Mousa I. Dababnah, M.d. v. KRISTEN KELLER-BURNSIDE, Chief Assistant Prosecuting Attorney for Raleigh County,…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MOUSA I. DABABNAH, M.D.,
Plaintiff-Appellee,
v.
KRISTEN KELLER-BURNSIDE, Chief
Assistant Prosecuting Attorney for
Raleigh County, Beckley, WV
25801,
Defendant-Appellant,
No. 99-1467
and
ANTHONY S. REED, West Virginia
Public Safety Department 19-21 By
Pass Beckley, WV 25801; CRAIG A.
LIGHT, West Virginia Public Safety
Department 19-21 By Pass Beckley,
WV 25801; JOHN DOES, (3-5),
Defendants.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(Ca-97-1144-5)
Argued: January 24, 2000
Decided: April 3, 2000
Before WILKINSON, Chief Judge, and LUTTIG
and MOTZ, Circuit Judges.
_________________________________________________________________

-- 1 of 13 --

Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Luttig joined. Judge Motz wrote an
opinion concurring in the judgment.
_________________________________________________________________
COUNSEL
ARGUED: Kenneth Eugene Knopf, PULLIN, KNOPF, FOWLER &
FLANAGAN, Beckley, West Virginia, for Appellant. John Christian
Yoder, Harpers Ferry, West Virginia, for Appellee. ON BRIEF: Eric
A. Collins, Michael W. Blake, PULLIN, KNOPF, FOWLER &
FLANAGAN, Beckley, West Virginia, for Appellant. J. Thomas
Burch, Jr., William T. Bennett, BURCH & CRONAUER, P.C.,
Washington, D.C., for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Mousa Dababnah brought this § 1983 action against Kristen Keller-
Burnside, the chief assistant prosecuting attorney for Raleigh County,
West Virginia. Dababnah argues that Keller-Burnside violated his
constitutional rights by requesting a court order to secure his property
and by seeking his extradition from Virginia. The district court denied
Keller-Burnside's summary judgment motion, finding that she was
not protected by either absolute or qualified immunity. Because
Keller-Burnside's actions were prosecutorial functions "intimately
associated with the judicial phase of the criminal process," Imbler v.
Pachtman, 424 U.S. 409, 430 (1976), we hold that she is absolutely
immune from suit. We thus reverse the judgment and remand with
instructions to dismiss Dababnah's claims against Keller-Burnside.
I.
On December 23, 1994, appellee Mousa Dababnah, a medical doc-
tor residing in West Virginia, destroyed a 1994 Plymouth Voyager.
On March 30, 1995, the Magistrate Court of Raleigh County, West
Virginia, found Dababnah guilty of misdemeanor destruction of prop-
2

-- 2 of 13 --

erty and sentenced him to five days in jail. During this same time,
Dababnah and his wife were involved in divorce proceedings. On
September 5, 1995, the presiding judge of these proceedings, Judge
Robert Burnside, found Dababnah in contempt and ordered him com-
mitted to jail until he complied with the court's final divorce order
requiring payment of child support and arrearage thereon.
Dababnah appealed the destruction of property conviction to the
Raleigh County Circuit Court. The court granted him a trial de novo
and docketed the case for December 1, 1995, before Judge H.L. Kirk-
patrick, III. Dababnah alleges that neither he nor his attorney was
notified of this trial date. Dababnah failed to appear for trial, and the
court imposed the same five-day term of imprisonment. The Raleigh
County Prosecutor's Office then secured the issuance of a capias and
a fugitive warrant for the misdemeanor. During this time, Keller-
Burnside, the wife of Judge Burnside, was employed as the chief
assistant prosecuting attorney for Raleigh County.
In the latter months of 1995, Dababnah was at the Shenandoah Inn
in Wytheville, Virginia. During his stay in Virginia, Dababnah circu-
lated allegations of corruption by the Raleigh County Circuit Court,
including Judge Burnside, to numerous state and federal officials via
fax, letter, and advertisement. On December 5, 1995, the Virginia
State Police arrested Dababnah pursuant to the capias and transported
him from his hotel room to a Virginia jail. The next day Dababnah
was brought before a Wythe County Judge. At this hearing Dababnah
signed a Waiver of Extradition Proceedings. This form acknowledged
that the judge "fully explained" to Dababnah his "rights concerning
the issuance and service of the process of extradition, [his] right to be
represented by a lawyer in extradition proceedings, and [his] right to
petition for a writ of habeas corpus."
On December 8, 1995, two West Virginia police officers were dis-
patched to secure Dababnah's return. The officers claim they were
also directed to take possession of Dababnah's equipment at the Shen-
andoah Inn and transport these items back to West Virginia. The offi-
cers visited the hotel first. Upon arrival, the hotel manager expressed
concerns about the loss or destruction of Dababnah's possessions
because Dababnah had vacated the premises. The hotel manager
allowed the troopers into Dababnah's room. The troopers removed
3

