Javier Torres v. Terry Goddard , 793 F.3d 1046 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER TORRES; LIA RIVADENEYRA, No. 12-17096
individually and on behalf of all
others similarly situated, D.C. No.
Plaintiffs-Appellants, 2:06-cv-02482-
SMM
v.
TERRY GODDARD, in his individual OPINION
capacity; COLIN HOLMES, in his
individual capacity as personal
representative of the estate of
Cameron Holmes; MARK BRNOVICH,
Attorney General of the State of
Arizona,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted
January 28, 2014—University of Nevada, Las Vegas
Filed July 16, 2015
Before: Stephen Reinhardt, Alex Kozinski,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Kozinski
2 TORRES V. GODDARD
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment, and remanded in an action
brought under 42 U.S.C. § 1983 against Arizona state
officials who executed over twenty warrants to seize
thousands of wire transfers that officials alleged were likely
to be connected to criminal conduct associated with the
smuggling of undocumented aliens into the United States.
The panel first held that absolute immunity is available to
prosecutors in the context of civil forfeiture proceedings. The
panel held that Arizona Assistant Attorney General Cameron
Holmes’s preparation of and application for the warrants were
intimately associated with the judicial phase of civil forfeiture
proceedings, and therefore protected by absolute immunity.
The panel held however that Holmes’s service and execution
of the seizure warrants were not protected by absolute
immunity because those acts are functions of police officers,
not the traditional functions of an advocate. The panel
expressed no opinion as to whether Holmes was entitled to
qualified immunity.
The panel held that Terry Goddard, in his individual
capacity as the Arizona Attorney General at the time the
seizure warrants were carried out, was protected by absolute
immunity for supervision of Holmes’s preparation of and
application for the warrants. Goddard could not claim
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TORRES V. GODDARD 3
absolute immunity with respect to his supervision of
Holmes’s service and execution of the seizure warrants
because his supervision was a function of a supervising police
officer, not a supervising prosecutor.
The panel held that plaintiffs waived the issue of whether
the district court erred by granting summary judgment on the
official capacity claims against Thomas Horne, Goddard’s
successor as Arizona Attorney General. The panel expressed
no opinion as to whether the district court abused its
discretion by denying plaintiffs’ motion for class
certification.
COUNSEL
Matthew J. Piers, Joshua Karsh, Christopher J. Wilmes
(argued), Hughes Socol Piers Resnick & Dym, Ltd., Chicago,
Illinois, for Plaintiffs-Appellants.
Thomas C. Horne, Arizona Attorney General, David D.
Weinzweig (argued) and Evan Hiller, Assistant Attorneys
General, Phoenix, Arizona, for Defendants-Appellees.
4 TORRES V. GODDARD
OPINION
KOZINSKI, Circuit Judge:
The state of Arizona had a coyote problem: Not the four-
legged furry kind that occasionally abscond with pets, but the
kind who smuggle undocumented aliens into the United
States for a fee. As part of the effort to combat the
proliferation of coyotes, between 2001 and 2006 Arizona
officials executed over twenty warrants to seize thousands of
wire transfers that they claimed were highly likely to be
connected to criminal conduct. Plaintiffs sent money via
Western Union that was seized pursuant to two of these
warrants. They allege the seizures were unconstitutional and
seek damages, as well as injunctive and declaratory relief,
against the state officials they claim are responsible for the
seizures. We determine whether defendants’ actions are
protected by absolute immunity.
I. BACKGROUND
The warrant program was carried out by the Arizona
Financial Crimes Task Force. The Task Force consisted of
personnel from several public agencies including the Arizona
Attorney General’s Office. Cameron Holmes, an Assistant
Attorney General and civil forfeiture prosecutor, worked with
the Task Force. Holmes sought court approval for and
obtained seizure warrants pursuant to Arizona’s civil
forfeiture statutes. See Ariz. Rev. Stat. Ann. § 13-
4305(A)(1).
TORRES V. GODDARD 5
While some of the earlier warrants sought seizure of wire
transfers involving specific names listed in the warrants, later
warrants, or “sweeps,” authorized seizure of all wire transfers
that met certain specified criteria. The six “criteria-based”
warrants identified in plaintiffs’ complaint authorized the
seizure of every person-to-person Western Union wire
transfer that (1) was sent from certain states to Arizona or,
under one warrant, from certain states to Sonora, Mexico;
(2) met or exceeded a threshold amount ranging from $500 to
$2000; and (3) was made during a certain time period—
typically three or four weeks in the spring or fall.
Accompanying the warrant applications were factual
affidavits sworn to by Task Force detectives. The affidavits
claimed that any wire transfer that met the warrants’ criteria
had a very high likelihood, for some warrants as high as 97
percent, of being “directly involved in illegal drug and/or
human smuggling.”
