Baldwin, III v. Morrissey et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
ALEXANDER R. BALDWIN III,
Plaintiff,
v. Case No. 1:25-cv-01052-KWR-LF
KARI T. MORRISSEY, MARY CARMACK-ALTWIES,
ANDREA REEB, JENNIFER PADGETT MACIAS,
THE FIRST JUDICIAL DISTRICT ATTORNEY’S OFFICE,
ALEXANDRIA HANCOCK, MARISSA POPPELL, BRIAN BRANDLE, and
SANTA FE COUNTY BOARD OF COUNTY COMMISSIONERS,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART STATE DEFENDANTS’ MOTIONS TO DISMISS
THIS MATTER comes before the Court on State Defendants’ Motions to Dismiss IV and
V (Docs. 11 and 12). These Motions turn on whether the State Defendants had absolute
prosecutorial immunity for their alleged conduct.
Having reviewed the parties’ pleadings, briefing, and relevant law, the Court finds that
Motion IV is well-taken and, therefore, is GRANTED in part and DENIED in part. Motion V
is also well-taken and, therefore, is GRANTED in part and DENIED in part.
INTRODUCTION
The Court previously issued an order granting Defendant Kari Morrissey’s Motion to
Dismiss, shielding many of her alleged acts of misconduct behind absolute prosecutorial
immunity. Mem. Op. Ord. Granting State Def.’s Mot. Dismiss II, III, Doc. 56. When it did so,
the Court acknowledged that there are times when it is better to leave unredressed the wrongs done
by allegedly dishonest prosecutors than to subject dutiful prosecutors to the constant threat of
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 1 of 47

2
litigation. Id. This principle also applies to the alleged misconduct of Defendants Mary Carmack-
Altwies and Andrea Reeb. And so, even though the Court is concerned by the allegations of
misconduct by Defendants Carmack-Altwies and Reeb, it recognizes that, as prosecutors, they are
entitled to invoke the protection of absolute prosecutorial immunity.
It bears repeating that absolute immunity is conferred “not from a desire to shield abuses
of office, but because any lesser degree of immunity could impair the judicial process itself.”
Malley v. Briggs, 475 U.S. 335, 342 (1986) (internal citation omitted). And that “the [Supreme]
Court has determined that the smooth functioning of the judicial system takes precedence over
those meritorious claims which will be foreclosed by granting absolute immunity.” Snell v.
Tunnell, 920 F.2d 673, 687 (10th Cir. 1990).
Accordingly, this Court finds that under the doctrine of absolute prosecutorial immunity
defendants are insulated from liability for much of the misconduct they are alleged to have
committed.
BACKGROUND1
As alleged in the Complaint, whose well-pleaded factual allegations the Court must take
as true, this case arises from the criminal prosecution of Plaintiff Alexander R. Baldwin III after
he “accidental[ly]” shot and killed cinematographer Halyna Hutchins during the Rust film
production. Compl. ¶ 2. The pistol fired on set was loaded with live rounds instead of “dummy”
rounds, inert bullets designed to look like real bullets. Id. ¶¶ 35, 56.
1 This background section focuses on alleged conduct related to the claims that State Defendants
seek to dismiss in Motions IV and V. Thus, the Court does not recite every fact in Plaintiff’s
Complaint, like the alleged actions taken by Defendants Kari Morrissey, Alexandria Hancock,
Marissa Poppell, Brian Brandle, and the Santa Fe County Board of County Commissioners
(“County Defendants”).
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 2 of 47

3
The shooting occurred on October 21, 2021, while Plaintiff, Hutchins, writer-director Joel
Souza, and crew were setting up a close-up camera shot of Plaintiff pointing and cocking the pistol,
which required the use of dummy rounds. Id. ¶¶ 24, 46–49. While preparing for the shot, a crew
member handed the prop gun to Plaintiff and “announced” that there was a “cold gun”—an
inspected gun incapable of firing—on set. Id. ¶ 51. Plaintiff never checked the gun himself. Id.
¶¶ 50–52. As Plaintiff was rehearsing the shot, Hutchins, who was standing near the camera,
directed him to point the gun her way and cock the gun. Id. ¶¶ 54–55. Suddenly, the gun “just
went off,” and a live round unexpectedly discharged from the gun, striking Hutchins and Souza.
Id. ¶¶ 56, 88. Hutchins died from her injuries. Id. ¶ 62.
I. Prosecution by State Defendants Carmack-Altwies, Reeb, and the FJDA
As relevant to this Motion, state prosecutors from the First Judicial District Attorney’s
Office (“FJDA”) were “heavily involved” from the outset of the Santa Fe Sheriff’s Office’s
(“SFSO”) investigation, making decisions “collectively” as a “team.” Id. ¶ 74. Plaintiff asserts that
once prosecutors, elected officials, and “high-ranking members of law enforcement” became
involved, the focus of the investigation shifted from discovering how live ammunition ended on
set to blaming Plaintiff. Id. ¶¶ 72–77. As part of the investigation, Plaintiff contends that the State
was partially responsible for destroying the prop gun that fired the live round through haphazard
testing without first documenting the internal components—even though multiple people,
including Plaintiff, told investigators that “the gun just ‘went off.’” Id. ¶¶ 88–93. Later
examination revealed that the prop gun showed signs of modification pre-dating the fatal shooting.
Id. ¶¶ 94–95.
According to the Complaint, Defendant Mary Carmack-Altwies (District Attorney for the
First Judicial District) “decided to criminally charge [Plaintiff] ‘pretty close to the beginning’ of
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 3 of 47

4
the investigation,” despite the lack of evidence demonstrating that prosecutors could prove the
elements of the offense—and the mounting evidence demonstrating that others were responsible
for the shooting. Id. ¶¶ 98, 100.
In June 2022, Defendant Carmack-Altwies decided to appoint Defendant Andrea Reeb as
Special Prosecutor “to assist with prosecutions.” Id. ¶ 101. The Complaint alleges that Defendants
Carmack-Altwies and Reeb were motivated by the opportunity to use the prosecution to further
their political and personal agendas and professional ambitions. Compl. ¶¶ 259–60. Before a
public announcement was made, Defendant Reeb emailed Defendant Carmack-Altwies
confirming that she “would not disclose to the media that she had been chosen as Special
Prosecutor” and expressing that she would like to make her appointment public as it “might help”
her campaign to be elected state representative. Id. ¶ 102. Several days after Defendant Reeb’s
email, Defendant Carmack-Altwies contributed to Defendant Reeb’s campaign. Id. ¶ 103. In
August 2022, the FJDA announced that Defendant Reeb would join as Special Prosecutor. Id.
¶ 104. After her appointment, Defendant Reeb “immediately became the point of contact for
defense counsel and indicated that she was the primary attorney reviewing the SFSO report and
handling the investigation. She interviewed witnesses, took proffers, engaged experts, and handled
other important matters.” Id. ¶ 105.
On January 19, 2023, the FJDA announced that it was going to charge Plaintiff with two
counts of involuntary manslaughter, along with a firearm sentencing enhancement. Id. ¶ 116. The
Complaint alleges that by that point Defendants Carmack-Altwies and Reeb had been trying the
case in the media. See id. ¶ 114. Following the announcement of the charges, Defendants
Carmack-Altwies and Reeb appeared in the media “to comment on the evidence, their legal
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 4 of 47

5
theories of [Plaintiff’s] culpability, the impending charges, and [Plaintiff’s] possible sentence.” Id.
¶¶ 117–23.
The FJDA filed charges against Plaintiff on January 31, 2023. Id. ¶ 124. Plaintiff was
charged with two alternative counts of involuntary manslaughter, in violation of NMSA 1978,
§ 30-2-3 (1994). The first alternative count charged Plaintiff for his role as actor and shooter; the
second alternative count charged him for his role as producer. Id. The second alternative count
also included a firearm enhancement, pursuant to NMSA 1978, § 31-18-16 (2022). Id. The firearm
enhancement was enacted by the state legislature after the date of the shooting. Id. ¶ 129.
On February 7, 2023, Plaintiff sought to disqualify Defendant Reeb as Special Prosecutor.
Id. ¶ 128, arguing that her dual role as State Legislator and Special Prosecutor violated the state
constitution’s separation of powers provision. Id. A few days later, Plaintiff moved to dismiss the
firearm sentencing enhancement, arguing that it violated the Constitution’s Ex Post Facto Clause.
Id. ¶ 129. Defendants Carmack-Altwies and Reeb disparaged both motions in the media, coloring
them as Plaintiff’s effort to distract from his “gross negligence.” Id. ¶¶ 131–32. Defendant Reeb
also emailed Plaintiff “demanding that he withdraw the [motion] and threaten[ing] sanctions for
its filing.” Id. ¶ 133. But sometime soon after, the state withdrew the firearm enhancement. Id.
And although Defendant Reeb privately agreed that the enhancement violated the Ex Post Facto
Clause, the State did not acknowledge the violation in its motion. Id. (internal citations omitted)
(alleging Defendant Reeb emailed Plaintiff’s counsel “admitting that she 100 percent agreed” the
charge was unconstitutional). On March 15, 2023, Defendant Reeb withdrew as Special
Prosecutor. Id. ¶ 135. Two weeks later, after a hearing where the judge questioned whether
Defendant Carmack-Altwies could prosecute alongside a special prosecutor under NMSA 1978,
Section 36-1-23.1 (1984), Defendant Carmack-Altwies also withdrew from the criminal case. Id.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 5 of 47

6
¶ 136. After Defendant Reeb withdrew from the criminal case, Defendant Carmack-Altwies
appointed Defendant Kari Morrissey as Special Prosecutor in the case against Plaintiff. Id. ¶ 137.
It is a fair inference of the Complaint that, throughout the time Defendant Morrissey prosecuted
the case against Plaintiff, Defendant Carmack-Altwies continued to contribute FJDA resources to
aid the prosecution, even after she withdrew. See generally Id. ¶¶ 137–255.
Due to Defendant Carmack-Altwies’ decision to co-prosecute the case with Defendant
Reeb and Defendant Reeb’s dual service as State Legislator and Special Prosecutor, the Complaint
alleges that each Defendant respectively lacked constitutional and statutory authority to charge
Baldwin with any offense.” Id. ¶ 258(d).
II. Plaintiff’s Instant Case Against State Defendants.
In January 2025, Plaintiff filed the Complaint in state court. Not. of Removal, Doc. 1 ¶ 1;
Am. Not. of Removal, Doc. 8 ¶ 1. In his Complaint, Plaintiff alleges six claims against State and
County Defendants for their misconduct while investigating and prosecuting his criminal case.
Compl. ¶¶ 256–310. As relevant here, Plaintiff alleges:
• Count I: Violation of Rights Under 42 U.S.C. § 1983 for Conspiracy to Cause
Malicious Prosecution and Deprivation of Civil Rights (Against all Defendants), and
• Count VI: Violation of the New Mexico Civil Rights Act (“NMCRA”) (Against the
FJDA, Commissioners, and the County).
Regarding Counts I and VI, Plaintiff alleges that State Defendants’ conspiratorial actions
were “driven by ill motives and to accomplish illegitimate ends, including to harass or ‘humble’
[Plaintiff], to promote their political agendas . . . , or to further their own personal agendas or
professional ambitions.” Id. ¶¶ 260, 300. Plaintiff alleges further that these actions violated
Defendant’s rights under the United States and New Mexico constitutions. Id. ¶¶ 261, 301. Due
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 6 of 47

