FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID GENZLER, 

Plaintiff-Appellee,

v.

PETER J. LONGANBACH,

Defendant-Appellant, No. 02-56572

and D.C. No. 

JEFFREY O’BRIEN; COUNTY OF SAN CV-01-01462-JNK

DIEGO, a governmental entity; SAN

DIEGO COUNTY DISTRICT

ATTORNEY’S OFFICE; GREGORY

THOMPSON; JAMES PIPPEN; PAUL

PFINGST,

Defendants. 

DAVID GENZLER, 

Plaintiff-Appellee,

No. 02-56573

v.

D.C. No. PETER J. LONGANBACH; COUNTY OF CV-01-01462-JNK SAN DIEGO, a governmental entity;

SAN DIEGO COUNTY DISTRICT ORDER

ATTORNEY’S OFFICE,  WITHDRAWING

Defendants, OPINION AND

DENYING and PETITION FOR

JEFFREY O’BRIEN; GREGORY REHEARING AND

THOMPSON; JAMES PIPPEN; PAUL OPINION

PFINGST,

Defendants-Appellants. 

6463
Appeal from the United States District Court

for the for the Southern District of California

Judith N. Keep, District Judge, Presiding

Argued and Submitted

December 2, 2003—Pasadena, California

Filed June 7, 2005

Before: Harry Pregerson, Robert E. Cowen,* and

William A. Fletcher, Circuit Judges.

Opinion by Judge W. Fletcher

*The Honorable Robert E. Cowen, Senior United States Circuit Judge

for the Third Circuit, sitting by designation. 

6464 GENZLER v. LONGANBACH
COUNSEL

Robert L. Young, Edward Patrick Swan, Jr., Luce, Forward,

Hamilton and Scripps, San Diego, California, Jeffrey G. CarGENZLER v. LONGANBACH 6467
ver, San Diego, California, Morris G. Hill, Office of the

County Counsel, San Diego, California, for the appellants. 

Patrick L. Hosey, Hosey & Bahrambeygui, San Diego, California, for the appellee.

ORDER

The opinion filed on September 27, 2004, and published at

Genzler v. Longanbach, 384 F.3d 1092 (9th Cir. Sep 27,

2004), is withdrawn and replaced by the attached opinion. 

With the filing of this new opinion, the panel has voted

unanimously to deny the petitions for rehearing. Judges Pregerson and Fletcher have voted to deny the petitions for

rehearing en banc, and Judge Cowen so recommends. 

The full court has been advised of the petitions for rehearing en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35. 

The petitions for rehearing and the petitions for rehearing

en banc, filed by Appellants Longanbach and O’Brien, are

DENIED.

OPINION

W. FLETCHER, Circuit Judge: 

Plaintiff David Genzler seeks damages under 42 U.S.C.

§ 1983 for violations of his constitutional rights during the

investigation and prosecution of his state criminal homicide

trial. Defendants San Diego County Deputy District Attorney

Peter Longanbach and Investigator Jeffrey O’Brien appeal

from the partial denial of their motions for summary judgment

6468 GENZLER v. LONGANBACH
based on absolute official immunity. Defendant supervisors in

the San Diego County District Attorney’s Office — District

Attorney Paul Pfingst, Assistant District Attorney Gregory

Thompson, and Deputy District Attorney James Pippen —

appeal the district court’s complete denial of their motion for

summary judgment based on absolute and qualified immunity.

We affirm the district court’s partial denial of Longanbach’s and O’Brien’s motions. Evaluating the timing and

nature of their conduct, we conclude that there is a genuine

issue of material fact about whether they were engaged in

advocacy intimately associated with the judicial process when

they interviewed a key witness, Sky Blue Flanders. However,

we reverse the district court’s denial of the supervisors’

motion for summary judgment because we conclude that there

is no genuine dispute that their involvement in prosecutorial

decisions was advocacy intimately associated with the judicial

process. 

I. Factual Background

The underlying homicide giving rise to this § 1983 suit

occurred on April 18, 1996, when David Genzler stabbed

Dustin Harless during a fight. On April 19, Genzler learned

from a television news report that Harless had died from the

stabbing. Genzler turned himself into the police and was

arrested that day. After the arrest, Deputy District Attorney

Longanbach and Investigator O’Brien were assigned to the

case. 

A criminal complaint was filed in Municipal Court on April

23, 1996, and Genzler’s bail hearing was held on April 29. On

May 23, a preliminary hearing was held in Municipal Court,

and the judge found probable cause to bind the case over for

trial. The criminal complaint was filed in Superior Court on

May 24. 

The prosecution filed a pre-trial motion to compel production of evidence from the defense. At the hearing on this

GENZLER v. LONGANBACH 6469
motion, Genzler’s ex-girlfriend, Sherry Logel, testified under

a grant of immunity that she had given a box of bloody clothing and a knife to Gerald Blank, Genzler’s retained counsel.

