imbler, 424 U.S. at
430, 431 n.33; cf. Herb Hallman Chevrolet, Inc. v. Nash
Holmes, 169 F.3d 636, 643 (9th Cir. 1999) (holding that pros-
ecutors were absolutely immune for interviewing new wit-
nesses during investigative grand jury proceedings, when the
majority of other witnesses had been interviewed prior to the
initiation of proceedings).

Longanbach and O’Brien rely on the timing of their meet-
ings with Flanders to argue that they are entitled to absolute
immunity. They point out that their meetings with Flanders
occurred after Genzler’s April 19 arrest, which Genzler con-
cedes was based on probable cause. However, as we noted
above, in Buckley, the Court was careful to state that “a deter-
mination of probable cause does not guarantee a prosecutor
absolute immunity from liability for all actions taken after-
wards. Even after that determination . . . a prosecutor may
engage in ‘police investigative work’ that is entitled to only
qualified immunity.” Id. at 274 n.5. While interviews con-
ducted before probable cause to arrest has been established
are not protected by absolute immunity, the converse is not
necessarily true. As the district court correctly observed, the
courts have only “draw[n] the line in the reverse, stating that
absolute immunity could not be invoked before probable
cause was established.” Indeed, in Robichaud v. Ronan, 351
F.2d 533, 535 (9th Cir. 1969), we held that prosecutors who,
soon after the arrest of a suspect, directed police to coerce a
confession from that suspect were not entitled to absolute
immunity because their activity was more police-like than
prosecutorial.

Timing is thus a relevant, but not necessarily determinative,
factor. See KRL, 384 F.3d at 1111 (citing Cousin v. Small, 325
F.3d 627, 636 (5th Cir. 2003)); see also Kulwicki v. Dawson,
969 F.2d 1454, 1466 (3rd Cir. 1992). We also focus on
whether the character of the meetings was more in the nature
of quasi-judicial advocacy or police-type investigative work.
 GENZLER v. LONGANBACH 6481
Because Deputy District Attorney Longanbach and Investiga-
tor O’Brien were engaged in slightly different functions, we
analyze separately their entitlements to absolute immunity. As
all parties acknowledge, it is appropriate to focus on the func-
tions performed by Longanbach and O’Brien, not on their
titles.

2. O’Brien’s Meeting with Flanders Before April 29

[8] Viewing the facts in the light most favorable to Genzler,
we conclude that O’Brien was engaged in police-type investi-
gative work, not quasi-judicial advocacy, when he met with
Flanders prior to Genzler’s bail hearing on April 29, 1996.
O’Brien’s report indicates that he met with Flanders “several
days prior” to April 29. In her testimony during the hearing
on Genzler’s 2000 motion to dismiss, Flanders estimated that
this meeting took place about a week before the April 29 joint
meeting with Longanbach and O’Brien. She remembered that
she and O’Brien had talked for about an hour, “primarily . . .
as to the identity of the person who stabbed [Harless].”

Police investigations were still ongoing. At this time, the
preliminary hearing at which the judge would decide whether
there was probable cause to hold Genzler for trial in superior
court was still over a month away. Moreover, it is a support-
able conclusion from the evidence that O’Brien’s meeting
with Flanders took place before the criminal complaint was
filed in municipal court on April 23, 1996, and before police
finished their investigation and written synthesis, which is
dated April 24, 1996. See Kulwicki, 969 F.2d at 1465 (noting
that filing of a criminal complaint is a relevant but not dispo-
sitive factor in determining whether an interview involves
investigation or advocacy).

[9] The written police synthesis leaves out the initial state-
ment by Flanders to police that Harless was on top of Genzler
at one point during the fight. It emphasizes Davis’s point of
view, but it does not include Davis’s story that Flanders and
6482 GENZLER v. LONGANBACH
Harless were walking hand-in-hand. If all factual inferences
are resolved in favor of Genzler, one could conclude that
O’Brien used this interview to change Flanders’s story about
what she remembered and to make her story more consistent
with Davis’s story.

