### The Honorable Richard H. Kyle, United States District Judge 1 

### for the District of Minnesota, sitting by designation. ___________ No. 96-2598

___________ Charles J. Schenecker; Mary * Beth Schenecker; Kevin D. * Frazier; Richard L. Schenecker; * Mary E. Schenecker; Heather J. * Schenecker, child; Katherine L. * Schenecker, child; Charles * Joseph Schenecker, child; * Elizabeth A. Schenecker, child, * * Plaintiffs/Appellees, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. The City of Sioux City; Ronald * G. Cardwell, Officer; Paul * Greer, Officer, * * Defendants, * * Woodbury County; Karrie S. * Kelly, individually and as * employee of Woodbury County * * Defendants/Appellants. *

___________ Submitted: January 16, 1997 Filed: February 27, 1997

___________ Before BOWMAN and MURPHY, Circuit Judges, and KYLE, District Judge
. 1

___________ MURPHY, Circuit Judge.

This case arises from the arrest and prosecution of out-of- stat e bail bondsmen who went to Iowa to apprehend a fugitive. They sued Woodbur y County, Karrie Kelly, the City of Sioux City, and the arresting officers for malicious prosecution, false arrest, and other torts. The distric t court denied a summary judgment motion

### -2-

of the county and prosecutor on the basis of absolute immunity, and they appeal. We reverse.

Richard and Charles Schenecker are bail bondsmen who went to Siou x City to apprehend a person who had jumped bail in Missouri. After th e initia l attempt at apprehending the fugitive failed when local polic e officers intervened, the Scheneckers and Kevin F razier, an associate, made
a second attempt and entered the home where the fugitive was staying aroun d six in the morning. Shots were fired, and Richa rd Schenecker was wounded. The Scheneckers and Frazier were arrested and charged with second degree burglary, going with armed intent, and going armed with a loaded firearm within city limits. They were acquitted on the first two charges, bu t Charles Schenecker was convicted on the third.

The Scheneckers and Frazier then sued under theories of maliciou s prosecution, false arrest, and other torts, alleging that the defendants inte rfered with their right to apprehend the fugitive and that Kell y knowin glyprosecuted them without probable cause to protect herself an d othe rs from civil liability. Kelly and the county moved for summar y judgmen t, arguing that prosecutorial immunity barred the civil actio n agai nst them. The district court denied the motion, concluding tha t immunity did not protect a prosecutor when she u ses criminal charges as an offensive maneuver to prevent later civil litigation.
Kelly a nd the county argue on appeal that the district court erre d in denying their motion for summary judgment because Iowa law give s pros ecutors absolute immunity from being sued for acts done in thei r official capacity. T he Scheneckers respond that the denial of the motion is not a final order, that the issue of immunity is effectively appealable after the trial, and that the district court properly found that Iowa law did not give Kelly and the county immunity. Whe ther there is jurisdiction
over th e denial of summary judgment concerning an immunity defense i s reviewed de

### -3-

novo, Ba rtlett v. Fisher , 972 F.2d 911, 914 (8th Cir. 1992), as is th e denial of summary judgment. Beyerbach v. Sears , 49 F.3d 1324, 1325 (8th Cir. 1995).
Although 28 U.S.C. § 1291 gives appellate jurisdiction only ove r fina l decisions, an order does not have to end the case in order to b e appealed. Mitchell v. Forsyth , 472 U.S. 511, 52 4 (1985). An order may be appealed if it finally determines a collateral right separate from th e rights asserted in the action and "too important to be denied review and too independent of the cause itself to require that appellate consideratio n be de ferred until the whole case is adjudicated." Cohen v. Beneficia l Indus. Loan Corp. , 33 7 U.S. 541, 546 (1949). Under the collateral rights doctrine, the denial of a claim of absolute immu nity is appealable because the essence of that right is that the possessor does not have to answer fo r her conduct in a civil action. Mitchell , 472 U.S. at 525.

Iowa law provides absolute immunity from suit for prosecutor s engaging in their official functions. See, e.g. , Hanson v. Flores , 48 6 N.W.2d 294, 296 (Iowa 1992) ("prosecutorial immunity bars a suit"); Hike
v. Hall , 427 N.W.2d 158, 160 (Iowa 1988) (prosecutorial immunity shields absolutely from civil suit); Blanton v. Barrick , 258 N.W.2d 306, 311 (Iowa 1977) ("immune from civil suit"). Although the Iowa Supreme Court has use d various terms in describing this immunity, it has consistently affirmed th e dis missal of civil suits against prosecutors and has explained that th e policybehind the immunity is to ensure that prosecutors may "vigorously proceed with their tasks unhampered by the fear of unlimited civi l litigat ion." Id. at 309; see also Hanson , 486 N.W.2d at 296 ("A count y attorney must be permitted to pursue . . . claim s with the confidence that he or she will not be the subject of a suit by a disgruntled litigant."). Making Kelly and the county participate in a trial would undermine Iowa’s policyof protecting prosecutors from the burdens of litigation. Thi s court

### -4-

has jurisdiction over the appeal.
Kelly and the county argue that the district court incorrectly found that this immunity did not extend to them. The Scheneckers respond that immu nitydoes not protect Kelly and the county because the filing o f charges against them was wrongfully motivated to avoid civil litigation an d was outside the scope of Kelly’s official duties.

Even if Iowa law would not extend absolute immunity to prosecutor s when t here is wrongful motivation in filing criminal charges, th e Sch eneckers have not shown any evidence that Kelly had improper motive

. The Scheneckers claim that Kelly knew or should have known under Supreme Court precedent that they could enter a house to apprehend an individual who had jumped bail. They have produced no evidence, however, of Kelly’s wrongful motivation in researching the law and i n deciding to file charges
or of her acting outside her official capacity in handling the crimina l
case. Prosecutorial immunity extends to Kelly and the county, and th e district court erred by not granting their summary judgment motion. See Burr v. City of Cedar Rapids , 286 N.W.2d 393, 396 (Iowa 1979) (prosecutor’ s immunity extends to county employer).
Accordingly, we reverse and remand with instructions to ente r judgment in favor of Kelly and the county.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.