Blank said he had received the clothing and given it to the

prosecution, but he denied receiving the knife. Longanbach

then moved to recuse Blank as Genzler’s counsel. At the hearing on this recusal motion, Logel testified that she had lied

about delivering the knife to Blank. The trial judge granted

the recusal motion after Longanbach said he planned to call

both Logel and Blank as witnesses at Genzler’s trial. In a letter she later wrote to Genzler, Logel claimed that Longanbach

had pressured her to testify falsely about her communication

with Blank. 

After trial, a jury convicted Genzler of second degree murder of Harless. This conviction, however, was reversed by the

California Court of Appeal on the ground that the trial judge

had improperly recused Blank. The Court of Appeal also held

that Genzler was entitled to a jury instruction on involuntary

manslaughter because there was sufficient evidence to support

a finding of imperfect self-defense. Genzler had also alleged

prosecutorial misconduct in his first trial, but the Court of

Appeal did not reach this issue. The San Diego District Attorney’s office recused itself from Genzler’s second trial, and

Genzler was prosecuted by the State Attorney General’s

office. On retrial, a second jury found Genzler guilty of involuntary manslaughter. 

Sky Blue Flanders, Harless’s fiancée, was a key witness for

the prosecution in both trials. On the day of the stabbing,

Flanders had told the police that Genzler had approached her

in his car while she was walking across the street and had

asked her if she wanted a ride. According to Flanders, Harless

was zipping up his jacket on the other side of the street when

Genzler first spoke to her. She told police that Harless had

then crossed the street and knocked on Genzler’s window. As

Flanders described the events to police that day, Genzler got

out of the car, Harless and Genzler exchanged punches, Har6470 GENZLER v. LONGANBACH
less “flipp[ed]” Genzler to the ground, and Genzler stabbed

Harless while Harless held Genzler on the ground. Flanders

also told police that day that Harless was a skilled wrestler

who had been involved in previous street fights. Police audioand video-taped the interview with Flanders. Flanders testified in a later hearing that she had repeated this version of

events — in which Harless was on top of Genzler when Genzler stabbed him — to about 20 other people in the days following Harless’s death. 

Sometime after Flanders spoke with police on the day of

the homicide, she met with Deputy District Attorney Longanbach and Investigator O’Brien. She met once separately with

O’Brien sometime during the week before April 29, and once

with Longanbach and O’Brien together on April 29. After

these meetings, Flanders changed her story. She testified at

the preliminary hearing on May 23 and at both trials that she

remembered little of the actual fight because she was distracted by the arrival of Scott Davis, the doorman at the bar

Flanders and Harless had left just before the stabbing. Flanders further testified that she thought she remembered seeing

Davis pulling Genzler off Harless after the stabbing. 

In her testimony during Genzler’s second trial, Flanders

admitted that she had “answer[ed] evasively” in the first trial

about whether Harless had ever been involved in past fights

and explained that she had tried to answer questions to make

it seem that she was only aware of Harless’s participation in

organized wrestling matches, not of his past history of streetfighting. She also testified in the second trial that she had felt

pressure from Longanbach and O’Brien not to disclose Harless’s history of street-fighting. 

Davis, the doorman, testified at the preliminary hearing and

at both trials. In his interview with police the day after the

homicide, Davis stated that he saw Genzler jump out of his

car and chase Harless and Flanders as they walked away from

him, hand-in-hand. This account was manifestly inconsistent

GENZLER v. LONGANBACH 6471
with the account Flanders had given police on the day of the

homicide. Davis then met with O’Brien on April 25, and

changed his story. In a report summarizing this April 25 meeting, O’Brien wrote that, “upon reflection,” Davis considered

that he had not seen the couple walking away from him handin-hand. At the May 23 preliminary hearing, Davis testified

that Flanders and Harless were standing several feet apart

when the fight began. 

According to Genzler’s version of events, the fight on April

18 began when Harless charged Genzler and punched him in

the face. Genzler said that Harless had grabbed him, slammed

his face to the ground and pinned his arm, and that Davis then

began kicking him in the head. Genzler said that he stabbed

Harless to defend himself from the attack. 

After the second trial, Genzler was sentenced to six years

for involuntary manslaughter. With credit for time already

served, he was released on February 14, 2001. 

II. The Present Action

After his release from prison, Genzler brought the present

§ 1983 action charging the defendants with prosecutorial misconduct both preceding and during his first trial.1

 The defendants moved unsuccessfully to dismiss Genzler’s complaint

under Federal Rule of Civil Procedure 12(b)(6). They then

moved for summary judgment based on official immunity.

The district court granted Longanbach and O’Brien’s motions

for summary judgment except for claims based on an allegation contained in paragraph 66 of Genzler’s complaint. This

paragraph alleges:

[Longanbach and O’Brien] suborned perjury. Specif1Because Genzler does not allege conduct that would necessarily imply

the invalidity of his conviction after the second trial, this suit is not barred

by Heck v. Humphrey, 512 U.S. 477 (1994). 