7
to Defendants’ “unreasonable and unlawful conduct,” Plaintiff alleges that “he has suffered and
continues to suffer substantial past and future damages, . . . including, but not limited to, legal
expenses, loss of income, severe emotional distress, mental anguish, and embarrassment.” Id.
¶ 268.
About one week after Defendants accepted service of the Complaint, Defendants removed
Plaintiff’s case to this Court. See Doc. 1 ¶ 2. Shortly thereafter, State Defendants sought to dismiss
certain allegations in the Complaint. To that end, they have filed, as relevant here:
• Motion IV: Defendants Carmack-Altwies and FJDA’s Motion to Dismiss § 1983 and
NMCRA Claims on the Basis of Absolute Prosecutorial Immunity (Doc. 11), and
• Motion V: Defendants Reeb and FJDA’s Motion to Dismiss § 1983 and NMCRA
Claims on the Basis of Absolute Prosecutorial Immunity (Doc. 12).
Around the same time, State Defendants also filed three other related Motions to Dismiss (Docs.
7, 9, and 10). The Court issued a Memorandum Opinion and Order on these Motions last week.
See Doc. 56.
LEGAL STANDARD
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits a court to dismiss a complaint
that fails to state a claim upon which relief can be granted. A complaint must have sufficient factual
allegations that, if true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is facially plausible if a plaintiff pleads factual content that allows
a court to reasonably infer that the defendant is liable for the misconduct alleged. Id. A court must
assume the truth of all well-pleaded facts in the complaint and draw all reasonable inferences
therefrom in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.
2007).
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 7 of 47

8
In ruling on a motion to dismiss, a court should disregard conclusory statements of law and
consider whether the factual allegations plausibly suggest the defendant is liable. Kan. Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). In addition to the complaint, a
court may consider attached exhibits and documents incorporated into the complaint by
reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). While a court must draw
all reasonable inferences in favor of the plaintiff, Kay, 500 F.3d at 1217, mere “labels and
conclusions” or “formulaic recitation[s] of the elements of a cause of action” will not suffice, Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
DISCUSSION
The Court considers Motions to Dismiss IV and V, each of which turns on whether absolute
prosecutorial immunity shields individual state prosecutors and the FJDA from suit for certain
alleged conduct. Plaintiff has sued the prosecutors under § 1983 and the FJDA under the NMCRA
in Counts One and Six, respectively. After discussing the scope of prosecutorial immunity under
these Acts, the Court will address each Motion in turn
I. The Scope of Absolute Prosecutorial Immunity Under § 1983 and the NMCRA
Fifty years ago in Imbler v. Pachtman, the Supreme Court had its “first opportunity to
address the § 1983 liability of a state prosecuting officer.” 424 U.S. 409, 420 (1976). Since then,
courts assessing prosecutorial immunity claims under § 1983 employ a “functional approach,”
Bledsoe v. Vanderbilt, 934 F.3d 1112, 1117 (10th Cir. 2019) (quoting Burns v. Reed, 500 U.S. 478
(1991)), which assesses whether an activity is “intimately associated with the judicial phase of the
criminal process.” England v. Hendricks, 880 F.2d 281, 285 (10th Cir. 1989) (quoting Imbler, 424
U.S. at 430). In making this assessment, the Tenth Circuit applies a “‘continuum based approach,’
and the ‘more distant a function is from the judicial process, the less likely absolute immunity will
attach.’” Mink v. Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007) (quoting Roberts v. Kling, 104
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 8 of 47

9
F.3d 316, 318–19 (10th Cir. 1997), rev’d on other grounds, 522 U.S. 1025 (1997)). Advocacy and
investigation mark the bounds of this continuum. Chilcoat v. San Juan Cnty., 41 F.4th 1196, 120
(10th Cir. 2022). Thus, courts “look to which role the prosecutor is performing—advocate or
investigator.” Mink, 482 F.3d at 1262.2
Accordingly, in defending claims brought under § 1983 “a prosecutor is entitled to absolute
immunity for those actions that cast him in the role of an advocate initiating and presenting the
government’s case.” Mink, 482 F.3d at 1261; Benavidez v. Howard, 931 F.3d 1225, 1231 (10th
Cir. 2019) (internal citations omitted) (“[A]bsolute immunity shields those acts undertaken by a
[prosecutor] in preparation for judicial proceedings and which occur in the course of his or her
role as an advocate for the government”). “Prosecutors are entitled to absolute immunity for their
decisions to prosecute, their investigatory or evidence-gathering actions, their evaluation of
evidence, their determination of whether probable cause exists, and their determination of what
information to show the court.” Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1164 (10th
Cir. 2009) (citing Imbler, 424 U.S. at 425–28). Such decisions include “whether and when to
prosecute” and “whether to dismiss” a case. Imbler, 424 U.S. at 431 n.33. Prosecutorial immunity
even extends to “the deliberate withholding of exculpatory information.” Id. at 431 n.34; see also
Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1372 n.4 (10th Cir. 1991) (internal citation
omitted) (“Whether the claim involves withholding evidence … or instructing a witness to testify
2 Under the functional approach, a prosecutor’s motives for her conduct are irrelevant to whether
she is entitled to immunity. See Lerwill v. Joslin, 712 F.2d 435, 440, 441 (10th Cir. 1983). So too,
is the ultimate harm or injury. Bledsoe, 934 F.3d at 1117 (quoting Buckley v. Fitzimmons, 509 U.S.
259, 271 (1993)). Motions III, IV, and V correctly point out that the Complaint’s many allegations
regarding the individual State Defendants’ motives for prosecuting Plaintiff have no bearing on
the immunity analysis, a point Plaintiff does not contest in his Responses. See generally Doc. 38;
Doc. 39. The Court finds that Defendants’ motivations are irrelevant at this stage and will not
address the Motions’ arguments about motive any further.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 9 of 47

10
evasively, absolute immunity from civil damages is the rule for prosecutors.”). “Absolute
immunity, however, does not extend to those actions that are investigative or administrative in
nature, . . .” Mink, 482 F.3d at 1261–62. “For example, when a prosecutor conducts investigative
work normally performed by the police, they are not performing a prosecutorial function.”
Chilcoat, 41 F.4th at 1209 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273–74 (1993)). Finally,
the official seeking absolute prosecutorial immunity bears the burden of demonstrating that
immunity is justified for the function at issue. Buckley, 509 U.S. at 269.
The NMCRA is the state analogue to § 1983. Bolen v. N.M. Racing Comm’n, 2025-NMSC-
034, ¶ 11, 578 P.3d 1121. It authorizes a person to sue a public body for a deprivation of the rights,
privileges, and immunities guaranteed by the New Mexico constitution’s bill of rights. NMSA
1978, §§ 41-4A-1 to -13 (2021). Thus, unlike § 1983 claims, NMCRA claims are brought
“exclusively” against public bodies, which are liable for the conduct of the individual persons
“acting on behalf of, under color of or within the course and scope of the authority of the public
body.” Section 41-4A-3(C). Accordingly, the NMCRA waives the State’s sovereign immunity.
Section 41-4A-9. The NMCRA also prohibits the use of qualified immunity, an available defense
against § 1983 claims. See Section 41-4A-4.
Despite this waiver and prohibition, the NMCRA preserves “judicial immunity, legislative
immunity or any other constitutional, statutory or common law immunity.” Section 41-4A-10. The
immunities preserved by the NMCRA are available to public bodies, even if they would attach to
a personal capacity § 1983 claim, provided that the immunity is applied consistently with its
“underlying rationale.” Bolen, 2025-NMSC-034, ¶¶ 31–32.
Here, the parties do not dispute that a prosecutor acting under the FJDA is a quasi-judicial
officer. See Defs.’ Mot. Dism. IV, Doc. 11 at 25; Pl.’s Resp. Mot. Dism. IV, Doc. 38 at 15 n.3;
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 10 of 47

11
see also State ex rel. Ward v. Romero, 1912-NMSC-011, ¶ 22, 17 N.M. 88, 125 P. 617 (“Under
[New Mexico’s] Constitution, the district attorney is a part of the judicial system of the state . . .
[and] is a quasi judicial officer.”). Nor do the parties dispute that the state legislature intended for
the scope of absolute prosecutorial immunity under the NMCRA to mirror the scope of immunity
under § 1983. See Doc. 11 at 25; Doc. 38 at 15 n.3; see also Bolen, 2025-NMSC-034, ¶¶ 24, 27
(“[W]e agree with the district court that § 1983 is in pari materia with the [NM]CRA, . . .”).
Therefore, when determining whether Defendants are entitled to absolute prosecutorial immunity,
the Court applies the functional approach to both Plaintiff’s § 1983 and NMCRA claims against
individual State Defendants and Defendant FJDA, respectively.
II. Motion to Dismiss IV is Granted in Part and Denied in Part Because Defendants
Carmack-Altwies and FJDA are Entitled to Absolute Prosecutorial Immunity Under
§ 1983 and the NMCRA Only for Their Prosecutorial Acts
In State Defendants’ fourth Motion, Defendants Carmack-Altwies and FJDA argue that
Plaintiff’s § 1983 and NMCRA claims should be dismissed in part because the alleged conduct
falls within the scope of their absolute prosecutorial immunity.
This Motion seeks to dismiss Defendant Carmack-Altwies’ conduct related to
her role in initiating and prosecuting the state criminal action against [Plaintiff].” Defs.’ Mot.
Dism. IV, Doc. 11 at 5. Specifically, Defendant Carmack-Altwies contends against Plaintiff’s
disagreement that she is entitled to absolute prosecutorial immunity for (1) appointing Defendant
Reeb as Special Prosecutor, (2) the prosecutorial acts she took as Defendant Reeb’s co-prosecutor
after appointing Defendant Reeb as Special Prosecutor, (3) knowingly violating the Ex Post Facto
Clause by including a firearm enhancement in the original criminal information, and (4) playing a
role in the testing and destruction of the gun that killed Ms. Hutchins. Id. at 4; Pl.’s Resp. Mot.
Dism. IV, Doc. 38 at 5–14; Defs.’ Reply Mot. Dism. IV, Doc. 42 at 2–12. Defendant Carmack-
Altwies also contends, and Plaintiff fails to contest, that she is immunized for several other
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 11 of 47

12
decisions.3 Even absent a Response from Plaintiff, Defendant bears the burden of demonstrating
that she is entitled to immunity. Buckley, 509 U.S. at 269. Therefore, the Court will also address
each of these arguments. But because Defendant Carmack-Altwies’ Motion does not seek to
dismiss Plaintiff’s allegations based on her “alleged statements to the media or her alleged
involvement with law enforcement’s investigation of the shooting,” Doc. 11 at 4, any such
allegations advance to the next stage of litigation.
For the reasons below, the Court finds that Defendant Carmack-Altwies is entitled to
absolute prosecutorial immunity for all the conduct she seeks to dismiss except for her role in the
alleged investigation and destruction of the gun that killed Ms. Hutchins.
A. Defendant Carmack-Altwies is Entitled to Absolute Prosecutorial Immunity
for Appointing Defendant Reeb as Special Prosecutor
First, Defendant Carmack-Altwies contends that she is entitled to absolute immunity for
her decision to appoint Defendant Reeb as Special Prosecutor. Id. at 11. According to Defendant
Carmack-Altwies, as district attorney of the FJDA, she properly exercised her statutory authority
to appoint Defendant Reeb. Id. Under NMSA 1978, Section 36-1-23.1 (1984) (emphasis added):
Each district attorney may, when he cannot prosecute a case for ethical reasons or
other good cause, appoint a practicing member of the bar of this state to act as
special assistant district attorney. Any person so appointed shall have authority to
act only in the specific case or matter for which the appointment was made. An
appointment and oath shall be required of special assistant district attorneys in
substantially the same form as that required for assistant district attorneys in
Section 36-1-2 NMSA 1978.
3 The parties do not contest that Defendant Carmack Altwies is entitled to absolute immunity for
(1) her decision to criminally prosecute Plaintiff, (2) all her conduct related to filing the original
and amended criminal informations except for the inclusion of the firearm enhancement charge,
(3) her withdrawal from Plaintiff’s criminal case and decision to appoint Defendant Morrissey as
Special Prosecutor, (4) and her continued contribution of FJDA resources to assist Defendant
Morrissey with Plaintiff’s prosecution. See Doc. 38 at 5–14 (agreeing with or failing to contest
these arguments); Doc. 42 at 2, 6, 8.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 12 of 47

