Vernon Horn v. James Stephenson

19-2418-cv; 19-2443-cv
Horn; Jackson v. Stephenson
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2020
A RGUED: SEPTEMBER 3, 2020
DECIDED: A UGUST 26, 2021
________
No. 19-2418-cv
V ERNON H ORN,
Plaintiff-Appellee,
v.
JAMES S TEPHENSON,
Defendant-Appellant,
CITY OF NEW H AVEN, L EROY DEASE , PETISIA A DGER,
D ARYLE BRELAND,
Defendants.
________
No. 19-2443-cv
MARQUIS JACKSON,
Plaintiff-Appellee,
v.

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2 Nos. 19-2418, 19-2443
JAMES S TEPHENSON,
Defendant-Appellant,
C ITY OF NEW H AVEN, L EROY DEASE , PETISIA A DGER,
D ARYLE BRELAND,
Defendants.
________
On Appeal from the United States District Court for the
District of Connecticut.
________
Before: L IVINGSTON, Chief Judge, WALKER and JACOBS , Circuit Judges.
________
After each serving more than 17 years in prison for a robbery
and murder they did not commit, plaintiffs Vernon Horn and
Marquis Jackson brought civil rights actions against the City of New
Haven and law enforcement officials under 42 U.S.C. § 1983. As
relevant here, plaintiffs alleged that police forensic examiner James
Stephenson violated their due process rights under the Fourteenth
Amendment by withholding exculpatory ballistics reports in
contravention of Brady v. Maryland. Stephenson moved to dismiss
both actions, asserting a defense of qualified immunity and, in Horn’s
case, a defense of absolute immunity. The district court (Jeffrey A.
Meyer, J.) denied both motions. On appeal, Stephenson argues (1)
that it was not clearly established by 1999 that police firearms
examiners have a duty of disclosure under Brady, and (2) that he
generated one of the reports at the prosecutor’s direction. For the
reasons that follow, we AFFIRM the rulings of the district court.
________

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3 Nos. 19-2418, 19-2443
D OUGLAS E. L IEB (Ilann M. Maazel, on the brief),
Emery Celli Brinckerhoff & Abady LLP, New
York, NY, for Plaintiff-Appellee Vernon Horn.
K ENNETH R OSENTHAL , Law Office of Kenneth
Rosenthal, New Haven, CT, for Plaintiff-Appellee
Marquis Jackson.
STEPHEN R. F INUCANE , Assistant Attorney General
(Clare Kindall, Solicitor General, on the brief), for
William Tong, Attorney General of the State of
Connecticut; for Defendant-Appellant.
________
J OHN M. WALKER , JR ., Circuit Judge:
After each serving more than 17 years in prison for a robbery
and murder they did not commit, plaintiffs Vernon Horn and
Marquis Jackson brought civil rights actions against the City of New
Haven and law enforcement officials under 42 U.S.C. § 1983. As
relevant here, plaintiffs alleged that police forensic examiner James
Stephenson violated their due process rights under the Fourteenth
Amendment by withholding exculpatory ballistics reports in
contravention of Brady v. Maryland. Stephenson moved to dismiss
both actions, asserting a defense of qualified immunity and, in Horn’s
case, a defense of absolute immunity. The district court (Jeffrey A.
Meyer, J.) denied both motions. On appeal, Stephenson argues (1)
that it was not clearly established by 1999 that police firearms
examiners have a duty of disclosure under Brady, and (2) that he