6472 GENZLER v. LONGANBACH
ically, prior to the preliminary hearing and during

the initial investigation of the incident, Longanbach

and O’Brien met with Ms. Flanders and told her that

in order to secure a conviction she needed to lie

about what she saw on the night of the incident and

about Mr. Harless’ violent past. 

The district court read paragraph 66 to state that Longanbach

and O’Brien were engaged in an investigative activity when

they convinced Flanders to change her version of the events

she witnessed. Relying on our opinion in Milstein v. Cooley,

257 F.3d 1004 (9th Cir. 2001), the district court considered

not only the nature of the defendants’ acts but also their timing, and held that Genzler had produced sufficient evidence

to create a genuine issue of material fact as to whether Longanbach and O’Brien had pressured Flanders to lie as part of

their initial investigation. The district court accordingly

denied this part of their motion. 

The supervisory defendants also moved for summary judgment based on absolute and qualified immunity. The district

court construed their motion to apply only to allegations contained in three paragraphs of the complaint: paragraphs 74,

81, and 82.2 These paragraphs charged that Pfingst, Thomp2The specific allegations are: 

74. LONGANBACH and O’BRIEN’s misconduct did not

stop there. On August 22, 1996, at an evidentiary hearing held

before the Honorable Joan P. Weber, LONGANBACH granted

prosecution witness, Sherry Logel, immunity in exchange for testimony favorable to the prosecution. This grant of immunity

included immunity from perjury and not just from past acts of

perjury, but was intended to cover future acts of lying on the

stand at the trial of plaintiff. In essence, LONGANBACH gave

Ms. Logel a “get out of jail free card” for lying on the stand. This

was done with the knowledge of PFINGST, THOMPSON and

PIPPEN. 

81. Neither Mr. Blank nor Ms. Logel were called as trial witnesses by LONGANBACH. It [sic] The entire presentation of

GENZLER v. LONGANBACH 6473
son, and Pippen knew that Longanbach had granted Logel

immunity in exchange for her perjured testimony, and that

they had condoned Longanbach’s tactics to force recusal of

Genzler’s counsel. The district court denied the supervisory

defendants’ motion in its entirety. 

Longanbach, O’Brien, and the supervisory defendants

timely appealed. Whether official immunity applies is a question of law we review de novo. Milstein, 257 F.3d at 1007.

We have jurisdiction over interlocutory denials of motions for

summary judgment based on official immunity “to the extent

that [the district court’s decision] turns on a question of law.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Wilkins v. City of Oakland, 350 F.3d 949, 951 (9th Cir. 2003)

(quoting Mitchell). We construe all facts in the light most

favorable to Genzler, the non-moving party, in deciding

whether a dispute of fact is material and thereby precludes

summary judgment. See Butler v. San Diego County Dist.

Attorney’s Office, 370 F.3d 956, 963 (9th Cir. 2004). 

III. Discussion

[1] A prosecutor is protected by absolute immunity from

liability for damages under § 1983 “when performing the traditional functions of an advocate.” Kalina v. Fletcher, 522

U.S. 118, 131 (1997). However, “the actions of a prosecutor

are not absolutely immune merely because they are performed

false evidence and perjured testimony was nothing but an attempt

to remove GENZLER’s attorney from the case so as to improperly influence the outcome of the case which LONGANBACH

had promised PFINGST, THOMPSON, and PIPPEN he would

win. 

82. LONGANBACH was excited by the recusal ploy he used.

It became one of his favorite tactics. He tried the same tactic in

other cases and on other attorneys. PFINGST, THOMPSON and

PIPPEN were aware of what he was doing and how he was doing

it, but continued to condone and ratify his conduct, because it

worked. 

6474 GENZLER v. LONGANBACH
by a prosecutor.” Buckley v. Fitzimmons, 509 U.S. 259, 273

(1993). Prosecutorial immunity depends on “the nature of the

function performed, not the identity of the actor who performed it.” Kalina, 522 U.S. 118 at 127 (quoting Forrester v.

White, 484 U.S. 219, 229 (1988)). Prosecutors are entitled to

qualified immunity, rather than absolute immunity, when they

perform administrative functions, or “investigative functions

normally performed by a detective or police officer.” Id. at

126. See also Burns v. Reed, 500 U.S. 478, 494-96 (1991).

For convenience, we shall refer to the latter activities as “police type investigative work.” 

The Supreme Court has consistently “emphasized that the

official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Id. at 486. Further, “the presumption is that qualified

rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.” Id. at 486-87.

Finally we note that the Supreme Court has “been quite sparing in [its] recognition of absolute immunity, and ha[s]

refused to extend it any further than its justification would

warrant.” Id. at 487 (citations and quotation marks omitted).