13
She argues that because she exercised her authority “to assist [the State] with prosecutions,”
Compl. ¶ 101, it falls “within the ambit of absolute immunity,” Doc. 11 at 12 (citing Lacey v.
Maricopa Cnty., 693 F.3d 896, 928–34 (9th Cir. 2012)).
Plaintiff disagrees, arguing that the phrase “cannot prosecute a case for ethical reasons or
other good cause” does not authorize a district attorney to appoint a special prosecutor when she
“merely fears that she cannot prosecute a case by herself.” Doc. 38 at 6. Plaintiff argues that since
Defendant Carmack-Altwies lacked authority under Section 36-1-23.1 to make the appointment,
she is not entitled to absolute prosecutorial immunity for her decision. Id.
Accordingly, the issues are (1) whether Defendant Carmack-Altwies acted beyond her
authority under Section 36-1-23.1 by appointing Defendant Reeb as Special Prosecutor, and (2)
whether a prosecutorial act exceeding the scope of state statutory authority falls outside the ambit
of prosecutorial immunity. Defendant Carmack-Altwies had at least a “semblance of authority” to
appoint Defendant Reeb under Section 36-1-23.1,4 and the Court finds that she is entitled to
absolute prosecutorial immunity for doing so. Lerwill v. Joslin, 712 F.2d 435, 439 (10th Cir. 1983).
The Tenth Circuit has never had the occasion to determine whether a prosecutor is entitled
to absolute immunity for allegedly appointing a special prosecutor without authority to do so.
However, in Lerwill, the Tenth Circuit determined that, like a judge engaging in a judicial act, a
prosecutor carrying out a prosecutorial function is “deprived of immunity” when she “has acted in
4 The Court need not determine whether NMSA 1978, Section 36-1-19(A) (1985) would have
authorized Defendant Reeb’s appointment. See Doc. 38 at 8. Moreover, NMSA 1978, Section 36-
1-2 (1984) and NMSA 1978 Section 36-1-5 (1988), which Defendant raises only in her Reply, see
Doc. 42 at 5, are inapposite here. They concern the appointment of regular assistant district
attorneys, not special prosecutors. See State v. Hollenbeck, 1991-NMCA-060, ¶ 7, 814 p.2D 143
(distinguishing between special prosecutors who are appointed under Section 36-1-23.1 to
prosecute a specific case and assistant DAs who prosecute multiple cases under Sections 36-1-2
and 35-1-5). The Complaint alleges she was appointed as “special prosecutor” under Section 36-
1-23.1. Compl. ¶¶ 101, 258(d).
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 13 of 47

14
the ‘clear absence of all jurisdiction.’” Id. (quoting Stump v. Sparkman, 435 U.S. 349, 357 (1978)).
Conversely, if a prosecutor has even a “semblance of authority” for her prosecutorial act, then she
is entitled to absolute prosecutorial immunity. Lerwill, 712 F.3d at 439. In other words, a
prosecutor is immune for prosecutorial acts “that were merely in ‘excess of [her] jurisdiction.’” Id.
(citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351–52 (1871)) (applying this longstanding
judicial immunity rule to a case involving a prosecutor). This rule comports with the policy
undergirding prosecutorial immunity, allowing prosecutors to exercise their professional judgment
in carrying out their public duties. Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987) (“[A] holding
that a prosecutor is without absolute immunity the moment he strays beyond his jurisdictional
limits, would do violence to its spirit.”). And it is the test most applicable to the matter at hand.
First, appointing a special prosecutor is a prosecutorial act. See Lacey, 693 F.3d at 931
(“Decisions related to appointments and removals in a particular matter will generally fall within
the exercise of the judge’s or prosecutor’s judicial and quasi-judicial roles and are shielded from
suit by absolute immunity.”). Since Imbler, the Supreme Court has recognized that initiating a
prosecution is a core prosecutorial function. 424 U.S. at 431. And what else, if not a part of
initiating a prosecution, is appointing a special prosecutor? This is especially clear here, where
Defendant Carmack-Altwies appointed Defendant Reeb “to help assist with prosecutions,” more
than five months before the State announced its charging decision. Compl. ¶¶ 101–04; 114–16.
Indeed, it is so obvious that appointing a special prosecutor is a prosecutorial act that even Plaintiff
does not appear to dispute it. See Doc. 38 at 5–9.
Next, Defendant Carmack-Altwies was acting with at least some semblance of authority
when she hired Defendant Reeb pursuant to Section 36-1-23.1. The statute permits a district
attorney to appoint a special prosecutor for “other good cause,” Section 36-1-23.1 (1984), which
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 14 of 47

15
New Mexico courts have interpreted capaciously. See e.g., State v. Hollenbeck, 1991-NMCA-060,
¶ 14, 814 P.2d 143 (explaining that good cause “need not be a legal or ethical reason,” but instead
could include such things as a “lack of resources” and “budgetary constraints”).5 The Complaint
alleges that Defendant Carmack-Altwies appointed Defendant Reeb “to assist with prosecutions.”
Compl. ¶ 101. It is fair to infer that she earnestly believed she needed this assistance. See Doc. 38
at 6 (suggesting Defendant Carmack-Altwies “fear[ed] she c[ould] not prosecute [the] case by
herself”). To be sure, the Complaint also alleges that Defendant Carmack-Altwies conspired to
appoint Defendant Reeb in order to further her political and personal agendas and professional
ambitions. Compl. ¶¶ 259–60. But this does not foreclose the inference that Defendant Carmack-
Altwies needed assistance and therefore had “other good cause” under the phrase’s expansive
definition. Moreover, even if Defendant Carmack-Altwies lacked good cause to appoint Defendant
Reeb, she merely exceeded her authority rather than acting in the “clear absence of all jurisdiction.”
See Lerwill, 712 F.2d at 439 (quoting Stump, 435 U.S. at 357). No allegation in the Complaint
supports the contention that Section 36-1-23.1 unequivocally prohibited her from appointing
Defendant Reeb. And the Tenth Circuit requires the Court to construe prosecutorial authority
broadly. Lerwill, 712 F.2d at 439. Therefore, the Court finds that the “other good cause” language
in Section 36-1-23.1 provided Defendant Carmack-Altwies with at least a colorable statutory basis
for appointing Defendant Reeb. See Lerwill, 712 F.2d at 439 (“Even if a prosecutor may lose his
absolute immunity for prosecutorial acts for which he has no colorable claim of authority, it does
not follow that he does so immediately upon crossing the technical bounds of the power conferred
on him by local law.”).
5 Moreover, the New Mexico Attorney General has previously rejected strictly interpreting Section
36-1-23.1 to only cases where there is a conflict of interest or good cause. See N.M. Att’y Gen.,
No. 08-06 (Nov. 11, 2008).
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 15 of 47

16
Even if the Lerwill test were not appropriate for this issue, the weight of persuasive
authority leads the Court to the same conclusion. The Ninth Circuit is apparently the only circuit
court to have considered whether a prosecutor is entitled to absolute immunity for allegedly
appointing a special prosecutor without authority to do so. In Lacey, a county attorney was sued
for damages under § 1983 for appointing a special prosecutor to prosecute a case against a local
newspaper. 693 F.3d at 928. The Ninth Circuit held that the county attorney was entitled to absolute
prosecutorial immunity, reasoning that appointing a special prosecutor was a “prosecutorial
function,” which “‘necessarily required legal knowledge and the exercise of related discretion.’”
Id. at 931–32 (quoting Van de Kamp, 555 U.S. at 344). The court emphasized that the county
attorney “acted as an advocate for the state by determining who would be its advocate in court,”
id. at 932, distinguishing the appointment from conduct that is not immunized; namely, “hiring
and promoting deputy prosecutors,” id. at 928. The Ninth Circuit established a “broad principle:”
Decisions related to general conditions of employment—including decisions to
hire, promote, transfer, and terminate—and which do not affect the prosecutor’s
role in any particular matter are generally not sufficiently related to the initiation
and conduct of a prosecution in a court of law or their role as an advocate of the
state to qualify for absolute immunity. Decisions related to appointments and
removals in a particular matter will generally fall within the exercise of the judge’s
and prosecutor’s judicial and quasi-judicial roles and are shielded from suit by
absolute immunity.
Id. at 931–32. Pursuant to this broad principle, Defendant Carmack-Altwies is entitled to absolute
prosecutorial immunity for her decision to appoint Defendant Reeb as Special Prosecutor.
Accordingly, whether it relies on Lerwill or Lacey, the Court finds that Defendant
Carmack-Altwies is immune for this prosecutorial act.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 16 of 47

17
B. Defendant Carmack-Altwies is Entitled to Absolute Prosecutorial Immunity
for Co-Prosecuting Plaintiff’s Case with Defendant Reeb After Appointing
Her as Special Prosecutor
Relatedly, the parties dispute whether Defendant Carmack-Altwies retained authority to
prosecute Plaintiff’s criminal case once Defendant Reeb was appointed Special Prosecutor. This
inquiry serves as a gatekeeping function. If Defendant Carmack-Altwies clearly lacked authority
to stay on as a co-prosecutor, then none of her conduct—whether prosecutorial or investigative—
following Reeb’s appointment is immunized. If instead she had authority, then she must still show
that a post-appointment act was prosecutorial in order to be entitled to immunity for it. See supra
Section II.A; see generally Lerwill, 712 F.2d 435.6
Defendant Carmack-Altwies avers that she had an arguable basis of authority since the
appointment of Defendant Reeb “did not displace [her] from her constitutional office of district
attorney.” Doc. 11 at 16. According to Plaintiff, Defendant Carmack-Altwies “lacked
constitutional and statutory authority to charge [Plaintiff] with any offense,” yet she continued to
prosecute Plaintiff in clear absence of jurisdiction, Compl. ¶ 258(d); Doc. 38 at 7–8. He argues
that Section 36-1-23.1, as interpreted by the New Mexico Supreme Court, requires the appointing
district attorney to step aside and transfer “full power and authority” to the Special Prosecutor. Id.
at 6–7 (citing State v. Surratt, 2016-NMSC-004, ¶¶ 29–32, 363 P.3d 1204). Defendant “Carmack-
Altwies lost jurisdiction to prosecute [Plaintiff] the moment she appointed [Defendant] Reeb under
Section 36-1-23.1.” Doc. 38 at 7. Yet she continued to prosecute the case for eight months until a
judge challenged her ability to remain on the case alongside any prosecutor. Compl. ¶ 136; Doc.
6 Although the Tenth Circuit in Lerwill does not explicitly call its test a threshold inquiry, it
logically functions as one. Under Imbler, a prosecutor is immune for her prosecutorial acts.
However, under Lerwill, even acts that are prosecutorial, like filing charges, are not immunized if
the prosecutor engaged in them without any semblance of authority. Therefore, here, the Lerwill
inquiry with respect to Defendant Carmack-Altwies’ post-appointment conduct simply determines
whether any of her conduct, even prosecutorial acts, is entitled to immunity.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 17 of 47