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4 Nos. 19-2418, 19-2443
generated one of the reports at the prosecutor’s direction. For the
reasons that follow, we AFFIRM the rulings of the district court.
BACKGROUND
In reviewing a dismissal under Federal Rule of Civil Procedure
12(b)(6), we draw our discussion of the facts from the complaint,
which must be taken as true.1
On January 23, 1999, Vernon Horn and Marquis Jackson went
out on a Saturday night in downtown New Haven. The two teenagers
met up with friends at the Alley Cat nightclub and then stopped by
Dixwell Deli (the Deli), a 24-hour convenience store, at around 2:45
a.m. After purchasing a few items, they drove back to Jackson’s
apartment several blocks away.
Around 3:30 a.m., three masked robbers burst into the Deli and
opened fire. The shots hit an employee and a customer, Caprice
Hardy, who died shortly thereafter. After stealing a cellphone from a
store clerk and trying unsuccessfully to raid the cash register, the
robbers fled the scene.
A few minutes after the robbery, Horn walked back to the Deli.
This raised the suspicions of the lead detective on the investigation,
who believed that perpetrators of homicides tended to return to crime
scenes. After interviewing Horn at the Deli and learning that he had
spent the night with Jackson, detectives in the New Haven Police
Department (NHPD) began building a case against the two teenagers.
1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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5 Nos. 19-2418, 19-2443
Numerous pieces of evidence, however, suggested that a group
of drug dealers in Bridgeport, Connecticut, not Horn or Jackson, was
responsible for the murder-robbery. Call records for the stolen
cellphone showed that four out of five calls made after the incident
were to the Bridgeport drug dealers or their associates. Because the
records did not support the case against Horn and Jackson, NHPD
officers suppressed the records for nearly 20 years, hiding them in the
basement of a detective’s house.
After identifying the first of the five callers as Steve Brown, one
of the Bridgeport drug dealers, NHPD detectives still continued to
press the case against Horn and Jackson. The detectives even went so
far as to coach Brown to provide a false statement implicating the two
teenagers in the robbery. According to the fabricated story, on the
night of the robbery, Horn and Jackson met Brown, all three of whom
are African-American, for the first time at an all-white Polish social
club, drove him to Dixwell Deli, and convinced him to participate in
the robbery.
Most relevant to this appeal, Brown claimed that Horn shot
Hardy, the Deli customer who died, using a Beretta handgun. Shortly
after the robbery, NHPD sent shell casings and bullet fragments from
the crime scene to the Connecticut State Police Forensic Science
Laboratory (State Police Laboratory) for analysis. Connecticut law
defines the State Police Laboratory’s role as providing “technical
assistance to law enforcement agencies in the various areas of
scientific investigation.”2 On February 3, 1999, defendant James
Stephenson, the assigned firearms examiner, generated a General
Rifling Characteristics Report (the 1999 GRC Report) that listed all
firearm models that potentially matched the ballistics evidence, using
2 Conn. Gen. Stat. § 29-7b (1999).

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6 Nos. 19-2418, 19-2443
a margin of error of +/- 2 thousandths of an inch. A Beretta handgun
was not among the possible matches.
The next day, Stephenson prepared a memo to the NHPD
based on the 1999 GRC Report. The memo stated, “The bullets and
bullet fragments are consistent with being 9mm caliber. They may
have been fired from but not limited to a self loading pistol
manufactured by Calico, FEG, Browning, Heckler & Koch,
Hungarian, Kassnar, Norinco, or Walther.”3 This list matched the
firearm models in the 1999 GRC Report and made no mention of a
Beretta handgun. The memo—but not the underlying 1999 GRC
Report—was provided in a timely manner to the State’s Attorney’s
Office and to counsel for both Horn and Jackson.
In early 2000, while preparing for trial, Assistant State’s
Attorney Gary Nicholson noticed the inconsistency in the evidence:
Brown had identified the murder weapon as a Beretta handgun, but
Stephenson’s memo did not include a Beretta as a potential match to
the ballistics evidence. Nicholson called Stephenson and asked him
whether the murder weapon could have been a Beretta. On February
15, 2000, Stephenson generated a second GRC Report (the 2000 GRC
Report). This time, using a larger margin of error of +/- 4 thousandths
of an inch, the report listed multiple Beretta models as potential
matches. At no time prior to or during trial did Stephenson disclose
either the 1999 GRC Report or the 2000 GRC Report to the State’s
Attorney’s Office or to counsel for Horn or Jackson.
Horn and Jackson were tried together in 2000. Stephenson
testified at trial that the murder weapon could have been a Beretta,
based on “new information” that he said was provided by Nicholson.
3 Horn Compl. ¶ 160; Jackson Compl. ¶ 130.

