La Tasha Adams v. Karen Hanson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0246p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LA TASHA ADAMS ,
Plaintiff-Appellant,
v.
KAREN HANSON ,
Defendant-Appellee.
X---->
,--
N
No. 09-2045
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 08-15028—John Corbett O’Meara, District Judge.
Argued: June 7, 2011
Decided and Filed: August 30, 2011
Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Barry A. Wolf, Flint, Michigan, for Appellant. Mary Massaron Ross,
PLUNKETT COONEY, Detroit, Michigan, for Appellee. ON BRIEF: Barry A. Wolf,
Flint, Michigan, for Appellant. Mary Massaron Ross, PLUNKETT COONEY, Detroit,
Michigan, for Appellee. James J. Walsh, BODMAN LLP, Ann Arbor, Michigan, for
Amicus Curiae.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. After her arrest and incarceration
as a witness in a criminal proceeding, LaTasha Adams (“Adams”) brought suit in the
United States District Court for the Eastern District of Michigan pursuant to 42 U.S.C.
§ 1983 against Karen Hanson (“Hanson”), an assistant prosecutor in Genesee County,
Michigan, in her individual capacity. Hanson subpoenaed Adams to testify in state court
1

-- 1 of 19 --

No. 09-2045 Adams v. Hanson Page 2
during the preliminary examination of a criminal defendant. When Adams arrived at the
state courthouse, she and Hanson spoke about her possible testimony, and after their
discussions, Hanson informed the trial court that Adams was unwilling to testify. The
court ordered Adams detained based on Hanson’s representations without providing
Adams an opportunity to be heard or to post bond.
In her federal § 1983 suit, Adams claims that she was unlawfully detained for
twelve days as a result of Hanson’s false and misleading representations to the state trial
court regarding Adams’s availability as a witness. The district court granted Hanson’s
motion for summary judgment on the grounds that Hanson is entitled to absolute
immunity for conduct falling within her role as a prosecutor. Adams appeals, arguing
that Hanson acted as a complaining witness or, in the alternative, fulfilled an
administrative function. The American Civil Liberties Union Fund of Michigan filed an
amicus brief arguing that absolute immunity should not protect prosecutors from suits
filed by third-party witnesses.
When making statements at a preliminary examination about the availability of
a witness, Hanson functioned as an advocate for the State of Michigan and performed
acts intimately associated with the judicial process. Because she is absolutely immune
from suit for her prosecutorial conduct, we AFFIRM the district court’s grant of
summary judgment to Hanson.
I. BACKGROUND
Hanson, an assistant prosecutor, subpoenaed Adams to testify in a preliminary
examination in a gang-related racketeering case in state court. One of the defendants
charged in the case was Marquan Cager (“Cager”), the father of one of Adams’s
children. In 2006, Adams had filed a domestic violence complaint against Cager and
provided a statement to investigating officers describing Cager’s involvement in gang-
related murders and drug-trafficking activities. When Cager was charged with crimes
described in Adams’s statement, Hanson authorized a subpoena compelling Adams to

-- 2 of 19 --

No. 09-2045 Adams v. Hanson Page 3
1Adams described their ensuing exchange as “heated.” Denying that her behavior toward Adams
was confrontational, Hanson asserts that she gave Adams the option of testifying that her previous
statements were not true, but Adams flatly refused to appear in court and testify under any circumstances.
For purposes of summary judgment, however, Hanson stipulates to Adams’s version of the facts.
appear in court at a preliminary examination in order to testify about her knowledge of
the criminal enterprise.
Law-enforcement officers served the subpoena on Adams at her home the
morning she was set to appear at the preliminary examination. Adams, who was six-
and-a-half-months pregnant, arrived at the courthouse that afternoon and met with law-
enforcement personnel. She was then taken to meet Hanson, who provided her with a
copy of a report that documented her statements about Cager’s criminal activity.
Hanson advised Adams to review the report. She also told Adams that she would
return in about an hour and a half to bring Adams into the courtroom to testify in
conformity with her prior statements. Adams responded that she did not want to testify
and that she was under a doctor’s care due to a high-risk pregnancy. When Hanson
returned, Adams repeated her refusal to testify. Adams informed Hanson that she was
not going to testify in conformity with the report because she had not made the
statements attributed to her and the statements were not true.1
According to Adams, Hanson returned to the courtroom and advised the judge,
off the record, that Adams would not testify in accordance with the report, and that she
should be held in contempt. Based on the information provided by Hanson, the trial
judge signed a mittimus directing that Adams be held in jail until further order of the
court. After the judge signed the mittimus, two sheriff’s deputies confronted Adams and
asked her if she was going to testify. When she informed them that she was not going
to testify, she was handcuffed and taken to the Genesee County jail.
Adams was incarcerated for twelve days, during which she was allegedly held
in isolation for twenty-three hours a day. Before she was detained, Adams was never
brought before the court and questioned about her willingness to testify or her ability to
return to court to testify at a later date. She alleges that she was never given an