Further, the record reflects that during this period, O’Brien
was engaged in other work that can only be characterized as
police-type investigation. For example, he and Longanbach
interviewed Scott Davis on April 25, 1996. The notes from
the conversation reflect only a narrative from Davis’s point of
view about the events of the stabbing. O’Brien joined police
Detective Warrick in a meeting on June 3, 1996 with Sherry
Logel, Genzler’s ex-girlfriend, discussing her story about giv-
ing Genzler’s knife to Blank, and Genzler’s character in gen-
eral. This conversation, too, was police-type investigative
work, as indicated by the nature of the information obtained
and by the presence of Detective Warrick. On June 5, 1996,
O’Brien interviewed Paul Ernst, another witness to the homi-
cide, about what he had seen. Similarly, on June 28, 1996,
O’Brien met again with John Belsan, who came forward with
evidence about a past fight with Genzler. Again, O’Brien’s
notes from this conversation reflect only Belsan’s narrative
about what happened in that confrontation. That O’Brien was
engaged in police-type investigative work during the time he
met with Flanders supports an inference that he was also
engaged in such work when he met with her.

[10] We conclude from the foregoing that there is sufficient
evidence in the record to support the conclusion that, during
his first meeting with Flanders, O’Brien was, like the prosecu-
tor in Moore, engaged in the process of acquiring or manufac-
turing evidence during performance of police-type
investigative work, rather than engaged in quasi-judicial
advocacy. At this stage of the proceedings, O’Brien is there-
fore unprotected by absolute immunity.

[11] Absolute immunity does not protect Longanbach if he
was directing this police-type investigative activity by
 GENZLER v. LONGANBACH 6483
O’Brien. See Joseph v. Patterson, 795 F.2d 549, 556 (6th Cir.
1986) (“a prosecutor who assists, directs, or otherwise partici-
pates . . . in obtaining evidence prior to an indictment
undoubtedly is functioning more in his investigative capacity
than in his quasi-judicial capacities of deciding which suits to
bring and conducting them in court”) (citation and internal
quotation omitted); Robichaud, 351 F.2d at 537 (holding that
prosecutors are not absolutely immune if they either “commit-
ted acts, or authoritatively directed the commission of acts,
which ordinarily are related to police activity as opposed to
judicial activity”); cf. Burns, 500 U.S. at 496 (prosecutor not
entitled to absolute immunity for act of giving legal advice to
police). Longanbach cannot, however, be liable for O’Brien’s
conduct on a theory of vicarious liability for any independent
actions taken by O’Brien. See Monell v. Dep’t of Social Servs.
of NY, 436 U.S. 658, 691 (1978) (respondeat superior not
available as theory of liability under § 1983).

[12] There is sufficient evidence in the record to support
the conclusion that Longanbach was actively directing
O’Brien throughout his work on the Genzler case, including
O’Brien’s first meeting with Flanders. For example, Flanders
testified that Longanbach would give her instructions that
O’Brien would then “reiterate.” Genzler also introduced a
declaration from another Deputy District Attorney stating that
“Jeff O’Brien does whatever Mr. Longanbach told him to do.”
Because the evidence could support a conclusion that Longan-
bach was actively directing police-type investigative actions
by O’Brien, Longanbach is also not entitled to summary judg-
ment that he is absolutely immune for any action taken with
respect to O’Brien’s meeting with Flanders before April 29.

3. Longanbach and O’Brien’s April 29 Meeting with
Flanders

The next question is whether Longanbach and O’Brien
were engaged in police-type investigative work or quasi-
6484 GENZLER v. LONGANBACH
judicial advocacy in their joint April 29 meeting with Flan-
ders.

We consider first the timing of the conversation. The crimi-
nal complaint had been filed by the time of Longanbach and
O’Brien’s April 29 meeting with Flanders. However, just as
the existence of probable cause to arrest is not conclusive, we
do not view the filing of the complaint as an event after
which, by definition, all actions by the prosecutor and his staff
are protected by absolute immunity. The timing of the April
29 meeting does not weigh as much in favor of absolute
immunity as did the timing of the search carried out pursuant
to a warrant in KRL, 384 F.3d at 1111-13. In KRL, we held
that a prosecutor and his investigator were entitled to absolute
immunity for seeking a search warrant and carrying out a
search pursuant to that warrant more than three weeks after
the grand jury returned an indictment indicating that it had
found sufficient evidence for the defendant to stand trial. Id.
When Longanbach and O’Brien met with Flanders, the pre-
liminary hearing at which the court would determine whether
there was probable cause for Genzler to stand trial was still
more than three weeks away. On April 29, officials were con-
tinuing the process of investigation into the facts that would
inform whether there was such probable cause, and the pre-
cise charges on which Genzler would stand trial had yet to be
determined.