18
38 at 5–6. Plaintiff argues further that even though a different statute, NMSA 1978, Section 36-1-
19(A) (1985), would have permitted Defendant Carmack-Altwies to prosecute the case alongside
Defendant Reeb, it required her to obtain a court order. Doc. 38 at 7. Yet, she failed to do that too.
Compl. ¶ 104. Her failure to either step aside after appointing Defendant Reeb pursuant to Section
36-1-23.1 or obtain a court order pursuant to Section 36-1-19(A) resulted in a clear lack of
jurisdiction. Doc. 38 at 9 (“[H]aving bypassed the exclusively judicial means of validly appointing
co-counsel from outside her own office, [Defendant] Carmack-Altwies has lost whatever claim
she may have had to absolute prosecutorial immunity.”).
Accordingly, the issue is whether Defendant Carmack-Altwies acted in clear absence of
jurisdiction by continuing to prosecute Plaintiff alongside Defendant Reeb after appointing her
Special Prosecutor. Because Defendant Carmack-Altwies had a semblance of authority throughout
the eight months that she prosecuted Plaintiff alongside Defendant Reeb, she is entitled to absolute
immunity for the prosecutorial acts she took as her co-prosecutor.
Under Lerwill, a prosecutor carrying out a prosecutorial function is “deprived of immunity”
when she “has acted in the ‘clear absence of all jurisdiction.’” 712 F.3d at 439 (quoting Stump, 435
at 357). But if she has even a “semblance of authority” for her prosecutorial act, then she is entitled
to absolute prosecutorial immunity. Lerwill, 712 F.3d at 439. To start, unlike in the previous
section, where a specific act (the appointment of Defendant Reeb) was at issue, here, no specific
act is in question. Thus, the only issue is whether Section 36-1-23.1 provides Defendant Carmack-
Altwies with a “colorable basis of authority.” See Lerwill, 712 F.2d at 439. Since it does, she is
entitled to prosecutorial immunity for her post-appointment prosecutorial acts.
The plain language of Section 36-1-23.1 only implies—but does not make explicit—that
the appointing district attorney must step down upon appointing a special prosecutor. See Section
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 18 of 47

19
36-1-23.1. Therefore, the Court does not find that Defendant Carmack-Altwies acted in “clear
absence of jurisdiction” by prosecuting Plaintiff alongside Defendant Reeb. The operative phrase
in Section 36-1-23.1 is “when he cannot prosecute the case.” At most, this phrase only suggests
that a district attorney is prohibited from co-prosecuting a case with a special prosecutor. Absent
an explicit prohibition, the Court will not find that Defendant Carmack-Altwies acted in clear
absence of jurisdiction. Indeed, subjecting prosecutors to liability for arguably exceeding their
power would frustrate Lerwill’s purpose to protect prosecutors for their technical faults. See 712
F.2d at 439.
This conclusion is supported by state statutes and case law delimiting and interpreting the
scope of the district attorney’s power. In New Mexico, “[t]he office of the district attorney is a
constitutional office with duties prescribed and delimited by the Legislature.” Surratt, 2016-
NMSC-004, ¶ 13 (internal citations omitted). The Legislature has determined that each district
attorney is bestowed with the broad power to prosecute “all cases, criminal and civil, in which the
state or any county in his district may be a party or may be interested.” NMSA 1978 Section 36-
1-18(A)(1) (2001) (emphasis added). To be sure, the Legislature has placed several limits on this
otherwise broad power. See e.g., NMSA 1978 Section 36-1-9 (1955) (enumerating grounds for
removal); NMSA 1978 Section 36-1-4 (1975) (prohibiting private practice); NMSA 1978 Section
36-1-2 (1984) (requiring certain procedures to appoint assistant district attorneys). But district
attorneys are elected representatives with discretion to prosecute in the best interest of the people,
so “courts must be wary not to infringe unnecessarily on the broad charging authority of district
attorneys, and we will require clear evidence of an intent by the Legislature to limit prosecutorial
discretion.” State v. Santillanes, 2001-NMSC-018, ¶ 21, 27 P.3d 456. This Court heeds the advice
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 19 of 47

20
of New Mexico’s Highest Court. It refuses to read a clear limitation of prosecutorial power into
Section 36-1-23.1 where the Legislature has not written it.
This is why Plaintiff’s argument that Defendant Carmack-Altwies “bypassed the
exclusively judicial means of validly appointing co-counsel from outside her own office” fails. See
Doc. 38 at 9. Although Plaintiff correctly points out that Section 36-1-19(A) requires a district
attorney to obtain leave of court to appoint “associate counsel,” this requirement does not change
the fact that Section 36-1-23.1 does not clearly prohibit a District Attorney from co-prosecuting a
case with her Special Prosecutor. Plaintiff’s argument assumes that the Legislature meant to
distinguish between “associate counsel” in Section 36-1-19(A) and “special prosecutor” in Section
36-1-23.1. Plaintiff is correct that there is a difference between these roles. See United States v.
Martinez, 518 F.3d 763, 766–67 (10th Cir. 2008) (internal citation omitted) (“[W]hen the
legislature uses certain language in one part of the statute and different language in another, the
court assumes different meanings were intended.”). However, it does not necessarily follow that
one such difference is that the district attorney may only co-prosecute a case with associate
counsel, but not with a special prosecutor. And it is certainly not the case that this difference is so
obvious that Defendant Carmack-Altwies’ acted in clear absence of her jurisdiction when she co-
prosecuted the case.
Finally, the Court does not take lightly the reasoning in Suratt, where the New Mexico
Supreme Court held that a Special Prosecutor, herself appointed by the District Attorney, had the
“sole discretion and authority” to appoint a replacement special prosecutor. 2016-NMSC-004,
¶ 30. In Surratt, the court said that once the District Attorney had disqualified herself, the Special
Prosecutor had “the full duty, authority, and discretion to make decisions concerning [the case],”
and quoted another state court to say that “[t]he appointment of a Special Prosecutor to replace a
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 20 of 47

21
District Attorney in a particular matter terminates the latter’s authority with respect to any further
proceedings in the case . . . .” Id. at ¶ 29 (emphasis added). However, this language arose from a
very different context, where a district attorney recused herself for conflict reasons, abandoning
any claim to jurisdiction for fear that continuing to co-prosecute the case would result in severe
ethical violations. Id. at ¶ 2. By contrast, here, it is a fair inference that Defendant Carmack-Altwies
appointed Defendant Reeb for other good cause. See Compl. ¶¶ 101–04; Doc. 38 at 6 (suggesting
Defendant “merely fear[ed] that she c[ould not] prosecute [the] case by herself.” A few lines from
a very different case do not support a finding that Defendant Carmack-Altwies acted in clear
absence of jurisdiction by co-prosecuting the case with Defendant Reeb.
Accordingly, Defendant Carmack-Altwies is entitled to absolute immunity for her
prosecutorial acts following the appointment of Defendant Reeb.
C. Defendant Carmack Altwies is Entitled to Absolute Prosecutorial Immunity
for Violating the Ex Post Facto Clause by Including a Firearm Enhancement
Charge in the Original Criminal Information
With the threshold inquiry resolved, the Court turns to the parties’ next dispute, whether
Defendant Carmack-Altwies is entitled to absolute prosecutorial immunity for her role in the
State’s inclusion of a firearm enhancement in the original criminal information in violation of the
U.S. Constitution’s Ex Post Facto Clause. Compl. ¶¶ 124, 129–33, 258(c); Doc. 11 at 18–20;
Doc. 38 at 9–11. The Defendant correctly points out that the Complaint “does not specify that
[Defendant] Carmack-Altwies was personally involved in [this] charging decision[].” Doc. 11 at
18–19. Nevertheless, making all reasonable inferences in favor of the Plaintiff, the Court assumes
that she was responsible for this decision while co-prosecuting the case with Defendant Reeb and
imputes Defendant Reeb’s conduct onto her. See Compl. ¶ 132–33 (alleging that both Defendants
Carmack-Altwies and Reeb publicly derided Plaintiff’s Ex Post Facto motion before Defendant
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 21 of 47

22
Reeb emailed Plaintiff “demanding that he withdraw the [motion] and threatened sanctions for its
filing”).
Defendant argues that she is entitled to immunity under Imbler’s broad protection for a
prosecutor’s charging decision—even if she knows her decision is unconstitutional. See Doc. 42
at 7 (quoting Lerwill, 712 F.3d at 438) (“Imbler immunizes a prosecutor for filing charges that are
beyond his authority in that they are unconstitutional. Moreover, since a prosecutor’s immunity is
absolute, it applies no matter how obvious it is to the prosecutor that he is acting unconstitutionally
and thus beyond his authority.”). Meanwhile, Plaintiff argues that Defendant fails the second part
of the Tenth Circuit’s test for whether a prosecutor is entitled to immunity for initiating a
prosecution under the wrong statute:
[A] prosecutor who initiates a prosecution under statutes that he is not authorized
to invoke is immune from a section 1983 suit for damages when two conditions are
satisfied: (1) the prosecutor is arguably empowered to prosecute the alleged conduct
under some statute, and (2) the statute he incorrectly invokes also arguably applies
to the criminal defendant’s alleged conduct.
Lerwill, 712 F.3d at 440.
In other words, the issue raised by briefing is whether the firearm enhancement arguably
applies to Plaintiff’s conduct, even though it violated the Ex Post Facto Clause. The Court is not
convinced that Plaintiff has identified the correct issue. For one, the Tenth Circuit in Lerwill “d[id]
not mean to imply that a prosecutor who files charges under a statute beyond his jurisdiction is not
immune when these conditions are not satisfied.” 712 F.3d at 440 n.6. It “simply h[eld] that he is
immune when they are satisfied.” Id. More importantly, the Lerwill test is not applicable to the
question whether a prosecutor is immune for an unconstitutional charging decision. Lerwill
considered whether a city attorney was immune for initiating a prosecution under state statutes he
was never authorized to invoke; that is, whether he was immune for prosecuting a case without
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 22 of 47

23
jurisdiction. 712 F.3d at 436. Here, there is no question that Defendant Carmack-Altwies had
authority to charge the firearm enhancement. NMSA Section 31-18-16. As a state district attorney,
it was plainly within her jurisdiction to invoke it. Id. Rather, the question is whether Defendant
Carmack-Altwies is entitled to immunity for charging Plaintiff under a statute she had the general
authority to invoke when it was plainly unconstitutional to apply it to Plaintiff’s case. This is not
a question the Lerwill test can answer.
Instead, whether Defendant Carmack-Altwies is entitled to absolute prosecutorial
immunity for her unconstitutional charging decision is answered with a straightforward application
of Imbler and its progeny. Because “prosecutors enjoy absolute civil immunity from damages for
the unconstitutional actions taken in their prosecutorial role,” Defendant Carmack-Altwies is
immune for violating the Ex Post Facto Clause by including the firearm enhancement. Conley v.
United States, 5 F.4th 781, 793 (7th Cir. 2021) (citing Imbler, 424 U.S. at 427).
The Tenth Circuit has repeatedly underscored that prosecutors are entitled to absolute
prosecutorial immunity for the “preparation and initiation of charges.” Mink, 482 F.3d at 1261
(citing Pfieffer, 929 F.2d at 1489–90); Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007) (“A
prosecutor’s charging decisions are absolutely immune from civil suit for monetary damages.”).
This immunity applies even when the charging decision is unconstitutional. See Warnick, 895 F.3d
at 752 (granting absolute immunity to a prosecutor who indicted the plaintiff without probable
cause). Here, Defendant Carmack-Altwies prepared and initiated an unconstitutional firearm
enhancement charge. Just like the prosecutors in Warnick were protected for their unconstitutional
indictment, she is protected for her unconstitutional charging decision. See id.
Accordingly, Defendant Carmack-Altwies is entitled to prosecutorial immunity for
violating the Ex Post Facto Clause by charging the firearm enhancement.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 23 of 47

