Karen Slater, et al v. Harold Clarke, et al
FILED OPINION (ALEX KOZINSKI, MORGAN B. CHRISTEN and PAUL J. WATFORD) REVERSED AND REMANDED. Judge: MBC Authoring, FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN SLATER, individually and on
behalf of the Estate of Beverly Jean
Mauck, a deceased person; ALLEN
MAUCK, individually; PAMELA
MAUCK, individually; RYAN
REHBERG , Personal Representative
on behalf of the Estate of Brian
Mauck, a deceased person,
HAROLD W. CLARKE ,
KEVIN BURKE, individually;
RICHARD RANGE, individually; ERIN
DONNELLY , individually,
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
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SLATER V . CLARKE
Argued and Submitted
October 3, 2012—Spokane, Washington
Filed November 19, 2012
Before: Alex Kozinski, Chief Judge, Morgan Christen, and
Paul J. Watford, Circuit Judges.
Opinion by Judge Christen
Reversing the district court’s denial of a motion to
dismiss a civil rights complaint and remanding, the panel held
that government officials are absolutely immune from civil
liability for the decision not to extradite or to request only
limited extradition of a criminal defendant.
The panel held that because the decision whether or not
to extradite a criminal defendant is intimately associated with
the criminal phase of the judicial process, defendants in this
case were entitled to absolute immunity to the extent they
participated in making the extradition decision described in
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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SLATER V . CLARKE
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Martha Coakley, Massachusetts Attorney General, Jessica V.
Barnett (argued), Assistant Attorney General for defendantsappellants Kevin Burke and Erin Donnelly.
Michael D. Brennan (argued), Timothy M. Burke, Law
Offices of Timothy M. Burke, Needham, MA for defendantappellant Richard Range.
Anna L. Price (argued), John R. Connelly, Jr. and Micah R.
LeBank, Connelly Law Offices, Tacoma, Washington for
plaintiff-appellee Karen Slater.
John J. Greaney and Karen J. Scudder, Greaney Law Firm,
PLLC, Kent, Washington for plaintiffs-appellees Allen
Mauck, Pamela Mauck and Ryan Rehberg.
CHRISTEN, Circuit Judge:
This case requires that we consider whether state officials
are absolutely immune from civil liability for the decision not
to extradite or to request only limited extradition. Because
the decision whether or not to extradite a criminal defendant
is intimately associated with the criminal phase of the judicial
process, government officials are absolutely immune from
suits arising out of their performance of this function.
SLATER V . CLARKE
Daniel Tavares was released from prison by the
Massachusetts Department of Corrections in June 2007 after
serving over fifteen years in prison for murdering his mother.
While in prison in Massachusetts, Tavares joined a white
supremacist gang, assaulted and threatened staff and inmates,
and made threats against the life of then-Governor Mitt
Romney and then-Attorney General Thomas Reilly. Just
prior to Tavares’s release date, he was arraigned for two
incidents involving violent assaults on prison staff. Tavares
was subsequently released on his own recognizance. He did
not appear for a hearing on the new charges and two warrants
for his arrest were issued.
Tavares had traveled to Washington state. Officials from
Massachusetts contacted their law enforcement counterparts
in Washington and asked them to locate Tavares. The
defendant officials, including Erin Donnelly, a Worcester
County Assistant District Attorney; Sergeant Richard Range,
an employee of the Massachusetts Commonwealth Fusion
Center; and Kevin Burke, then Secretary of the Executive
Office of Public Safety and Security, knew about Tavares’s
violent history, his pending criminal charges, and his
whereabouts in Washington. The complaint alleges that, after
Tavares was found, Donnelly, Range, and Burke decided to
request a limited extradition warrant that authorized
extradition only from New England states, not from
Washington, where they knew Tavares to be located.
In November 2007 Tavares murdered Beverly and Brian
Mauck in their home in Washington state. The parents and
All facts are taken from the Plaintiffs’ complaint.
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SLATER V . CLARKE
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personal representatives of the victims brought suit against
several Massachusetts officials allegedly responsible for not
extraditing Tavares in the months prior to the murders.2 The
complaint seeks damages and injunctive and declaratory
relief.3 It alleges that defendants violated the victims’ civil
rights under 42 U.S.C. §§ 1983 and 1985, and committed acts
amounting to negligence and gross negligence. Defendants
filed motions to dismiss on the basis of absolute immunity,
which the district court denied. Burke, Range, and Donnelly
now appeal the denial of their motions to dismiss.