-- 3 of 13 --

some equipment, including a fax machine and computer. They placed
this equipment in the trunk of their police cruiser.
The troopers then traveled to the Virginia jail and took Dababnah
into custody. They drove Dababnah to his bond hearing in Raleigh
County, West Virginia. Judge Kirkpatrick presided over the hearing
and Keller-Burnside represented the state. Dababnah claims that his
retained counsel was not notified of the hearing and that before the
hearing began Keller-Burnside erroneously told him that this attorney
was no longer representing him. During the hearing, Keller-Burnside
argued on behalf of the state that Dababnah should serve the same
five-day sentence for the destruction of property conviction, less a
credit for the time served in Virginia. She also informed the court that
new arrest warrants might soon be issued against Dababnah for intim-
idating an officer of the court, obstructing justice, and failing to pay
child support. The court credited Dababnah with the time served in
Virginia and ordered him to serve the remaining two days of his sen-
tence. The court also ordered Dababnah held until he could appear
before Judge Burnside pursuant to the contempt order from the
divorce proceeding.
Either prior to or during the hearing, Keller-Burnside was informed
that the West Virginia troopers had secured or wanted permission to
secure Dababnah's property from his hotel room. During the hearing,
Keller-Burnside moved for an order authorizing the seizure and
detention of Dababnah's property. Keller-Burnside's request was
made in open court with Dababnah present. The court entered the fol-
lowing order: "The Court finding that such property should be
secured to protect the defendant's interests while incarcerated, does
Order that such property be so inventoried and secured by either the
West Virginia or Virginia State Police." The property was thereby
retained by the West Virginia State Police. Dababnah claims that he
did not receive this property for two years. The police counter that
Dababnah neither asked for the equipment nor tried to obtain it during
this time.
On December 13, 1995, while Dababnah was still in jail for his
contempt charge, the Raleigh County Magistrate Court entered a
criminal complaint against and issued an arrest warrant for Dababnah.
Dababnah was charged with threatening to kill C. Elton Byron, a law-
4

-- 4 of 13 --

yer who had represented Dababnah's wife in their divorce proceed-
ings. Just over two months later Dababnah was released from jail after
assuring Judge Burnside that he would comply with the divorce
decree. On July 22, 1996, pursuant to Byron's request, Keller-
Burnside successfully moved the court to dismiss the charges against
Dababnah for threatening a judicial officer.
On November 24, 1997, Dababnah filed this § 1983 action against
Keller-Burnside. Dababnah alleged, inter alia , that (1) Keller-
Burnside deprived him of his Fourth Amendment rights by applying
for an improper court order for detention of his property, and (2)
Keller-Burnside, motivated by a desire to retaliate against Dababnah
for exercising his First Amendment rights against her husband, sought
Dababnah's extradition. Keller-Burnside filed a motion for summary
judgment, arguing that she was entitled to absolute immunity and/or
qualified immunity. The district court denied her motion. Keller-
Burnside now appeals.
II.
A.
A prosecutor enjoys absolute immunity for prosecutorial functions
"intimately associated with the judicial phase of the criminal process."
Imbler v. Pachtman, 424 U.S. 409, 430 (1976). In other words, abso-
lute immunity is afforded prosecutors when acting"within the advo-
cate's role." Buckley v. Fitzsimmons, 509 U.S. 259, 278 (1993).
Despite this standard, the district court declined to grant absolute
immunity to Keller-Burnside for her courtroom actions seeking a
court order to secure Dababnah's property. The Supreme Court in
Burns v. Reed stated, "since the issuance of a search warrant is
unquestionably a judicial act, appearing at a probable-cause hearing
is `intimately associated with the judicial phase of the criminal pro-
cess.'" 500 U.S. 478, 492 (1991) (citations omitted). Likewise, the
issuance of the court order in this case was "unquestionably a judicial
act." Thus, Keller-Burnside's appearance in court seeking this order
is presumed to be protected by absolute immunity. 1
_________________________________________________________________
1 The circumstances here are far removed from those in Allen v.
Lowder, 875 F.2d 82 (4th Cir. 1989), where a prosecutor was denied
absolute immunity for seeking a court order. In Allen, the prosecutor had
sought a post-trial court order at a point in time when he was no longer
representing the state.
5