24
D. Defendant Carmack Altwies is Not Liable for Other Prosecutors’ Failure to
Disclose Exculpatory Evidence; However, She is Not Entitled to Absolute
Prosecutorial Immunity for Her Role in the Investigation and Destruction of
the Gun
Finally, Defendant Carmack-Altwies argues that she is entitled to absolute prosecutorial
immunity for allegedly failing to disclose and make available for Plaintiff’s inspection known
exculpatory evidence. Doc. 11 at 22; see Compl. ¶ 258(h). She argues this conduct is entitled to
immunity under Imbler, which “extends absolute immunity to claims that a prosecutor willfully
suppressed evidence.” Doc. 11 at 22 (citing Imbler, 424 U.S. at 431 n.34). Plaintiff responds by
arguing that this “bland” framing obscures three specific transgressions that are not immunized
absolutely. Doc. 38 at 11. (1) Violating explicit court orders to produce exculpatory evidence; (2)
causing grand jury witnesses to give false and misleading testimony; and (3) failing to stop the
FBI from destroying the gun during its investigation into how it was discharged. Doc. 38 at 12–
14; Compl. ¶¶ 87–91, 166–67, 170, 197–98, 202, 205, 258. With respect to the last issue
specifically, Plaintiff alleges that despite knowing that the “required testing w[ould] alter the
firearm and it w[ould] no longer be in the same physical condition that it was seized in,” Defendant
Carmack-Altwies failed to ask the FBI lab to “document the internal components of the firearm
before performing the destructive testing.” Compl. ¶¶ 90–91.
Accordingly, the issue is whether Defendant Carmack-Altwies is entitled to absolute
prosecutorial immunity for each of these three instances of conduct. The Court finds that she was
not involved in the first two instances of conduct and therefore does not even need to rely on the
protection of prosecutorial immunity. However, to the extent that she played a role in investigating
why the gun discharged and in destroying the gun, the Court finds that she is not entitled to absolute
prosecutorial immunity.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 24 of 47

25
1. The Complaint Fails to Allege that Defendant Carmack-Altwies Violated
the Court Orders and Elicited False Testimony from Grand Jury Witnesses
The Court can dispatch the first two instances of conduct, for the Complaint does not
sufficiently allege that Defendant Carmack-Altwies was still part of the prosecution when the
conduct in question occurred. The Complaint alleges that Defendant Carmack-Altwies withdrew
from the case on March 29, 2023. Compl ¶ 136. Yet the Complaint alleges that the court orders
that individual State Defendants allegedly violated were issued on January 11 and February 26,
2024. Compl. ¶¶ 166, 205. And that the fabrication of evidence before the grand jury occurred in
January 2024. Compl. ¶¶ 166–67, 202. According to the Complaint, Defendant Carmack-Altwies
was no longer part of the case when each of these transgressions occurred. Therefore, Plaintiff
does not sufficiently allege that she is liable for violating court orders to produce exculpatory
evidence, nor for eliciting false testimony from grand jury witnesses. The issue of immunity need
not be reached.
2. To the Extent that Defendant Carmack-Altwies Participated in the
Investigation and Destruction of the Gun, She is Not Entitled to Absolute
Prosecutorial Immunity7
When assessing prosecutorial immunity claims under § 1983, the Tenth Circuit applies a
“continuum based” approach and “look[s] to which role the prosecutor is performing—advocate
or investigator.” Mink, 482 F.3d at 1262. See generally supra Section I. In cases involving pre-
indictment acts by prosecutors, the Tenth Circuit determines whether the prosecutors played the
7 It is unclear whether Defendant Carmack-Altwies even raised this issue. Her Motion disclaims
that she seeks to dismiss Plaintiff’s allegations based on “her alleged involvement with law
enforcement’s investigation of the shooting.” Doc. 11 at 4. However, in her Reply, Defendant
argues that she is entitled to immunity for “the destruction of evidence, to wit: sending the gun for
testing.” Doc. 42 at 11 (internal citations omitted). This suggests that she thinks decisions that led
to the gun’s testing and destruction are not embraced by “law enforcement’s investigation of the
shooting” and that therefore she is entitled to immunity for claims based on those decisions. Out
of precaution, the Court assumes Defendant believes that she is entitled to immunity for her role
in the gun’s testing and destruction and addresses whether she is in this section.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 25 of 47

26
role of advocate or investigator by considering such factors as whether the action (1) “is closely
associated with the judicial process, (2) is a uniquely prosecutorial function, and (3) requires the
exercise of professional judgment.” Mink, 482 F.3d at 1261 (citation modified). If, on balance,
these factors demonstrate that the prosecutor performed a prosecutorial function, then she is
entitled to immunity for her conduct. On the other hand, “when a prosecutor conducts investigative
work normally performed by the police,” absolute prosecutorial immunity does not come to her
rescue. Chilcoat, 41 F.4th at 1209 (citing Buckley, 509 U.S. at 273–74).
The Complaint alleges that Defendant Carmack-Altwies was involved with investigating
and destroying the gun in April 2022. Compl. ¶¶ 87–91. Since she and Defendant Reeb did not
bring charges against Plaintiff until January 2023, Compl. ¶¶ 115–16, the Court applies the Mink
factors for pre-indictment conduct. Taken together, these factors lead the Court to conclude that
Defendant Carmack-Altwies’ involvement was more like investigative work normally performed
by the police than advocacy on behalf of the state.
First, the action is not closely associated with the judicial process. Its purpose was not to
support the initiation of criminal charges, but to “conduct a more thorough investigation,” Buckley,
509 U.S. at 275, and assess the veracity of Plaintiff’s claim “that he did not pull the trigger.”
Compl. ¶ 89. It occurred six months after the initial incident, and nearly nine months before
charges against Plaintiff were filed. Compl. ¶¶ 46, 90, 124. These decisions took place well before
it was clear with what crime Plaintiff would be charged. Although, even at this early stage,
Defendant Carmack-Altwies likely had probable cause to charge Plaintiff with some crime,8 the
kind of charge that she could have brought varied widely depending on whether she believed the
8 As previously mentioned, the Complaint alleges that Plaintiff (1) did not check the gun, (2) held
it in Hutchins’ direction, and (3) cocked it before it discharged. Compl. ¶¶ 50–55. This supports
an inference that prosecutors had probable cause to charge Plaintiff with a crime.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 26 of 47

27
gun discharged on its own. Therefore, it was part of an initial investigation, not the initiation of
criminal charges.
Second, decisions about whether to send the gun to the FBI for testing, what kind of test to
perform, and whether to document the gun’s condition before testing are clearly not uniquely
prosecutorial functions. Indeed, the Complaint alleges that “the SFSO asked the FBI to test the
prop gun.” Compl. ¶ 89. And that the SFSO, not Defendant Carmack-Altwies, was principally
tasked with communicating with the FBI throughout testing. Compl. ¶¶ 89–93. To be sure, the
SFSO’s apparently more extensive involvement may very well be reason to ultimately conclude
that Defendant Carmack-Altwies is not liable for the investigation and destruction of the gun. But
at this stage of litigation, when immunity rather than the merits is at issue, this factor weighs
heavily against Defendant Carmack-Altwies.
Third, failing to ask the FBI to document the internal components of the firearm before
performing potentially destructive testing does not require an advocate’s professional judgment,
but rather the judgment of an investigator. Of course, a prosecutor exercises some professional
judgment anytime she reviews evidence and determines its value to a case. Mink, 482 F.3d at 1262.
But under the Supreme Court’s functional approach, the question is whether a particular evaluation
and decision about what to do with evidence is the kind performed by an advocate or an
investigator. Id. Decisions about how to properly conduct an investigation and how to preserve
evidence fall within an investigator’s purview. Therefore, like the first two, the third factor weighs
against Defendant Carmack-Altwies.
Finally, the Supreme Court’s decision in Buckley lends support to the Court’s decision.
Defendant Carmack-Altwies’ conduct is like that of prosecutors in Buckley, where the Supreme
Court held that they were not entitled to absolute immunity for “their fabrication of false evidence
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 27 of 47

28
during the preliminary investigation of an unsolved crime.” 509 U.S. at 275. In Buckley, the
fabricated evidence was obtained “during the early stages of the investigation, which was being
conducted under the joint supervision and direction of the sheriff and [prosecutors].” Buckley, 509
U.S. at 262. At the time of the misconduct, prosecutors “were endeavoring to determine whether
the bootprint at the scene of the crime had been made by petitioner’s foot.” Id. at 274. The Supreme
Court was especially persuaded by prosecutors’ lack of probable cause, which helped show that
the case was still in the investigative phase. Id. at 274.
Here, the gun was sent to testing only six months after the incident, when Defendant
Carmack-Altwies and her office were still trying to determine whether Plaintiff’s claim that the
gun “just went off” could be true. Compl. ¶¶ 46, 88, 90. As just mentioned, because the Complaint
alleges that Plaintiff was holding the gun as it discharged, its possible Defendant Carmack-Altwies
already had probable cause to believe that Plaintiff had committed some crime when the gun was
sent away for testing. But the existence, or lack thereof, of probable cause is not determinative of
whether a prosecutor is engaging in advocacy or investigation. Warnick, 895 F.3d at 752. What’s
more important is that the purpose of Defendant Carmack-Altwies’ investigation into the gun was
like the Buckley prosecutors’ purpose for investigating the bootprint—to understand, soon after
the incident, what role the suspect played in the incident.
The similarities between the cases do not stop there. The discharge investigation was a joint
effort between the SFSO and Defendant Carmack-Altwies’ office. Although the SFSO spearheaded
communications with the FBI, the Complaint alleges that certain decisions—like the failure to ask
the FBI to document the gun’s components before testing—were made by both offices. Compl.
¶ 91. If anything, the Complaint’s allegations suggest that the police played a bigger role in the
investigation of the gun in Plaintiff’s case than in the fabrication of evidence in Buckley. This
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 28 of 47

29
demonstrates that the alleged conduct here was even more investigative in nature than in Buckley.
Compl. ¶¶ 88–97.
In her Reply, Defendant Carmack-Altwies avers that in the Tenth Circuit a prosecutor is
entitled to absolute prosecutorial immunity for destroying exculpatory evidence. Doc. 42 at 11
(citing Gradle v. Oklahoma, 203 F.App’x 179, 182–83 (10th Cir. 2006)). However, Gradle’s rule
is cabined to when a prosecutor “initiat[es] a prosecution and present[s] the State’s case.” Id.
(quoting Imbler, 424 U.S. at 430). The rule from Gradle, an unpublished opinion, is not triggered
unless it is established that the prosecutor’s conduct was prosecutorial and not investigative or
administrative. Here, where Defendant Carmack-Altwies allegedly “perform[ed] the investigative
functions normally performed by a detective or police officer, it is neither appropriate nor
justifiable that, for the same act, immunity should protect [her] but not the [police].’” Buckley, 509
U.S. at 273 (quoting Hampton, 484 F.2d at 608). On the continuum between advocacy and
investigation, Defendant Carmack-Altwies’ involvement in the alleged investigation and
destruction of the gun was too far removed from the judicial process to entitle her to absolute
prosecutorial immunity.
E. Defendant Carmack-Altwies is Entitled to Absolute Prosecutorial Immunity
for Each of the Undisputed Issues
The Court will briefly address each of the following undisputed arguments in turn. For the
reasons below, the Court dismisses the claims based on the following allegations.
1. Defendant Carmack-Altwies is Immune for Criminally Prosecuting
Plaintiff
A prosecutor enjoys absolute immunity for “the decision to prosecute.” Hartman v. Moore,
547 U.S. 250, 262 (2006) (citing Imbler, 424 U.S. at 431); see also Henriksen v. Bentley, 644 F.2d
852, 855 (10th Cir. 1981) (explaining prosecutors enjoy absolute immunity “from liability for
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 29 of 47

