No. 96-792
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
LYNNE KALINA, PETITIONER
v.
RODNEY FLETCHER
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
WALTER DELLINGER
Acting Solicitor General
FRANK W. HUNGER
Assistant Attorney General
SETH P. WAXMAN
Deputy Solicitor General
STEPHEN W. PRESTON
Deputy Assistant Attorney General
PATRICIA A. MILLETT
Assistant to the Solicitor General
BARBARA L. HERWIG
PETER R. MAIER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514 - 2217
---------------------------------------- Page Break ----------------------------------------
 QUESTION PRESENTED
    Whether a prosecutor is entitled to absolute immunity from
suit  for  requesting  the  issuance of an arrest warrant in
conjunction with the filing of a criminal information against an
individual.
(I)
---------------------------------------- Page Break ----------------------------------------
   
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
No. 96-792
LYNNE KALINA, PETITIONER
v.
RODNEY FLETCHER
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
    The United States employs approximately 4500 prosecuting
attorneys, who file criminal charges in approximately 38,000 cases
annually.  United States Dep't of Justice, United States Attorneys
Annual Statistical Report:  Fiscal Year 1996 at 1, 70 (Table 3).
The United States thus has a substantial interest in questions of
prosecutorial immunity.  Although federal officers are not subject
to suit under 42 U.S.C. 1983, they may be sued on an implied right
of action for violations of constitutional rights.  Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).  The immunity granted to federal officers in Bivens actions
generally parallels the immunity that state officers enjoy in suits
under 42 U.S.C. 1983.  See, e.g., Harlow v. Fitzgerald, 457 U.S.
800, 818 n.30 (1982); Butz v. Economou, 438 U.S. 478, 504 (1978).
  
---------------------------------------- Page Break ----------------------------------------
                 2
Thus , the disposition of the immunity issue in this case could
significantly affect federal prosecutors sued for damages as a
result of actions taken in the performance of their official
duties.
               STATEMENT
    1.  In Washington, criminal prosecutions are initiated either
by grand jury indictment or the filing of an information.  Wash.
Rev. Code 10.37.010 (1996); Wash. Crim. R. 2.l (a) (1994).  The
majority of felony cases are commenced through the filing of an
information.  Pet. 4.
    To initiate criminal charges by information, the prosecutor
typically files a set of three documents with the court.  The first
document is  the information,  which is a  "plain,  concise and
definite written statement of the essential facts constituting the
offense charged," and is signed by the prosecutor.  Wash. Crim. R.
2.1 (a)(l).  The second filing is a Certification for Determination
of Probable Cause.  That statement sets forth the facts supporting
a determination that there is probable cause to charge and arrest
an individual for the crime alleged in the information.  It
apparently is common practice for the certification to be signed,
under oath, by the prosecutor.  See Pet. 4; Br. in Opp. 12 n.6.
The third document submitted to the court is a motion requesting
that the court (i) find probable cause, (ii) issue an arrest
warrant, and (iii) fix bail or release the individual on personal
recognizance.  J.A. 12.
---------------------------------------- Page Break ----------------------------------------
                       
                 3
    2.  Petitioner Lynne Kalina is a deputy prosecutor for the
King County Prosecuting Attorney in the State of Washington.  1.  In
December 1992, petitioner filed a criminal information in King
County Superior Court charging respondent Rodney Fletcher with
second-degree burglary, based on an alleged theft of computer
equipment from Our Lady of Guadalupe School.  Along with the
information, petitioner filed a certification for determination of
probable cause, the police department's suspect information report,
and a motion for a determination of probable cause, issuance of an
arrest warrant, and the establishment of bail.  Pet. App. 2a; J.A.
13-20; see also J.A. 11-12 (affidavit of petitioner describing
preparation of documents).  The certification for determination of
probable cause recited that petitioner was familiar with the police
report  and  investigation  conducted by  the Seattle  Police
Department, and it set forth facts, apparently based on the police
report and investigation, on which the motion for determination of
probable cause was based.  J.A. 19-20.
    The Superior Court granted the motion and issued an arrest
warrant for respondent.  Respondent was arrested and detained on
September 24, 1993.  Subsequently, on October 26, 1993, the charges
were dismissed an motion of the prosecuting attorney, apparently
when she discovered that some of the information on which the
charges were based was erroneous.  Pet. App. 2a; J.A. 6.
___________________(footnotes)
    1  We accept as true, for present purposes, the relevant
factual allegations contained in respondent's complaint.
---------------------------------------- Page Break ----------------------------------------
4
    3.  Following  dismissal of  the  charges  against  him,
respondent filed suit under 42 U.S.C.  1983 alleging that the
probable cause certification contained information that petitioner
knew or should have known was false.  J.A. 5.  The complaint sought
damages for the erroneous arrest.  J.A. 6. 
    Petitioner moved for summary judgment on the ground of
absolute prosecutorial immunity.  The district court rejected the
motion in a minute order.  Pet. App. 8a.  The court of appeals
affirmed, holding that petitioner's actions in procuring the arrest
warrant were protected only by qualified immunity.  Id. at 5a-7a.
The court relied on this Court's decision in Malley v. Briggs, 475
U.S.  335 (1986), which held that police officers do not enjoy
absolute immunity when they apply to a court for an arrest warrant.
Pet. App. 5a-7a.
            SUMMARY OF ARGUMENT
    Absolute immunity should attach when a prosecutor seeks an
arrest warrant in conjunction with the filing of criminal charges
against an individual.  This Court has applied a functional
approach to immunity questions, which focuses on the nature of the
function performed by an official and its relationship to the
judicial or other governmental processes.  Prosecutorial activities
that are advocatory, closely related to the judicial process, and
preliminary to  the  initiation of  a prosecution,  such as
participation in a probable-cause hearing,  have been held to
warrant absolute immunity.
---------------------------------------- Page Break ----------------------------------------
                 5
    When seeking an arrest warrant predicated on the filing of
charges against an individual, a prosecutor is acting in her role
as an advocate for the government before a neutral decisionmaker.
Her appearance reflects a considered legal judgment on the part of
the government that an individual should be charged with a crime
and brought before a court, and that terms should be set to ensure
his presence pending adjudication of the criminal matter.  The
prosecutor's role in filing such papers with the court is neither
administrative nor investigative.  The filing of charges and a
request for an arrest warrant marks the onset of a judicial
process, as evidenced by the triggering of speedy trial provisions
and the establishment of the terms of bail.  Indeed, the request
for an arrest warrant in these circumstances is the functional
equivalent of a prosecutor's participation in a probable-cause
hearing, which this Court has held warrants absolute immunity.