-- 5 of 13 --

Dababnah, however, contends that Keller-Burnside was acting in
either an investigative or administrative capacity and thus cannot be
protected by absolute immunity. He argues that part of Keller-
Burnside's reason for seeking the court order was to acquire court
approval for a search for evidence to be used in a future prosecution
and that this constituted an investigative function. The order itself,
however, speaks only of safeguarding Dababnah's property (order
"finding that such property should be secured to protect the defen-
dant's interests while incarcerated," and directing "that such property
be so inventoried and secured by either the West Virginia or Virginia
State Police"). And in all events to deny a prosecutor absolute immu-
nity for advocacy in open court five days before a defendant's
impending prosecution for threatening a judicial officer is to cramp
the concept of the prosecutorial function in a manner that the
Supreme Court would not tolerate.
Dababnah also contends that even if Keller-Burnside's request was
intended to secure Dababnah's property solely for safekeeping, she is
still not entitled to absolute immunity. He argues that such a request
is purely administrative because police can secure property without
court approval. This argument misses the mark. Even if the order
securing Dababnah's property were superfluous, a prosecutor should
not be stripped of immunity for seeking approval of official actions
from a court. Dababnah can hardly be heard to complain about a pros-
ecutor's resort to the judicial process, which the Supreme Court has
extolled as "largely self-correcting," Mitchell v. Forsyth, 472 U.S.
511, 522 (1985), and designed for the protection of individual liber-
ties and rights. In the present case, the judicial process provided
numerous safeguards to Dababnah. First, Keller-Burnside was acting
"under the watchful eye of the judge and in the shadow of the ever-
present possibility of judge-imposed sanctions." Marrero v. City of
Hialeah, 625 F.2d 499, 509 (5th Cir. 1980); see also Butz v. Econo-
mou, 438 U.S. 478, 512 (1978); Imbler, 424 U.S. at 427. Second,
Dababnah was present in court when Keller-Burnside requested the
order. And he had the right to have an attorney present at this hearing.2
_________________________________________________________________
2 The fact that Dababnah chose to waive this right is of no conse-
quence. Along with Dababnah's other claims, he contends that Keller-
Burnside violated the Sixth Amendment by incorrectly informing him
6

-- 6 of 13 --

Further, prosecutorial abuses -- and we in no sense imply the pres-
ence of misconduct here -- are subject to criminal and professional
sanction. See, e.g., Imbler, 424 U.S. at 429; Malley v. Briggs, 475
U.S. 335, 343 n.5 (1986). Dababnah has, in fact, already filed a com-
plaint with the West Virginia bar against Keller-Burnside, presumably
covering at least some of the same actions he challenges in this
§ 1983 suit. Protections such as these "obviate the need for damages
actions to prevent unjust results." Mitchell , 472 U.S. at 522-23;
accord Butz, 438 U.S. at 512.
Absolute prosecutorial immunity "is not grounded in any special
`esteem for those who perform these functions, and certainly not from
a desire to shield abuses of office, but because any lesser degree of
immunity could impair the judicial process itself.'" Kalina v.
Fletcher, 522 U.S. 118, 127 (1997) (quoting Malley, 475 U.S. at 342).
Failure to grant a prosecutor immunity for actions taken in open court
in pursuit of a court order would be a portentous step. We decline to
discourage prosecutorial resort to the judicial process in this manner.3
_________________________________________________________________
before the December 8 hearing that his counsel was no longer represent-
ing him. This claim is meritless. We cannot understand, and Dababnah
has provided no theory explaining, how this pre-hearing discussion con-
cerning the absence of his attorney deprived Dababnah of his constitu-
tional right to counsel.
3 Our concurring colleague is prepared to unduly burden prosecutorial
advocacy in open court. The concurrence would go behind the face of
court orders to parse in detail the colloquy between judicial officers and
prosecutors, all in an effort to establish ulterior motive on the part of the
latter. None of the cases to which the concurrence makes reference goes
nearly that far. Surprisingly, the concurrence compares seeking a search
warrant, which is generally done ex parte by police officers, with oral
advocacy by government attorneys in adversary proceedings in open
court. See post at 12 n*. The approach of the concurrence would dissuade
prosecutors from seeking court approval for official actions and would
encourage litigation when they do. This would impair the purposes for
which absolute immunity was established in the first place -- namely, to
protect the independence of prosecutorial judgment, and in so doing, to
insure the integrity of judicial procedures. See, e.g., Kalina, 522 U.S. at
127; Malley, 475 U.S. at 341-43; Imbler , 424 U.S. at 423-28.
In purporting to state the holding in this case, the concurrence declines
to make use of direct quotation. It goes without saying that the majority
opinion, not the gloss that the concurrence seeks to place thereon, is con-
trolling.
7