-- 3 of 19 --

No. 09-2045 Adams v. Hanson Page 4
opportunity to obtain counsel or post bond, and that she was never advised of the basis
of her detention, of any right to be represented by counsel, or of any right to a hearing.
In the days following her arrest, Adams submitted a kite notifying the jail
authorities that she was willing to testify. In the meantime, however, the preliminary
examination had been continued. A week later, when proceedings resumed, Adams was
brought into the courtroom to testify, at which point several attorneys for the defendants
demanded an explanation for why she had been incarcerated. Hanson first explained that
Adams was held for contempt of court, but after reviewing the mittimus ordering
Adams’s arrest, she stated that Adams had been held, not for contempt, but as a material
witness, as indicated on the order. Adams was released from custody after she
completed her substantive testimony.
Adams claims that Hanson sought to secure her detention in order to coerce her
into testifying, and that she was detained for contempt of court at Hanson’s suggestion.
In Hanson’s account, the trial judge ordered Adams held as a material witness and
directed Hanson and an officer from the sheriff’s department to write out a mittimus to
that effect. Adams also asserts that Hanson made several false and misleading
statements in order to persuade the court to hold Adams. Hanson told the court that she
had been trying for three weeks to serve Adams with a subpoena, when efforts to serve
Adams had been underway for only two weeks. Furthermore, Hanson failed to disclose
to the court that Adams had been served with a subpoena only that morning and had
appeared at the courthouse voluntarily the same day, which would have demonstrated
to the court Adams’s willingness to comply with the court’s orders.
Adams subsequently brought suit against Hanson in federal district court
pursuant to 42 U.S.C. § 1983 for violations of her constitutional rights under the Fourth,
Fifth, and Fourteenth Amendments. Hanson filed a motion for summary judgment on
the basis of absolute prosecutorial immunity which the district court granted on May 28,
2009. On July 22, 2009, the district court denied Adams’s motion for relief from the
order of dismissal, construing it as a motion for reconsideration. Adams timely appealed

-- 4 of 19 --

No. 09-2045 Adams v. Hanson Page 5
from the district court’s opinion and order denying relief from the order of dismissal, and
from the order granting Hanson’s motion for summary judgment.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of summary judgment, construing the
evidence and drawing all reasonable inferences in favor of the nonmoving party. Ireland
v. Tunis, 113 F.3d 1435, 1440 (6th Cir. 1997). Summary judgment is appropriate if
“there is no genuine issue as to any material fact and . . . the movant is entitled to
judgment as a matter of law.” FED . R. CIV . P. 56(c)(2) (2009). Hanson moved for
summary judgment, so we accept the facts as alleged by Adams and draw all reasonable
inferences in her favor.
B. Absolute Immunity
1. Functional Test
The district court granted summary judgment on the grounds that Hanson is
entitled to absolute immunity. “Whether a defendant is entitled to absolute or qualified
immunity from liability under 42 U.S.C. § 1983 is a legal question that [we] review[] de
novo.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (emphasis
omitted). A government officer is entitled to absolute immunity for performing
functions “intimately associated with the judicial phase of the criminal process.” Imbler
v. Pachtman, 424 U.S. 409, 430 (1976). Hanson, as “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).
In Imbler, the Supreme Court extended absolute immunity to prosecutors sued
for damages under 42 U.S.C. § 1983, holding that a prosecutor is entitled to absolute
immunity when he acts “within the scope of his duties in initiating and pursuing a
criminal prosecution.” 424 U.S. at 410. Absolute immunity for prosecutorial duties is
justified by the same considerations that supported prosecutorial immunity under the

-- 5 of 19 --

No. 09-2045 Adams v. Hanson Page 6
common law. These include “concern that harassment by unfounded litigation would
cause a deflection of the prosecutor’s energies from his public duties, and the possibility
that he would shade his decisions instead of exercising the independence of judgment
required by his public trust,” id. at 423, thereby “prevent[ing] the vigorous and fearless
performance of the prosecutor’s duty that is essential to the proper functioning of the
criminal justice system,” id. at 427-28. Although absolute immunity “leave[s] the
genuinely wronged defendant without civil redress against a prosecutor whose malicious
or dishonest action deprives him of liberty,” “the broader public interest” would be
disserved if defendants could retaliate against prosecutors who were doing their duties.
Id. at 427.
Our cases since Imbler have employed a “functional approach” to determine
whether a prosecutor’s acts entitle her to absolute immunity. Burns, 500 U.S. at 486.
Under the functional approach, we “look[] to ‘the nature of the function performed, not
the identity of the actor who performed it’” when assessing whether conduct is
prosecutorial, and thus absolutely protected. Buckley v. Fitzsimmons, 509 U.S. 259, 269
(1993) (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Absolutely protected
acts of advocacy include those “undertaken by a prosecutor in preparing for the initiation
of judicial proceedings or for trial, and which occur in the course of his role as an
advocate for the State.” Id. at 273. A prosecutor is thus absolutely protected when she
appears in court in support of an application for a search warrant and presents evidence
at a probable cause hearing, Burns, 500 U.S. at 491-92, and when she prepares and files
unsworn documents in order to obtain an arrest warrant, Kalina v. Fletcher, 522 U.S.
118, 129 (1997). Absolute immunity also protects a prosecutor when she evaluates
evidence and presents that evidence at trial or before a grand jury, Buckley, 509 U.S. at
273; Higgason v. Stephens, 288 F.3d 868, 878 (6th Cir. 2002), prepares witnesses for
trial, Imbler, 424 U.S. at 430 n.32; Buckley, 509 U.S. at 273, and even elicits false
testimony from witnesses, Burns, 500 U.S. at 489-90; Buckley, 509 U.S. at 270-71. By
shielding prosecutors engaging in these activities, absolute immunity “serves the policy
of protecting the judicial process.” Burns, 500 U.S. at 492.