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7 Nos. 19-2418, 19-2443
He denied having created any “reports when he had gotten the new
information from the State’s Attorney’s Office.”4 Horn was convicted
on all ten counts and sentenced to 70 years in prison. Jackson was
convicted on eight of ten counts and sentenced to 45 years in prison.
In 2018, as part of a re-examination of the case by the
Connecticut Federal Public Defender’s Office, the NHPD produced
the stolen cell phone’s call records and both the 1999 GRC Report and
the 2000 GRC Report. After reviewing the belatedly disclosed
evidence, the State’s Attorney’s Office successfully moved to vacate
the judgments of conviction for both men. In or around April 2018,
after serving 17 and 19 years in prison,5 respectively, Horn and
Jackson were released.
Horn and Jackson then each brought a federal civil rights action
separately under 42 U.S.C. § 1983 against the City of New Haven and
certain law enforcement officials. As regards Stephenson, plaintiffs
alleged that he violated their constitutional right to due process under
Brady v. Maryland6 by withholding the 1999 and 2000 GRC Reports
from the State’s Attorney’s Office. Stephenson filed a motion to
dismiss in each case, asserting in both cases that he was entitled to
qualified immunity and, in Horn’s case, that he was entitled to
absolute immunity. The district court denied both motions, and this
appeal followed.
4 Horn Compl. ¶ 173.
5 Horn was briefly released for two years on a writ of habeas corpus,
before the Connecticut Supreme Court reversed that decision and
reinstated his convictions.
6 373 U.S. 83 (1963).

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8 Nos. 19-2418, 19-2443
DISCUSSION
On appeal, Stephenson argues that: (1) he is entitled to
qualified immunity because it was not clearly established by 1999 that
“firearms examiners” had an obligation under Brady to turn over
exculpatory evidence to the prosecutor; and (2) he is entitled to
absolute immunity with respect to the 2000 GRC Report because he
prepared it at the prosecutor’s direction. We disagree. For the
reasons that follow, we conclude that, based on the facts alleged in
plaintiffs’ complaints, Stephenson cannot make out a defense of either
qualified immunity or absolute immunity.
I. Stephenson Is Not Entitled to Qualified Immunity
A person may bring an action under 42 U.S.C. § 1983 to seek
money damages from a government official who violates his or her
constitutional rights. “[T]o ensure that fear of liability will not unduly
inhibit officials in the discharge of their duties,” however, “the
officials may claim qualified immunity.”7 Qualified immunity
shields the official from civil liability unless: “[1] the official violated
a statutory or constitutional right that [2] was clearly established at
the time of the challenged conduct.”8 The doctrine aims to balance
“the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.”9
A right is clearly established if, at the time of the challenged
conduct, it was “sufficiently clear that every reasonable official would
7 Camreta v. Greene, 563 U.S. 692, 705 (2011) (internal quotation marks
and citation omitted).
8 Reichle v. Howards, 566 U.S. 658, 664 (2012).
9 Pearson v. Callahan, 555 U.S. 223, 231 (2009).

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9 Nos. 19-2418, 19-2443
[have understood] that what he is doing violates that right.”10
Because “[i]t is sometimes difficult for an officer to determine how the
relevant legal doctrine . . . will apply” in a particular factual
situation,11 “clearly established law must be particularized to the facts
of the case.”12 The Supreme Court “has repeatedly told courts . . . not
to define clearly established law at a high level of generality.”13 This
standard “ensure[s] that the official being sued had ‘fair warning’ that
his or her actions were unlawful.”14 Still, the plaintiff need not show
“a case directly on point,” as long as “existing precedent . . . placed
the statutory or constitutional question beyond debate.”15
In determining the state of the law, we consider Supreme Court
and Second Circuit precedent existing at the time of the alleged
violation.16 “Even in the absence of binding precedent, a right is
clearly established if ‘[t]he contours of the right [are] sufficiently clear
that . . . [t]he unlawfulness [is] apparent.’”17 “[I]f decisions from this
or other circuits clearly foreshadow a particular ruling on the issue,”
we may treat the law as clearly established.18
10 Reichle, 566 U.S. at 664 (internal quotation marks omitted).
11 Sloley v. VanBramer, 945 F.3d 30, 40 (2d Cir. 2019).
12 White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks
omitted).
13 Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation
marks omitted) (collecting cases).
14 Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (quoting Hope v.
Pelzer, 536 U.S. 730, 740 (2002)).
15 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
16 Terebesi, 764 F.3d at 231.
17 Townes v. City of New York, 176 F.3d 138, 144 (2d Cir. 1999) (first and
second alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)).
18 Terebesi, 764 F.3d at 231 (internal quotation marks omitted).