[2] To qualify as advocacy, an act must be “intimately

associated with the judicial phase of the criminal process.”

Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Kalina, 522

U.S. at 125 (quoting Imbler); Buckley, 509 U.S. at 270

(same); Burns, 500 U.S. at 479 (same); see also Milstein, 257

F.3d at 1009 (prosecutorial immunity protects “the prosecutor’s actions [that] are closely associated with the judicial process”) (citing Imbler). Such activity is sometimes called

“quasi-judicial” conduct. E.g., Broam v. Bogan, 320 F.3d

1023, 1029 (9th Cir. 2003) (“[I]n deciding whether to accord

a prosecutor immunity from a civil suit for damages, a court

must first determine whether a prosecutor has performed a

quasi-judicial function. If the action was part of the judicial

process, the prosecutor is entitled to the protection of absolute

immunity whether or not he or she violated the civil plaintiff’s

GENZLER v. LONGANBACH 6475
constitutional rights.”) (citation and internal quotation marks

omitted). In Imbler, the Court observed that absolute “immunity . . . leave[s] the genuinely wronged defendant without

civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” 424 U.S. at 432. However,

the Court explained that absolute immunity for prosecutorial

advocacy is justified because, “the alternative of qualifying a

prosecutor’s immunity would disserve the broader public

interest” in protecting the prosecutor’s abilities to exercise

independent judgment and to advocate vigorously without the

threat of retaliation. Id. at 429; see also Milstein, 257 F.3d at

1007-08. Thus, a prosecutor enjoys absolute immunity from

a suit alleging that he maliciously initiated a prosecution, used

perjured testimony at trial, or suppressed material evidence at

trial. Imbler, 424 U.S. at 430. A prosecutor is also absolutely

immune for direct participation in a probable cause hearing,

Burns, 500 U.S. at 491, and for preparing and filing charging

documents, Kalina, 522 U.S. at 130. 

In Buckley, the Supreme Court explored the limits of prosecutorial absolute immunity. The Court denied absolute

immunity to prosecutors who had fabricated evidence “during

the early stage of the investigation” when “police officers and

assistant prosecutors were performing essentially the same

investigatory functions.” 509 U.S. at 273. The Buckley Court

also denied absolute immunity to prosecutors accused of holding a defamatory press conference — an activity which “had

no functional tie to the judicial process.” Id. at 277. In other

cases, the Court has held that a prosecutor does not have absolute immunity for providing legal advice to police that probable cause exists to arrest a suspect, Burns, 500 U.S. at 491, or

for personally attesting to the truth of evidence in support of

charging documents, Kalina, 522 U.S. at 130. 

The analysis of whether prosecutorial acts constitute advocacy or police-type investigative work is complicated by the

fact that the Supreme Court has resisted any attempt to draw

a bright-line between the two. In Buchanan, the court noted

6476 GENZLER v. LONGANBACH
that “[a] prosecutor neither is, nor should consider himself to

be, an advocate before he has probable cause to have anyone

arrested.” 509 U.S. at 274. This might suggest that once probable cause is present, or once an arrest has been made, a prosecutor assumes an advocacy-related role and enjoys absolute

immunity. However, in a note appended to the quoted passage, the Court rejected this approach, explaining that “a

determination of probable cause does not guarantee a prosecutor absolute immunity for liability for all actions taken afterwards. Even after that determination . . . a prosecutor may

engage in ‘police investigative work’ that is entitled to only

qualified immunity.” Id. at 274 n.5. 

[3] The Court has also rejected the idea that prosecutors are

only entitled to qualified immunity when they are engaged in

investigation. In Buchanan, the Court said that “evaluating

evidence and interviewing witnesses” in preparation for trial

is advocacy. Id. at 273. This is true, notwithstanding the fact

that some of the activities a prosecutor takes in preparation for

trial, like the interview of witnesses, may be investigatory in

nature. The question is whether a prosecutor’s investigation is

of the type normally done by police, in which case prosecutors enjoy only qualified immunity, or whether an investigation is bound up with the judicial process, thus affording

prosecutors the heightened protection of absolute immunity.

With this framework in mind, we consider the specific allegations against the defendants. 

A. Longanbach and O’Brien

1. Witness Interviews: The Functional Analysis

The claim against Longanbach and O’Brien that survived

summary judgment is that “prior to the preliminary hearing

and during the initial investigation of the incident . . . [they]

met with Ms. Flanders and told her that in order to secure a

conviction she needed to lie about what she saw on the night

of the incident and about Mr. Harless’ violent past.” Like the

GENZLER v. LONGANBACH 6477
district court, we understand this claim to state that as part of

the initial investigation Longanbach and O’Brien coerced or

encouraged Flanders to lie. 

[4] Witness interviews may serve either an investigative or

an advocacy-related function, as may other methods of gathering or manufacturing evidence prior to trial. See KRL v.