-- 6 of 19 --

No. 09-2045 Adams v. Hanson Page 7
Nonetheless, because “[a]bsolute immunity is designed to free the judicial
process,” not merely the prosecutor, “from the harassment and intimidation associated
with litigation,” absolute immunity protects “only . . . actions that are connected with the
prosecutor’s role in judicial proceedings, not . . . every litigation-inducing conduct.” Id.
at 494. Only qualified immunity is available to prosecutors when they perform
“investigative” or “administrative” functions unrelated to judicial proceedings. Id. at
483 n.2 (internal quotation marks omitted); see Buckley, 509 U.S. at 273; Holloway v.
Brush, 220 F.3d 767, 774-75 (6th Cir. 2000) (en banc). Investigative acts outside the
scope of absolute immunity include giving legal advice to the police during a pretrial
investigation, Burns, 500 U.S. at 494-96, conspiring to fabricate evidence during the
time before convening a grand jury, Buckley, 509 U.S. at 274-76, and making false
statements at a press conference, id. at 276-78. In addition, a prosecutor is entitled to
only qualified immunity when she acts as a complaining witness by making sworn
statements to the court in support of a criminal complaint. Kalina, 522 U.S. at 129-31.
In sum, “acts undertaken in direct preparation of judicial proceedings . . . warrant
absolute immunity, whereas other acts, such as the preliminary gathering of evidence
that may ripen into a prosecution, are too attenuated to the judicial process to afford
absolute protection.” Ireland, 113 F.3d at 1445; see Harris v. Bornhorst, 513 F.3d 503,
509-11 (6th Cir. 2008) (affirming denial of absolute immunity to a prosecutor who
instructed police to arrest suspect); Prince v. Hicks, 198 F.3d 607, 612-15 (6th Cir. 1999)
(affirming denial of absolute immunity to a prosecutor who undertook a preliminary
investigation and advised police that probable cause existed to arrest a suspect). In
categorizing a prosecutor’s acts, “the critical inquiry” for immunity purposes is thus
“how closely related . . . the prosecutor’s challenged activity [is] to his role as an
advocate intimately associated with the judicial phase of the criminal process.”
Holloway, 220 F.3d at 775 (internal quotation marks omitted) (emphasis omitted). “The
analytical key to prosecutorial immunity, therefore, is advocacy—whether the actions
in question are those of an advocate.” Id. (emphasis in original).

-- 7 of 19 --

No. 09-2045 Adams v. Hanson Page 8
2. Prosecutorial Function
Because “[a]lmost any action by a prosecutor, including his or her direct
participation in purely investigative activity, could be said to be in some way related to
the ultimate decision whether to prosecute,” Burns, 500 U.S. at 495, we must identify
precisely the wrongful acts allegedly performed by Hanson, and classify those acts
according to their function. Adams claims that Hanson made false and misleading
factual representations to the state trial court, ex parte and off the record during a hearing
recess, regarding the availability of Adams as a witness, and that these statements led to
her unlawful arrest and detention. The district court determined that Hanson was entitled
to absolute immunity from suit because she was acting as an advocate for the state in
connection with a preliminary examination. Adams disagrees: she claims that Hanson
acted as a complaining witness, or, in the alternative, fulfilled an administrative function.
The case thus presents an issue of first impression in this circuit: whether a
prosecutor is entitled to absolute immunity for her false and misleading statements to a
trial court in the course of criminal proceedings about the availability of a witness. The
Michigan ACLU as Amicus argues that, as a rule, absolute immunity should not apply
to actions of a prosecutor with respect to a third-party witness. Under this view, actions
of a prosecutor vis-à-vis a criminal defendant should be distinguished from actions vis-à-
vis a third-party witness, and absolute immunity should not be extended to the latter
because the historical and policy rationales for absolute immunity do not apply with
equal force in the witness context.
Other circuits that have addressed the question have held that prosecutors are
ordinarily entitled to absolute immunity for conduct falling within a prosecutorial
function when they seek detention of a material witness pursuant to judicial order. See
Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984); Daniels v. Kieser, 586 F.2d 64, 68-69
(7th Cir. 1978), cert. denied, 441 U.S. 931 (1979); cf. Odd v. Malone, 538 F.3d 202, 212
(3d Cir. 2008) (plaintiff “acknowledge[d] that [prosecutor] was acting in her
prosecutorial capacity when she secured the material witness warrant”). The Third
Circuit has cautioned, however, that “policy considerations underlying prosecutorial