-- 7 of 13 --

B.
The district court also erred in refusing to afford Keller-Burnside
absolute immunity for her alleged role in seeking Dababnah's extradi-
tion. Numerous courts have found prosecutors absolutely immune
when undertaking such actions. See, e.g., Larsen v. Early, 842 F.
Supp. 1310, 1313 (D. Colo. 1994) (prosecutor entitled to absolute
immunity since "extradition is `intimately associated with the judicial
phase of the criminal process'"); Cleary v. Andersen, 423 F. Supp.
745, 747-48 (D. Neb. 1976) ("[I]t is apparent that the proper dis-
charge of the prosecutor's duties in the criminal justice system
requires that he be accorded unhampered discretion in deciding when
to seek the extradition of an individual."); Cross v. Meisel, 720 F.
Supp. 486, 489 (E.D. Pa. 1989); Arebaugh v. Dalton, 600 F. Supp.
1345, 1351 (E.D. Va. 1985); Hayes v. County of Mercer, 526 A.2d
737, 739-40 (N.J. Super. Ct. App. Div. 1987). Dababnah refers us to
no contrary holding.
We agree that absolute immunity attaches to Keller-Burnside's
request for Dababnah's extradition.4 Insuring that a defendant is pres-
ent both for trial and for punishment is critical to a prosecutor's dis-
charge of her duties. See, e.g., Ehrlich v. Giuliani, 910 F.2d 1220,
1223 (4th Cir. 1990) ("One of the most important duties of a prosecu-
tor pursuing a criminal proceeding is to ensure that defendants ... are
present at trial."); Schrob v. Catterson, 948 F.2d 1402, 1416 (3d Cir.
1991) (same); Cross v. Meisel, 720 F. Supp. 486, 489 (E.D. Pa. 1989)
("the decision [by a prosecutor] to seek the presence of a defendant
is safely within the quasi-judicial, and hence absolutely immune, part
of a prosecutor's duties"). Indeed, if a convicted defendant is not
available for punishment, the prosecution itself would be rendered
pointless.
_________________________________________________________________
4 While Keller-Burnside concedes that extraditions based on misdemea-
nor charges "are not common," Dababnah has pointed to no authority
that would foreclose the state from seeking extradition based on such
charges. We further note that none of the technical irregularities that
Dababnah alleges with respect to the extradition documents rises to the
level of a constitutional violation.
8

-- 8 of 13 --

Moreover, seeking extradition is one of those prosecutorial func-
tions "to which the reasons for absolute immunity apply with full
force." Imbler, 424 U.S. at 430. Pursuing an extradition is likely to
provoke "with some frequency" retaliatory suits by resentful defen-
dants. Id. at 425 ("a defendant often will transform his resentment at
being prosecuted into the ascription of improper and malicious
actions to the State's advocate"). Without the protection of absolute
immunity, these suits would impede on the prosecutor's courage and
"independence of judgment." Id. at 423. In such instances "it has been
thought in the end better to leave unredressed the wrongs done by dis-
honest officers than to subject those who try to do their duty to the
constant dread of retaliation." Id. at 428 (internal quotation marks
omitted).
There are also safeguards in the extradition process that "obviate
the need for damages actions to prevent unjust results." Mitchell, 472
U.S. at 522-23. After being apprehended by Virginia State troopers,
Dababnah was afforded a judicial hearing. At this hearing, Dababnah
was informed of his rights to be represented by a lawyer and to con-
test the extradition. Instead of going through the formal extradition
process, however, Dababnah signed a Waiver of Extradition Proceed-
ings and voluntarily consented to return to West Virginia. Dababnah's
subsequent regrets about not challenging his extradition simply can-
not find refuge in the form of a § 1983 suit against Keller-Burnside.
III.
For the foregoing reasons, we reverse the judgment of the district
court and remand with instructions to dismiss Dababnah's claims
against Keller-Burnside.
REVERSED AND REMANDED
DIANA GRIBBON MOTZ, concurring in the judgment:
For the reasons stated by the majority, I agree that Keller-Burnside
enjoys absolute immunity for acts related to initiating extradition pro-
ceedings against Dababnah, but I part company with the majority in
its extension of absolute immunity to her request for a court order to
9