II. STANDARD OF REVIEW
We have jurisdiction over this interlocutory appeal
pursuant to 28 U.S.C. § 1291. See Mitchell v. Forsyth,
472 U.S. 511, 524-25 (1985) (denial of absolute immunity
treated as a “decision ‘final’ within the meaning of § 1291”).
We review a district court’s rulings on absolute immunity
de novo. Lacey v. Maricopa County, 693 F.3d 896, 911 (9th
Cir. 2012) (en banc). An official seeking absolute immunity
bears the burden of showing that it is justified. Burns v.
Reed, 500 U.S. 478, 486 (1991). The presumption is that
qualified rather than absolute immunity should apply. Id. at
486-87. “[A]bsolute immunity is an extreme remedy, and it
is justified only where ‘any lesser degree of immunity could
Plaintiffs voluntarily dismissed defendant Harold W . Clarke and the
court granted a motion to dismiss defendant W illiam Lochrie on personal
The complaint appears to seek injunctive relief only with respect to
Defendants Clarke and Burke, “requiring them to implement a formal
system for tracking forfeiture of good time credit and extraditing
dangerous criminals who flee from Massachusetts to W ashington State.”
SLATER V . CLARKE
impair the judicial process itself.’” Lacey, 693 F.3d at 912
(quoting Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).
The complaint alleges that Burke, Range, and Donnelly
all participated in the decision not to extradite Tavares from
Washington for prosecution on pending assault charges.
Setting aside whether all three defendants actually had the
authority to make this decision,4 the law requires that we look
at “the nature of the function performed, not the identity of
the actor who performed it.” Kalina, 522 U.S. at 127 (internal
quotations omitted). Functions are prosecutorial in nature
and entitled to absolute immunity when they are “‘intimately
associated with the judicial phase of the criminal process,’ in
which the prosecutor is acting ‘as an officer of the court.’”
Lacey, 693 F.3d at 912 (quoting Van de Kamp v. Goldstein,
555 U.S. 335, 342 (2009)). “Absolute immunity also protects
those functions in which the prosecutor acts as an ‘advocate
for the State,’ even if they ‘involve actions preliminary to the
initiation of a prosecution and actions apart from the
courtroom.’” Id. (quoting Burns, 500 U.S. at 486).
It has long been the law of this circuit that a decision
whether to prosecute or not prosecute is entitled to absolute
immunity. E.g., Roe v. City and County of San Francisco,
W e acknowledge there is some question whether Burke and Range, as
executive branch officials who are not prosecutors, had the authority to
decide the breadth or scope of an extradition order. See Mass. Gen. Laws
ch. 276 § 20L(a) (authorizing attorney general or district attorney to
provide application to governor regarding extradition decisions). Because
the question before us is whether absolute immunity is afforded for the
function of making an extradition decision, we need not decide whether
Burke and Range actually had the authority to make one.
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SLATER V . CLARKE
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109 F.3d 578, 583 (9th Cir. 1997). The decision whether to
extradite, like the decision whether to prosecute, “involve[s]
a balancing of myriad factors, including culpability,
prosecutorial resources and public interests.” Id. (internal
quotation marks omitted). Here, Tavares had been charged
and arraigned so his new criminal case had moved from the
investigatory phase to the judicial phase. Cf. id. (functions
performed during investigatory, as opposed to judicial, phase
are not entitled to absolute immunity). The decision whether
to extradite him, like the decision whether to prosecute him,
was intimately associated with the judicial phase of the
criminal process. Indeed, the decision whether to extradite
was the next step in the judicial process. Accordingly,
whether the decision in this case is characterized as a decision
not to extradite, or as a decision to extradite only from a
limited area, defendants are entitled to absolute immunity for
their participation in that decision.
We acknowledge that cases granting absolute immunity
often involve decisions that are subject to judicial oversight,
but judicial oversight is not a requirement of absolute
immunity. Compare, e.g., Burns, 500 U.S. at 496 (initiating
prosecutions), and Imbler v. Pachtman, 424 U.S. 409, 416,
431 (1976) (presenting false or perjured testimony in court),
and Kalina, 522 U.S. at 129 (preparing and filing information
and motion for arrest warrant), with Roe, 109 F.3d at 583, and
Cousins v. Lockyer, 568 F.3d 1063, 1068 (9th Cir. 2009)
(prosecutor’s failure to petition court for inmate’s release
entitled to absolute immunity). Defendants are entitled to
absolute immunity to the extent they participated in making
the extradition decision described in plaintiffs’ complaint.
REVERSED AND REMANDED.
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