-- 8 of 19 --

No. 09-2045 Adams v. Hanson Page 9
2The Supreme Court recently declined to address whether the United States Attorney General’s
conduct in relation to material witnesses was protected by absolute immunity. See infra n.4.
immunity counsel against recognizing absolute immunity” in material-witness cases.
Odd, 538 F.3d at 216; see also al-Kidd v. Ashcroft, 580 F.3d 949, 963 (9th Cir. 2009),
rev’d on other grounds,131 S. Ct. 2074 (2011) (holding that absolute immunity does not
attach to prosecutor’s solely investigative use of a material-witness warrant).2 We have
stated in dicta that absolute immunity protects a prosecutor seeking the incarceration of
a material witness, White by Swafford v. Gerbitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988),
cert. denied, 489 U.S. 1028 (1989), but not a prosecutor who fails to act timely to secure
a material-witness’s release after being ordered to do so by the court, id. The scope of
a prosecutor’s immunity in this context, however, has never been squarely addressed by
this court.
We conclude that Hanson’s statements before the trial court at the preliminary
examination regarding Adams’s availability as a witness fell within her role as an
advocate for the State of Michigan and are therefore absolutely protected. The
prosecutorial function includes initiating criminal proceedings, appearing before the
court at a probable cause hearing or before a grand jury, seeking an arrest warrant, and
preparing witnesses. Imbler, 424 U.S. at 431 & n.33; Burns, 500 U.S. at 489-92;
Buckley, 509 U.S. at 270-71, 73; Kalina, 522 U.S. at 129. Hanson’s challenged conduct
involved the analogous acts of appearing at a preliminary examination and making
statements about her discussions with a potential witness—activities “closely related . . .
to h[er] role as an advocate” before the court in criminal proceedings. Holloway, 220
F.3d at 775 (emphasis in original) (internal quotation marks omitted). Furthermore,
because the issuance of either a material-witness warrant or an order of contempt “is
unquestionably a judicial act,” a prosecutor’s statements to the court regarding the
availability of a witness are “‘intimately associated with the judicial phase of the
criminal process’ . . . . [and are] connected with the initiation and conduct of a
prosecution, particularly where,” as here, “the hearing occurs after arrest [of the

-- 9 of 19 --

No. 09-2045 Adams v. Hanson Page 10
3Material-witness arrests in Michigan are governed by the Michigan material-witness statute,
which outlines the process to be undertaken by a court ordering a material witness’s detention. The
Michigan material-witness statute states:
When it appears to a court of record that a person is a material witness in a criminal case
pending in a court in the county and that there is a danger of the loss of testimony of the
witness unless the witness furnishes bail or is committed if he or she fails to furnish bail,
the court shall require the witness to be brought before the court. After giving the
witness an opportunity to be heard, if it appears that the witness is a material witness
and that there is a danger of the loss of his or her testimony unless the witness furnishes
bail or is committed, the court may require the witness to enter into a recognizance with
a surety in an amount to be determined by the court for the appearance of the witness
at an examination or trial. If the witness fails to recognize, he or she shall be committed
to jail by the court, until he or she does recognize or is discharged by order of the court.
M ICH. C OMP . LAWS A NN . § 767.35.
defendant]” in the criminal proceedings.3 Burns, 500 U.S. at 492 (internal citation
omitted).
It is especially instructive that, under Michigan law, it is the prosecutor’s
particular, non-delegable duty to “make a diligent good-faith effort to find and produce”
witnesses in criminal prosecutions. People v. Dye, 427 N.W.2d 501, 510 (Mich. 1988).
Although the parties dispute whether Hanson sought to hold Adams as a material witness
or in contempt of court, there is no dispute that Hanson sought to secure Adams’s
testimony as a witness in a criminal prosecution, a province of the prosecutor. That
Hanson allegedly acted outside of formal judicial proceedings, in an off-the-record
discussion with the trial judge, does not strip her automatically of immunity for this
conduct. “[T]he duties of the prosecutor in his role as advocate for the State involve
actions preliminary to the initiation of a prosecution and actions apart from the
courtroom.” Imbler, 424 U.S. at 431 n.33. Specifically, conduct related to the
preparation and presentation of witness testimony may be protected whether it occurs
in or out of court. See id. at 430 n.32 (holding that prosecutor was entitled to absolute
immunity for making statements to police regarding the questioning of a witness during
a courtroom recess); cf. Buckley, 509 U.S. at 277-78 (denying prosecutor absolute
immunity for making out-of-court statements at a press conference). In fulfilling her
prosecutorial duties, Hanson’s conduct constituted an “effort to control the presentation
of [a] witness’ testimony” which is “fairly within [her] function as an advocate.” Imbler,
424 U.S. at 430 n.32.