[13] We next consider the nature of the interview with
Flanders. The Supreme Court has stated that

acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and
which occur in the court of his [or her] role as an
advocate for the State, are entitled to the protections
of absolute immunity. Those acts must include the
professional evaluation of evidence assembled by the
police and appropriate preparation for its presenta-
 GENZLER v. LONGANBACH 6485
tion at trial or before a grand jury after a decision to
seek an indictment has been made.

Buckley, 509 U.S. at 273 (emphasis added); see also Broam,
320 F.3d at 1030. In KRL, we held that “to the extent that the
second search warrant sought evidence to prosecute the
crimes charged in the indictment,” the prosecutors’ authoriza-
tion of that warrant and an investigator’s subsequent search
were protected by absolute immunity. 384 F.3d at 1112, 1118.
We held that the prosecutors and the investigator were acting
as advocates to the extent they were reviewing, evaluating,
and ensuring the admissibility of evidence in preparation for
an already pending trial. Id.

[14] There is some evidence in the record that Longanbach
and O’Brien were reviewing and evaluating evidence at the
April 29 meeting in preparation for the preliminary hearing
and trial testimony, including some testimony by Flanders
describing the meeting at some of the later proceedings in
Genzler’s case. However, when we resolve all ambiguity in
favor of Genzler and view the evidence in the context of other
evidence about ongoing investigations, we conclude that evi-
dence in the record supports the conclusion that Longanbach
and O’Brien were engaged in police-type investigative work
during the meeting.

The only notes in the record from the meeting were taken
by O’Brien. They are captioned, “Witness Interview.” These
interview notes, like notes taken of other interviews by
O’Brien, record only a narrative of what Flanders reportedly
said at the meeting about the events of April 17 and April 18.
The notes state that “FLANDERS had told me during a con-
versation that took place at her residence several days earlier
that she had a clearer picture in her mind of the events sur-
rounding HARLESS’ death. She felt that she could relate
them in a more organized fashion than she may have done
earlier in the investigation.” Specifically, the notes state that
Flanders was “distracted” by the arrival of Scott Davis, which
6486 GENZLER v. LONGANBACH
is inconsistent with the initial statement Flanders made to
police. The notes thus reflect that Longanbach and O’Brien
were in the process of gathering information from Flanders
during the meeting and possibly encouraged her to lie as part
of their process.

The Fifth Circuit decision in Cousin, relied on heavily by
Longanbach and O’Brien, is therefore inapposite. In Cousin,
the Fifth Circuit held that a declaration by a witness who was
allegedly coerced and intimidated into lying “eliminate[d]”
any “ambiguity” about whether the prosecutor was engaged in
an investigatory or quasi-judicial function when he inter-
viewed that witness. 325 F.3d at 633. The declaration clearly
showed that when the prosecutor met with the witness, “he
did so to tell [the witness] how he should testify.” Id. Here,
by contrast, the interview notes show a process of police-type
investigation — or, viewed in the light most favorable to Gen-
zler, a process of manufacturing evidence while performing
an police-type investigative work — not Longanbach or
O’Brien acting as advocates by actively preparing Flanders
for her testimony in court. See Moore, 65 F.3d at 194.

[15] We therefore agree with the district court that Longan-
bach and O’Brien are not entitled to summary judgment that
they are absolutely immune for their actions during the April
29 meeting with Flanders.