The seizures followed the same basic pattern. Holmes
supervised the preparation of the seizure warrants and warrant
applications. Holmes also reviewed the factual affidavits
sworn to by Task Force detectives “in order to satisfy
[himself] that the seizure warrant[s] being applied for [were]
supported by probable cause.” Holmes then sought approval
of the warrants before a state court judge. Once the warrants
were approved, Holmes served them on Western Union’s
corporate headquarters. The warrants were “effective upon
receipt” by Western Union. They required Western Union to
identify all wire transfers that met the listed criteria and
“cause the transaction[s] to be ‘force paid’ to a detention
account” maintained for the state by Western Union. Western
6 TORRES V. GODDARD
Union seized the funds on the state’s behalf by loading the
criteria into its computer system. When a wire transfer that
met all the criteria listed in a warrant was initiated, Western
Union’s computer system automatically diverted the transfer
to Arizona’s detention account. While the seized funds were
held by Western Union, they were considered to be in the
“constructive custody of the law enforcement agency making
the seizure for forfeiture.”
Although the affidavits claimed that a wire transfer that
met the warrants’ criteria had a high likelihood of being
subject to forfeiture, they acknowledged that some transfers
detained by Western Union may “not [be] involved in the
conduct described in the affidavit.” The warrants therefore
required the state to notify the consignee of the seizure and
staff a 24-hour hotline. Arizona officials operated this “call
center” and “[made] decisions as to whether particular money
transfers could be released from seizure.” See Ariz. Rev.
Stat. Ann. § 13-4306(A). If the call center official was
satisfied that the transfer was for a legitimate purpose, the
funds were released. If the official was not so convinced, or
if the call center wasn’t contacted about the seized transfer,
the funds remained in the detention account. The funds were
detained by Western Union for the period of the warrant plus
twenty-one days. At the end of the detention period, the
warrants required Western Union to convey all unreleased
funds to a bank account maintained by the Maricopa County
TORRES V. GODDARD 7
Superior Court.1 Holmes subsequently brought civil
forfeiture proceedings against these funds.
Plaintiffs Javier Torres and Lia Rivadeneyra sent funds
via Western Union that were seized pursuant to two of the
warrants. Their section 1983 complaint alleges that
defendants, “both personally and through agents or
representatives,” “served and executed” the criteria-based
warrants and “have illegally seized more than $9 million in
interstate and international money transfers.” Plaintiffs allege
that the seizures were unconstitutional because they were
1
The funds detained by Sweep 21, the warrant that authorized seizure
of funds sent from outside Arizona to Sonora, Mexico, never made it into
state custody. As soon as this warrant was served, Western Union
challenged it on the ground that Arizona lacked in rem jurisdiction over
these funds. The Maricopa County Superior Court quashed the warrant,
thereby preventing Western Union from transferring the funds detained
pursuant to Sweep 21 to the State of Arizona. The Arizona Supreme
Court agreed and held that Arizona couldn’t exercise in rem jurisdiction
over funds transferred from other states to Sonora because those funds
were never present in Arizona. State v. W. Union Fin. Servs., Inc.,
208 P.3d 218, 223–27 (Ariz. 2009) (citing Shaffer v. Heitner, 433 U.S.
186, 212 (1977)).
The other warrants were limited to funds sent to Arizona and weren’t
challenged on that ground. Despite the differences between Sweep 21 and
the other warrants identified in the complaint, our absolute immunity
analysis is the same because plaintiffs allege that defendants performed
the same functions with respect to all of the warrants. See pp. 13–25
infra; Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (whether absolute
immunity applies depends on “the nature of the function performed”
(internal quotation marks and citation omitted)). But that’s not necessarily
true of qualified immunity. That protection depends on “whether the right
at issue was ‘clearly established’ at the time of defendant’s alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation
omitted). We leave the qualified immunity question to the district court
on remand. See pp. 20–21, 25–26 infra.
8 TORRES V. GODDARD
conducted without “particularized probable cause” to believe
that their wire transfers “were involved in,” or “were the
fruits or instrumentalities of, any of the stated criminal
offenses” in the warrants. They seek damages and restitution
of the seized funds, as well as injunctive and declaratory
relief. They also seek to represent a Rule 23(b)(3) class
consisting of all persons whose wire transfers were seized
pursuant to the six criteria-based warrants.
The complaint initially named two defendants: Holmes,
in his individual capacity, and Terry Goddard, Arizona’s
Attorney General at the time the seizure warrants were
carried out and at the time the complaint was filed, in his
individual and official capacities. Holmes died while this
appeal was pending, and was replaced as a defendant by the
personal representative of his estate, Colin Holmes. Goddard
was succeeded by Thomas Horne as Arizona’s Attorney
General after the lawsuit was filed, and Horne replaced
Goddard as a defendant in his official capacity. Horne was
succeeded by Mark Brnovich while this appeal was pending,
and Brnovich replaced Horne as a defendant in his official
capacity. Horne is no longer a defendant and Goddard
remains a defendant in his individual capacity only.
