A federal prosecutor is not entitled to absolute immunity for executing an affidavit supporting a subpoena of a witness’s medical records. The affidavit falsely stated that the witness was the victim of the crime, rather than the defendant’s alibi witness who had consented to only a limited waiver of her privacy right to prevent disclosure of her medical records. In issuing the subpoena and in using the produced documents to impeach the witness at trial, the prosecutor acted in the traditional role as an advocate and was entitled to absolute immunity, but not in swearing out the affidavit, in which the prosecutor acted like a complaining witness, not entitled to absolute (and perhaps not even qualified) immunity.
Ninth Circuit Court of Appeals (Wilken, J.); July 5, 2016; 2016 WL 3606745