-- 10 of 19 --

No. 09-2045 Adams v. Hanson Page 11
4Reviewing whether a material-witness arrest was reasonable, the Supreme Court recently held
that the Fourth Amendment is not violated by a material-witness arrest made pursuant to an otherwise valid
warrant simply because the arrest was made for an investigative purpose. Ashcroft v. al-Kidd, 563 U.S.
----, 131 S. Ct. 2074, 2085 (2011). Without examining what renders a material-witness warrant
constitutionally valid, the Court assumed that the warrant for al-Kidd was lawful absent the allegedly
improper pretext. Id. at 2083. Because the warrant was supported by individualized suspicion that the
witness was material and soon to be unavailable, the government’s motive in obtaining the warrant was
deemed irrelevant to the Fourth Amendment analysis. Id. at 2082-83. Disposing of al-Kidd’s claims on
qualified immunity grounds, the Court held that Ashcroft did not violate clearly established law when he
authorized the pretextual use of material-witness warrants, id. at 2083-85, and declined to “address the
more difficult question whether [Ashcroft] enjoys absolute immunity,” id. at 2085.
Because Hanson’s actions fell within her prosecutorial role, she is entitled to
absolute immunity even if her statements were false or misleading. As this court has
recently emphasized, “prosecutors do not forfeit their absolute immunity when they
knowingly make false statements while advocating before the court,” Pittman v.
Cuyahoga Cnty. Dep’t of Children & Family Servs., 640 F.3d 716, 725 (6th Cir. 2011),
“‘so long as the statements were related to the proceeding[s]’” in which they were made,
id. (quoting Burns, 500 U.S. at 490). Therefore, even if Hanson made false
representations to the trial judge regarding Adams’s availability, she is protected by
absolute immunity because she was “serving as an advocate in judicial proceedings,”
Kalina, 522 U.S. at 125, when she made statements “related to th[ose] proceedings,”
Burns, 500 U.S. at 490.
Hanson’s allegedly improper motive in seeking and securing Adams’s detention
does not alter our conclusion that Hanson’s acts served a prosecutorial function.
Suggesting an investigative purpose, Adams claims that Hanson sought her detention in
order to coerce her into testifying in accordance with the 2006 statement. “As the line
of absolute-immunity cases make clear, however, a prosecutor’s allegedly improper
motive alone is not enough to defeat absolute immunity, so long as the general nature
of his actions falls within the scope of his duties as an advocate for the state.” Cady v.
Arenac Cnty., 574 F.3d 334, 341 (6th Cir. 2009). “[T]he general nature of [Hanson’s]
actions” in making unsworn representations to the court regarding Adams’s availability
to testify “f[ell] within the scope of h[er] duties as an advocate for the state,” and are
therefore absolutely protected whatever Hanson’s motive was in making them. Id.4

-- 11 of 19 --

No. 09-2045 Adams v. Hanson Page 12
Absolute immunity would be defeated if Hanson’s acts and omissions were
instead administrative—i.e., if representing that Adams refused to testify without also
securing her appearance in court served an administrative rather than prosecutorial
function. We held in Holloway v. Brush that a social worker’s “out-of-court actions,
misinforming [a party] and failing to inform the court of the [party’s] appearance,”
which led to the severing of the party’s parental rights, were administrative acts rather
than the conduct of an advocate. 220 F.3d at 776 (emphasis omitted). Adams, in
contrast, admitted that she told Hanson and the sheriffs that she would not appear in the
courtroom and testify, and Hanson presented this information to the trial court. Unlike
the social worker in Holloway, Hanson did not “appropriate[] the entire judicial process
to herself by hiding [Adams] and the court from each other,” but rather, the trial court
itself proceeded without providing Adams an opportunity to be heard. Id. at 777.
Significantly, the Michigan statute assigns responsibility for material-witness
protections to the court. The statute provides that, “[w]hen it appears to a court” that the
appropriate conditions are met, then “the court shall require the witness to be brought
before [it].” M ICH . COMP . LAWS ANN . § 767.35 (emphasis added). The responsibility
is thereby placed with the court to provide a witness the opportunity to be heard and to
assess itself the materiality of her testimony and the likelihood that she would fail to
appear. Id. Because this judicial process was not followed in this case, Adams was not
provided the opportunity to be heard or to furnish bail before the trial court ordered her
detained. Although we remain seriously troubled by the abrogation of Adams’s
procedural rights, Adams’s “experience illustrates the importance of vigilant exercise
of this checking role by the judicial officer to whom the warrant application is
presented,” not that prosecutors must be held accountable for judicial error. Al-Kidd,
131 S. Ct. at 2088 n.2 (Ginsburg, J., concurring).
Along the same lines, this case is readily distinguishable from Odd v. Malone,
in which the Third Circuit characterized as administrative the defendant-prosecutors’
actions vis-à-vis detained material witnesses and denied absolute immunity. 538 F.3d
at 217. One prosecutor had failed to inform the judge that the case for which the witness