    A grant of absolute immunity to a prosecutor's request for an
arrest warrant in conjunction with the filing of criminal charges
would be consistent with common law history, which generally
immunized such conduct from suit.  A denial of immunity, moreover,
would permit plaintiffs to circumvent the prosecutor's immunity
from malicious prosecution suits by challenging the arrest that
ushered in the prosecution.  Because the criminal process provides
ample alternative checks on prosecutorial error, absolute immunity
is appropriate.
    Finally, petitioner's signing of the certification in support
of probable  cause does not strip her of absolute immunity.
---------------------------------------- Page Break ----------------------------------------
                 6
Petitioner did not purport to attest to facts as a percipient
witness.  Her certification was functionally comparable to a
proffer of evidence, relaying what the police investigators would,
if called as witnesses,  state in court.  Petitioner filed the
certification, moreover, as part of a package of documents that
formally initiated the prosecution against respondent.  Plaintiffs  
should not be able to circumvent the absolute immunity attaching to
that conduct by dissecting the process paper by paper.
               ARGUMENT
    
    PROSECUTORS ARE ABSOLUTELY IMMUNE FROM SUIT FOR DAMAGES
    FOR SEEKING AN ARREST WARRANT IN CONJUNCTION WITH THE
    FILING OF CRIMINAL CHARGES AGAINST AN INDIVIDUAL
  
    A.  Introduction
  
    In determining whether a prosecutor is entitled to absolute
immunity from suit under 42 U.S.C. 1983 when engaging in particular
conduct, the assessment of the function of that conduct in the
criminal process presents a question of federal law.  Imbler v.
Pachtman,  424 U.S.  409,  417-418 (1976)  (inquiry focuses on
congressional intent); Hampton v. City of Chicago, 484 F.2d 602,
608 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974).  Thus,
while  criminal procedures and practices vary somewhat from
jurisdiction to jurisdiction, the ultimate question in each case
must be whether the defendant was functioning in a capacity for
which absolute immunity is appropriate under this Court's decisions
and the common law traditions and policies on which prosecutorial
immunity is based.
---------------------------------------- Page Break ----------------------------------------
7
    1.  To place our submission in context, we note at the outset
that federal practice departs from the Washington practice at issue
in this case in two respects.
    First, under Washington law, a felony prosecution may be
instituted by the filing of an information.  Wash. Crim. R. 2.1;
Wash. Rev. Code 10.37.010 (1996); see also Beck v. Washington, 
369 U.S. 541, 545 (1962) ("Ever since Hurtado v. California, 110
U.S. 516 (1884), this Court has consistently held that there is no
federal constitutional impediment to dispensing entirely with the
grand jury in state prosecutions.").  By contrast, unless waived by
the defendant, the United States can initiate a felony prosecution
only by indictment.  U.S. Const. Amend. V; Fed. R. Crim. P. 7(a).  2
An indictment,  "fair upon its face" and returned by a "properly
constituted grand jury, " conclusively determines the existence of
probable cause and, in the federal sphere, requires issuance of an
arrest warrant without further inquiry.  Gerstein v. Pugh, 420 U.S.
___________________(footnotes)
    2  An arrest warrant may be issued on the basis of a
complaint.  See Fed. R. Crim. P. 4(a).  Such an arrest, like any
warrantless arrest that is permitted by the Fourth Amendment, see
United States v. Watson, 423 U.S. 411 (1976) , triggers statutory
time limits for the defendant's indictment or the filing of an
information.  See 18 U.S.C. 3161(b).  Until the individual is
charged by  indictment or  information,  however, no  federal
prosecution  has  commenced in  the  constitutional  sense.
Accordingly, in federal prosecutions, no Sixth Amendment right to
counsel attaches until the individual is charged by indictment or
information, even if he previously has been named in a complaint.
See, e.g, United States v. Langley, 848 F.2d 152, 153 (11th Cir.),
cert. denied, 488 U.S. 897 (1988); cf. United States v. Gouveia,
467 U.S. 180, 187-189 (1984); Gerstein v. Pugh, 420 U.S. 103, 122
(1975).  In light of the requirements of the Fifth Amendment's
Grand Jury Clause,  it is not until the federal government has
obtained an indictment (or its waiver) that the government may be
said to have "committed itself to prosecution."  Gouveia, 467 U.S.
at 189.
---------------------------------------- Page Break ----------------------------------------
8
103, 117 n.19 (1975) (quoting Ex parte United States, 287 U.S. 241,
250 (1932)).  Where a prosecution -- federal or state -- is
initiated by information,  however,  an independent showing and
determination of probable cause is necessary for the issuance of an
arrest warrant or for the continued detention of an individual
arrested without a warrant.  U.S. Const. Amend. IV; Gerstein, 420
U.S. at 116 n.18, 120-122; see also Fed. R. Crim. P. 5.1 (a) - (b).
    Second, federal prosecutors typically do not personally attest
to the facts set forth in a complaint filed under Fed. R. Crim. P.
3 or in an affidavit filed in support of an application for an
arrest warrant under Fed. R. Crim. P. 4 (a).  3.  Instead, a law
enforcement agent ordinarily attests to those facts.  Where an
attorney for the government is involved, the attorney may sign or
approve  the  complaint,  which  would  reflect  the  attorney's
conclusion that the facts, as recited by the law enforcement agent,
give rise to probable cause to believe that the person named
committed the offense and that the complaint should be filed and an
arrest warrant issued.  In doing so, however, the attorney for the
government acts in her role as a legal representative of the United
States and an officer of the court, just as when the attorney signs
an indictment or information.  Of course, the attorney for the
government might draft the complaint or affidavit to be signed by
the law enforcement agent in support of an arrest warrant, just as
attorneys in other contexts assist in drafting affidavits based on
___________________(footnotes)
    3  The complaint "is a written statement of the essential
facts constituting the offense charged."  Fed. R. Crim. P. 3.
---------------------------------------- Page Break ----------------------------------------
                 9
information furnished by and within the knowledge of the affiant.
But in performing that function,  too ,  the attorney  for the
government acts in her capacity as a lawyer, not a witness.  4
    2.  Respondent's complaint (J.A. 4-7) and brief in opposition
filed in this Court (at 7-28) focus on the narrow question of
whether a prosecutor enjoys absolute immunity when she acts as a
complaining witness.  The question presented in the certiorari     
petition, however, is more broadly cast in terms of whether
absolute immunity attaches when a prosecutor causes an arrest
warrant to issue in conjunction with the filing of criminal charges
against an individual.  Pet. i.  That formulation can be understood
to include actions by a prosecutor in filing a motion for an arrest
warrant based on the affidavit or certification of a police
officer, rather than of the prosecutor herself.