30
decisions to initiate and prosecute cases”). Accordingly, Defendant Carmack-Altwies is entitled to
absolute prosecutorial immunity for her decision to prosecute Plaintiff.
2. Defendant Carmack-Altwies is Immune for Filing the Original and
Amended Criminal Informations
“A prosecutor’s charging decisions are absolutely immune from civil suit for monetary
damages.” Becker, 494 F.3d at 925 (internal citations omitted). Accordingly, and for the same
reasons that Defendant Carmack-Altwies is entitled to immunity for her unconstitutional inclusion
of the firearm enhancement, see supra Section II.C, she is also immune for the rest of her conduct
regarding the filing of the original and amended criminal informations.
3. Defendant Carmack-Altwies is Immune for Withdrawing from Plaintiff’s
Case
A prosecutor is immune for her decision to prosecute a case, Hammond v. Bales, 843 F.2d
1320, 1321 (10th Cir. 1988), to not prosecute, Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir.
1982), and for her “decision whether and when to dismiss charges.” Joseph v. Yocum, 53 Fed.
Appx 1, 2 (10th Cir. 2002) (citing Imbler, 424 U.S. at 430 and Brodnicki v. City of Omaha, 75
F.3d 1261, 1268 (8th Cir. 1996)). It follows therefore that she is also entitled to absolute immunity
for her decision to withdraw or recuse herself from a case. Accordingly, Defendant Carmack-
Altwies is absolutely immune for her decision to do so.
4. Defendant Carmack-Altwies is Immune for Appointing Defendant
Morrissey as Special Prosecutor
The Court incorporates its opinion from Section II.A to find that Defendant Carmack-
Altwies is entitled to absolute immunity for her decision to appoint Defendant Morrissey, just like
she is entitled to immunity for appointing Defendant Reeb as Special Prosecutor.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 30 of 47

31
5. Defendant Carmack-Altwies is Immune for Contributing FJDA Resources
to Assist Defendant Morrissey with Plaintiff’s Prosecution
The immunity afforded a prosecutor for her decision to prosecute a case must necessarily
involve decisions about how many resources and staff to allocate to it. Therefore, Defendant
Carmack-Altwies is entitled to absolute immunity for her continued contribution of FJDA
resources to Defendant Morrissey’s prosecution of Plaintiff.
Accordingly, Defendant Carmack-Altwies is entitled to prosecutorial immunity in part
under § 1983 for the conduct outlined in State Defendants’ Motion to Dismiss IV. Since the parties
agree that the scope of absolute prosecutorial immunity under the NMCRA is identical to the scope
of immunity under § 1983, the Court finds that the FJDA is also entitled to absolute immunity for
this conduct under the NMCRA. State Defendants’ Motion to Dismiss IV is granted in part and
denied in part.
III. Motion to Dismiss V is Granted in Part and Denied in Part. Defendants Reeb and
FJDA are Entitled to Absolute Prosecutorial Immunity Under § 1983 and the
NMCRA Only for Their Prosecutorial Acts Which are Clear from the Face of the
Complaint
In State Defendants’ fifth Motion, Defendants Carmack-Altwies and FJDA argue that
Plaintiff’s § 1983 and NMCRA claims should be dismissed in part because the alleged conduct
falls within their absolute prosecutorial immunity.
This Motion seeks to dismiss Plaintiff’s claims “only to the extent they are based on
[Defendant] Reeb’s actions in her role as an advocate for the State related to the initiation and
pursuit of the criminal charges against [Plaintiff].” Defs.’ Mot. Dism. V, Doc. 12 at 3. Specifically,
Defendant Reeb contends against Plaintiff’s disagreement that she is entitled to absolute
prosecutorial immunity for (1) reviewing SFSO reports, interviewing witnesses, taking proffers
and hiring experts and (2) including the firearm enhancement charge in the original criminal
information in violation of the Ex Post Facto Clause. Doc. 12 at 9, 15; Pl.’s Resp. Mot. Dism. V,
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 31 of 47

32
Doc. 39 at 2 n.1. The parties also dispute whether Defendant Reeb lacked authority to prosecute
for two reasons: (1) her allegedly defective role as Defendant Carmack-Altwies’ co-prosecutor and
(2) her dual roles as Special Prosecutor and State Legislator. Doc. 12 at 6; Doc. 39 at 2 n.1. Just
as the question whether Defendant Carmack-Altwies’ lacked authority to prosecute Plaintiff is a
preliminary inquiry in Motion to Dismiss IV, each of these are preliminary issues that determine
whether Defendant Reeb is even eligible for immunity for reviewing the SFSO reports, etc. and
including the firearm enhancement charge. The Court considers them first.
Unlike in the previous Motions, Plaintiff does not appear to concede to the dismissal of
any allegations that Defendant Reeb seeks to dismiss. Furthermore, Defendant Reeb does not seek
to dismiss Plaintiff’s “claims to the extent they are based on [her] alleged statements to the media
or role in SFSO’s investigation.” Doc. 12 at 3. Accordingly, any claims based on this conduct
proceed to the next stage of litigation.
For the reasons below, the Court finds that Defendant Reeb is entitled to absolute
prosecutorial immunity for most of the conduct she seeks to dismiss.
A. Defendant Reeb Had a Colorable Claim of Authority to Co-Prosecute
Plaintiff’s Case Alongside Defendant Carmack-Altwies
The parties first dispute whether Defendant Reeb ever had authority to co-prosecute
Plaintiff’s case with Defendant Carmack-Altwies following her appointment in August 2022.
Plaintiff argues that Section 36-1-23.1 does not give a special prosecutor the authority to co-
prosecute the case with counsel who appointed her. Compl. ¶ 258(d). Defendant avers that Section
36-1-23.1 gives Defendant Reeb at least a colorable claim of authority to co-prosecute the case.
Doc. 12 at 9 n.3. This dispute plays the same gatekeeping function as the dispute over Defendant
Carmack-Altwies’ authority. See supra Section II.B. If Defendant Reeb clearly lacked authority to
prosecute the case due to Defendant Carmack-Altwies’ continuing to prosecute the case alongside
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 32 of 47

33
her, then she is not entitled to immunity for any of her post-appointment conduct—whether
prosecutorial or investigative. If instead she had at least a semblance of authority, then she must
still show that a post-appointment act was prosecutorial to enjoy immunity for it. See generally
supra Section II.B.
Defendant Reeb’s arguments mirror those made by Defendant Carmack-Altwies and
Plaintiff’s Response explicitly incorporates his Response to Defendant Carmack-Altwies’ Motion.
Compare Doc. 11 at 11–12 with Doc. 12 at 2 n.1. Therefore, the Court finds that, for the same
reasons that Defendant Carmack-Altwies had at least a semblance of authority while co-
prosecuting the case, Defendant Reeb also had at least a semblance of authority. See supra Section
II.B. Section 36-1-23.1 does not explicitly prohibit a special prosecutor from co-prosecuting the
case with another attorney, let alone the attorney who appointed her. And New Mexico’s Supreme
Court has warned courts to “be wary not to infringe unnecessarily on the broad charging authority
of district attorneys,” encouraging them to “require clear evidence of an intent by the Legislature
to limit prosecutorial discretion.” Santillanes, 2001-NMSC-018, ¶ 21. This Court takes this
admonishment seriously and refuses to read a clear limitation of prosecutorial power into Section
36-1-23.1 where the Legislature did not write it.
Accordingly, Defendant Reeb is entitled to her prosecutorial acts following her
appointment.
B. Defendant Reeb Had a Colorable Claim of Authority to Serve as Special
Prosecutor While Also Serving as State Legislator
The Court’s second threshold inquiry arises from the parties’ dispute over whether
Defendant Reeb had the authority to prosecute Plaintiff’s case after she took office as a New
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 33 of 47

34
Mexico State Legislator on January 1, 2023.9 Plaintiff argues that Defendant Reeb’s simultaneous
service in these two roles violated Article III, Section 1 of the New Mexico Constitution, which
provides in pertinent part:
The powers of the government of this state are divided into three distinct
departments, the legislative, executive and judicial, and no person . . . charged with
the exercise of powers properly belonging to one of these departments, shall
exercise any powers properly belonging to either of the others, except as in this
constitution otherwise expressly directed or permitted.
N.M. Const. Art. III, § 1. Plaintiff argues further that this constitutional prohibition on the
simultaneous exercise of legislative and executive powers means that Defendant Reeb lacked
authority to prosecute Plaintiff once she assumed her legislative office. Doc. 39 at 6–9. Defendant
Reeb responds that her simultaneous service as Special Prosecutor and State Legislator comports
with the separation of powers provision, relying heavily on a 2024 opinion from the New Mexico
Attorney General arguing as much. Doc. 12 at 17–29; NMAG Op. No. 2024-04, 2024 WL
2288369. But even if this did technically violate New Mexico’s constitution, she argues, she at
least had a colorable claim of authority to prosecute Plaintiff’s case while serving in the legislator
and therefore is entitled to absolute prosecutorial immunity under Lerwill. Doc. 12 at 21–23.
Accordingly, the Court considers this issue in two steps: (1) whether Defendant Reeb
violated the state constitution’s separation of powers provision; and (2) whether her violation
resulted in the clear absence of authority under Lerwill.
9 The Court takes judicial notice of the date that Defendant Reeb took office. This fact is absent
from the Complaint, which states only that Defendant Reeb “had won her election and had assumed
elected office.” Compl. ¶ 135.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 34 of 47

35
1. Defendant Reeb Violated the New Mexico Constitution’s Separation of
Powers Provision by Simultaneously Serving as Special Prosecutor and
State Legislator
“Article III, Section 1 ensures that ‘one branch of state government’ will not ‘exercise
powers and duties belonging to another.’” State ex rel. Stratton v. Roswell Indep. Sch. Dist., 1991-
NMCA-013, ¶ 30, 806 P.2d 1085 (quoting State ex rel. State Corp. Comm’n v. McCulloch, 1957-
NMSC-096, ¶ 4, 321 P.2d 207). It “applies to public officers, not employees,” simultaneously
serving in two distinct branches of government. Stratton, 1991-NMCA-013, ¶ 35, 111 N.M. 495.
A state legislator is a public officer exercising the sovereign power of the legislative
branch. See State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 21, 961 P.2d 768; NMAG Op. No.
2024-04, 2024 WL 2288369, at *2. A special prosecutor, like the district attorney who appoints
her, occupies a “quasi-judicial” role. State v. Gonzalez, 2005-NMSC-025, ¶ 35, 119 P.3d 151 (“[I]n
New Mexico prosecutors are viewed as quasi-judicial officers.”); State v. Robinson, 2008-NMCA-
036, ¶ 16, 179 P.3d 1254. She also exercises the power to prosecute, traditionally viewed as a core
executive power. See, e.g., Morrison v. Olson, 487 U.S. 654, 685–693 (1988); United States v.
Texas, 599 U.S. 670, 678–79 (2023). Whether a special prosecutor is considered part of the
executive or judicial branch, she is not a member of the legislative branch.
Therefore, the Court’s inquiry boils down to the question whether a special prosecutor in
New Mexico is a public officer. The Court finds that a special prosecutor in New Mexico is
invested with the sovereign power of state government, and so Defendant Reeb simultaneously
held two public offices in distinct branches of government in violation of Article III, Section 1.
Whether a special prosecutor is a public officer depends on whether her office (1) is created
by the state Constitution or through legislative act; (2) is invested with the sovereign power of
government to be exercised for the public’s benefit; (3) has some permanence and continuity, and
is not only temporary or occasional; (4) derives its powers from legislative authority; and (5)
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 35 of 47

