that he is entitled to absolute immunity stemming from his role as a prosecutor in the prosecution of the Violation of Probation.
At common law, the prosecutor was absolutely immune from civil liability in acting in accordance with his public prosecutorial duties. Yaselli v. Goff, 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927). However, the Supreme Court has expressly limited absolute prosecutorial immunity to those roles wherein the prosecutor initiates the prosecution and presents the case against the defendant. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984, 994-94, 47 L. Ed. 2d 128; see also Powers v. Coe, 728 F.2d 97, 103-04 (2d Cir. 1984); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981). The court has declined to determine what the scope of immunity would be for a prosecutor's administrative and investigatory functions. Id.
In a recent Supreme Court decision, the court seems, at first reading, to be granting absolute immunity to a prosecutor when he seeks a warrant, Burns v. Reed, U.S. , 111 S. Ct. 1934, 114 L. Ed. 2d 547, which would seem to be in contravention of its earlier decision in Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986) wherein it had held that a police officer seeking a warrant is entitled to only qualified immunity. However, upon a careful reading of Burns, the court made the determination it did because the prosecutor there was acting more as would a witness in testifying at a probable cause hearing than as an advocate presenting evidence. Compare Briscoe v. LaHue, 460 U.S. 325, 330-34, 103 S. Ct. 1108, 1113-15, 75 L. Ed. 2d 96, (1983) (witnesses are absolutely immune for their trial testimony). As such, Burns provides no support for the proposition that the probation officer is here entitled to prosecutor-like absolute immunity. See also Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411; Liffiton v. Keuker, 850 F.2d 73, 77 (2d Cir. 1988) (prosecutor not entitled to absolute immunity in seeking a wiretap warrant).
The court is not persuaded that the function of a probation officer in seeking a Violation of Probation and an arrest warrant from a judge is analogous to that of a prosecutor when presenting evidence against a defendant. Thus, the defendants' analysis on this basis must fail.
"Similar Function" Analysis
The functional approach to immunity requires that officials performing identical functions are to be treated alike. Snell v. Tunnell, 920 F.2d 673, 690 (10th Cir. 1990), cert. denied sub nom. Swepston v. Snell, U.S. , 111 S. Ct. 1622, 113 L. Ed. 2d 719 (1991); Austin v. Borel, 830 F.2d 1356, 1362-63 (5th Cir. 1987). See also Burns v. Reed, U.S. , , 111 S. Ct. 1934, 1949, 114 L. Ed. 2d 547, (1991) (Scalia, J., concurring in part and dissenting in part).
At first blush, it would seem that a probation officer should be accorded the same treatment as a parole officer since the two types of supervision -- probation and parole -- are largely identical in the effect on the individual being supervised. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 1759, 36 L. Ed. 2d 656, 661 (1973). However, in the context of the issuance of a Violation of Probation, the role of probation officer is quite different from that of a parole officer: A parole officer in New York is free to formulate the violation of parole containing the allegations of violation of the terms and conditions of parole release; it is he who issues the violation of parole warrant.
With a probation violation, it is the judge who actually signs the Violation of Probation and makes the determination to issue the arrest warrant. Thus, in comparing the functions of a parole officer and a probation officer vis-a-vis the decision to violate and issue a warrant, they are not analogous, and simply cannot be termed "identical functions."
The court finds, however, that there is a strong analogy in comparing the probation officer's function in this context to that of a police officer seeking an arrest warrant. In both instances the officer presents to a judge a set of facts to which he is swearing and requests that there is a need for an arrest warrant to be issued. Since these functions are nearly identical, it would follow that the probation officer should be entitled to the same level of immunity to which a police officer is entitled in performing that function. The police officer is entitled to only qualified immunity in performing that function. Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271. Thus, the probation officer should be entitled to only qualified immunity when he/she functions in this context. See also Austin v. Borel, 830 F.2d 1356 (social workers are entitled to only qualified immunity when preparing petitions for the removal of children).
Thus, for all the reasons set forth, the court finds that the function of the Defendant Wahila, in presenting the violation of probation report and requesting the issuance of an arrest warrant is not: (a) so intimately associated with the judicial process so as to be considered an arm of the court and therefore entitled to absolute immunity, or (b) deemed to be acting as a prosecutor in the manner a prosecutor (or a parole officer) does when he/she decides to charge someone with a violation, thereby being entitled to absolute immunity. The court does find, however, that the function of the defendant in this context is analogous, if not identical, to the function of a police officer when seeking an arrest warrant. Since, under the rule of Malley, absolute immunity is not available "for one whose complaint causes a warrant to issue," Malley v. Briggs, 475 U.S. at 340, 106 S. Ct. at 1096, the defendant Wahila is not absolutely immune in the case at bar.
The court, having decided that "absolute immunity" is not available to the defendant, must now decide whether the defendant is entitled to summary judgment on the basis of "qualified immunity."
In deciding a motion for summary judgment, the court must determine whether there exists a genuine issue of material fact. See Fed. R. Civ. P. 56(c); See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, (1986); Goldman, Antoretti, Ferraiuoli, Axtmayer & Hertell v. Medfit internat'l, Inc., F.2d , , 1993 WL 976, *1 (2d Cir. 1993). Furthermore, all ambiguities and inferences must be resolved in favor of the non-moving party -- the plaintiff. Id. at *2. If the defendant, acting in his official capacity, is to be accorded qualified immunity, he must have acted reasonably. Harlow v. Fitzgerald, 457 U.S. at 818, 102 S. Ct. at 2738, 73 L. Ed. 2d at ; Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983). "Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official act . . . turns on the 'objective reasonableness' of the action . . . , assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523, (1987) (quoting Harlow v. Fitzgerald, 457 U.S. at 818-19, 102 S. Ct. at 2738, 73 L. Ed. 2d at ); Mozzochi v. Borden, 959 F.2d 1174, 1177 (2d Cir. 1992). As such, the defense of qualified immunity "provides ample support to all but the plainly incompetent or those who knowingly violate the law." Burns v. Reed, U.S. at , 111 S. Ct. at 1944, 114 L. Ed. 2d at (quoting Malley v. Briggs, 475 U.S. at 341, 106 S. Ct. at 1096, 89 L. Ed. 2d at ).
As the Supreme Court stated in reviewing a police officer's conduct vis-a-vis qualified immunity:
"[A]n officer who knows that objectively unreasonable decisions will be actionable may be motivated to reflect, before submitting a request for a warrant, upon whether he has a reasonable basis for believing that his affidavit establishes probable cause. But such reflection is desirable, because it reduces the likelihood that the officer's request for a warrant will be premature. Premature requests for warrants are at best a waste of judicial resources; at worst, they lead to premature arrests, which may injure the innocent or, by giving the basis for a suppression motion, benefit the guilty."
Malley v. Briggs, 475 U.S. at 343, 106 S. Ct. at 1097, 89 L. Ed. 2d at .
The inquiry here is just as it is was for the police officer seeking a warrant in Malley: whether the probation officer exercised reasonable professional judgment in applying for the warrant? See id. at 346, 106 S. Ct. at 1098, 89 L. Ed. 2d at .
In order to present a violation of probation to the court, the probation officer must have "reasonable cause" to believe that a term or condition of probation has been violated. See N.Y. Crim. Proc. Law §§ 410.40, 410.50(4), 410.60, 410.70. 9 N.Y.C.R.R. § 352.1(b) provides that
"[t]he term reasonable cause or reasonable cause to believe that a person has violated a condition of probation means the existence of evidence or information which appears to be reliable disclosing facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such condition was violated and that such person violated it."