    The scope of the court of appeals' decision is unclear in the
same respect.  The court's opinion initially states the issue
broadly.  See Pet. App. 3a ("Whether a state prosecutor is entitled
to absolute or qualified immunity for her actions in procuring an
arrest warrant is an issue of first impression in this circuit.").
Its rejection of the Sixth Circuit's decision in Joseph v.
Patterson, 795 F.2d 549, 555 (1986), cert. denied, 481 U.S. 1023
(1987), likewise focuses on the seemingly broader issue of "whether
___________________(footnotes)
    4  Similarly, in other contexts (such as bail hearings),
federal prosecutors make proffers of evidence, including the facts
to which witnesses, if called, would testify.  See, e.g., United 
States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996).  Such
proffers, however, are representations by counsel, not statements
by witnesses.
---------------------------------------- Page Break ----------------------------------------
                     10
seeking an arrest warrant merits absolute immunity."  Pet. App.
7a.  5.  The court's actual holding or "[c]onclusion," however, is
ambiguous:  it states that petitioner is not entitled to immunity
"for her actions in filing a declaration for an arrest warrant. "
Ibid.  The wording of the opinion also raises concerns about
whether absolute immunity would be denied to a prosecutor in
connection with her preparation or drafting of an affidavit for
signature by a law enforcement officer.  Id. at 5a ("we hold that
a Prosecutor is not absolutely immune when preparing a declaration
in support of an arrest warrant") (emphasis added); id. at 6a
("Kalina's actions in writing, signing and filing the declaration
for an arrest warrant" do not enjoy immunity) (emphases added) .
    Because of the nature of federal practice and the wording of
the opinion below, this brief first addresses whether absolute
immunity attaches to a prosecutor's action generally in seeking an
arrest warrant in conjunction with the filing of criminal charges.
We also address the court of appeals' suggestion that absolute
immunity does not include a lawyer's drafting and preparation of
documents to be filed in court.  Finally, we address respondent's
narrower point that absolute immunity should be denied for the
prosecutor's execution of the certification on the theory that she
acted as a complaining witness.
___________________(footnotes)
    5  In a similar vein, the court below relied for its holding
on a statement by the Eighth Circuit, in Kohl v. Casson, 5 F.3d
1141, 1146 (1993), that "the function of seeking an arrest warrant
is subject only to qualified immunity."  Pet. App. 5a-6a.
---------------------------------------- Page Break ----------------------------------------
11
    B.  Prosecutors Enjoy Absolute Immunity Both For
         The  Initiation  Of A Prosecution And For
         Advocator Acts That Are Preparatory To The
         Initiation Of A Prosecution
    Section 1983 creates a private cause of action against
"[every person" who, under color of state law, deprives another
"of  any  rights,  privileges, or  immunities  secured by the
Constitution and laws" of the United States.  42 U.S.C. 1983.
Although Section 1983's language is sweeping and does not expressly
provide for immunities from suit, this Court has held that the
statute "is to be read in harmony with general principles of tort
immunities and defenses rather than in derogation of them."
Imbler, 424 U.S. at 418; see also Briscoe v. LaHue, 460 U.S. 325,
330-331 (1983).  Immunities "well grounded in history and reason"
thus will shield or limit the liability of Section 1983 defendants.
Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting Tenney v.
Brandhove,  341 Us.  367,  376 (1951)).  Whether a government
official  enjoys  absolute or qualified immunity turns upon a
functional analysis, which generally focuses on the "nature of the
function performed, not the identity of the actor who performed
it."  Buckley, 509 U.S. at 269; see also Cleavinger v. Saxner, 474
U.S. 193, 201 (1985).
    1.  Applying the functional approach, this Court held in
Imbler that prosecutors enjoy absolute immunity in "initiating a
prosecution and in presenting the State's case."  424 U.S. at 431.
The common law had long immunized such conduct from tort suits,
because "[t]he public trust of the prosecutor's office would suffer
if he were constrained in making every decision by the consequences
--------------------------------------- Page Break ----------------------------------------
12
in terms of his own potential liability in a suit for damages."
Id. at 424-425; see also id. at 427- 428 (the threat of liability
"would prevent the vigorous and fearless performance of the
prosecutor's duty that is essential to the proper functioning of
the criminal justice system").
    Furthermore, a prosecutor must "inevitably make [ ] many
decisions that could engender colorable claims of constitutional
deprivation" and must do so "under serious constraints of time and
even information."  Imbler, 424 U.S. at 425.  Consequently,
prosecutors "would face greater difficulty in meeting the standards
of qualified immunity than other executive or administrative
officials."  Ibid.  At the same time, the Court recognized that
absolute immunity would not leave prosecutorial abuses unchecked.
"[A] prosecutor stands perhaps unique, among officials whose acts
could deprive persons of constitutional rights, in his amenability
to professional discipline by an association of his peers."  Id. at
429; see also ibid.  (noting that prosecutors are also subject to
criminal prosecution, under 18 U.S.C. 242, for the intentional
deprivation of constitutional rights).  6
    2.  In Burns v. Reed, 500 U.S. 478 (1991), the Court
recognized that a prosecutor's duties "as advocate for the State"
are not limited to the initiation and prosecution of a criminal
___________________(footnotes)
    6  The availability of internal disciplinary measures
against a prosecutor also serves to deter and punish violations of
constitutional rights.  In the Department of Justice, for example,
the Office of Professional Responsibility is charged with
investigating allegations of professional misconduct by Department
attorneys and recommending appropriate sanctions if violations are
found.  See 28 C.F.R. 0.39.
    
---------------------------------------- Page Break ----------------------------------------
13
case, but also include "actions preliminary to the initiation of a
prosecution and actions apart from the courtroom."  Id. at 486
(quoting Imbler, 424 U.S. at 431 & n.33).  The Court held that a
prosecutor's participation in a probable-cause hearing and request
for a search warrant during that hearing enjoyed absolute immunity.
