Appeal from an order and judgment of the United States District Court for the Northern District of New York (McCurn, J.), which granted Defendants-Appellees' motion to dismiss Plaintiff-Appellant's complaint in its entirety based on absolute prosecutorial immunity.
The opinion of the court was delivered by: Wesley, Circuit Judge:
Argued: September 14, 2011
Before: CALABRESI, WESLEY, and LYNCH, Circuit Judges.
Defendants-Appellees moved the district court to 38 dismiss Plaintiff-Appellant's complaint pursuant to Federal 39 Rule of Civil Procedure 12(b)(6), arguing that Defendant- 40 Appellee Matthew Trainor, a Fulton County Assistant District 41 Attorney, was absolutely immune from Plaintiff-Appellant's 1 claims.*fn1 We conclude that the district court correctly 2 found Trainor absolutely immune from liability for making 3 alleged false statements in support of a material witness 4 order and warrant.
We also conclude, however, that the district court 7 erred by finding Trainor absolutely immune from Plaintiff- 8 Appellant's other claims. Because absolute immunity only 9 extends to conduct related to prosecutorial functions that 10 are intimately associated with initiating or presenting the 11 State's case, it does not immunize prosecutors from 12 liability for: (1) making defamatory statements to the 13 press; (2) accessing a person's voicemail without consent; 14 or (3) persuading a party to a conversation to record its 15 contents. We also vacate and remand for the district court 16 to consider in the first instance whether immunity extends 17 to Trainor's decision to "preserve" evidence after the 18 criminal prosecution has run its course.
We express no view as to the substantive viability of 21 these claims. We simply conclude that absolute immunity 22 does not shield this conduct.
AFFIRMED in part, VACATED and REMANDED in part.
This case requires us to revisit the purpose and scope of absolute immunity for prosecutors.
Plaintiff-Appellant Stephanie Flagler was a victim of 3 domestic violence at the hands of her ex-boyfriend, Brandon 4 Becker. A grand jury indicted Becker for a criminal matter 5 in which Flagler was the complaining witness. Becker's 6 trial was scheduled to begin on March 12, 2007. In the days 7 leading up to Becker's trial, Assistant District Attorney 8 Matthew Trainor grew concerned that Becker was encouraging 9 Flagler to leave the state in order to avoid testifying at 10 his trial. In addition, Trainor spoke with Becker's ex- 11 wife, who claimed that Flagler had told her that she planned 12 to leave the state from March 5, 2007 to March 12, 2007 and 13 would not talk to anyone in the District Attorney's office.
14 A. Material Witness Order and Arrest Warrant.
Trainor sought a material witness order to secure 16 Flagler's attendance at Becker's trial pursuant to New York 17 Criminal Procedure Law Article 620. He alleged that Flagler 18 had quit responding to telephone calls after January 5, 19 2007, and that she was "avoiding service of subpoena [sic] 20 for the upcoming trial." He also recounted for the court 21 his conversation with Becker's ex-wife. Trainor moved for 22 the material witness order on March 1, 2007. On the basis 3 1 of Trainor's affirmation, the County Court ordered Flagler 2 to appear at a hearing on March 7, 2007 in order to 3 determine whether she "should be adjudged a material 4 witness." The court also issued a material witness arrest 5 warrant. In doing so, the judge found "reasonable cause" to 6 believe that Flagler "would be unlikely to respond" to the 7 court's order voluntarily.
In her complaint, Flagler alleged that Trainor 9 knowingly made false statements in support of the material 10 witness order. She claimed that while she had planned to 11 leave for a vacation on March 8, 2007, Trainor knew that she 12 would return on March 11, 2007, in time for Becker's trial. 13 She asserted that despite knowing her home, work, and school 14 addresses, Trainor made no attempt to notify her about 15 Becker's upcoming trial or to subpoena her. In addition, 16 Flagler alleged that while the County Court issued the 17 material witness arrest ...