F I LED

United States Court of Appeals

Tenth Circuit

May 21, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONNA M. AUGUSTE,

Plaintiff-Appellee,

v.

JAMES A. ALDERDEN, individually

and in his official capacity as Sheriff

of Larimer County; JAMES

SULLIVAN, individually and in his

official capacity as Investigator,

Larimer County Sheriff’s Office;

JOHN NEWHOUSE, individually and

in his official capacity as

Investigator, Larimer County

Sheriff’s Office; ROGER BARTRAM

individually and in his official

capacity as Investigator, Larimer

County Sheriff’s Office; THOMAS

WILSON, individually and in his

official as capacity Investigator,

Office of the District Attorney, Santa

Clara County,

Defendants,

and

BENJAMIN FIELD, individually and

in his official capacity as Deputy

District Attorney for Santa Clara

County,

Defendant-Appellant.

No. 05-1450

(D.C. No. 03-cv-2256 WYD PAC)

(D. Colorado)
This order and judgment is not binding precedent, except under the doctrines of *

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with FED. R. APP. P. 32.1 and 10TH CIR. R. 32.1.

-2-

ORDER AND JUDGMENT

*

Before LUCERO, SEYMOUR, and O’BRIEN, Circuit Judges.

Benjamin Field, a Deputy District Attorney in Santa Clara County

California, appeals the district court’s denial of his summary judgment motion

seeking absolute immunity from a civil rights suit brought by Donna Auguste. 

We affirm. 

In August of 1998, Damon Auguste was convicted in Santa Clara County,

California and sentenced to 18 years and 8 months imprisonment. Benjamin Field

prosecuted Mr. Auguste and later participated in the state’s defense of a habeas

action filed by Mr. Auguste. In the process of preparing the state’s habeas

defense, Mr. Field and Thomas Wilson, an investigator with the Santa Clara

District Attorney’s Office, executed five search warrants against Mr. Auguste’s

family members and potential witnesses and their families in California. During a

search of Mr. Auguste’s mother’s home on July 17, 2003, Mr. Wilson seized a

letter from Mr. Auguste addressed to Donna M. Auguste, Mr. Auguste’s aunt,

postmarked September 30, 1998. In the letter, Mr. Auguste expressed his interest
-3-

in persuading a juror from his original trial to allege misconduct and proposed a

plan to bribe jurors if he were retried.

 After finding the letter, Mr. Field sought assistance from the Larimer

County, Colorado Sheriff’s Office in executing a warrant authorizing a search of

Donna Auguste’s Colorado home. At Mr. Fields’s behest, a Larimer County

Sheriff’s Office investigator submitted an affidavit to the Larimer County District

Court in support of the issuance of a warrant. The affidavit recited information

relayed by Mr. Wilson. The Colorado court authorized a search warrant which

was executed at Ms. Auguste’s home on July 24, 2003.

Prior to the execution of the Donna Auguste warrant, on July 18, 2003, the

state trial judge presiding over Mr. Auguste’s habeas proceedings was apprised of

the government’s use of search warrants as a means of discovery. In response,

the state court “ordered Respondent go through this Court exclusively for any

further search warrants.” Rec., vol. II at 364. Mr. Field “replied that he would

abide by this order,” but, according to the court, “[d]espite [Mr. Field]’s promise

to the Court, four days later, on July 22, 2003, [Mr. Field and Mr. Wilson]

permitted a Colorado judge to execute a search warrant on” Ms. Auguste’s

residence. Id. The court noted that “the search of [Mr.] Auguste’s aunt’s

residence . . . was made in violation of this Court’s order to cease any further

warrants without this Court’s prior approval,” id. at 366, and ordered all evidence

obtained from all the searches be excluded from an evidentiary hearing in the
-4-

habeas proceeding. 