Burns, 500 U.S. at 487.  The actions of appearing before a judge
and presenting evidence in support of the motion for a search
warrant "clearly involve[d] the prosecutor's `role as advocate for
the State,' rather than his role as `administrator or investigative
officer.'"  Id. at 491 (quoting Imbler, 424 U.S. at 430-431 &
n.33).  Further, because the issuance of a search warrant "is
unquestionably a  judicial  act,"   Burns  reasoned  that  the
prosecutor's  "appear[ance] at a  probable-cause  hearing is
`intimately associated with the judicial phase of the criminal
process,'" and thus absolute immunity is necessary to protect the
integrity of the judicial process.  Burns  500 U.S. at 492 (quoting
Imbler,  424 U.S. at 430); see also 500 U.S. at 494 ("Absolute
immunity is  designed to free the judicial process  from the
harassment and intimidation associated with litigation.") (emphasis
omitted).  The recognition of absolute immunity also was consistent
with common law precedent, which immunized prosecutors from suit
for statements made in  "any hearing before a tribunal which
perform[ed] a judicial function."  Burns, 500 U.S. at 490 (quoting
W. Prosser, Law of Torts  94, at 826-827 (1941)).
    At the same time, Burns declined to extend absolute immunity
to a prosecutor's rendering of legal advice to police in connection
---------------------------------------- Page Break ----------------------------------------
                 14
with their investigation.  The Court held that such conduct was too
far removed from the  judicial process  to merit  heightened
protection.  Burns, 500 U.S. at 494-496.  The opinion also relied
upon the absence of a common law predicate for that claim of
absolute immunity.  Burns, 500 U.S. at 492-493.
    3.  Finally, in Buckle v. Fitzsimmons, 509 U.S. 259 (1993),
the Court reaffirmed that prosecutors are among those officials who
perform " 'special functions' which, because of their similarity to
functions that would have been immune when Congress enacted  1983,
deserve absolute protection from damages liability."  Id. at 268-
269 (quoting Butz v. Economou, 438 U.S. 478, 508 (l978)).  The
Court also reiterated that absolute prosecutorial immunity is not
confined to the initiation and prosecution of a criminal case.  "We
have not retreated * * * from the principle that acts undertaken by
a prosecutor in preparing  for  the  initiation of  judicial
proceedings or for trial, and which occur in the course of his role
as an advocate for the State, are entitled to the protections of
absolute immunity."  Buckley, 509 U.S. at 273; see also id. at 280
(Scalia, J., concurring).  The types of such actions that occur
before the institution of a criminal' prosecution and trial include
the prosecutor's "professional evaluation of the evidence assembled
by the police and appropriate preparation for its presentation" to
a decision-making tribunal.  Id.  at 273;  see also id.  at 284
(Scalia, J., concurring).
    At the same time, Buckley held that a prosecutor is not
protected by absolute immunity when he undertakes administrative or
---------------------------------------- Page Break ----------------------------------------
15
investigative actions, such as searching for expert corroboration 
of evidence and making statements to the media.  509 U.S. at 274-
278.  A prosecutor's role as advocate for the State, Buckley
explained, generally does not attach "before he has probable cause
to have anyone arrested."  Id. at 274.  7
    C.  A Prosecutor's Obtaining Of An Arrest Warrant
         In Conjunction With The Filing Of Criminal
         Charges Is Conduct Undertaken In The Role Of
         An Advocate For The Government
     Whether characterized as the formal institution of a criminal
prosecution or as  advocator  conduct  preparatory to  that
initiation,  a prosecutor's decision to file criminal charges
against an individual and to seek an arrest warrant in conjunction
with the filing of charges should be accorded absolute immunity.
Burns, 500 U.S. at 486, 491 (absolute immunity embraces "action[ ]
preliminary to the initiation of a prosecution" when undertaken by
prosecutor "as advocate for the State"); Imbler, 424 U.S. at 431
(prosecutor is absolutely immune from civil liability "in
initiating a prosecution").  In, both instances, the prosecutor
___________________(footnotes)
    7  Once accorded absolute immunity, an official retains that
immunity regardless of the motives animating her action.  Bradley
v. Fisher, 80 U.S., (13 Wall.) 335, 354 (1871); see also Cleavinger,
474 U.S. at 199-200; Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir.
1987).  Nor does the allegation of error or impropriety in the
execution of the function dissipate the protection -- otherwise it
would be no immunity at all.  See Buckley, 509 U.S. at 271
(immunity analysis "focuses on the conduct for which immunity is
claimed, not on the harm that the conduct may have caused or the
question whether it was lawful"); Mireles v. Waco, 502 U.S. 9, 12-
13 (1991).  When the conduct is so improper as to exceed any
plausible jurisdiction of the official, absolute immunity may not
apply.  See Stump v. Sparkman, 435 U.S. 349, 356-357 (1978).  The
court of appeals neither found nor suggested that petitioner
exceeded  the  scope of  her  jurisdiction in  executing  the
certification.                                 
---------------------------------------- Page Break ----------------------------------------
16
appears before a court as an advocate for the government, and her
conduct is intimately related to the criminal judicial process.  8
    1.  A prosecutor's conduct in obtaining an arrest warrant in
conjunction with the filing of criminal charges is functionally
indistinguishable from a prosecutor's participation in a probable-
cause hearing,  which Burns held to be protected by absolute
immunity.  500 U.S. at 487.  In both instances, the prosecutor
offers a court evidence documenting the government's legal position
that probable cause exists and seeks a judicial determination of
probable cause and a warrant predicated on that finding.  In
particular,  the filing of a motion for issuance of an arrest
warrant represents the prosecutor's "professional evaluation of the
evidence assembled by the police and appropriate preparation for
its presentation" to the court.  Buckley, 509 U.S. at 273.
    The prosecutor's formal appearance before the court, through
the filing of papers and presentation of evidence,  cannot be
___________________(footnotes)
    8  With the exception of the court below, the courts of
appeals generally have accorded absolute immunity to a prosecutor's
request for an arrest warrant in conjunction with the filing of
criminal charges.  See Roberts v. Kling, 104 F.3d 316, 320 (10th
Cir. 1997) (absolute immunity granted) ; Pena v. Mattox, 84 F.3d
894, 896 (7th Cir. 1996) (same); Barr v. Abrams, 810 F.2d 358, 361-
362 (2d Cir. 1987) (same); Joseph v. Patterson, 795 F.2d 549, 555-
556 (6th Cir. 1986) (same), cert. denied, 481 U.S. 1023 (1987); cf.