The district court granted summary judgment to Holmes
and Goddard, finding their actions protected by absolute
immunity. In the district court’s view, “government attorneys
are absolutely immune from liability under [section 1983] for
acts involving or related to litigation,” and all of Holmes’s
and Goddard’s actions were so related. The district court also
granted summary judgment to Horne (the Attorney General
at the time) on plaintiffs’ official capacity claim because
plaintiffs hadn’t “alleged or argued how the Attorney
General’s office violated their constitutional rights.” We
TORRES V. GODDARD 9
have jurisdiction pursuant to 28 U.S.C. § 1291 and review
claims of absolute immunity de novo. See Genzler v.
Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).
II. ABSOLUTE IMMUNITY
In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme
Court held that criminal prosecutors may claim absolute
immunity from damages liability for actions “intimately
associated with the judicial phase of the criminal process,”
such as the prosecutor’s initiation of a prosecution and
presentation of the state’s case. Id. at 430. Absolute
prosecutorial immunity is meant to “protect[] the prosecutor
from harassing litigation that would divert his time and
attention from his official duties” and to “enabl[e] him to
exercise independent judgment when ‘deciding which suits to
bring and in conducting them in court.’” Kalina v. Fletcher,
522 U.S. 118, 125 (1997) (quoting Imbler, 424 U.S. at 424);
see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir.
2012) (en banc).
But “the actions of a prosecutor are not absolutely
immune merely because they are performed by a prosecutor.”
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Because
absolute prosecutorial immunity stems from “the interest in
protecting the proper functioning of the office, rather than the
interest in protecting its occupant,” the touchstone is “the
nature of the function performed, not the identity of the actor
who performed it.” Kalina, 522 U.S. at 125, 127 (quoting
Forrester v. White, 484 U.S. 219, 229 (1988)) (internal
quotation marks omitted). A prosecutor is absolutely immune
“when performing the traditional functions of an advocate.”
Id. at 131. However, he is not entitled to such protection
when he is “cast [] in the role of an administrator or
10 TORRES V. GODDARD
investigative officer rather than that of advocate.” Id. at 125
(quoting Imbler, 424 U.S. at 430–31) (internal quotation
marks omitted). We must therefore focus “on the conduct for
which immunity is claimed, not on the harm that the conduct
may have caused or the question whether it was lawful.”
Buckley, 509 U.S. at 271.
A. Absolute Immunity in the Civil Forfeiture Context
While Imbler arose in the context of a criminal
prosecution, this lawsuit arises from a civil forfeiture
proceeding. Therefore, before considering the specific
actions of Holmes and Goddard, we must determine whether
absolute immunity is available at all to a prosecutor
conducting a civil forfeiture proceeding. Although the
Supreme Court hasn’t directly addressed this question, it has
extended the reasoning of Imbler to agency officials
“performing certain functions analogous to those of a
prosecutor.” Butz v. Economou, 438 U.S. 478, 515 (1978).
The plaintiff in Butz was a commodities merchant who
claimed that officials from the Department of Agriculture
vindictively instituted administrative proceedings against him
in retaliation for his criticism of the agency. Id. at 480. He
brought damages claims against a number of federal officials,
including the Department of Agriculture attorney who
prosecuted the enforcement proceeding, alleging that the
officials violated his constitutional rights. Id. at 481–82.
The Court held that “adjudication within a federal
administrative agency shares enough of the characteristics of
the judicial process that those who participate in such
adjudication” are entitled to absolute immunity. Id. at
512–13. Consequently, absolute immunity extends to
“agency officials performing certain functions analogous to
TORRES V. GODDARD 11
those of a prosecutor.” Id. at 515. That’s because, just like
a criminal prosecutor, “[t]he discretion which executive
officials exercise with respect to the initiation of
administrative proceedings might be distorted” in the absence
of absolute immunity. Id. (citing Imbler, 424 U.S. at 426
n.24). An agency official’s decision to initiate proceedings
must be able to be made “free from intimidation or
harassment.” Id. at 516. And the procedural safeguards
available to the defendant give him an “ample opportunity to
challenge the legality of the proceeding” and “provide
sufficient checks on agency zeal.” Id. at 515–16; see also Fry
v. Melaragno, 939 F.2d 832, 836–38 (9th Cir. 1991).
The reasoning of Butz applies with equal or greater force
in the civil forfeiture context. In rem proceedings seeking the
forfeiture of property connected to criminal activity are
functionally analogous to criminal proceedings. See United
States v. U.S. Coin & Currency, 401 U.S. 715, 719 (1971).
They are frequently brought in connection with, or
immediately followed by, a criminal prosecution. A
government attorney in a forfeiture proceeding prosecutes
and seeks to establish “the ‘guilt’ of the property seized.”