-- 9 of 13 --

secure Dababnah's property. Nevertheless, because Keller-Burnside's
acts indisputably did not cause the asserted constitutional violation, I
concur in the judgment.
The Supreme Court has recognized the defense of absolute immu-
nity for prosecutorial duties that are "intimately associated with the
judicial phase of the criminal process," such as"initiating a prosecu-
tion and . . . presenting the State's case." Imbler v. Pachtman, 424
U.S. 409, 430 (1976). However, the same immunity does not apply
to a prosecutor's actions that are investigative or administrative. See
id.; Harlow v. Fitzgerald, 457 U.S. 800, 811 n.16 (1982). Therefore,
when a court is asked to determine whether a prosecutor is entitled
to absolute immunity, it is to examine "the nature of the function per-
formed, not the identity of the actor who performed it." Forrester v.
White, 484 U.S. 219, 229 (1988). Moreover, "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). Keller-Burnside has utterly failed to satisfy her burden of
proving that absolute immunity protects her against liability flowing
from her request for a court order to secure Dababnah's property.
In holding to the contrary, the majority relies heavily on the fact
that Keller-Burnside requested the order in open court at the end of
Dababnah's bond hearing. Without citation to authority, the majority
suggests that for this reason her action is "presumed to be protected
by absolute immunity." Ante at 5. Although I recognize the safe-
guards against prosecutorial misconduct inherent in a judicial forum,
see, e.g., Mitchell v. Forsyth, 472 U.S. 511, 522 (1985), there is sim-
ply no basis in the law for insulating from liability all conduct that
occurs in open court.
The Supreme Court has never held that the particular forum in
which challenged conduct takes place is definitive one way or the
other on the question of prosecutorial immunity. Nor has the Court
eliminated the prosecutor's burden of proving entitlement to absolute
immunity when she demonstrates that her allegedly wrongful act
occurred before a judge while the court was in session. Similarly, the
Court has not limited the investigative or administrative function
analysis to conduct that takes place outside the formal strictures of a
court proceeding. Faithful application of the functional approach pre-
10

-- 10 of 13 --

scribed by Imbler and its progeny focuses on the underlying function
of the prosecutor's specific acts rather than on the context in which
they occur.
When that analysis is applied here it is clear that Keller-Burnside
has not demonstrated her entitlement to absolute immunity. True, the
court order "speaks only of safeguarding Dababnah's property," ante
at 6, but Keller-Burnside requested the order to further evidence-
gathering investigative activities, and the judge understood that it was
to be so used. Thus, at the end of the bond hearing, Keller-Burnside
stated that "[i]f it's agreeable with the Court, I was going to advise
[the police] . . . to secure [the property] the best they can, either by
the motel if the motel is willing to do it without billing the State or
put it in evidence . . . ." The court responded that "if the charges are
going to be brought . . . as you say, Ms. Keller, some of that equip-
ment will be evidence in, perhaps, a future matter." These statements
make plain that Keller-Burnside did not seek the court order to fulfill
any prosecutorial duty. Rather, she acted in an investigative capacity
(or, as the majority seemingly concedes, an administrative one).
Nor does the fact that Keller-Burnside requested the order "five
days before a defendant's impending prosecution for threatening a
judicial officer," ante at 6, establish her entitlement to absolute immu-
nity. As the district court correctly concluded, absolute immunity pro-
tects a prosecutor's evidence-gathering activities only when it is clear
that the prosecutor has decided to pursue an indictment, and not a day
(or five) before that. See, e.g., Kalina v. Fletcher, 118 S. Ct. 502, 509-
10 (1997) (upholding absolute immunity for prosecutor's conduct
related to the preparation and filing of charging documents, but not
for execution of certification for probable cause determination); Buck-
ley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (holding that a prosecu-
tor would be entitled to absolute immunity for "the professional
evaluation of the evidence assembled by the police and appropriate
preparation for its presentation at trial or before a grand jury after a
decision to seek an indictment has been made") (emphasis added);
Ehrlich v. Giuliani, 910 F.2d 1220, 1223 (4th Cir. 1990) (upholding
absolute immunity for prosecutors' actions that involved investigation
11