Moore, 384 F.3d 1105, 1110-16 (9th Cir. 2004) (holding that

pre-trial evidence gathering intimately associated with the

judicial process was protected by absolute immunity, while

evidence gathering for a collateral investigation was not).

Viewing the evidence in the light most favorable to Genzler,

we must decide whether Longanbach and O’Brien were

engaged in an advocacy-related function “intimately associated with the judicial phase of the criminal process” when

they met with Flanders, or whether they were engaged in

police-type investigative work. Imbler, 424 U.S. at 430; see

also Milstein, 257 F.3d at 1009; Broam, 320 F.3d at 1029. If

the former, they are absolutely immune. If the latter, they are

entitled only to qualified immunity. 

[5] If not done in a quasi-judicial capacity, the acquisition

or manufacturing of evidence is not protected by absolute

immunity. Milstein, 257 F.3d at 1011 (“acquiring known false

statements from a witness for use in a prosecution is . . . fabricating evidence that is unprotected by absolute immunity”). In

Moore v. Valder, 65 F.3d 189, 194-95 (D.C. Cir. 1995), the

D.C. Circuit held that a prosecutor had not met his burden to

show that he was entitled to absolute immunity for acts of

intimidating and coercing witnesses into changing their testimony before a grand jury. The court held that such activity

constitutes 

a misuse of investigative techniques legitimately

directed at exploring whether witness testimony is

truthful and complete and whether the government

has acquired all incriminating evidence. It therefore

6478 GENZLER v. LONGANBACH
relates to a typical police function, the collection of

information to be used in a prosecution. 

Id. at 194 (citing Barbera v. Smith, 836 F.2d 96, 100 (2d Cir.

1987)). 

[6] Prosecutors are, however, absolutely immune “for gathering additional evidence after probable cause is established

or criminal proceedings have begun when they are performing

a quasi-judicial function.” Broam, 320 F.3d at 1030 (emphasis added). As the Court in Buckley explained,

[t]here is a difference between the advocate’s role in

evaluating evidence and interviewing witnesses as he

prepares for trial, on the one hand, and the detective’s role in searching for clues and corroboration

that might give him probable cause to recommend

that a suspect be arrested, on the other hand. When

a prosecutor performs the investigative functions

normally performed by a police officer, it is neither

appropriate nor justifiable that, for the same act,

[absolute] immunity should protect the one and not

the other. 

509 U.S. at 273. A prosecutor gathering evidence is more

likely to be performing a quasi-judicial advocacy function

when the prosecutor is “organiz[ing], evaluati[ng], and marshaling [that] evidence” in preparation for a pending trial, in

contrast to the police-like activity of “acquiring evidence

which might be used in a prosecution.” Barbera, 836 F.2d at

100. 

[7] The timing of evidence gathering is a relevant fact in

determining how closely connected that conduct is to the official’s core advocacy function in the judicial process, and thus

informs the inquiry into whether the official’s conduct is protected by absolute immunity. The Supreme Court has held

that when a witness is being coached at or during a break in

GENZLER v. LONGANBACH 6479
trial, the prosecutor is protected by absolute immunity even if

he or she is instructing the witness to lie. Imbler, 424 U.S. at

430, 431 n.33; cf. Herb Hallman Chevrolet, Inc. v. Nash

Holmes, 169 F.3d 636, 643 (9th Cir. 1999) (holding that prosecutors were absolutely immune for interviewing new witnesses during investigative grand jury proceedings, when the

majority of other witnesses had been interviewed prior to the

initiation of proceedings). 

Longanbach and O’Brien rely on the timing of their meetings with Flanders to argue that they are entitled to absolute

immunity. They point out that their meetings with Flanders

occurred after Genzler’s April 19 arrest, which Genzler concedes was based on probable cause. However, as we noted

above, in Buckley, the Court was careful to state that “a determination of probable cause does not guarantee a prosecutor

absolute immunity from liability for all actions taken afterwards. Even after that determination . . . a prosecutor may

engage in ‘police investigative work’ that is entitled to only

qualified immunity.” Id. at 274 n.5. While interviews conducted before probable cause to arrest has been established

are not protected by absolute immunity, the converse is not

necessarily true. As the district court correctly observed, the

courts have only “draw[n] the line in the reverse, stating that

absolute immunity could not be invoked before probable

cause was established.” Indeed, in Robichaud v. Ronan, 351

F.2d 533, 535 (9th Cir. 1969), we held that prosecutors who,

soon after the arrest of a suspect, directed police to coerce a

confession from that suspect were not entitled to absolute

immunity because their activity was more police-like than

prosecutorial. 