United States v. One 1985 Mercedes, 917 F.2d 415, 419 (9th
Cir. 1990) (citation omitted). Like a criminal prosecutor, a
civil forfeiture prosecutor is “likely to provoke ‘with some
frequency’ retaliatory suits by angry defendants.” Butz,
438 U.S. at 510 (quoting Imbler, 424 U.S. at 425). Providing
a civil forfeiture prosecutor with only qualified immunity
“might have an adverse effect on the functioning” of the civil
forfeiture system by “discouraging the initiation of [in rem
civil forfeiture] prosecutions” and impacting the manner in
which the attorney conducts a forfeiture prosecution. Id.
12 TORRES V. GODDARD
In rem civil forfeiture proceedings like those conducted
by Holmes in this case also carry sufficient procedural
safeguards “to reduce the need for private damages actions as
a means of controlling unconstitutional conduct.” Id. at 512.
All persons known to have an interest in the seized property
are entitled to reasonable notice of pending forfeiture. See
Ariz. Rev. Stat. Ann. §§ 13-4306(C), 13-4307. The property
owners may appear in court and challenge a proposed
forfeiture. See, e.g., id. §§ 13-4309, 13-4310. The forfeiture
proceedings are conducted before an impartial state court
judge. See, e.g., id. § 13-4311. In such a proceeding, anyone
disputing the forfeiture may testify, introduce evidence and
present and cross-examine witnesses. See, e.g., id. § 13-
4311(L).
We therefore hold that absolute immunity is available to
prosecutors in the context of civil forfeiture proceedings. In
doing so, we join every other circuit that has addressed this
question. See Schrob v. Catterson, 948 F.2d 1402, 1411–13
(3d Cir. 1991); see also Cooper v. Parrish, 203 F.3d 937,
947–48 (6th Cir. 2000); Mendenhall v. Goldsmith, 59 F.3d
685, 691 (7th Cir. 1995); Ehrlich v. Giuliani, 910 F.2d 1220,
1222–24 (4th Cir. 1990).
B. Holmes in His Individual Capacity
We now turn to whether absolute immunity attaches to
the specific actions taken by Holmes. Like a criminal
prosecutor, a civil forfeiture prosecutor isn’t entitled to
absolute immunity merely because of his status as a
prosecutor. Rather, we must evaluate each act a civil
forfeiture prosecutor took and determine whether the
prosecutor was performing a function that’s protected by
absolute immunity. See Milstein v. Cooley, 257 F.3d 1004,
TORRES V. GODDARD 13
1011–13 (9th Cir. 2001) (evaluating absolute immunity act by
act). The “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).
1. Preparation and Application
Holmes oversaw the preparation of the warrants, warrant
applications and factual affidavits. He also reviewed and
edited the factual affidavits that were sworn to by Task Force
detectives to satisfy himself that the warrants were supported
by probable cause. He then presented the warrant
applications to a state court judge for approval.
Whether a prosecutor’s application for a warrant is
protected by absolute immunity depends on the function the
warrant serves. The prosecutor in Kalina had “commenced
a criminal proceeding against [the plaintiff] by filing three
documents”: “an information charging [the plaintiff] with
burglary”; “a motion for an arrest warrant”; and a probable
cause certification that “summarized the evidence supporting
the charge.” 522 U.S. at 120–21. The Supreme Court held
that the prosecutor’s “activities in connection with the
preparation and filing of” the information and the motion for
an arrest warrant were protected by absolute immunity. Id. at
129. These activities were “the work of an advocate and
[were] integral to the initiation of the prosecution.” Id. at
130. And in KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004),
we held that a prosecutor was entitled to absolute immunity
when procuring a search warrant, when the warrant “sought
evidence to prosecute the crimes charged in the indictment.”
Id. at 1112. Because the prosecutor obtained the warrant to
14 TORRES V. GODDARD
“marshal evidence for trial,” he was performing a “traditional
function of an advocate for the [s]tate.” Id. at 1112–13.
However, a warrant may also be sought for an
investigative purpose. See Genzler, 410 F.3d at 638 (citing
KRL, 384 F.3d at 1110–16). In KRL, we held that the
prosecutor wasn’t entitled to absolute immunity when he
sought a search warrant that “went beyond any legitimate
preparation to prosecute” the plaintiff for the crimes charged,
and was instead part of a “collateral investigation into new
crimes.” 384 F.3d at 1113–14. We treated this second
warrant differently, not because the prosecutor’s acts were
different, but because the prosecutor sought the warrant for a
different purpose. Id.; Genzler, 410 F.3d at 642–43. Thus,
when evaluating an act such as the procurement of a warrant,
we “take into account the goal of performing [the] action to
determine function.” al-Kidd v. Ashcroft, 580 F.3d 949, 960
(9th Cir. 2009), rev’d on other grounds, 131 S. Ct. 2074
(2011).