Schrob v. Catterson, 948 F.2d 1402, 1416 (3d Cir. 1991) (seeking
seizure warrant in conjunction with filing of in rem complaint
protected by absolute immunity) ; Ehrlich v. Giuliani, 910 F.2d
1220, 1223-1224 (4th Cir. 1990) (seeking order freezing assets in
conjunction with indictment accorded absolute immunity).  In Kohl
v. Casson, 5 F.3d 1141 (1993), the Eighth Circuit held that "a
prosecutor is absolutely immune for appearing before a judicial
officer to present evidence in support of an application for an
arrest  warrant," but  enjoys  only  qualified  immunity  for
participating in the preparation of an affidavit in support of the
warrant.  Id. at 1146-1147.
---------------------------------------- Page Break ----------------------------------------
            17
labeled administrative or investigative, and the court of appeals
made no effort to do so.  The prosecutor speaks as a legal
representative of the State and conveys the government's official
position that "[it] has probable cause to have [some]one arrested."
Buckley, 509 U.S. at 274.  Burns held that the functionally
identical conduct "clearly involve[d] the prosecutor's `role as
advocate for the State,' rather than [her] role as `administrator
or investigative officer.'"  500 U.S. at 491 (quoting Imbler, 424
U.S. at 430-431 & n.33).  There is no basis in law or logic for
according a  prosecutor absolute immunity for presenting the
evidence necessary to establish probable cause the day after an
arrest, but not for making the same showing to the same court for
the same purpose an hour before an arrest.  See Buckley, 509 U.S.
at 274 & n.5 (prosecutor's belief that probable cause exists weighs
in favor of absolute immunity); Roberts v. Kling, 104 F.3d 316, 319
(l0th Cir. 1997)  ("Because defendant's actions  [of filing a
complaint and seeking an arrest warrant] followed a probable cause
determination, they are more closely associated with the judicial
process and the prosecutorial function of an advocate for the
state.").  9
___________________(footnotes)
    9  The fact that this case involves an arrest warrant,
rather than a search warrant (as in Burns) makes absolute immunity
even more appropriate here.  A search warrant necessarily contains
an investigatory component, because its purpose is to facilitate
the obtaining of evidence.  An arrest warrant, by contrast, is more
closely tied to the initiation of the actual criminal judicial
process, because it provides a means for bringing the individual
before the court, and execution of the warrant triggers judicially
enforceable protections for the individual.  See Burns, 500 U.S. at
505-506 (Scalia, J., concurring)  (noting that application for
search warrant is  further removed from judicial process than
---------------------------------------- Page Break ----------------------------------------
18
    2.  The prosecutor's submission of a complaint and request
for an arrest warrant to a court,  like her participation in a
probable-cause hearing, "is  `intimately  associated  with  the
judicial phase of the criminal process,'" Burns, 500 U.S. at 492
(quoting Imbler, 424 U.S. at 430) , and thus absolute immunity is
needed to protect the integrity of the judicial process.  The
issuance of an arrest warrant based on a judicial finding of
probable cause, like the issuance of the search warrant in Burns
"is unquestionably a judicial act."  Burns  500 U.S. at 492; see
also Forrester v. White, 484 U.S. 219, 227 (1988) ("[T]he informal
and ex parte nature of a proceeding has not been thought to imply
that an act otherwise within a judge's lawful jurisdiction was
deprived of its judicial character.") .
    Even where a prosecutor's filing of a complaint and related
papers is not part of the formal institution of a prosecution
(e.g., because no indictment has yet been returned or information
filed), that action nevertheless commences a judicial proceeding to
restrain the liberty of an individual pending the institution of
formal criminal proceedings.  The action is thus, at a minimum,
closely interwoven with and predicative to the initiation of a
prosecution.  See Buckle y, 509 U.S. at 272; Marx v. Gumbinner, 855
F.2d 783, 790 (11th Cir. 1988) ("The initial determination of
whether such probable cause exists is a part of the larger process
of determining whether to initiate a prosecution.").
___________________(footnotes)
request for arrest warrant) .
---------------------------------------- Page Break ----------------------------------------
           19
    The prosecutor's filing, moreover, sets in motion the criminal
judicial process.  The arrest warrant, when executed, brings the
subject before  the court and subjects him to its  immediate
authority, without which "the initiation of a prosecution would be
futile."  Lerwill v. Joslin, 712 F.2d 435, 438 (l0th Cir. 1983);
see also Ehrlich v. Giuliani, 910 F.2d 1220, 1223 (4th Cir. 1990)
("One of the most important duties of a prosecutor pursuing a
criminal proceeding is to ensure that defendants * * * are present
at trial.").  10
    While Burns involved a prosecutor's personal appearance to
present argument and evidence to a court, absolute immunity applies
with equal force to written evidentiary submissions and arguments.
Like statements in the courtroom and the eliciting of testimony, a
lawyer's written briefs and pleadings have historically been
accorded absolute immunity.  See Imbler, 424 U.S. at 426 n.23; see
also Butz  438 U.S. at 516 n.40.  Given the substantial volume of
judicial business that is transacted through written submissions by
attorneys, it would make little sense to have immunity turn upon
the form in which -- rather than the function for which -- a
prosecutor submits arguments and evidence to a court.  Butz, 438
U.S. at 516 n.40.
    3.  Finally,  absolute  immunity  must  extend to the
prosecutor's preparation and drafting of documents filed in court.
In Buckley, this Court held that absolute immunity includes the
___________________(footnotes)
    10  The  arrest  also  triggers  statutory  speedy  trial
protections.  See State v. Greenwood, 845 P.2d 971 (Wash. 1993) ;
see also 18 U.S.C. 3161(b).
---------------------------------------- Page Break ----------------------------------------
 20
prosecutor's "preparation" of "evidence assembled by the police" to
present to a court.  509 U.S. at 273; see also Pena v. Mattox, 84
F.3d 894,  896 (7th Cir. 1996)  (absolute immunity includes
prosecutor's drafting of complaint).  In preparing and drafting
pleadings and their supporting documentation, the prosecutor is
acting in an advocatory role.  In preparing an affidavit, for
example, a Prosecutor is not acting as an advisor to the police:
she is framing and controlling the presentation of evidentiary
material to the court,  just as she will select and plan the
introduction of evidence throughout a criminal trial.  To deny
absolute immunity because of a prosecutor's involvement in the
preparation of documents filed in court would allow a pleading
device to circumvent absolute immunity.  Plaintiffs would simply
attack the preparation, rather than the submission to a court, of
a complaint and request for arrest warrant.
    D.  Absolute  Immunity  For  Such  Conduct Is
          Supported By Common Law Practice
    While not  necessarily dispositive,  common law practice
provides useful guidance in discerning what immunities should be
recognized under 42 U.S.C. 1983.  See, e.g, Imbler 424 U.S. at
417-418; cf. Anderson v. Creighton, 483 U.S. 635, 644-645 (1987).