Timing is thus a relevant, but not necessarily determinative,

factor. See KRL, 384 F.3d at 1111 (citing Cousin v. Small, 325

F.3d 627, 636 (5th Cir. 2003)); see also Kulwicki v. Dawson,

969 F.2d 1454, 1466 (3rd Cir. 1992). We also focus on

whether the character of the meetings was more in the nature

of quasi-judicial advocacy or police-type investigative work.

6480 GENZLER v. LONGANBACH
Because Deputy District Attorney Longanbach and Investigator O’Brien were engaged in slightly different functions, we

analyze separately their entitlements to absolute immunity. As

all parties acknowledge, it is appropriate to focus on the functions performed by Longanbach and O’Brien, not on their

titles. 

2. O’Brien’s Meeting with Flanders Before April 29

[8] Viewing the facts in the light most favorable to Genzler,

we conclude that O’Brien was engaged in police-type investigative work, not quasi-judicial advocacy, when he met with

Flanders prior to Genzler’s bail hearing on April 29, 1996.

O’Brien’s report indicates that he met with Flanders “several

days prior” to April 29. In her testimony during the hearing

on Genzler’s 2000 motion to dismiss, Flanders estimated that

this meeting took place about a week before the April 29 joint

meeting with Longanbach and O’Brien. She remembered that

she and O’Brien had talked for about an hour, “primarily . . .

as to the identity of the person who stabbed [Harless].” 

Police investigations were still ongoing. At this time, the

preliminary hearing at which the judge would decide whether

there was probable cause to hold Genzler for trial in superior

court was still over a month away. Moreover, it is a supportable conclusion from the evidence that O’Brien’s meeting

with Flanders took place before the criminal complaint was

filed in municipal court on April 23, 1996, and before police

finished their investigation and written synthesis, which is

dated April 24, 1996. See Kulwicki, 969 F.2d at 1465 (noting

that filing of a criminal complaint is a relevant but not dispositive factor in determining whether an interview involves

investigation or advocacy). 

[9] The written police synthesis leaves out the initial statement by Flanders to police that Harless was on top of Genzler

at one point during the fight. It emphasizes Davis’s point of

view, but it does not include Davis’s story that Flanders and

GENZLER v. LONGANBACH 6481
Harless were walking hand-in-hand. If all factual inferences

are resolved in favor of Genzler, one could conclude that

O’Brien used this interview to change Flanders’s story about

what she remembered and to make her story more consistent

with Davis’s story. 

Further, the record reflects that during this period, O’Brien

was engaged in other work that can only be characterized as

police-type investigation. For example, he and Longanbach

interviewed Scott Davis on April 25, 1996. The notes from

the conversation reflect only a narrative from Davis’s point of

view about the events of the stabbing. O’Brien joined police

Detective Warrick in a meeting on June 3, 1996 with Sherry

Logel, Genzler’s ex-girlfriend, discussing her story about giving Genzler’s knife to Blank, and Genzler’s character in general. This conversation, too, was police-type investigative

work, as indicated by the nature of the information obtained

and by the presence of Detective Warrick. On June 5, 1996,

O’Brien interviewed Paul Ernst, another witness to the homicide, about what he had seen. Similarly, on June 28, 1996,

O’Brien met again with John Belsan, who came forward with

evidence about a past fight with Genzler. Again, O’Brien’s

notes from this conversation reflect only Belsan’s narrative

about what happened in that confrontation. That O’Brien was

engaged in police-type investigative work during the time he

met with Flanders supports an inference that he was also

engaged in such work when he met with her. 

[10] We conclude from the foregoing that there is sufficient

evidence in the record to support the conclusion that, during

his first meeting with Flanders, O’Brien was, like the prosecutor in Moore, engaged in the process of acquiring or manufacturing evidence during performance of police-type

investigative work, rather than engaged in quasi-judicial

advocacy. At this stage of the proceedings, O’Brien is therefore unprotected by absolute immunity. 

[11] Absolute immunity does not protect Longanbach if he

was directing this police-type investigative activity by

6482 GENZLER v. LONGANBACH
O’Brien. See Joseph v. Patterson, 795 F.2d 549, 556 (6th Cir.

1986) (“a prosecutor who assists, directs, or otherwise participates . . . in obtaining evidence prior to an indictment

undoubtedly is functioning more in his investigative capacity

than in his quasi-judicial capacities of deciding which suits to

bring and conducting them in court”) (citation and internal

quotation omitted); Robichaud, 351 F.2d at 537 (holding that

prosecutors are not absolutely immune if they either “committed acts, or authoritatively directed the commission of acts,

which ordinarily are related to police activity as opposed to

judicial activity”); cf. Burns, 500 U.S. at 496 (prosecutor not

entitled to absolute immunity for act of giving legal advice to

police). Longanbach cannot, however, be liable for O’Brien’s

conduct on a theory of vicarious liability for any independent

actions taken by O’Brien. See Monell v. Dep’t of Social Servs.

of NY, 436 U.S. 658, 691 (1978) (respondeat superior not

available as theory of liability under § 1983). 

