the issue and ignores the public policy that underlies the warrant the granting of absolute immunity immunity in the first instance what about the sort of paradigm that the supreme court uses to describe when we apply absolute immunity which is to say it's based on the function not on the person so if we take that seriously isn't the function the same whether it's a witness or defendant who's doing the prosecutor sure i think the prosecutor performed would be the same  case sure i do think that the court does place an emphasis on the functional approach but i think in doing so it also looks to the underlying policy objectives that are advanced by granting absolute immunity so i think that's a witness in the court you know really emphasizes the fact that this is not a traditional case involving a defendant but it's a witness and then they don't just case you've got a prosecutor who's signed i can run the declaration an affidavit things a declaration under penalty of perjury and that's the kind of thing that a nonprofessional could have done right yes in that regard i think there's certainly no arguing that she's acting as a witness as i believe the court as i believe the court emphasizing cle because it seems like what the prosecutor did here and signing that declaration was not necessarily one that was exclusively involved in the prosecutorial function anybody could have cited if if someone else had been in a position to do so six i mean the coroner's office or something does that govern our analysis on whether the prosecutor in so far as signing the declaration is concerned is entitled only to qualified immunity absolutely because i think it relates directly to the function that's being performed by signing the declaration and it's not a prosecutorial function is not in fact even an investigatory function is something i emphasize that anybody could do and i think further suggesting that absolute immunity is not appropriate here is the fact that in this case when you're dealing with a witness they don't have the traditional protections that the supreme court has emphasized to make to make immunity appropriate for example my client was not represented  counsel in connection with this case in fact when she raised the fact that her information was released without without her consent without any objection her son's attorney said why don't represent you and i think that's and i think that follows from plano because in that case if it wasn't again in these cases it's never the sort of them signing of the document improperly that actually causes the injury doesn't that fable to your position though normal part of that function aren't don't you have to split the two if you're going to be successful in finding that this qualified immunity well i don't think so because i think the unlawful conduct is signing the document and then the injury that flows from prosecutorial function isn't at the end of your case if you can't separate the decoration well your honor i think i don't i don't think so because even if i agree with you that you're engaged in a prosecutorial function by acquiring evidence for use a trial if you're acquiring that evidence by unlawfully acting as a witness and signing a document or penalty of perjury i'm having trouble following you on that one because i think that you're you're just you know if they're together prosecution would normally issue a subpoena wouldn't be done by the coroner for example you know you're just toast that's an absolute immunity it's all done we never get to the underlying this signing the affidavit is not absolutely i mean well that that was my point i'm sorry i'm missing what i'm trying to understand is my colleague is ask you whether the one follows the other you said yes which means in my analysis of the affidavit of the facts stated in the affidavit versus the subpoena those three ways it could go either both are absolutely neon because they must go together or both are qualified lead to me and because they must go together or they determine because i do think there are two separate acts but my only point was if you were to take the view that actual actually issuing the subpoena in acquiring the documents were absolutely immune that wouldn't sort of retroactively immunize analysis in other words can we view plain van de camp the issuance of the subpoena as absolutely immune while looking at the declaration as qualified lee immune is that your position truly i do believe they can be separated out is that is that what you want to do do you believe that that's what should be done why do you think the court has to look at the two things separately because if it doesn't for example you're going to b example the statements contained in the affidavit turns this prosecutor's conduct into away from the advocate into the role of the complaining witness but but then that's just step number one right according to your analysis so i'm not clear on what your ultimate answer is once you examine it separately for purposes of trying to apply supreme court precedent is the ultimate answer the same in terms of whether qualified immunity applies so in other we decide that the subpoena is entitle to absolute immunity does that analysis then extend the affidavit and on the second choice is if we decide that the affidavit is entitled to qualified immunity this that then apply to also subpoena i think you can view the two axes separately so i think so if it's separate then what facts alleged in the affidavit makes this the role of a complaining witness versus the role of an advocate the prosecutor trying to uncover impeachment evidence as a prosecutor in order to establish and fulfill the prosecutor's burden of demonstrating the elements of the offense aren't you cutting it to two thousand what i think the facts alleged affidavit are that my client had been murdered by her own son which was just simply not true and that's the life in the affidavit and also in the letter that went along with the subpoena to kaiser and that was obviously there was you knew that was the case to get around absolute immunity is where the action that was taken was one intended to avoid the judicial process and it's not too clear here what exactly happened but i wonder if there was an avoidance of the judicial process here if kaiser what turned the records over to the da directly and opened them up by herself and used in the trial or were they brought into court and unsealed in dramatic fashion by the judge in front of everybody or how did this actually happen if you know i think the evasion of the under the different a different provision that in hipaa they would have had to have either entered into a protective order or inform my client that the documents