4. Summary

[16] A prosecuting attorney may perform many roles, or
functions. See Robichaud, 351 F.2d at 537 (citing Edward L.
Barrett, Jr., Police Practices and the Law—From Arrest to
Charge, 50 Cal. L. Rev. 11, 16-24 (1962)). Not all of these
roles are protected by absolute immunity. See Robichaud, 351
F.2d at 537 (“The distinction between the roles may be signif-
icantly controlling.”). We recognize that the two meetings
with Flanders described here were to some degree related to
trial preparation, even when viewed in the light most favor-
 GENZLER v. LONGANBACH 6487
able to Genzler. The Supreme Court has cautioned, however,
that “[a]lmost any action by a prosecutor, including his or her
participation in purely investigative activity, could be said to
be in some way related to the ultimate decision to prosecute,
but we have never indicated that absolute immunity was that
expansive.” Burns, 500 U.S. at 495-96. We therefore remain
focused on the question whether the prosecutor’s actions are
“intimately associated with the judicial phase of the criminal
process.” Id. at 487 (emphasis added) (quoting Imbler, 424
U.S. at 430) . We do not read the record here, resolving all
ambiguity in favor of Genzler, to indicate such a close associ-
ation between Longanbach and O’Brien’s actions in their wit-
ness interviews with Flanders, on the one hand, and the
judicial phase of Genzler’s criminal trial, on the other, to enti-
tle them to summary judgment that they are absolutely
immune for those actions. We therefore affirm the district
court’s partial denial of summary judgment to Longanbach
and O’Brien.

B. The Supervisory Defendants

The next issue is whether Pfingst, Thompson, and Pippen
— the supervisory defendants — are entitled to absolute
immunity. The district court understood the supervisory
defendants to have moved for summary judgment on only
three allegations in Genzler’s complaint, specifically para-
graphs 74, 81, and 82.3 The district court did not view the
motion as including any other allegations against the supervi-
sory defendants in Genzler’s complaint, and its ruling did not
extend to any such allegations. We construe the supervisory
defendants’ motion for summary judgment as did the district
court.

We reverse the district court’s denial of summary judgment
with respect to the allegations contained in these three para-
graphs. We apply the “function test” to determine whether the
3
See supra pages 6473-74, n.2.
6488 GENZLER v. LONGANBACH
supervisory defendants are entitled to absolute immunity. Roe
v. City and County of San Francisco, 109 F.3d 578, 584 (9th
Cir. 1997). To decide whether absolute immunity applies, we
assume without deciding that Genzler has alleged a depriva-
tion of a constitutional right under § 1983. See Buckley, 509
U.S. at 261.

[17] The relevant paragraphs state (1) that the supervisory
defendants knew that Longanbach had granted Logel immu-
nity in exchange for perjured testimony favorable to the pros-
ecution; (2) that Longanbach had promised the supervisory
defendants he would win Genzler’s case; and (3) that the
supervisory defendants were aware of and condoned a ploy to
use Logel’s perjured testimony to force the recusal of Gen-
zler’s counsel of choice. Each of these statements describes
conduct closely related to prosecutorial decisions in the trial
phase of Genzler’s case. These actions all involve advocacy
“intimately associated with the judicial phase of the criminal
process,” Imbler, 424 U.S. at 430, for which the supervisory
defendants are entitled to absolute immunity. See id. at 431
(presenting perjured testimony protected by absolute immu-
nity); Mullinax v. McElhenney, 817 F.2d 711 (11th Cir. 1987)
(offering a witness immunity in exchange for testimony pro-
tected by absolute immunity); see also Rivera v. Green, 775
F.2d 1381, 1384 (9th Cir. 1985) (holding that a prosecuting
attorney and his supervisor had absolute immunity “for their
actions in prosecuting a case against” a defendant).

Conclusion

[18] We affirm the district court’s partial denial of sum-
mary judgment as to Longanbach and O’Brien. We reverse
the district court’s denial of summary judgment as to Pfingst,
Thompson, and Pippen. We express no opinion about whether
Genzler has stated a violation of a constitutional right that is
actionable under 42 U.S.C. § 1983, or whether the defendants
may be entitled to qualified immunity. We leave these deter-
minations to the district court in the first instance.
 GENZLER v. LONGANBACH 6489
AFFIRMED in part, REVERSED in part, and
REMANDED.