Plaintiffs argue that the warrants here fall on the
investigative side of the line. They point out that, unlike the
prosecutor in Kalina, Holmes prepared and applied for the
warrants before he filed any forfeiture complaints against the
seized property. And, because the Task Force set up a call
center to help weed out legal transfers, Holmes never filed
forfeiture complaints against some of the funds. They argue
that this multi-step process—a seizure warrant, followed by
the call center, followed by a forfeiture complaint only in
some cases—raises an issue of fact as to whether Holmes
applied for the warrants in order to initiate forfeiture
proceedings or instead used the warrants as an investigative
tool.
TORRES V. GODDARD 15
But plaintiffs’ position misapprehends the role of a court-
issued seizure warrant in Arizona’s civil forfeiture process.
While seizure for forfeiture can be accomplished in several
ways, see Ariz. Rev. Stat. Ann. § 13-4305(A), the warrants
Holmes prepared and applied for required a prior judicial
determination of probable cause that the property was subject
to forfeiture. See id. §§ 13-4305(A)(1), 13-4310(B). The
seizure warrants couldn’t be used to conduct an investigation
that might lead to a probable cause determination. Rather, in
order for the warrants to be issued, the attorney for the state
was first required to make that determination, prepare a
warrant with a supporting factual affidavit and seek issuance
of the warrant by a judge. That’s why the seizure warrants
issued in this case stated that there was “probable cause to
believe that conduct giving rise to forfeiture has occurred
with respect to all of the property” covered by the warrants,
and that “forfeiture is authorized pursuant to” Arizona’s
forfeiture statutes. Thus, Holmes wasn’t performing the
“detective’s role in searching for the clues and corroboration
that might give him probable cause.” Kalina, 522 U.S. at 126
(quoting Buckley, 509 U.S. at 273). Rather, upon review of
the factual affidavits sworn to by Task Force detectives,
Holmes determined that there was probable cause to believe
that the property covered by the warrants was subject to
forfeiture. Only then did Holmes apply for the warrants.
Moreover, seizure of the property is “integral to the
initiation of” an in rem civil forfeiture proceeding, id. at 130,
because it’s a “prerequisite to the court’s jurisdiction,” State
v. One Single Family Residence at 1810 E. Second Ave.,
969 P.2d 166, 169 (Ariz. Ct. App. 1997) (citing Republic
Nat’l Bank of Miami v. United States, 506 U.S. 80, 84
(1992)). Although the court’s issuance of a seizure warrant
doesn’t constitute a civil forfeiture complaint, “[t]he in rem
16 TORRES V. GODDARD
complaint and the seizure warrant are intimately connected—
one follows the other and effectuates it.” Schrob, 948 F.2d at
1416. Holmes’s preparation of and application for seizure
warrants is the civil forfeiture analog to the prosecutor’s
application for an arrest warrant in Kalina. These actions are
likewise shielded by absolute immunity and may not form the
basis of a claim for damages.
Arizona’s insertion of an intermediate step that allowed
for the rapid release of some seized funds doesn’t change the
character of Holmes’s actions. While Arizona law authorizes
the release of property seized for forfeiture “if forfeiture or
retention is unnecessary,” Ariz. Rev. Stat. Ann. § 13-
4306(A), nothing prevented Arizona from seeking forfeiture
of every seized wire transfer. When a prosecutor decides to
initiate a criminal proceeding, he is surely aware that he may
have to terminate the proceeding if the factual allegations that
supported probable cause turn out to be untrue. That doesn’t
mean that the prosecutor’s initiation of the proceeding (or the
acts he takes in preparation for it) aren’t protected by absolute
immunity. In Kalina, for example, the Supreme Court held
that the prosecutor’s preparation and filing of the arrest
warrant were protected by absolute immunity even though the
criminal charges were subsequently dismissed. 522 U.S. at
122. State officials do not lose absolute immunity by
constructing an additional step in the civil forfeiture process
to avoid unnecessary judicial proceedings.
2. Service and Execution
If Holmes’s actions were limited to preparing and
applying for the warrants, our analysis of his absolute
immunity could end there. However, plaintiffs also allege
that “defendants served and executed” the warrants and
TORRES V. GODDARD 17
“illegally seized” the funds. Plaintiffs argue that, even if we
find that Holmes’s preparation and application for the seizure
warrants were acts of advocacy protected by absolute
immunity, serving and executing of seizure warrants are acts
that “could have been performed by police officers” and thus
can’t be shielded by absolute immunity. Because we must
evaluate absolute immunity act by act, we must also consider
whether absolute immunity bars damages claims based on a
forfeiture prosecutor’s service and execution of the seizure
warrants he applied for.
Arizona’s civil forfeiture statutes make clear that the
seizure of property pursuant to a seizure warrant is the
function of police officers, not prosecutors. The “[a]ttorney
for the state” is designated to “investigate, commence and
prosecute an action under this chapter,” Ariz. Rev. Stat. Ann.