-- 12 of 19 --

No. 09-2045 Adams v. Hanson Page 13
5In its most recent pronouncement on absolute prosecutorial immunity, the Supreme Court held
that a prosecutor is entitled to absolute immunity even when performing an “administrative activit[y]” if
the act is done in the performance of an advocacy function. Van de Kamp v. Goldstein, 555 U.S. 335, 129
S. Ct. 855, 861 (2009). Certain kinds of administrative obligations are “directly connected with the
prosecutor’s basic trial advocacy duties,” id. at 863, and “require legal knowledge and the exercise of
related discretion,” id. at 862. Thus, a supervisory prosecutor is entitled to absolute immunity when she
has engaged in these types of “administrative” tasks because prosecutors are “immune in a suit directly
attacking their actions related to an individual trial” which are “‘intimately associated with the judicial
phase of the criminal process.’” Id.
In Schneyder v. Smith, --- F.3d ---, No. 10-2367, 2011 WL 3211504, at *13-16 (3d Cir. July 29,
2011), the Third Circuit reconsidered its holding in Odd in light of Van de Kamp, and reaffirmed the denial
of absolute immunity to the prosecutor. The Third Circuit emphasized that the prosecutor’s failure to
advise the state trial judge of the status of the detained witness was “neither discretionary nor advocative,
but . . . instead . . . purely administrative,” and thus not protected by absolute immunity. Id. at *16.
Like the administrative acts in Van de Kamp, Hanson’s conduct before the state trial court, to the
extent it can be characterized as administrative, was “directly connected with [her] basic trial advocacy
duties,” 129 S. Ct. at 863, and “require[d] legal knowledge and the exercise of related discretion,” id. at
862. Hanson’s discretionary and advocative statements when appearing before the state trial court were
“integral to [the] advocacy function” of procuring a witness’s testimony. Warney v. Monroe Cnty., 587
F.3d 113, 124 (2d Cir. 2009).
6It stands to reason that “the rights of a material witness, charged with no wrongdoing, to be
brought before a magistrate certainly are at least equivalent to those of a person charged with a crime.”
Stone v. Holzberger, No. 92-3675, 1994 WL 175420, at *3 (6th Cir. Jan. 6, 1994) (unpublished opinion).
Although the Supreme Court has never comprehensively addressed the statutory and constitutional
requirements for a valid material-witness warrant, some federal courts have applied wholesale the Fourth
Amendment’s warrant requirement to a material-witness arrest because “the essential element” in
analyzing a seizure of the person “is the physical restraint placed upon the person, not the purpose behind
the restraint.” Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971).
If the warrant requirement is adapted to the material-witness context, an application for a material-
witness warrant under the federal material-witness statute “must establish probable cause to believe that
was detained had been continued, per the judge’s order and per local custom. Id. at 212-
13. Another failed to seek the release of a third-party witness in state custody after the
termination of the proceedings in which he was to testify. Id. at 215. The Third Circuit
held that these actions were not acts of advocacy related to conducting a prosecution for
the state but rather were administrative tasks which the prosecutors failed to complete.
Id. at 217. Hanson’s actions, in contrast, occurred while seeking a witness’s detention,
not after the detention had commenced, and Adams has not alleged that Hanson defied
the court’s instructions. In this case, moreover, the court was complicit in the alleged
denial of Adams’s procedural rights. Unlike the incarcerations in Odd, which were
prolonged past the intention of the court due to prosecutorial oversight, it was left to the
state trial court in this case “to determine whom to incarcerate and for what length of
time.”5 Id. at 214.
Our opinion does not foreclose the possibility that Adams’s constitutional rights
were violated6 or that a prosecutor’s actions in relation to a witness may be

-- 13 of 19 --

No. 09-2045 Adams v. Hanson Page 14
(1) the witness’s testimony is material, and (2) it may become impracticable to secure the presence of the
witness by subpoena.” United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003) (emphasis added); see
White by Swafford v. Gerbitz (II), 892 F.2d 457, 460-61 (6th Cir. 1989) (reviewing whether probable cause
existed for warrantless material-witness detention); Stone, 1994 WL 175420, at *3-4 (concluding that
police officers did not provide witness with a probable-cause hearing within a reasonable time).
The probable-cause standard may be inapplicable, however, because “[t]he typical arrest warrant
is based on probable cause that the arrestee has committed a crime,” which is not the standard for the
issuance of material-witness warrants. Al-Kidd, 131 S. Ct. at 2086 (Kennedy, J., concurring) (emphasis
added). “If material witness warrants do not qualify as ‘Warrants’ under the Fourth Amendment” such that
they are not subject to a probable-cause requirement, they “might still be governed by the Fourth
Amendment’s separate reasonableness requirement for seizures of the person.” Id.; see Schneyder, 2011
WL 3211504, at *4-8 (concluding that Fourth Amendment reasonableness requirement, but not probable-
cause standard, applies to material-witness detention, and finding Fourth Amendment violation). For a
Fourth Amendment analysis of the federal material-witness statute, see Donald Q. Cochran, Material
Witness Detention in a Post-9/11 World: Mission Creep or Fresh Start?, 18 G EO. M ASON L. R EV. 1, 16-24
(2010).
7As the ACLU noted in its brief, Adams provided an affidavit to the district court from an
attorney who met with Adams and who claimed to have left a message for Hanson the day after Adams
was detained, informing her that Adams was willing to testify. The parties failed to mention, much less
brief, this fact before the district court or on appeal, and there is therefore nothing in the record regarding
whether Hanson received the voicemail or passed it on to the proper authorities. As a result, we cannot
speculate as to whether Hanson acted properly on this information or engaged in administrative oversight
by failing to notify the trial court of Adams’s willingness to testify.
administrative or investigative in another context.7 If Hanson had detained Adams
without a court order, she likely would have been engaging in an “investigative act[]
antecedent . . . to the judicial process” rather than absolutely protected prosecutorial
activity. Ireland, 113 F.3d at 1445. If police had detained Adams unilaterally, or
misrepresented the facts when applying for a warrant, she may have been able to bring
a viable § 1983 claim against them. See al-Kidd, 131 S. Ct. at 2089 (Ginsburg, J.,
concurring). In fact, however, Adams was arrested pursuant to a signed order from the
trial judge, and while it was Hanson’s job to present information about witnesses to the
court, it was the court’s duty to respond with appropriate protections. Therefore,
whether or not Adams’s detention violated her constitutional rights, Hanson’s acts are
protected by absolute immunity.
3. Complaining Witness
Adams asks us to view Hanson’s acts differently: she claims that Hanson was
acting as a complaining witness, not a prosecutor. At common law, witnesses testifying
in court received absolute immunity, Burns, 500 U.S. at 489-90, but complaining
witnesses—those swearing to the facts in the initial complaint—did not, Kalina, 522