The precedent on the question presented in this case is not
voluminous, in large part because the role of the public prosecutor
has evolved substantially in the last century.  See Burns, 500 U.S.
at 499 (Scalia, J., concurring).  Nevertheless, the existing case 
law supports according a prosecutor absolute immunity for obtaining
an arrest warrant from a court, especially in conjunction with the
---------------------------------------- Page Break ----------------------------------------
21
filing of criminal charges.  See Reilly v. United States Fidelity
& Guaranty Co., 15 F.2d 314, 317 (9th Cir. 1926) (suit against
district attorney for having plaintiff arrested without probable
cause dismissed on grounds of absolute immunity); Anderson v.
Manley, 43 P.2d 39, 40 (Wash. 1935) (prosecutor enjoys absolute
immunity for criminal complaint issued on basis of false search
warrant); Kittler v. Kelsch, 216 N.W. 898, 899-905 (N.D. 1927)
(prosecutor enjoys absolute immunity from claim for false arrest
based on filing of complaint that led to arrest warrant) (cited in
Imbler, 424 U.S. at 422 n.19); cf. Watts v. Gerking, 228 P. 135,
138 (Or. 1924) (prosecutor enjoys absolute immunity from suit
alleging malicious filing of complaint and procurement of search
warrant) (cited in Imbler, 424 U.S. at 422 n.19); but see Leong Yau
v. Carden, 23 Haw. 362, 364 (1916) (prosecutor denied absolute
immunity for making false representations that resulted in issuance
of arrest warrant) (cited but not followed in Imbler, 424 U.S. at
422 n.19).
    Relatedly,  a Prosecutor's presentation of allegedly false
evidence to a grand jury, which resulted in indictment and arrest,
was accorded absolute immunity from suit in Yaselli v. Goff, 12
F.2d 396, 406 (2d Cir. 1926), aff'd mem., 275 U.S. 503 (1927).  Cf.
Griffith v. Slinkard, 44 N.E. 1001, 1002 (Ind. 1896) (prosecutor
enjoys absolute immunity for adding plaintiff's name to indictment,
---------------------------------------- Page Break ----------------------------------------
22
which led to plaintiff's arrest) (cited in Imbler, 424 U.S. at
421).  11
    Other cases described those same prosecutorial functions as
"quasi-judicial" actions, which is a category of conduct to which
the common law accorded absolute immunity.  See Smith v. Parman,
165 P. 663, 663 (Kan. 1917) ("[T]he important matter of determining
what  prosecutions  shall be  instituted is  committed in a
considerable degree to his sound judgment, and in the exercise of
that function he acts at least in a quasi judicial capacity"; "We
think the reason for granting immunity to judges and grand jurors
applies with practically equal force to a public prosecutor in his
relations to actions to punish infractions of the law.") (cited in
Imbler, 424 U.S. at 422 n.19).  12.  Indeed, in Imbler, this Court
___________________(footnotes)
    11  On the other hand, when a prosecutor instigated an arrest
extra-judicially, common law courts were less willing to grant
absolute immunity.  See, e.g., Schneider v. Shepherd, 158 N.W. 182,
184 (Mich. 1916).  In addition, private attorneys who procured
arrest warrants were also denied immunity.  See, e.g., Teal v.
Fissel, 28 F. 351, 352 (E.D. Pa. 1886) (noting difference between
public prosecutors and private attorneys); Peck v. Chouteau, 91 Mo.
138,  150 (1886); Fischer v. Langbein, 103 N.Y. 84, 89 (1886);
Burnap v. Marsh, 13 Ill. 535, 538 (1852).
    12  See also Pearson v. Reed, 44 P.2d 592, 596-597 (Cal. ct.
App. 1935) ("A prosecutor is called upon to determine, upon
evidence submitted to him, whether a criminal offense has been
committed by the person accused -- exactly the same question that
is presented to a court or jury upon trial.") (cited in Imbler, 424
U.S. at 424); M.L. Newell,  A Treatise on  the Law of False
Imprisonment and the Abuse of Legal Process  68, at 166 (1892)
("when the law, in words or by implication, commits to any officer
the duty of looking into facts and acting upon them, not in a way
which it specifically directs, but after a direction in its nature
judicial, the function is termed quasi-judicial"; a quasi-judicial
officer "cannot be called upon to respond in damages for the honest
exercise of his judgment within his jurisdiction, however erroneous
or misguided that judgment may be") .
---------------------------------------- Page Break ----------------------------------------
23
noted that  "[c]ourts  that have extended the same  [absolute]
immunity to the prosecutor have sometimes remarked on the fact that
all three officials -- judge, grand juror, and prosecutor -- 
exercise a  discretionary judgment on the basis of evidence
presented to them."  424 U.S. at 423 n.20.  The prosecutorial
judgment to file a complaint and seek an arrest warrant on the
basis of the investigative record compiled by the police is just
that -- a discretionary judgment on the basis of evidence presented
to the prosecutor.
    Finally, the common law granted absolute immunity (at least
from defamation suits) to an attorney's filing of pleadings and
advocator documents with a court.  See Buckley, 509 U.S. at 270;
Imbler, 424 U.S. at 426 n.23; Hoar v. Wood 44 Mass. 193, 197-198
(1841) ("[I]t is, on the whole, for the public interest, and best
calculated to subserve the purposes of justice, to allow counsel
full freedom of speech, in conducting the causes and advocating and
sustaining the rights, of their constituents; and this freedom of
discussion ought not to be impaired by numerous  and refined
distinctions."); see also 1 T. Cooley, Law of Torts  153 (4th ed,
1932); 1 F. Harper & F. James, The Law of Torts  5.22 (1956).
This "traditional defamation immunity is sufficient to provide a
historical basis for absolute  1983 immunity."  Burns, 500 U.S. at
501 (Scalia, J., concurring).
    E.  The Policies  Underlying Absolute  Immunity
          Support Its Application To Such Conduct
    Recognition of absolute immunity for a prosecutor's request
for an arrest warrant, when sought in conjunction with the filing
---------------------------------------- Page Break ----------------------------------------
               24
of criminal charges, is necessary to protect the proper functioning
of the criminal justice system.  Like the determination to pursue
a prosecution, a prosecutor's decision to file criminal charges and
to bring the individual before the court by means of an arrest
warrant is, by its nature, a highly discretionary judgment, often
made under serious constraints of time, information, and concerns
about public safety.  See Imbler, 424 U.S. at 425.  Those judgments
may be difficult to defend and document years later when
scrutinized through the 20/20 hindsight of a civil damages trial.