36
performs its duties independently and without control of a superior power, unless it be an inferior
or subordinate office, authorized by the legislature and placed under the control of a superior
office. State v. Quinn, 1930-NMSC-065, ¶ 5, 290 P. 786. An officer must also (6) “take and file
an official oath.” State ex rel. Gibson v. Fernandez, 1936-NMSC-027, ¶ 10, 58 P.2d 1197. These
factors need not all be present to conclude that a person is a public officer. Quinn, 1930-NMSC-
065, ¶ 6. Whether her office is “invested with sovereign power” is the most important factor.
Stratton, 1991-NMCA-013, ¶ 30 (citing Fernandez, 1936-NMSC-027, ¶ 10–13); see also NMAG
Op. No. 2024-04, 2024 WL 2288369, at *4–6 (focusing its public officer analysis on the sovereign
power factor).
A special prosecutor’s office satisfies all but one of the factors. It is created through
legislative act and derives its power from legislative authority, Section 36-1-23.1; it is an inferior
office “subject to review and control by the appointing authority, the district attorney,” Hollenbeck,
1991-NMCA, ¶ 14; a special prosecutor takes the same oath as the district attorney, Section 36-1-
23.1; Section 36-1-2; Section 36-1-1; N.M. Const. Art. XX, § 1, who is a public officer, Ward,
1912-NMSC-011 ¶ 22 (“Under our Constitution, the district attorney . . . is a quasi-judicial
officer.”); and although a special prosecutor’s office is temporary, existing only as long as the case
for which it was created, see Section 36-1-23.1, it involves the exercise of the state’s sovereign
power, the most important factor.
Both the Attorney General’s opinion and Defendant Reeb’s Reply rely on the temporary
nature of the role to conclude that a special prosecutor is not a public officer. See NMAG Op. No.
2024-04, 2024 WL 2288369, at *5–6 (arguing that since a special prosecutor’s power is only
temporary or occasional, “a legislator’s appointment to such a role does not unduly encroach upon
or interfere with the authority of the [other] branches”); Pl.’s Reply Mot. Dism. V, Doc. 43 at 8–
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 36 of 47

37
9 n.4 (arguing that because Defendant “Reeb’s role was temporary and remained under the control
of the district attorney,” she “was simply a contractor whose specialized knowledge and services
were employed to help the district attorney carry out her own governmental powers and duties”).
Considering the temporal factor is not wrong. In Fernandez, the New Mexico Supreme Court held
that a “special tax attorney” who was “employed the state tax commission at its option” for the
limited and temporary purpose of “carrying out the powers and duties conferred [on the
commission] in the matter of the collection of delinquent taxes” was not a public officer. 1936-
NMSC-027, ¶ 14. The court relied in part on the fact that “[t]he position itself has no permanency
or continuity, in the sense that the law requires that it be occupied; but its occupancy at all, its
occupant, and his salary . . . depend upon the will of the state tax commission.” Id. at ¶ 15.
However, it is a mistake to emphasize this factor at the risk of reducing the import of sovereign
power. Fernandez’s few lines about temporality are made within a broader discussion about the
special tax attorney’s lack of sovereign power. Fernandez emphasizes that the special tax attorney
“can perform no act in connection with the collection of taxes except by the authority or consent
of the [commission].” Id. at ¶ 14. “He can file no suit, nor can he dismiss one without the consent
or direction . . . of the [commission], which conducts and controls all proceedings in behalf of the
state.” Id. “[H]e has definite duties fixed by law,” which are limited “so that he cannot exercise all
the powers given . . . to attorneys generally.” Id. Ultimately, Fernandez’s conclusion rests almost
entirely on the special tax attorney’s lack of sovereign power.
Meanwhile, a special prosecutor “step[s] into the shoes” of the district attorney and
exercises “the same power and authority” as the district attorney with respect to the case for which
she was appointed. Surratt, 2016-NMSC-004, ¶ 30. She is given all the powers and duties of the
district attorney. Surratt, 2016-NMSC-004, ¶ 26. The special prosecutor may file and dismiss
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 37 of 47

38
charges. She controls key aspects off the prosecution, “including determination about whom and
whether to prosecute.” Surratt, 2016-NMSC-004, ¶ 26. She may delegate duties of the district
attorney’s office to assistant district attorneys acting under her supervision. State v. Cherryhomes,
1996-NMSC-072, ¶ 11, 930 P.2d 1139. She even has the power to appoint a replacement special
prosecutor. Surratt, 2016-NMSC-004, ¶ 30.10
To be sure, a special prosecutor does not displace the district attorney from her
constitutional office, Surratt, 2016-NMSC-004, ¶ 30 (quoting Weems v. Anderson, 516 S.W. 2d
895, 901 (Ark. 1974)). Like a special tax attorney, a special prosecutor serves at the pleasure of
the district attorney who appointed her. And the power of her office is “carefully circumscribed”
to “the case or matter” for which she was appointed. NMAG Op. No. 2024-04, 2024 WL 2288369,
at *5.
But these are limitations on her tenure, not her power. While appointed, a special
prosecutor is trusted with the awesome responsibility of advocating that an individual be deprived
of his liberty. To this end she may employ the full machinery of the state, which includes executing
search warrants, issuing subpoenas, and entering plea bargains. New Mexico has not made these
tools available to her by accident. They are at her disposal so that she may wield the sovereign
power of the State.
The status of a special prosecutor as a public officer in New Mexico corresponds to our
nation’s historical understanding of the term officer, as well as the status of special prosecutors
across other federal and state jurisdictions. Historically, a federal “officer” was understood to have
10 The awesome sovereign power bestowed upon a special prosecutor distinguishes this case not
only from Fernandez, but also from Roswell Independent Schools, where the court held that a
public-school teacher is a public employee rather than a public officer. 1991-NMCA-013, ¶¶ 35.
A schoolteacher simply does not wield the sovereign power of the government like a special
prosecutor.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 38 of 47

39
“ongoing duties,” or a continuous office. Jennifer L. Mascott, Who Are “Officers of the United
States”?, 70 STAN. L. REV. 443, 534 (2018). However, “one did not necessarily need to be
continuously employed . . . to qualify as an officer.” Id. “[S]ome duties involve such a significant
exercise of governmental power that performing them would merit officer status even [if] the
position were not ongoing.” Id. at 535.
Consistent with this tradition, federal courts have held that “a temporary position can be an
office.” United States v. Donziger, 38 F.4th 290, 296 (2nd Cir. 2022); see also Ass’n of Am. R.Rs.
v. U.S. Dep’t of Transp., 821 F.3d 19, 37–38 (holding that an arbitrator appointed only for the
limited purpose of resolving a dispute between Amtrak and the Federal Railway Administration is
an officer). They have also held that special prosecutors are officers. See Donziger, 38 F.4th at 296
(holding that special prosecutors are officers under the Appointments Clause); Morrison, 487 U.S.
at 664, 671 n.12. (determining that an independent counsel is an officer, even though the position
terminates when the counsel has “substantially completed any investigations or prosecutions
undertaken pursuant to the [Ethics in Government] Act”). Several states have held the same under
their respective laws. See Jenkins & Kling, P.C. v. Missouri Ethics Comm’n, 945 S.W.2d 56, 59
(Mo. App. 1997) (“A person who is appointed special prosecutor becomes for that purpose a public
officer.”); Bagnell v. State, 413 N.E. 2d 1072, 1074 (Ind. App. 1980) (explaining that special
prosecutors and judges are “public officials”); Glavino v. People, 224 P. 225, 226 (Colo. 1924)
(taking for granted that special prosecutors are public officers in the process of concluding that an
unconstitutionally appointed special prosecutor was nevertheless an “officer de facto”).11
11 Texas is one state where “special prosecutors” are not public officers. This does not cut against
the Court’s reasoning. The powers of “special prosecutors” in Texas differ significantly from those
of special prosecutors in New Mexico. Unlike in New Mexico, in Texas, special prosecutors do
not take an oath of office, and the appointed district attorney retains full control and authority over
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 39 of 47

40
Considering New Mexico’s constitution, statues, and case law together, within the context
of our nation’s understanding of the role of special prosecutors, this Court finds that Defendant
Reeb violated Article III, Section I when she simultaneously exercised the sovereign power of two
distinct branches of New Mexico state government by holding two public offices.
2. Even Though She Violated the Separation of Powers Provision, Defendant
Reeb had a Colorable Claim of Authority to Serve as Special Prosecutor
While Serving as State Legislator
Having established that Defendant Reeb violated Article III, Section 1, the issue now is
whether she had a colorable claim of authority to prosecute Plaintiff’s case. Lerwill, 712 F.2d at
438–40; see supra Sections II.A, B. Because she had a colorable basis of authority under Section
36-1-23.1, the statute under which she was properly appointed, she is entitled to immunity for the
prosecutorial acts that she took following after assuming legislative office.
“While a prosecutor might lose absolute immunity when [s]he acts with a complete and
clear absence of authority, such a condition does not occur when a prosecutor has an arguable basis
of authority grounded in statute.” Lerwill, 712 F.2d at 440; see also Anilao v. Spota, 27 F.4th 855,
865 (2nd Cir. 2022) (internal citations omitted) (“Prosecutors thus have absolute immunity in a
§ 1983 action even if it turns out that state law did not empower them to bring charges so long as
they have at least a semblance of jurisdiction . . .”). Defendant Reeb was properly appointed under
Section 36-1-23.1, when Defendant Carmack-Altwies brought her onto the case as a “[S]pecial
[P]rosecutor.” Compl. ¶¶ 101, 104, 258(d); see supra Section II.A. She had authority to prosecute
the case before she assumed legislative office, and this authority was grounded in her valid
appointment pursuant to Section 36-1-23.1. Upon assuming office, she did not suddenly lose all
colorable claims under the statute, which by its plain language authorizes “a practicing member of
all prosecutorial decisions. See Hartsfield v. State, 200 S.W. 3d 813, 816–17 (Tx. App. 2006). The
roles are similar in name alone—the Court looks at the function of the office.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 40 of 47

41
the bar to act as special district attorney,” without limitation. See Surratt, 2016-NMSC-004, ¶ 22
(“[Section 36-1-23.1] places no other constraints on a special prosecutor’s authority to act in a
given case provided an appointment is made and an oath taken.”). Although, today, the Court finds
that a special prosecutor in New Mexico is a public officer and that therefore a constitutional
separation of powers violation occurred when Defendant Reeb simultaneously served in two
branches of government, it was not clear at the time that a special prosecutor in New Mexico is a
public officer. Therefore, upon assuming legislative office, Defendant Reeb—whose position as
special prosecutor arguably fell outside the scope of Article III, Section 1’s prohibition—could at
least arguably continue to locate authority to prosecute Plaintiff’s case in Section 36-1-23.1.
Several additional reasons support the finding of a colorable claim of authority. A
declaration that Defendant Reeb acted outside her jurisdiction requires the Court to conclude that
her role as prosecutor was voided when she assumed office in the state legislature. But no New
Mexico state court case nor statute establishes that Defendant Reeb’s election voided her role as
prosecutor. In fact, New Mexico cases dealing with a violation of the separation of powers
provision have remedied such violations with writs of mandamus and civil contempt orders, not
declarations that officers’ acts are void. In State ex rel. Taylor, for example, the New Mexico
Supreme Court considered the appropriate remedy for Governor Gary Johnson’s and the Secretary
of the New Mexico Human Services Department’s violation of the separation of powers provision.
1998-NMSC-015, ¶¶ 1–2. In an earlier case, the court had ruled that the officers violated the
provision by “enacting and implementing certain welfare regulations.” Id. ¶ 2–3. Pursuant to that
holding, it issued a Writ of Mandamus requiring the officers to “desist from the implementation
of their public assistance changes; . . .” Id. ¶ 3. When they failed to do so, the Court determined
that they should be held in “indirect civil contempt.” Id. ¶ 5. At no point did the court so much as
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 41 of 47