were going to be released and she would have had the opportunity to a certain objection and to obtain counsel to to to try to protect her private information because they misrepresented the basis for the request usual process was not able to function because my client was not able to sort of the fact that they were sent to the court as opposed to directly to certainly objection because had they requested the documents under the proper section of the regulation my client would have been made aware of it but was this are you in favor of looking at it as absolute immunity because it was part of the and i wonder if that affects the analysis of whether this is absolutely qualified lee i mean i don't think so your honor and in fact i think here have it was involved because they cite hipaa regulation as a basis for being unless the custodian appears personally and they were sent sealed the prosecutor open sick with your client having the right to be present when it's opened is that right no you are my client was not even made aware of the disclosure because she's a third party she was not involved in the case she could have had she been made aware of the subpoena had asserted some kind of objection based on privacy or something else but she was not able to do that because she was never made aware of the request i'd like to hear your views on what the california supreme court would do with the statute with the state court immunities considering cell of and being somewhat at odds with all the subsequent court of appeal cases but i guess i don't  of courts in the circuit that have taken our view that section eight twenty one point six applies only to malicious prosecution claims and that it makes perfect sense when you think about the underlying basis for immunity if you go back to employer the entire basis is we're concerned about people suing prosecutors for malicious prosecution so it makes sense that that would be elevated to the highest level of protection raz other kinds of conduct would be given qualified immunity release for her medical records she was going to be an alibi witness in her son's murder trial that the d a s office was prosecuting she finds a limited release for documents from january two thousand and eight forward were guarding brain surgery they gave the whole granted and in looking at the function performed by the prosecutor it is clear that she was evidence gathering she was getting dressed this information in order to impeach this alibi witness in order to obtain evidence for use in the trial right and actually signing the declaration and stating certain facts such as the fact that the defendant had killed his mother is she not acting as a witness like the prosecutor in kalina was doing and signing a i think you i think their timing of it is crucial i think the timing of the evidence gathering is crucial in this place in this case to look at whether or not she was performing and her role as a prosecutor or not it was after the initiation of the proceedings the trial was coming up but if we could separate this if we can separate the subpoena from the declaration which i don't think it would show you the subpoena but was in signing a declaration that contained a statement of effect was she not acting as a witness i would say no i would say she was still acting as a prosecutor and i will say this because what she was subpoenaing the documents for use in the criminal trial indicated that this person was a witness and th prosecuting the case on behalf of the county of los it seems like a bizarre position the counsel i get the function idea but what you're saying is that a deputy district attorney can say whatever he or she wants to however false however outrageous and getting information and using a subpoena and i possibly be right i am not going to that extreme your honor i think that each case is is is you look at the facts of each case and i would not take it to that extreme level and in this case how how could  possibly intended what she did it was absolutely false she knew it was absolutely false that you know your honor i don't want to speculate you know there's not there's nothing that i've seen in the record that in any in this case can say whatever how are false how are outrageous how are not based on facts and not have it be qualified as opposed to absolute immunity i think that if you look at the facts of this case th timing of it all when it was done it was connected to the judicial phase of the criminal process well connected sure that's right but i give mine to my associate it clearly clearly the subpoena was a normal process  but in this case had there been a death of the son you could have had for example the coroner sign a declaration the sun is that say that was important in this case you tied them together but the reality is it didn't have to be a prosecutor to get the records right could be of somebody else i don't know the other way that it's like in other words i don't know the correction in this case did not have to come from her could it come from somebody else to get not exactly that's what i mean you know that that is probably accurate yes ok what do you think about counsel's proposed distinction between absolute immunity against claims by defendants suing  disgruntled defense and suing their prosecutor versus a different test being applied for witnesses who aren't as likely to be disgruntled suing their prosecutor and that the policy concerns of  party witness in a sense i mean she is upset because this evidence was used to impeach her with her son's alibi witness i think if we look at the reason why we're applying absolute immunity it still applies in this case i mean there is always a concern that they have no other remedy that they are not criminal defendants they can't go to the core and seek a remedy for any improper misconduct but i think in this case it's different because what would the rule o taken in each individual case which is what the courts have done i think that's what the analysis is and the same justifications exist for absolute immunity in this case because we don't want prosecutors worrying about being sued and things of that nature she had  highlight an earlier answer that you gave to one of my colleagues questions because you have indicated that even though the prosecutor issues the subpoena that the application for the issuance of subpoena can actually be  certified to or declare to under penalty of perjury by somebody else i'm not sure what the real answer to that honestly is i mean it is one document the subpoena and the declaration it's my understanding that that is something that the prosecutor normally does i'm not aware of just any other what is the law allow for because because what