-- 11 of 13 --

of assets because they "had already made the decision to initiate crim-
inal proceedings and were preparing their case for trial").*
In this case, Keller-Burnside failed to offer any evidence that the
Raleigh County Prosecutor's Office had decided to file additional
charges and seek an indictment against Dababnah for his alleged
threats against his ex-wife's attorney. Rather, the record reflects only
that the police were concluding a series of interviews pertaining to the
matter. Thus, Keller-Burnside's request for the court order was not
related to "the protected decision to initiate prosecution, but rather the
earlier preliminary gathering of evidence which may blossom into a
potential prosecution." McSurely v. McClellan , 697 F.2d 309, 320
(D.C. Cir. 1982) (denying absolute immunity to prosecutor for inves-
tigative activities and for conduct under court's safekeeping order);
see also id. at 319 (explaining that "[t]o immunize absolutely a prose-
cutor's actions unrelated or only tangentially related to the prosecu-
tion of a particular case would contravene the functional rationale
which underpins the absolute immunity doctrine.").
Although Keller-Burnside has not demonstrated her entitlement to
absolute immunity in connection with the request for an order to
secure Dababnah's property, she nonetheless cannot be held liable for
the asserted violation of Dababnah's Fourth Amendment rights. To
prevail on any 42 U.S.C. § 1983 claim, a plaintiff must prove, inter
_________________________________________________________________
*In these cases, as the majority notes, ante at 7 n.3, the courts had no
occasion to "go behind the face of court orders .. . to establish ulterior
motive on the part" of the prosecutors. But that does not mean that the
Supreme Court has disapproved this approach. Indeed, in Burns v. Reed,
the Court explicitly noted that only because Burns did not challenge the
prosecutor's "motivation in seeking the search warrant," it did not reach
the motivation issue. 500 U.S. at 487-88. In a separate opinion in Burns,
Justice Scalia did address that issue and concluded that when a prosecu-
tor obtains a search warrant with improper motivation he does not enjoy
absolute immunity; Justice Scalia explained that"[t]he act of procuring
a mere search warrant," id. at 506, "`is further removed from the judicial
phase of criminal proceedings than the act of a prosecutor in seeking an
indictment.'" Id. at 505 (quoting Malley v. Briggs, 475 U.S. 335, 342-43
(1986)). Procuring a court order to secure a defendant's property, as
Keller-Burnside did, is even "further removed" from acts taken to
advance a legitimate prosecutorial function.
12

-- 12 of 13 --

alia, that the defendant caused or participated in the alleged depriva-
tion of his constitutional or statutory rights. See, e.g., Monell v.
Department of Soc. Servs., 436 U.S. 658, 692 (1978). "The Supreme
Court consistently has refused to impose § 1983 liability upon defen-
dants where the causal connection between their conduct and the con-
stitutional injury is remote rather than direct." Taylor v. Brentwood
Union Free Sch. Dist., 143 F.3d 679, 686 (2d Cir. 1998) (citing Mar-
tinez v. California, 444 U.S. 277, 285 (1980)).
Dababnah does not dispute the district court's finding that "[e]ither
just prior to or during the bond hearing, Keller[sic] was advised that
the officers had secured Dr. Dababnah's equipment from the hotel
room." Keller-Burnside's request for a court order to secure Dabab-
nah's property thus occurred after the officers had searched the hotel
room and seized Dababnah's property. The undisputed facts as to the
sequence of events make clear that Keller-Burnside's action did not
in any way cause the alleged constitutional infringement.
For these reasons, I respectfully decline to join the opinion of the
court and concur only in the judgment.
13

-- 13 of 13 --