42
consider rendering the officers’ acts void. It merely sought to enjoin their conduct and then held
them in contempt for their refusal to desist.
Not only does State ex rel. Taylor suggest that Defendant Reeb’s conduct as prosecutor
was not void—and that, therefore, she had at least a colorable claim of authority—it also suggests
that whatever harm Plaintiff might have suffered from Defendant Reeb’s constitutional violation
was remedied by her withdrawal. Indeed, Defendant Reeb’s withdrawal from the case within nine
weeks of assuming office, Compl. ¶ 136, apparently would have satisfied the court in State ex rel.
Taylor, which was merely attempting to stop the officers from continuing with their conduct.
But even if voiding one of Defendant Reeb’s two offices were the appropriate remedy, it
is not clear why her role as prosecutor should be void, rather than her role as state legislator. It
would be entirely possible that Defendant Reeb’s appointment as special prosecutor—which was
proper and predated her election—would render void her position in the state legislature. With no
authority indicating which of her two roles would be rendered void by the other, the Court will not
arbitrarily determine that Defendant Reeb had no colorable claim to her first office for the sake of
subjecting her to civil damages liability under § 1983.
Indeed, one of the underlying rationales of absolute prosecutorial immunity is that § 1983
civil liability is not the only way to ensure that prosecutorial wrongs are redressed and that
prosecutors are held accountable for their wrongdoing. Imbler, 424 U.S. at 429; Snell, 920 F.3d at
687. The Supreme Court and the Tenth Circuit have long emphasized that claims against
prosecutors often find resolutions through other means, including the criminal process and through
professional discipline. See, e.g., Imbler, 424 U.S. at 429; Snell, 920 F.3d at 687. So, here, where
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 42 of 47

43
Defendant Reeb’s violation of the separation of powers provision was effectively resolved by her
withdrawal, the Court does not believe that civil damages liability is necessary.12
Accordingly, bound by Lerwill and unable to conclude that Section 36-1-23.1 failed to
provide Defendant Reeb with at least a colorable claim of authority to prosecute Plaintiff’s case,
the Court finds that Defendant Reeb is entitled to prosecutorial immunity for her prosecutorial acts
after assuming office.13
C. Assuming that She had a Colorable Claim of Authority to Prosecute Plaintiff’s
Case, Defendant Reeb is Entitled to Absolute Prosecutorial Immunity for
Including the Firearm Enhancement Charge in Violation of the Ex Post Facto
Clause
With preliminary inquiries out of the way, the Court turns to the issue whether Defendant
Reeb is entitled to absolute prosecutorial immunity for including the firearm enhancement charge
in the criminal information and threatening Plaintiff with sanctions after he filed a motion
attempting to dismiss the enhancement.
Earlier, when the Court considered whether Defendant Carmack-Altwies is entitled to
immunity for including the firearm enhancement charge in the first criminal information, the Court
12 That said, the Court is wary that “[a]bsolute immunity is ‘strong medicine’ and government
officials ‘who seek exemption from personal liability have the burden of showing that the
exemption is justified by overriding considerations of public policy.’” Snell, 920 F.3d at 696
(quoting Forrester v. White, 484 U.S. 219, 224, 230 (1988)). The purpose of absolute prosecutorial
immunity is to protect the judicial process, not the prosecutor. Chilcoat, 41 F.4th at 1208. It is
granted “not from a desire to shield abuses of office, but because any lesser degree of immunity
could impair the judicial process itself.” Malley, 475 U.S. at 342. If ever there was conduct that
threatened the judicial process, it would entail another branch of government “treading outside its
constitutional boundary into the [judiciary].” Stratton, 1991-NMCA-013, ¶ 30. Defendant Reeb—
a legislator—crossed her constitutional boundary when she exercised the sovereign power of the
executive branch as a quasi-judicial officer. This undermined the integrity of the judiciary. And it
causes the Court to question whether granting absolute prosecutorial immunity to Defendant Reeb
satisfies the policy goals of absolute prosecutorial immunity.
13 Having resolved the issue under Lerwill, the Court need not consider whether Defendant Reeb
is entitled to absolute prosecutorial immunity under the de facto officer doctrine. See Doc. 12 at
23 n.8; Doc. 39 at 9.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 43 of 47

44
imputed all of Defendant Reeb’s conduct respecting the charge onto Defendant Carmack-Altwies.
See supra Section II.C. For the purposes of this order, the Court assumes the Defendants were
equally responsible for the charge. Accordingly, the Court incorporates its opinion from Defendant
Carmack-Altwies’ Motion and finds that Defendant Reeb is also entitled to absolute prosecutorial
immunity for including a firearm enhancement charge in the original criminal information. See
supra Section II.C.
D. Defendant Reeb is Not Entitled to Absolute Prosecutorial Immunity for
Reviewing the SFSO’s Reports, Interviewing Witnesses, Taking Proffers, and
Engaging Experts Because it is Not Clear from the Face of the Complaint
Whether Immunity Applies to this Conduct
The final issue is whether reviewing reports, interviewing witnesses, taking proffers, and
engaging experts are part of a prosecutor’s role as an advocate for the state. See Imbler, 424 U.S.
at 431; Mink, 482 F.3d at 1261. The Complaint alleges that upon being appointed, “Reeb
immediately became the point of contact for defense counsel and indicated that she was the
primary attorney reviewing the SFSO report and handling the investigation. She interviewed
witnesses, took proffers, engaged experts, and handled other important matters.” Compl. ¶ 105.
Defendant Reeb argues that she is entitled to absolute prosecutorial immunity for these acts under
Imbler and Mink. She contends that “the duties of the prosecutor in [her] role as advocate for the
state involve actions preliminary to the initiation of a prosecution and actions apart from the
courtroom.” Doc. 12 at 10 (citing Imbler, 424 U.S. at 431 n.33). She points out that “absolute
immunity may attach even to . . . administrative or investigative activities when these functions
are necessary so that a prosecutor may fulfill his functions as an officer of the court.” Doc. 12 at
10 (citing Mink, 482 F.3d at 1261 (internal citations omitted)). Plaintiff responds that “there is
nothing inherently prosecutorial about most of these activities[:] . . . police officers[] review reports
and talk to witnesses in the course of conducting investigations . . . [e]xperts are engaged not only
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 44 of 47

45
to testify in court, but also to help investigators understand what happened.” Doc. 39 at 3 (internal
citations omitted). According to Plaintiff, the absence of probable cause during the time these pre-
indictment activities took place, “is at least ‘a good clue [Defendant Reeb] engag[ed] in activity
beyond the scope of advocacy.’” Doc. 39 at 3–4 (citing Warnick, 895 F.3d at 752). The parties
each raise compelling arguments. However, at this stage of litigation, it is not clear on the face of
the Complaint that absolute prosecutorial immunity applies to these vague and undated allegations.
Accordingly, Defendant Reeb is not entitled to immunity for them.
Under Rule 12(b), a defendant may generally raise an affirmative defense in a motion to
dismiss. However, if the applicability of the affirmative defense is not clear from the face of the
Complaint, then the defense must wait until summary judgment. Miller v. Shell Oil Co, 345 F.2d
891 (10th Cir. 1965); 5B Fed. Prac. & Proc. Civ. § 1357 (4th ed.). The same is true for immunities
from suit. 5B Fed. Prac. & Proc. Civ. § 1357 (4th ed.) n. 98 (collecting cases). Accordingly,
whether absolute prosecutorial immunity is viewed as an affirmative defense or as an immunity
from suit,14 its applicability must be clear from the face of the Complaint.
Here, where the allegations Defendant Reeb attempts to dismiss are merely that she
reviewed the SFSO report and “interviewed witnesses, took proffers, engaged experts, and handled
other important matters,” the Complaint does not supply sufficient facts to establish absolute
prosecutorial immunity. Compl. ¶ 105. The Complaint does not indicate when these activities
14 At least one court within the Tenth Circuit has said that absolute prosecutorial immunity is an
affirmative defense. See Schwenke v. Utah, 2017 WL 5179448, at *6 (D. Utah, Oct. 16, 2017)
(unreported). Moreover, the Tenth Circuit has indicated that qualified immunity under § 1983 is
an affirmative defense. See Weigel v. Broad, 544 F.3d 1143, 1151 (10th Cir. 2008) (“Qualified
immunity is an affirmative defense to an excessive force claim.”); but see Nocella v. Gardner,
2021 WL 5565652, at *2 (D. Utah, Nov. 29, 2021) (citing Pearson v. Callahan, 555 U.S. 223, 231
(2009) (“Qualified immunity is an immunity from suit, not an affirmative defense to liability.”). If
§ 1983 qualified immunity is an affirmative defense than absolute prosecutorial likely is too.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 45 of 47

46
occurred, how they fit within the broader prosecution, or what role Defendant Reeb played in them.
See generally Compl. For that matter it provides no concrete facts that make it possible to assess
whether these acts are immunized as necessary “actions preliminary to the initiation of a
prosecution,” Imbler, 424 U.S. at 431 n.33, or whether they are merely part of a “preliminary
investigation,” Buckley, 509 U.S. at 275. Indeed, these allegations are far vaguer than those which
the Court considered under the continuum based approach in Defendant Carmack-Altwies’
Motion. The Complaint’s details about Defendant Carmack-Altwies’ alleged role in investigating
why the gun discharged and in destroying the gun include (1) that the gun’s testing took place in
the initial stages of litigation (this is at minimum a fair inference), (2) when the gun was sent for
testing, (3) that prosecutors and investigators failed to stop the FBI from performing destructive
testing or to notify Plaintiff, and (4) additional details about the correspondence between SFSO
and the FBI. Compl. ¶¶ 88–93. But this sort of specificity is absent from the generalized and
undated allegations that apply to Defendant Reeb.
Accordingly, it is not clear from the face of the Complaint whether absolute prosecutorial
immunity applies to this conduct and the Court finds that Defendant Reeb is not entitled to
immunity at this stage.
For the reasons discussed, Defendant is entitled to prosecutorial immunity in part under
§ 1983 for the conduct outlined in State Defendants’ Motion. Since the parties agree that the scope
of absolute prosecutorial immunity under the NMCRA mirrors the scope of immunity under
§ 1983, the Court finds that Defendant FJDA is also entitled to absolute immunity for this conduct
under the NMCRA. State Defendants’ Motion to Dismiss V is granted in part and denied in part.
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 46 of 47

47
CONCLUSION
IT IS THEREFORE ORDERED that Motion to Dismiss IV is hereby GRANTED in part and
DENIED in part and Motion to Dismiss V is hereby in part and DENIED in part for the reasons
described in this Memorandum Opinion and Order.
• Motion to Dismiss IV: Defendants Carmack-Altwies and FJDA’s Motion to Dismiss
§ 1983 and NMCRA Claims on the Basis of Absolute Prosecutorial Immunity (Doc.
11) is GRANTED in part and DENIED in part.
• Motion to Dismiss V: Defendants Reeb and FJDA’s Motion to Dismiss § 1983 and
NMCRA Claims on the Basis of Absolute Prosecutorial Immunity (Doc. 12) is
GRANTED in part and DENIED in part.
_________/S/_______________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
Case 1:25-cv-01052-KWR-LF Document 57 Filed 10/14/26 Page 47 of 47