-- 14 of 19 --

No. 09-2045 Adams v. Hanson Page 15
U.S. at 130-31. But see id. at 133-35 (Scalia, J., concurring) (disputing that complaining
witness was a meaningful label at common law).
A complaining witness is not entitled to absolute immunity, Malley v. Briggs,
475 U.S. 335, 340-45 (1986), nor is a prosecutor who performs the same role, Kalina,
522 U.S. at 129-31. Hanson, however, was not acting as a complaining witness. In
Kalina, the Supreme Court assessed whether a prosecutor acted as a complaining witness
when she undertook three separate acts: filing an information, a motion for an arrest
warrant, and a sworn affidavit, in which she swore that the underlying facts provided to
the court to support the arrest warrant were true. Id. at 121. An arrest warrant was
issued on the basis of the prosecutor’s sworn statements. Id. The Supreme Court
determined that all these acts were prosecutorial except for swearing to the underlying
facts in the affidavit, id. at 129-31, in which the prosecutor “personally vouched for the
truth of the facts set forth in the certification under penalty of perjury,” id. at 121. By
offering sworn testimony, the prosecutor “performed an act that any competent witness
might have performed.” Id. at 129-30. “Testifying about facts is the function of the
witness, not of the lawyer,” and therefore, “[e]ven when the person who makes the
constitutionally required ‘Oath or affirmation’ is a lawyer, the only function that she
performs in giving sworn testimony is that of a witness.” Id. at 130-31.
Advocating before the trial court in order to procure witness testimony, as
Hanson did, is more analogous to the application for a warrant that the Court held to be
prosecutorial than the acts of a complaining witness. First, as described supra, Hanson’s
conduct fell within her prosecutorial role. Second, there is no allegation that Hanson
provided sworn testimony. Adams asserts that the distinction between a prosecutor’s
unsworn representations and a witness’s sworn representations is a distinction without
a difference. But the Supreme Court in Kalina found determinative that a prosecutor
was testifying to facts “under penalty of perjury” or giving “sworn testimony.” Id. at
129, 131 (emphasis added). The Court explained:
Indeed, except for her act in personally attesting to the truth of the
averments in the certification, it seems equally clear that the preparation
and filing of the [sworn affidavit] was part of the advocate’s function as

-- 15 of 19 --

No. 09-2045 Adams v. Hanson Page 16
8Hanson argues that there is an additional way in which Adams’s complaining-witness argument
fails: because Adams was not arrested on criminal charges, Hanson could not have been a complaining
witness. Hanson did not “initiate[] or procure[] a criminal prosecution” against Adams; rather, she sought
to detain Adams in the course of the criminal prosecution of another defendant. Kalina, 522 U.S. at 132
(Scalia, J., concurring). In Kalina, by contrast, the prosecutor provided a sworn affidavit in support of
criminal charges.
It is not clear, however, that this distinction precludes Hanson from qualifying as a complaining
witness. An individual who testifies in support of an arrest warrant is a complaining witness. See Malley,
475 U.S. at 340-41(“[O]ne who procured the issuance of an arrest warrant by submitting a complaint could
be held liable if the complaint was made maliciously and without probable cause.”). We need not and do
not decide whether to apply a different label to an individual who testifies in support of a material-witness
warrant as opposed to an arrest warrant for criminal activity. See al-Kidd, 131 S. Ct. at 2086 (Kennedy,
J., concurring) (comparing constitutional requirements governing typical arrest warrants with material-
witness warrants). Hanson does not qualify as a complaining witness because she did not provide sworn
testimony and was acting within her prosecutorial role.
well. The critical question, however, is whether she was acting as a
complaining witness rather than a lawyer when she executed the
certification “[u]nder penalty of perjury.”
Id. at 129 (emphasis added). Following Kalina, the Eleventh Circuit in Rivera
concluded that a prosecutor who provided the court with mistaken information, causing
the wrong man to be arrested, did not act as a complaining witness because he did not
provide sworn testimony. Rivera v. Leal, 359 F.3d 1350, 1354-55 (11th Cir. 2004); see
id. at 1355 (“The sworn/unsworn distinction is more than critical; it is determinative.”).
A prosecutor’s acts in preparing and presenting to the court information in
support of an arrest, and a witness’s acts in swearing to the truth of the facts supporting
criminal charges, serve distinct and essential functions. See Kalina, 522 U.S. at 129;
Ireland, 113 F.3d at 1447 (holding that prosecuting attorneys who prepared and
presented the contents of a criminal complaint were entitled to absolute immunity). In
this case, Hanson’s unsworn statements during a “pretrial court appearance[] by the
prosecutor in support of taking criminal action against a suspect,” are acts of advocacy
protected by absolute immunity.8 Burns, 500 U.S. at 492; see also Sanders v. City &
Cnty. of San Francisco, 226 F. App’x 687, 690 (9th Cir. 2007) (unpublished opinion)
(holding that a prosecutor’s statements before a grand jury did not render him a
complaining witness, and so deprive him of absolute immunity, because “word choice
in the course of advocacy cannot turn a prosecutor into a witness”).