§ 13-4301(1), whereas the “[s]eizing agency” “employs the
peace officer who seizes property for forfeiture,” id. § 13-
4301(8). “Seizure for forfeiture” is “seizure of property by a
peace officer coupled with an assertion by the seizing agency
or by an attorney for the state that the property is subject to
forfeiture.” Id. § 13-4301(9). Consistent with the civil
forfeiture statutes, the seizure warrants themselves directed
police officers, not the attorney for the state, to seize the
subject property. The warrants authorized “[a]ny peace
officer” to “seize all of the property” that met the criteria “for
forfeiture pursuant to” Arizona’s civil forfeiture statutes.
And, as the warrant applications explained, “the peace
officers [would] carry out th[e] warrant[s] by serving [them]
on Western Union at its corporate offices, requiring Western
Union to transfer the described funds to the clerk of the
Maricopa County Superior Court.”
18 TORRES V. GODDARD
Nevertheless, it was Holmes, not Arizona police officers,
who “carr[ied] out” the warrants in the manner described
above.2 In doing so, Holmes “performed an act that any
[Arizona police officer] might have performed.” Kalina,
522 U.S. at 129–30. And “[w]hen the functions of
prosecutors and [police officers] are the same, as they were
here, the immunity that protects them is also the same.”
Buckley, 509 U.S. at 276; see also Burns, 500 U.S. at 492–96.
Because Holmes went beyond the “traditional functions of an
advocate” and “carr[ied] out” the warrants, he was only
entitled to the qualified immunity that a police officer would
receive when doing so.
Defendants argue that such a result “mistakenly focus[es]
on the description of [the] alleged misconduct alone rather
than the function being performed.” They insist that absolute
immunity extends to Holmes’s service of the warrants
because service is “an essential step in the initiation of a
forfeiture action,” and “was not an investigative technique.”
In other words, defendants argue that Holmes was performing
a “prosecutorial function” when he served the warrants
because service is a prerequisite to forfeiture.
2
Defendants claim that, because plaintiffs’ response to their cross-
motion for summary judgment states that Holmes “reviewed, approved,
procured and served” the warrants, plaintiffs waived the right to contest
Holmes’s absolute immunity with respect to “execution.” But plaintiffs
have never conceded that any of Holmes’s actions are protected by
absolute immunity. Moreover, on the record before us, a distinction
between “service” and “execution” of the warrants is only semantic. The
warrants were “effective upon receipt” by Western Union. They required
Western Union to seize all transfers that met their criteria on the state’s
behalf. Regardless of whether Holmes’s actions are characterized as
“service and execution” of the warrants or, as the warrant applications
state, “carry[ing] out” the warrants, plaintiffs haven’t waived the right to
contest Holmes’s immunity with respect to his role in the actual seizures.
TORRES V. GODDARD 19
This argument can’t be squared with the Supreme Court’s
reasoning in Kalina, where the Court distinguished between
the prosecutor’s preparation and filing of the information and
motion for an arrest warrant (which were shielded by absolute
immunity), and her personal attestation to the factual
allegations in the probable cause certification (which was
not). 522 U.S. at 130. Although all of the prosecutor’s acts
were prerequisites to the initiation of the prosecution,
personally attesting to the factual allegations contained in the
certification cast the prosecutor in the role of a witness, not
an attorney. Id. at 131. The Court’s distinction between this
act, and the other protected acts, didn’t depend on whether it
was “investigative.”3 Rather, absolute immunity didn’t attach
because the prosecutor wasn’t performing the function of an
advocate. The Court rejected the prosecutor’s argument that
absolute immunity applied because her personal attestation to
the factual allegations “was just one incident in a presentation
that, viewed as a whole, was the work of an advocate and was
integral to the initiation of the prosecution.” Id. at 130. We
similarly reject the analogous argument defendants advance
here. Serving and executing seizure warrants are the
functions of police officers, not the “traditional functions of
3
That doesn’t mean that whether a prosecutor’s act was investigative is
irrelevant to absolute immunity. In Buckley, the Court held that a
prosecutor wasn’t entitled to absolute immunity because his actions were
“investigative functions normally performed by a detective or police
officer.” 509 U.S. at 273; see also Burns, 500 U.S. at 492–96. Therefore,
if a prosecutor acts in an investigative capacity, he’s not protected by
absolute immunity. But under Kalina, the fact that a prosecutor’s act isn’t
investigative, and may be necessary to the commencement of a
prosecution, doesn’t guarantee absolute immunity. Rather, absolute
immunity only applies when the prosecutor is performing the “traditional
functions of an advocate.” Kalina, 522 U.S. at 131.
20 TORRES V. GODDARD
an advocate,” id. at 131, and thus under Kalina are functions
that aren’t protected by absolute immunity.