[12] There is sufficient evidence in the record to support

the conclusion that Longanbach was actively directing

O’Brien throughout his work on the Genzler case, including

O’Brien’s first meeting with Flanders. For example, Flanders

testified that Longanbach would give her instructions that

O’Brien would then “reiterate.” Genzler also introduced a

declaration from another Deputy District Attorney stating that

“Jeff O’Brien does whatever Mr. Longanbach told him to do.”

Because the evidence could support a conclusion that Longanbach was actively directing police-type investigative actions

by O’Brien, Longanbach is also not entitled to summary judgment that he is absolutely immune for any action taken with

respect to O’Brien’s meeting with Flanders before April 29.

3. Longanbach and O’Brien’s April 29 Meeting with

Flanders

The next question is whether Longanbach and O’Brien

were engaged in police-type investigative work or quasiGENZLER v. LONGANBACH 6483
judicial advocacy in their joint April 29 meeting with Flanders. 

We consider first the timing of the conversation. The criminal complaint had been filed by the time of Longanbach and

O’Brien’s April 29 meeting with Flanders. However, just as

the existence of probable cause to arrest is not conclusive, we

do not view the filing of the complaint as an event after

which, by definition, all actions by the prosecutor and his staff

are protected by absolute immunity. The timing of the April

29 meeting does not weigh as much in favor of absolute

immunity as did the timing of the search carried out pursuant

to a warrant in KRL, 384 F.3d at 1111-13. In KRL, we held

that a prosecutor and his investigator were entitled to absolute

immunity for seeking a search warrant and carrying out a

search pursuant to that warrant more than three weeks after

the grand jury returned an indictment indicating that it had

found sufficient evidence for the defendant to stand trial. Id.

When Longanbach and O’Brien met with Flanders, the preliminary hearing at which the court would determine whether

there was probable cause for Genzler to stand trial was still

more than three weeks away. On April 29, officials were continuing the process of investigation into the facts that would

inform whether there was such probable cause, and the precise charges on which Genzler would stand trial had yet to be

determined. 

[13] We next consider the nature of the interview with

Flanders. The Supreme Court has stated that 

acts undertaken by a prosecutor in preparing for the

initiation of judicial proceedings or for trial, and

which occur in the court of his [or her] role as an

advocate for the State, are entitled to the protections

of absolute immunity. Those acts must include the

professional evaluation of evidence assembled by the

police and appropriate preparation for its presenta6484 GENZLER v. LONGANBACH
tion at trial or before a grand jury after a decision to

seek an indictment has been made. 

Buckley, 509 U.S. at 273 (emphasis added); see also Broam,

320 F.3d at 1030. In KRL, we held that “to the extent that the

second search warrant sought evidence to prosecute the

crimes charged in the indictment,” the prosecutors’ authorization of that warrant and an investigator’s subsequent search

were protected by absolute immunity. 384 F.3d at 1112, 1118.

We held that the prosecutors and the investigator were acting

as advocates to the extent they were reviewing, evaluating,

and ensuring the admissibility of evidence in preparation for

an already pending trial. Id. 

[14] There is some evidence in the record that Longanbach

and O’Brien were reviewing and evaluating evidence at the

April 29 meeting in preparation for the preliminary hearing

and trial testimony, including some testimony by Flanders

describing the meeting at some of the later proceedings in

Genzler’s case. However, when we resolve all ambiguity in

favor of Genzler and view the evidence in the context of other

evidence about ongoing investigations, we conclude that evidence in the record supports the conclusion that Longanbach

and O’Brien were engaged in police-type investigative work

during the meeting. 

The only notes in the record from the meeting were taken

by O’Brien. They are captioned, “Witness Interview.” These

interview notes, like notes taken of other interviews by

O’Brien, record only a narrative of what Flanders reportedly

said at the meeting about the events of April 17 and April 18.

The notes state that “FLANDERS had told me during a conversation that took place at her residence several days earlier

that she had a clearer picture in her mind of the events surrounding HARLESS’ death. She felt that she could relate

them in a more organized fashion than she may have done

earlier in the investigation.” Specifically, the notes state that

Flanders was “distracted” by the arrival of Scott Davis, which

GENZLER v. LONGANBACH 6485
is inconsistent with the initial statement Flanders made to

police. The notes thus reflect that Longanbach and O’Brien

were in the process of gathering information from Flanders

during the meeting and possibly encouraged her to lie as part

of their process. 