i think what we're struggling with is whether it's separable right you have a document that's the  that asks for the records and then you have a declaration that's titled application for subpoena that basically the prosecutor has to lay out the good cause or seeking those documents it seems to me one way to look at it is that it's with the analysis of the subpoena versus the application that that the prosecutor is required to set this set out the good cause for it that it has to go together but i thought you were saying in response to judge wilkins weston that affidavit this option could cost could actually be certified by somebody else it's our position that it's all one document so the only time we have seen it is when it's all one document the d a s office subpoenas the document the d a lays out what the foundation is for the request i'm troubled with how you deal with colleen in this case which is was pointed out as a united states supreme court case and in that case where the court did split and said they were qualified not absolute immunity they noted that is the truth or falsity of the factual statements themselves tatts or what they're talking about testifying about facts is the function of a witness not of the lawyer no matter how brief the evidentiary component of an application in this case for an arrest warrant is a distinct and essential predicate for a finding of probable cause even when the person who makes the constitutionally required or through affirmation is a lawyer the only function that she performs in giving sworn testimony is that of a witness now this case is not in a rest warrant but it's a subpoena seeking information what's the difference between what happened here versus what happened in killeen why aren't these two functions separable as my colleague pointed out you have to have an application but in this case the court made it clear the fact that a warrior in this area function signed it does not mean that it's absolutely immune it was in the role of a witness and in this case was the district attorney in this case not a witness not just acting as a prosecutor i have to apologize your honor i'm completely blanking on at this point ok i would just that's the case that you've got to successfully distinguish i know your honor i apologize and other aspects of this even if you're not familiar with collene and or maybe you to separate this going back to what i said earlier you could make the most outrageous false statements and there would be no way to limit it right the less you could separate them and that right i think that that they could raise it i mean she had the opportunity to raise it her her attorney had the opportunity to raise it at the trial and object at that but you're saying it's a waiver issue not what we talking about i don't think she had an attorney she was a witness correct her son had an attorney and he was that i'm not your attorney well they somebody that's what that's what that's what counsel said there's nothing in the record that it struck me that this case is harder than c because when you attest to facts that support probable cause in the issuance of a warrant a witness that's classic witness testimony he punched me in the face or he i saw the drive by shooting and that was the driver so that seems different and the prosecution i think if you examine the claims that come out of this particular lawsuit we would argue that it's still applicable here because all of her claims to stand for the prosecution of the judicial proceeding in this case so that would be delicious prosecution claims but you know i'm i did address these issues in our brief and i wanted to point out a couple of things number one that we're talking about whether or not there was any sort of constitutional injury and or federal injury and starting with that premise there was no hipaa vive there's no private cause of action for violation hip and i just want to point that out that was a point raised our brief a lot of this conversation had to do with whether or not her much of this where there was blown up based upon absolute immunity how can we decide that portion of the case since the other aspect basically rolled over everything if we change if we view this as being split and qualified immunity applied to that to the declaration and we send that back to the court isn't that the time to talk about what you're talking well know there's this concept of harmless error and and you're always route and and as far as the subpoena goes i mean this declaration says i am currently employed by the los angeles district attorney's office assigned a loss to los angeles and the distinctions that the court is pointing to are not a hinge upon whether or not it was the victim to sasha's has whether to law enforcement purpose that's all it says on the not the base of what we're talking about the first place right is whether this is an absolute immunity because it's a law enforcement purpose or someone attachment is in the role of the district attorney says on it in explicit language i am currently employed by the l a district attorney's office this was for the purpose of being a prosecutor to get someone subpoenaed to trial i think we have your point have that i would think you're ok just a couple things there was a reference made to the section one hundred eighty five the civil code that isn't apply in the context of colonel subpoenas it's simply just not relevant here i would also note that this issue of whether my client is officially a legit constitutional injury for nine hundred eighty three purposes was never raised below keyser didn't file a brief below i think that issue should be reserved for the district court given that nobody has raised it to this to this point do you know the answer to the question of whether this application under penalty of perjury could have been executed by somebody else you know i'm not one hundred percent sure about that i'm happy to file any such supplemental papers or supplemental cases on that that would be helpful the court just one of the thing i wanted to emphasize that i think i got lost in the shuffle perhaps appropriately so is that just in the cases i sent a brief regarding when this is the third circuit i think has spoken very clearly on this that the court has to look at the policy objectives advanced by immunity particularly in the context of nine hundred eighty three actions and the again the policy objectives that immunity seeking to advance are simply not advanced by extending immunity in this context i think the court also relied on those similar considerations in the mitchell case and i would also note the second circuit and denying a defendant's claim on immunity grounds noted that the witnesses