In Patterson v. Van Arsdel, published February 23, 2018, a divided 9th Circuit panel reversed dismissal of a 42 U.S.C. section 1983 lawsuit against a pretrial release officer. The complaint alleged that when the plaintiff was arrested while on pretrial release, the defendant moved at her arraignment to revoke the plaintiff's pretrial release and for her arrest. The calendar judge orally denied the motion, noting that the plaintiff had already posted bail. The defendant then went to another judge, with whom he allegedly had a friendship and for whom the defendant's wife was judicial assistant, and gave the judge an unsigned warrant for the plaintiff's arrest. The judge signed the warrant, and plaintiff was arrested. She was released two days later because the arrest warrant was defective. The plaintiff sued the defendant for allegedly violating her Fourth Amendment rights. The district court dismissed the complaint based on absolute prosecutorial immunity.
The 9th Circuit panel majority held that the defendant was not entitled to absolute prosecutorial immunity. Because the defendant's job was to verify release criteria information and to make recommendations to a judge on release, but had no power to make release decisions himself, his job was similar to that of a parole or law enforcement officer. He was not acting in a prosecutorial capacity. He was therefore entitled only to qualified immunity. A dissenting judge opined that the issue decided had been waived by the plaintiff, and that the majority was making bad law out of bad facts.