We acknowledge that our application of the functional
approach means that Holmes is entitled to absolute immunity
with respect to some acts but not others, even though all of
plaintiffs’ claims are predicated on the same constitutional
violation: seizure of their funds without probable cause.
However, the result we reach is the “essence of the function
test” because absolute immunity is based on the nature of the
function performed, not the underlying constitutional claim.
Buckley, 509 U.S. at 274 n.5. Critically, if Holmes’s service
and execution of the warrants were acts protected by absolute
immunity, we’d be faced with an “incongruous” result where
a prosecutor performing the function of a police officer would
be entitled to absolute immunity merely because of his status
as a prosecutor. See id. at 275 n.6 (quoting Burns, 500 U.S.
at 495). Service of the self-executing seizure warrants merely
carried out the command of the warrants; it wasn’t a
“function[] that require[s] the exercise of prosecutorial
discretion.” Kalina, 522 U.S. at 125. Extending absolute
immunity to this type of police activity would be inconsistent
with the distinction drawn by the Supreme Court in Kalina.
We express no opinion as to whether Holmes is entitled
to qualified immunity. Although defendants raised qualified
immunity in their cross motion for summary judgment, the
district court didn’t reach the issue because it held that
absolute immunity barred all of plaintiffs’ claims. The
parties did not brief the issue on appeal. We therefore
remand to the district court to determine, in the first instance,
whether Holmes’s actions in serving and executing the
warrants are protected by qualified immunity. If the district
court determines that any of Holmes’s actions aren’t
TORRES V. GODDARD 21
protected by qualified immunity, it must then go on to assess
whether those unprotected acts (and only those acts) give rise
to a cause of action for damages against Holmes under
section 1983. See Buckley, 509 U.S. at 274 n.5.
C. Goddard in His Individual Capacity
Goddard was Arizona’s Attorney General at the time the
warrants were carried out and at the time the complaint was
filed. He was succeeded by Horne (and Horne by Brnovich)
while this lawsuit was pending. Goddard thus remains a
defendant only in his individual capacity. Unlike an official
capacity claim, where the constitutional injury “must be
attributable to [an] official policy or custom,” an individual
capacity claim “hinges upon [the individual defendant’s]
participation in the deprivation of constitutional rights.”
Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir.
1991). Plaintiffs don’t allege Goddard was directly involved
in the preparation, filing, service or execution of the warrants.
They nevertheless claim that Goddard “could have stopped
the criteria-based warrant program but chose not to.”
Plaintiffs argue that Goddard had a duty to exercise his
supervisory authority over the Arizona officials who were
responsible for procuring and carrying out the seizure
warrants and, by failing to do so, is also subject to section
1983 liability for the seizures. See Cunningham v. Gates,
229 F.3d 1271, 1292 (9th Cir. 2000).
1. Preparation and Application
Holmes’s preparation of and application for the warrants
were “intimately associated with the judicial phase” of the
civil forfeiture proceedings, Imbler, 424 U.S. at 430, and
therefore protected by absolute immunity. Goddard’s
22 TORRES V. GODDARD
supervision of these activities is likewise protected by
absolute immunity under Van de Kamp v. Goldstein, 555 U.S.
335, 345 (2009). In Van de Kamp, Goldstein had alleged that
the trial prosecutors who conducted his case didn’t tell him
that a jailhouse informant who testified against him at his trial
previously received favorable treatment in exchange for his
testimony. Id. at 339. Goldstein sued the county district
attorney and his chief deputy, alleging that the trial
prosecutors’ failure to disclose the informant’s treatment
resulted from their supervisors’ failure to “adequately [] train
and [] supervise” subordinate prosecutors and their “failure to
establish an information system about informants.” Id. at
340. Goldstein didn’t claim that the supervisory prosecutors
personally erred in his trial, but rather argued that they were
liable because their “general methods of supervision” caused
a “consequent error by an individual prosecutor” at his trial.
Id. at 346.