-- 16 of 19 --

No. 09-2045 Adams v. Hanson Page 17
9In 2004, United States magistrate judges conducted 4882 material-witness hearings. Charles
Doyle, Cong. Research Serv., RL 33077, Arrest and Detention of Material Witnesses 3 n.10 (2005),
available at http://www.au.af.mil/au/awc/awcgate/crs/r133077.pdf. Detentions in the context of
immigration proceedings make up the bulk of material-witness arrests. See Adam Liptak, For Post-9/11
Material Witness, It is a Terror of a Different Kind, N.Y. Times, Aug. 19, 2004, available at
http://www.nytimes.com/2004/08/19/us/threats-responses-detainees-for-post-9-11-material-
witness-it-terror-different.html?src=pm.
4. Policy Considerations
Finally, in addition to the prosecutorial nature of Hanson’s actions, the policy
justifications underlying prosecutorial immunity support absolute immunity in this case.
To determine whether a function is protected by absolute immunity, the Supreme Court
considers whether: “(1) there is a common law tradition of according immunity in
similar situations; (2) denying immunity would subject the prosecutor to the chilling
influence of vexatious lawsuits; and (3) there exist adequate checks on prosecutorial
abuse other than individual suits against the prosecutor.” Odd, 538 F.3d at 216.
First, regarding the common law, we find support for prosecutorial immunity in
the Court’s conclusion that “prosecutors . . . were absolutely immune from damages
liability at common law for making false or defamatory statements in judicial
proceedings (at least so long as the statements were related to the proceeding).” Burns,
500 U.S. at 489-90. “This immunity extended to ‘any hearing before a tribunal which
perform[ed] a judicial function.’” Id. at 490. In advocating before the trial court at a
preliminary examination, Hanson made statements related to judicial proceedings that
fall within this protection.
Second, regarding vexatious litigation, “pretrial court appearances by the
prosecutor in support of taking criminal action against a suspect,” which include the
summoning of witnesses to a preliminary examination, “present a substantial likelihood
of vexatious litigation that might have an untoward effect on the independence of the
prosecutor.” Id. at 492. To be sure, a flood of litigation is less likely to arise from
detained witnesses than defendants, if for no other reason than that witness detention is
relatively rare.9 But in cases like this one, involving witnesses to gang activity, a
prosecutor seeking to secure a witness’s appearance may be subject to harassment by

-- 17 of 19 --

No. 09-2045 Adams v. Hanson Page 18
10See Carolyn B. Ramsey, In the Sweat Box: A Historical Perspective on the Detention of
Material Witnesses, 6 O HIO ST. J. C RIM. L. 681 nn. 60 & 123 (2009) (discussing habeas relief from
material-witness detention and witness-detention lawsuits against police departments); Stacey M. Studnicki
& John P. Apol, Witness Detention and Intimidation: The History and Future of Material Witness Law,
76 ST. J OHN ’S L. R EV . 483, 499-502 (2002) (collecting cases reviewing the validity of material-witness
warrants).
11Such a check was apparently available here. Although there is no information in the record
regarding the resolution of the complaint, the State of Michigan’s Attorney Grievance Commission
received a request for investigation of Hanson arising out of Adams’s detention, and Hanson filed an
answer detailing her conduct in the case.
either witnesses or defendants seeking to deter witness testimony, which would interfere
with the integrity of the criminal proceedings. Absolute immunity for advocacy before
a trial court to procure witness testimony thus “serves the policy of protecting the
judicial process.” Id. at 492.
Third, regarding checks on prosecutorial abuse, the judicial process is available
as a check on prosecutorial actions, and these “safeguards . . . tend to reduce the need
for private damages actions as a means of controlling unconstitutional conduct.” Butz
v. Economou, 438 U.S. 478, 512 (1978). As discussed, supra, although it did not prevent
the claimed violations in this case, the Michigan material-witness statute provides a
judicial process for protecting a witness’s rights. In addition, material witnesses may
petition for habeas relief or move to quash their arrest warrants.10 Other checks on
prosecutorial misconduct are provided by professional disciplinary actions and the
criminal prosecution of prosecutors.11 Imbler, 424 U.S. at 429.
We recognize that witnesses are particularly vulnerable because they are “not
entitled to the protections available to criminal defendants, including the appellate
process,” Odd, 538 F.3d at 217, but application of the analytical framework outlined by
the Supreme Court dictates absolute immunity for Hanson. Threats to the independence
of the prosecutor, other means to protect witnesses’ rights, and, most importantly, the
prosecutorial function served by Hanson’s conduct counsel in favor of the grant of
absolute immunity. Absent direction from the Supreme Court, we decline to make a
categorical exception to traditional absolute immunity analysis for prosecutorial actions
with respect to third-party witnesses. Accordingly, we hold that Prosecutor Hanson is

-- 18 of 19 --

No. 09-2045 Adams v. Hanson Page 19
entitled to absolute prosecutorial immunity for her acts of advocacy before the state trial
court in seeking to procure witness testimony at a preliminary examination.
III. CONCLUSION
When making statements at a preliminary examination about the availability of
a witness, Hanson functioned as an advocate for the State of Michigan and performed
actions intimately associated with the judicial process. Because she is absolutely
immune from suit for her prosecutorial conduct, we AFFIRM the district court’s grant
of summary judgment to Hanson.

-- 19 of 19 --