The Fifth Circuit decision in Cousin, relied on heavily by

Longanbach and O’Brien, is therefore inapposite. In Cousin,

the Fifth Circuit held that a declaration by a witness who was

allegedly coerced and intimidated into lying “eliminate[d]”

any “ambiguity” about whether the prosecutor was engaged in

an investigatory or quasi-judicial function when he interviewed that witness. 325 F.3d at 633. The declaration clearly

showed that when the prosecutor met with the witness, “he

did so to tell [the witness] how he should testify.” Id. Here,

by contrast, the interview notes show a process of police-type

investigation — or, viewed in the light most favorable to Genzler, a process of manufacturing evidence while performing

an police-type investigative work — not Longanbach or

O’Brien acting as advocates by actively preparing Flanders

for her testimony in court. See Moore, 65 F.3d at 194. 

[15] We therefore agree with the district court that Longanbach and O’Brien are not entitled to summary judgment that

they are absolutely immune for their actions during the April

29 meeting with Flanders. 

4. Summary

[16] A prosecuting attorney may perform many roles, or

functions. See Robichaud, 351 F.2d at 537 (citing Edward L.

Barrett, Jr., Police Practices and the Law—From Arrest to

Charge, 50 Cal. L. Rev. 11, 16-24 (1962)). Not all of these

roles are protected by absolute immunity. See Robichaud, 351

F.2d at 537 (“The distinction between the roles may be significantly controlling.”). We recognize that the two meetings

with Flanders described here were to some degree related to

trial preparation, even when viewed in the light most favor6486 GENZLER v. LONGANBACH
able to Genzler. The Supreme Court has cautioned, however,

that “[a]lmost any action by a prosecutor, including his or her

participation in purely investigative activity, could be said to

be in some way related to the ultimate decision to prosecute,

but we have never indicated that absolute immunity was that

expansive.” Burns, 500 U.S. at 495-96. We therefore remain

focused on the question whether the prosecutor’s actions are

“intimately associated with the judicial phase of the criminal

process.” Id. at 487 (emphasis added) (quoting Imbler, 424

U.S. at 430) . We do not read the record here, resolving all

ambiguity in favor of Genzler, to indicate such a close association between Longanbach and O’Brien’s actions in their witness interviews with Flanders, on the one hand, and the

judicial phase of Genzler’s criminal trial, on the other, to entitle them to summary judgment that they are absolutely

immune for those actions. We therefore affirm the district

court’s partial denial of summary judgment to Longanbach

and O’Brien. 

B. The Supervisory Defendants

The next issue is whether Pfingst, Thompson, and Pippen

— the supervisory defendants — are entitled to absolute

immunity. The district court understood the supervisory

defendants to have moved for summary judgment on only

three allegations in Genzler’s complaint, specifically paragraphs 74, 81, and 82.3

 The district court did not view the

motion as including any other allegations against the supervisory defendants in Genzler’s complaint, and its ruling did not

extend to any such allegations. We construe the supervisory

defendants’ motion for summary judgment as did the district

court. 

We reverse the district court’s denial of summary judgment

with respect to the allegations contained in these three paragraphs. We apply the “function test” to determine whether the

3

See supra pages 6473-74, n.2. 

GENZLER v. LONGANBACH 6487
supervisory defendants are entitled to absolute immunity. Roe

v. City and County of San Francisco, 109 F.3d 578, 584 (9th

Cir. 1997). To decide whether absolute immunity applies, we

assume without deciding that Genzler has alleged a deprivation of a constitutional right under § 1983. See Buckley, 509

U.S. at 261. 

[17] The relevant paragraphs state (1) that the supervisory

defendants knew that Longanbach had granted Logel immunity in exchange for perjured testimony favorable to the prosecution; (2) that Longanbach had promised the supervisory

defendants he would win Genzler’s case; and (3) that the

supervisory defendants were aware of and condoned a ploy to

use Logel’s perjured testimony to force the recusal of Genzler’s counsel of choice. Each of these statements describes

conduct closely related to prosecutorial decisions in the trial

phase of Genzler’s case. These actions all involve advocacy

“intimately associated with the judicial phase of the criminal

process,” Imbler, 424 U.S. at 430, for which the supervisory

defendants are entitled to absolute immunity. See id. at 431

(presenting perjured testimony protected by absolute immunity); Mullinax v. McElhenney, 817 F.2d 711 (11th Cir. 1987)

(offering a witness immunity in exchange for testimony protected by absolute immunity); see also Rivera v. Green, 775

F.2d 1381, 1384 (9th Cir. 1985) (holding that a prosecuting

attorney and his supervisor had absolute immunity “for their

actions in prosecuting a case against” a defendant). 

Conclusion

[18] We affirm the district court’s partial denial of summary judgment as to Longanbach and O’Brien. We reverse

the district court’s denial of summary judgment as to Pfingst,

Thompson, and Pippen. We express no opinion about whether

Genzler has stated a violation of a constitutional right that is

actionable under 42 U.S.C. § 1983, or whether the defendants

may be entitled to qualified immunity. We leave these determinations to the district court in the first instance. 

6488 GENZLER v. LONGANBACH
AFFIRMED in part, REVERSED in part, and

REMANDED. 

GENZLER v. LONGANBACH 6489