Ms. Auguste subsequently filed this § 1983 action against the Sheriff of

Larimer County, Colorado, his investigators, and members of the Santa Clara

District Attorney’s Office, including Mr. Field, in both their official and

individual capacities. Specifically, Ms. Auguste alleged the search warrant

executed at her home was obtained through intentional and false

misrepresentations in violation of her constitutional rights under 42 U.S.C. §§

1981, 1983, and 1985(3). Both the Colorado and California defendants asserted

they were entitled to summary judgment based on the doctrines of qualified and

absolute immunity. The district court dismissed the § 1985(3) and § 1981 claims

for all defendants, and denied claims against all defendants in their official

capacities and against all defendants other than Mr. Wilson, Mr. Field, and James

Sullivan, a Larimer County investigator, in their personal capacities. The only

issue raised in this interlocutory appeal is Mr. Field’s contention that the district

court erred in denying him the legal protections of absolute immunity.

Although interlocutory appeals are typically disfavored, a public official

may appeal the denial of absolute immunity before final judgment. See Mitchell

v. Forsyth, 472 U.S. 511, 525 (1985). The “official seeking absolute immunity

bears the burden of showing that such immunity is justified for the function in

question.” Burns v. Reed, 500 U.S. 478, 486 (1991). On appeal, we “review de

novo a district court’s conclusion on the question of absolute immunity.” Gagan
-5-

v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994).

Prosecutors are absolutely immune from suit under § 1983 for activities

“intimately associated with the judicial phase of the criminal process.”

Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Actions more fittingly

characterized as investigative or administrative are protected by absolute

immunity only when those acts are “necessary so that a prosecutor may fulfill his

function as an officer of the court.” Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d

1484, 1490 (10th Cir. 1991) (quoting Snell v. Tunnell, 920 F.2d 673, 693 (10th

Cir. 1990)). “Indeed, we have repeatedly found investigative and administrative

actions taken by state prosecutors to be adequately protected by the doctrine of

qualified immunity . . . .” Gagan, 35 F.3d at 1475. 

In drawing the line between absolute and qualified immunity for

prosecutors, “we have held the determinative factor is advocacy because that is

the prosecutor’s main function.” Id. (quotation omitted). To help define the line, 

we have applied a continuum-based approach to these decisions,

stating the more distant a function is from the judicial process and

the initiation and presentation of the state’s case, the less likely it is

that absolute immunity will attach.

Id.

In Gagan, we considered the applicability of absolute immunity to a

prosecutor who disregarded a state court order made in connection with a federal

habeas proceeding. Mr. Gagan had filed pro se a habeas action seeking to
-6-

overturn his state court conviction. He filed a motion in state court requesting

preparation of transcripts necessary to the development of his federal habeas

petition. The state judge granted the motion, but the Assistant Attorney General

(AAG) defending the state “allegedly ordered the court reporter not to prepare the

transcripts, notwithstanding the state court judge’s order to the contrary.” Gagan,

35 F.3d at 1475. Mr. Gagan filed a § 1983 claim, asserting the AAG’s “actions in

countermanding the state court judge’s order” resulted in a violation of his

constitutional rights. Id. The district court did not consider the underlying

constitutional claim, but concluded instead that the AAG was shielded from §

1983 liability by “the protective umbrella of absolute immunity.” Id. 

Mr. Gagan appealed the district court’s application of absolute immunity,

and we reversed. In so doing, we stated:

We find it difficult to see how a prosecutor’s actions in

contravening the authority of the judicial branch of state government

in regard to the defense of a civil action constitute the kind of

advocacy related to the initiation and prosecution of criminal

proceedings, even under the most generous interpretation of that

phrase, to which absolute immunity attaches. Stated alternatively, the

actions at issue in this case are simply too far removed on the

continuum from the core prosecutorial functions of initiating and

pursuing criminal prosecutions to be covered by absolute immunity.

We therefore conclude that the Assistant Attorney General has failed

to carry her burden of demonstrating her entitlement to absolute

immunity . . . .

Id. at 1476 (citations omitted). We thus held the AAG in Gagan was not entitled

to absolute immunity where she defied a Colorado state court order while
-7-

defending a federal habeas action. 

In the present case, while defending against Mr. Auguste’s state habeas

petition, Mr. Field ordered a search warrant executed in Colorado despite the

California state court order to the contrary. Our holding in Gagan directly

addressed the inapplicability of absolute immunity in cases where, like here, the

prosecutor defied a state court order in the course of defending against a habeas

petition. In light of this directly controlling precedent, we conclude Mr. Field is

not entitled to the protection of absolute immunity.

Accordingly, we AFFIRM.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge