883 F.3d 826

FERNANDEZ, Circuit Judge, dissenting:
Although I fully understand the majority's desire to offer Patterson relief from the alleged unconscionable actions of Van Arsdel, I cannot agree that we should make law out of these bad facts.
In the first place, Patterson did not argue the point which forms the foundation of the majority's opinion. She neither did so in the district court, nor in her brief, nor for that matter at oral argument. She admitted that Van Arsdel's duty of submitting applications for warrants to judges of the court for which he worked was a prosecutorial function, but argued that absolute immunity applies to courtroom activity only and that Van Arsdel had acted outside his jurisdiction when he submitted the warrant at hand outside of the courtroom. The majority's determination that absolute prosecutorial immunity does not apply at all was therefore waived by Patterson, and we should not rule on it at this time. See Smith v. Marsh , 194 F.3d 1045, 1052 (9th Cir. 1999) ; Crawford v. Lungren , 96 F.3d 380, 389 n.6 (9th Cir. 1996).
Secondly, if we do take up the merits, we should adhere to the long established rule that once we grant that the function in question is a prosecutorial function, it does not matter if the person performing that function lacks the title of "prosecutor." See, e.g. , Miller v. Gammie , 335 F.3d 889, 897 (9th Cir. 2003) (en banc); Meyers v. Contra Costa Cty. Dep't of Soc. Servs. , 812 F.2d 1154, 1157 (9th Cir. 1987) ; see also KRL v. Moore , 384 F.3d 1105, 1110-11 (9th Cir. 2004) (preparing and filing an arrest warrant is a prosecutorial function). In addition, even when the function is performed in a negligent or unreasonable or even intentionally wrong way, absolute immunity applies. See Burns v. Reed , 500 U.S. 478, 489-92, 111 S.Ct. 1934, 1940-42, 114 L.Ed. 2d 547 (1991) (knowing presentation of false testimony); Imbler v. Pachtman , 424 U.S. 409, 424-27, 96 S.Ct. 984, 992-93, 47 L.Ed. 2d 128 (1976) (malicious or dishonest actions); McCarthy v. Mayo , 827 F.2d 1310, 1315 (9th Cir. 1987) (filing criminal charges knowing them to be barred);
Ashelman v. Pope , 793 F.2d 1072, 1075, 1078 (9th Cir. 1986) (en banc) (conspiracy with court to harm defendant). Again, I do agree that what Van Arsdel is alleged to have done falls within one of those categories. I do not agree, however, that we should undermine existing law for the purpose of righting Patterson's wrong and punishing Van Arsdel's alleged malversation. True, Patterson may be "without civil redress" even if she was "genuinely wronged," but in principle she must abide that evil to safeguard the overall "broader public interest." Imbler , 424 U.S. at 427, 96 S.Ct. at 993.
Thus I respectfully dissent.

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