Id. at 425-426 ("Defending these decisions, often years after they
were made,  could impose unique and intolerable burdens upon a
prosecutor responsible annually for hundreds of indictments and
trials.") .
    Prosecutors, moreover,  serve a unique function within the
adversarial judicial system:
    The prosecuting attorney is a very responsible
    officer,  selected by the people, and vested
    with personal discretion intrusted to him as a
    minister of justice, and not as a mere legal
    attorney.  * * * He is  expected  to be
    impartial in abstaining from prosecuting as
    well as in prosecuting, and to guard the real
    interests of public justice in favor of all
    concerned.
Engle v. Chipman, 16 N.W. 886, 887 (Mich. 1883); see also Berger v.
United States, 295 U.S. 78, 88 (1935) (United States Attorney is a
"servant of the law, the twofold aim of which is that guilt shall
not escape or innocence suffer").  A prosecutor cannot properly
fulfill those duties if the risk of personal damages liability
weighs  in the balance with every filing of a complaint or
---------------------------------------- Page Break ----------------------------------------
                25
information and motion for issuance of an arrest warrant.  Imbler,
424 U.S. at 424-425.
    In Imbler, this Court recognized the importance of insulating
from suit a prosecutor's decision to go forward with a prosecution.
424 U.S. at 424-429.  It is equally important that a prosecutor's
decision to withdraw charges after an arrest, and thereby to
protect those subsequently deemed innocent, be accorded protection
from civil liability.  See Appeal of Nicely, 18 A. 737, 738 (Pa.
1889) ("[I]t is as much the duty of the district attorney to see
that no innocent man suffers as it is to see that no guilty man
escapes."); see also United States v. Lovasco, 431 U.S. 783, 794-
795 & n.15 (1977).  Withholding absolute immunity from the decision
to charge and arrest, however, would leave a decision to withdraw
prosecution vulnerable, and would allow plaintiffs to challenge a
decision to prosecute simply by restyling their complaints as
attacks on the initial decision to file a complaint and seek an
arrest warrant.  See Buckley 509 U.S. at 283  (Kennedy, J.,
concurring in part and dissenting in part)  ("Were preparatory
actions unprotected by absolute immunity,  a criminal defendant
turned civil plaintiff could simply reframe a claim to attack the
preparation instead of the absolutely immune actions themselves.") .
Because "pretrial court appearances by the prosecutor" -- whether
in person or through the filing of pleadings -- "in support of
taking criminal action against a suspect present a substantial
likelihood of vexatious litigation that might have an untoward
---------------------------------------- Page Break ----------------------------------------
                26
effect on the independence of the prosecutor,"  absolute immunity is
warranted.  Burns  500 U.S. at 492.
    Absolute  immunity does  not  leave  arrested  individuals
unprotected.  The arrest triggers judicial procedures that protect
against abuse, including "one of the most important checks, the
judicial process" itself.  Burns, 500 U.S. at 496.  In the federal
context,  the Speedy Trial Act requires that an indictment or
information be filed within 30 days of an arrest on a complaint.
18 U.S.C. 3161(b); see also Fed. R. Crim. P. 5(c) (right to a
preliminary hearing within a specified time period when arrested on
a complaint); State v. Greenwood, 845 P.2d 971 (Wash. 1993).  In
addition, the complaint and other documents filed with the court in
this case were each signed by the prosecutor (J.A. 13-20), making
her subject  to the court's inherent power to punish false
representations by members of the bar.  See Chambers v. NASCO,
Inc., 501 U.S. 32, 43-46 (1991).  The certification in support of 
the arrest warrant was filed under oath, making the prosecutor
subject to perjury charges for intentionally false statements.
Wash. Rev. Code  9A.72.020, 9A.72.030 (1996).  Prosecutors who
intentionally violate an individual's constitutional rights are
subject to prosecution under 18 U.S.C. 242; cf. United States v.
Lanier, 117 S. Ct. 1219 (1997).  Finally, as this Court recognized
in Imbler, prosecutors face unparalleled scrutiny and review by
their professional peers.  424 U.S. at 429.  Accordingly, the
imposition of personal damages liability is not the sole means
available for ensuring that prosecutors act within constitutional
---------------------------------------- Page Break ----------------------------------------
27
limits when filing or approving complaints and motions for the
issuance of arrest warrants.  See Imbler, 424 U.S. at 429.
    F.  Affording Absolute Immunity In This Case Would
         Be Consistent With Malley v. Briggs
    1.  Affording absolute immunity to prosecutors for procuring
arrest warrants in conjunction with the filing of criminal charges
is consistent with this Court's decision in Malley v. Briggs, 475
U.S. 335 (1986).  Malley held that police officers do not enjoy
absolute immunity when they request an arrest warrant from a court.
The court below concluded that it would be inequitable to afford
prosecutors absolute immunity for "the same task."  Pet. App. 6a.
That  conclusion,  however,  misunderstands how the functional
analysis underlying immunity doctrine operates.
    Functional analysis does not stop with a description of the
conduct at issue.  If it did, the questioning of crime witnesses
would always enjoy only qualified immunity, regardless of whether
the questioning was done by a police officer investigating a crime,
a prosecutor preparing for trial, or a judge in court.  Cf.
Buckley, 509 U.S. at 273 (absolute immunity protects prosecutor's
preparation for the presentation of evidence at trial); Pierson v.
Ray, 386 U.S. 547, 554 -555 (1967) (absolute immunity for judges for
acts  committed  within  their  jurisdiction).  Likewise,  the
prosecutor's application for a search warrant in Burns would have
been denied absolute immunity, because the same conduct performed
by a police officer warrants only qualified immunity.  Compare
Burns, 500 U.S. at 491, with Burns, 500 U.S. at 505 n.2 (Scalia,
J., concurring), and Malley, 475 U.S. at 340-345.  The court of
---------------------------------------- Page Break ----------------------------------------
28
appeals' observation that both prosecutors and police officers may
request arrest warrants thus should not have terminated the
absolute immunity inquiry.  See Roberts, 104 F.3d at 321 ("[T]he
acts themselves are not the focus of the functional approach * * *
[i]nstead we examine the function a defendant's acts serve."); see
also Buckley, 509 U.S. at 289 (Kennedy, J., concurring in part and
dissenting in part) ("Two actors can take part in similar conduct
and similar inquiries while doing so for different reasons and to
advance different functions. ") .
    The function of an official's conduct must be assessed in
light of its purpose and role within the overall context of the
criminal process.  While the official's title is not dispositive,
Buckley, 509 U.S. at 269, the court of appeals erred in concluding
that an actor's  professional  responsibilities  are  altogether
irrelevant.  The role of a governmental actor is relevant to
assessing the purpose and context of the challenged conduct.
Indeed, immunity doctrine evolved from an acknowledgment that "some
officials perform `special functions,' " id. at 268, and so the
immunity inquiry begins by "examin[ing] the nature of the functions
with which a particular official or class of officials has been
lawfully entrusted."  Forrester, 484 U.S. at 224; cf. Wyatt v.
Cole  504 U.S. 158, 163-169 (1992) (private defendants generally
enjoy no immunity from suit).  For that reason, Malley expressly
warned  against  incautious  comparisons of  the  activities of
prosecutors and police officers.  475 U.S. at 342-343; Ehrlich, 910
F.2d at 1224.
---------------------------------------- Page Break ----------------------------------------
                 29
    A prosecutor's request for an arrest warrant in conjunction
with the filing of criminal charges performs a function that is
separate and distinct from the police officer's request in Malley.
The former, unlike the latter, reflects the official legal judgment
of the attorney for the government that an individual is to be
charged with a crime,  and it is closely intertwined with or
preparatory to the formal initiation of a prosecution.  In this
case, for example, the prosecutor filed a motion for issuance of an
arrest warrant along with her filing of the information, which
under Washington law represents the actual initiation of a criminal
prosecution.  Initiating a prosecution is a function confined to
prosecutors; a police officer's application for an arrest warrant
could not  accomplish that function without  the prosecutor's
concurrence that a prosecution would serve the public interest.
Cf.  Lovasco, 431 U.S. at 794.  Nor does a police officer, in
seeking an arrest warrant, purport to speak as an advocate or as an
officer of the court.  The police officer's procurement of an
arrest warrant therefore is "further removed from the judicial
phase of criminal proceedings" than the prosecutors.  Malley, 475
U.S. at 342.
    Furthermore, although there is a common law predicate for
according a prosecutor absolute immunity for procuring arrest
warrants, see pages 20-23, supra, no such tradition existed for
police officers.  Malley, 475 U.S. at 342; Butz  438 U.S. at 496
---------------------------------------- Page Break ----------------------------------------
                30
("[T]he common law has never granted police officers an absolute
and unqualified immunity.")  (quoting Pierson, 386 U.S. at 555).  13
    2.  Respondent contends  (Br.  in Opp.  7-28)  that Malley
controls because petitioner acted, not as a prosecutor, but as a
complaining witness when she signed the certification for the
determination of probable cause.  Malley denied the police officer
absolute immunity in part because "complaining witnesses were not
absolutely immune at common law."  475 U.S. at 340.  For two
reasons, however, this case does not appear to present the question
whether absolute immunity would attach if a prosecutor acted solely
as a complaining witness.
    First, petitioner did not purport to offer firsthand knowledge
of the facts contained in the certification.  She informed the
court at the opening of her certification that the recitation of
facts was based on her "familiar[ity] with the police report and
investigation."  J.A. 19; cf.  Malley,  475 U.S.  at 337-338.
Petitioner, in other words, did not present herself as a percipient
___________________(footnotes)
                           
    13  In addition, as the Court noted in Malley, 475 U.S. at
343 n.5:
    The  organized  bar's  development   and
    enforcement  of professional  standards for
    prosecutors  also  lessen the  danger  that
    absolute immunity will become a shield for
    prosecutorial misconduct.  As we observed in
    Imbler,  "a prosecutor stands perhaps unique,
    among  officials  whose  acts  could deprive
    persons of  constitutional  rights,  in his
    amenability to professional discipline by an
    association of his peers."  424 U.S., at 429
    (footnote omitted).  The  absence of a
    comparably  well-developed  and  pervasive
    mechanism for controlling police misconduct
    weighs against allowing absolute immunity for
    the officer.
---------------------------------------- Page Break ----------------------------------------
                31
witness with firsthand knowledge of the underlying facts or in the
traditional role of a complaining witness.  14.  Rather,  in this
setting, the certification appears most analogous to an attorney's
proffer of evidence to a court of the facts developed by the police
in their investigation, combined with the legal judgment that the
proffered (certified)  evidence demonstrated probable cause to
charge and arrest respondent for purposes of bringing him under the
control of the court and initiating a prosecution.  See Gerstein,
420 U.S. at 120 (probable cause may be shown through informal modes
of proof); see also Wash. Crim. R. 2.2 (court does not require that
complaining witnesses personally appear in support of warrant
application, although court may call them or others if it chooses).
Had petitioner made such a proffer when acting as attorney for the
government in a probable-cause or bail hearing, she no doubt would
have enjoyed absolute immunity for her statements.  See Burns, 500
U.S. at 487-491; see also note 4, supra.  Neither this Court's
precedents nor the nature of functional analysis justifies granting
absolute immunity to a prosecutor's oral statements to a court,
while denying such protection simply because the identical material
was conveyed to the same court for the same purpose in a written
certification under oath.
    Second, the documents filed by petitioner were presented as a
package to the court as a formal means of instituting the actual
___________________(footnotes)
    14  Her position is thus different from that of a police
officer serving as a complaining witness based on his personal
involvement in or responsibility for the investigation that led to
the charges.  Petitioner did not profess to speak as an
investigator or person otherwise involved in the investigation.
---------------------------------------- Page Break ----------------------------------------
32
criminal prosecution of respondent.  Because that function as a
whole should be accorded absolute immunity, the process should not
be dissected paper by paper with immunity granted or denied based
on the content of individual documents.  Cf. Schrob v. Catterson,
948 F.2d 1402, 1416 (3d Cir. 1991) (in forfeiture cases, " the
seizure warrant is an integral part of the forfeiture complaint and
the decisions to file the complaint and seek the warrant should be
considered as one" for purposes of absolute immunity) .
CONCLUSION
    The judgment of the court of appeals should be reversed.
    Respectfully submitted.
WALTER DELLINGER
Acting Solicitor General
FRANK W. HUNGER
Assistant Attorney General
SETH P. WAXMAN
Deputy Solicitor General
STEPHEN W. PRESTON
Deputy Assistant Attorney General
PATRICIA A. MILLETT
Assistant to the Solicitor General
BARBARA L. HERWIG
PETER R. MAIER
Attorneys
APRIL 1997