The Supreme Court held that absolute immunity barred
Goldstein’s claims. In doing so, the Court considered a
“hypothetical case” in which the failure to disclose the
informant’s treatment arose from a prosecutor’s “specific
supervision or training related to a particular case.” Id. at
345–46. The Court concluded that the trial and supervisory
prosecutors in that case would both be entitled to absolute
immunity. The decision to disclose (or to not disclose) an
informant’s favorable treatment is an act that’s “‘intimately
associated with the judicial phase of the criminal process’
because it concern[s] the evidence presented at trial.” Id. at
345 (quoting Imbler, 424 U.S. at 430). If a supervisory
prosecutor wasn’t entitled to absolute immunity for this
conduct, such a rule would implicate “all of the
considerations” that counseled in favor of immunity in
Imbler, including “Imbler’s basic fear . . . that the threat of
TORRES V. GODDARD 23
damages liability would affect the way in which prosecutors
carried out their basic court-related tasks.” Id.4
Plaintiffs’ claims against Goddard are analogous to the
hypothetical case discussed in Van de Kamp. They don’t
arise from Goddard’s “general methods of supervision,” but
rather arise from Goddard’s “acequisece[nce]” and
“ratifi[cation]” of Holmes’s procurement of particular seizure
warrants. Under Van de Kamp, the absolute immunity that
protects Holmes’s preparation and application for the
warrants also protects Goddard’s decision to permit Holmes
to do so. There is no functional difference between a civil
forfeiture prosecutor’s preparation and application for seizure
warrants, and his supervisor’s decision to allow him to
engage in those activities. A supervisor’s decision to permit
a subordinate prosecutor to prepare and apply for seizure
warrants is an “act[] undertaken by [the supervisor] in
preparing for the initiation of judicial proceedings,” and
“occur[s] in the course of [the supervisor’s] role as an
advocate for the [s]tate.” Kalina, 522 U.S. at 126 (internal
quotation marks omitted). Indeed, if the rule were otherwise,
a plaintiff could just “restyle a complaint charging a trial
failure so that it becomes a complaint charging a failure of
training or supervision” and thereby “eviscerate Imbler.” Van
de Kamp, 555 U.S. at 347.
4
Goldstein’s complaint was different from the hypothetical case because
his claims arose from defendants’ “general methods of supervision.” Van
de Kamp, 555 U.S. at 346. But, as the Court explained, Goldstein’s
“general” claims nevertheless “rest[ed] in necessary part upon a
consequent error by an individual prosecutor in the midst of trial.” Id.
The challenged procedures related to “how and when to make
impeachment information available at a trial.” Id. They were “directly
connected with the prosecutor’s basic trial advocacy duties,” and under
Imbler were protected by absolute immunity. Id.
24 TORRES V. GODDARD
2. Service and Execution
Plaintiffs also allege that Goddard “culpably acquiesced
in and subsequently ratified the service of warrants and the
seizure” of their funds. We hold that service and execution
of seizure warrants, even when performed by a prosecutor,
aren’t protected by absolute immunity because those acts are
functions of police officers, not prosecutors. See Kalina,
522 U.S. at 130–31. Under Kalina, Goddard’s supervision of
Holmes’s service and execution of seizure warrants is
likewise a function of a supervising police officer, not a
supervising prosecutor. Service and execution aren’t
“intimately associated with the judicial phase” of the
proceedings. Goddard therefore can’t claim absolute
immunity with respect to his supervision of the service and
execution of the seizure warrants.
Van de Kamp doesn’t countenance a different result. The
supervisor’s activities in Van de Kamp were protected by
absolute immunity not because they were the actions of a
supervisor or a prosecutor, but because they “concerned the
evidence presented at trial.” 555 U.S. at 345. The
presentation of evidence is “intimately associated with the
judicial phase” of the criminal proceeding whether it’s
conducted in a direct or supervisory capacity. Id. But
nothing in Van de Kamp permits us to grant a supervising
prosecutor absolute immunity for supervising an activity
that’s not protected by absolute immunity under Imbler and
its progeny. Such a result would eviscerate the distinction
drawn by the Supreme Court in Kalina. Absolute immunity
would turn on whether a prosecutor was a supervisor, instead
of on whether the function performed was that of an advocate
for the state. Rather, Kalina controls Goddard’s immunity
TORRES V. GODDARD 25
with respect to service and execution. Under Kalina those
functions aren’t protected by absolute immunity.
III. OFFICIAL CAPACITY CLAIM AGAINST
BRNOVICH
The district court granted summary judgment to Horne
(who was then Arizona’s Attorney General) on the basis that
plaintiffs hadn’t “alleged or argued how the Attorney
General’s office violated their constitutional rights.” The
district court addressed the claim on the merits even though
“[d]efendants considered this claim abandoned and did not
respond” in their filings on summary judgment. Although
plaintiffs list the grant of summary judgment in favor of the
Attorney General among the issues presented on appeal, their
brief does not argue the point or cite any authorities in
support of their official capacity claims against the Attorney
General. Because plaintiffs didn’t “specifically and distinctly
argue” in their opening brief that the district court’s grant of
summary judgment in favor of the Attorney General was
incorrect, this issue is waived. See Wagner v. Cnty. of
Maricopa, 747 F.3d 1048, 1059 (9th Cir. 2013).
IV. CLASS CERTIFICATION
Plaintiffs also argue that the district court abused its
discretion in denying their motion for class certification. We
express no opinion on the class certification issue. The class
certification question may be answered quite differently after
our opinion and any ruling by the district court on Holmes’s
26 TORRES V. GODDARD
or Goddard’s qualified immunity. The parties may raise the
class certification issue in any subsequent appeal.
AFFIRMED in part, REVERSED in part and
REMANDED.
The parties shall bear their own costs on appeal.