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10 Nos. 19-2418, 19-2443
We review de novo a district court’s denial of a motion to
dismiss based on qualified immunity.19 We hear such denials on
interlocutory appeal in light of the Supreme Court’s repeated
invocation of the “importance of resolving immunity questions at the
earliest possible stage [of the] litigation.”20 While qualified immunity
may be “successfully asserted” on a motion to dismiss the
complaint,21 the defense “faces a formidable hurdle” at the pleading
stage.22 We may review a denial of a motion to dismiss on the basis
of immunity only to the extent that the denial turned on questions of
law.23 The defendant “must therefore show not only that the facts
supporting the defense appear on the face of the complaint, but also
that it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim that would entitle him to relief.”24 Moreover,
“the plaintiff is entitled to all reasonable inferences from the facts
alleged,” including “those that defeat the immunity defense.”25 If we
cannot decide the availability of qualified immunity as a matter of
law, we must dismiss the appeal.26
19 Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.
2001).
20 Liberian Cmty. Ass’n of Conn. v. Lamont, 970 F.3d 174, 186 (2d Cir.
2020) (alteration in original) (quoting Wood v. Moss, 572 U.S. 744, 755 n.4
(2014)).
21 McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004).
22 Id. at 434.
23 Hill v. City of New York, 45 F.3d 653, 659–60 (2d Cir. 1995).
24 Brown v. Halpin, 885 F.3d 111, 117 (2d Cir. 2018) (per curiam)
(internal quotation marks omitted).
25 McKenna, 386 F.3d at 436.
26 Brown, 885 F.3d at 117.

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11 Nos. 19-2418, 19-2443
A. It Was Clearly Established by 1999 That Police Forensic
Examiners Must Disclose Exculpatory Information
In 1963, Brady v. Maryland established the affirmative duty of
the prosecution to turn over exculpatory evidence to the defense.
There, the Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.”27 Brady specifically addressed the disclosure obligation
of the prosecution. In concluding that such a duty exists, the Supreme
Court relied on two prior cases that referenced a broad obligation on
the part of the state not to obtain a defendant’s conviction through
deception. In Mooney v. Holohan, the Supreme Court stated that “a
contrivance by a state to procure the conviction and imprisonment of
a defendant is . . . inconsistent with the rudimentary demands of
justice.”28 And in Pyle v. State of Kansas, the Court held that “the
deliberate suppression by [state] authorities of evidence favorable to
[the defendant]” violates due process.29
In 1995, the Supreme Court in Kyles v. Whitley confirmed that
the prosecutor “has a duty to learn of any favorable evidence known
to the others acting on the government’s behalf in the case, including
the police.”30 As in Brady, Kyles focused on the obligation of the
prosecutor.31 The Kyles Court also acknowledged, however, that the
Brady obligation is not limited to material initially in the possession of
27 Brady, 373 U.S. at 87.
28 Id. at 86 (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)).
29 Id. (quoting Pyle v. Kansas, 317 U.S. 213, 216 (1942)).
30 Kyles v. Whitley, 514 U.S. 419, 437 (1995).
31 Id.

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12 Nos. 19-2418, 19-2443
the prosecution but also includes information in the hands of the
police.32 Noting that “no one doubts that police investigators
sometimes fail to inform a prosecutor of all they know,” the Court
observed that the state may need to establish “‘procedures and
regulations . . . to carry [the prosecutor’s] burden and to [e]nsure
communication of all relevant information on each case to every
lawyer who deals with it.’”33
Applying the teachings of Brady, in 1992, we recognized in
Walker v. City of New York that the government’s disclosure obligation
applied to the police when we held that “the police satisfy their
obligations under Brady when they turn exculpatory evidence over to
the prosecutors.”34 That rule makes good sense, we reasoned, because
the police may lack “the requisite legal acumen” to determine
whether materials constitute Brady evidence, and therefore they
should not be charged with “mak[ing] separate, often difficult, and
perhaps conflicting, disclosure decisions.”35
Stephenson does not dispute that Walker clearly established the
duty of police to share with the prosecutor any Brady evidence that is
favorable to the accused. Nor does he contest in this appeal that the
GRC Reports were material and exculpatory. He presses a qualified
immunity defense on the sole basis that Walker does not apply to a
firearms examiner employed by the State Police Laboratory. We
disagree and conclude that a police forensic examiner, whether an
analyst or technician fulfilling any of the roles associated with
forensic analysis, in 1999 reasonably would have understood that he
32 Id. at 437–38.
33 Id. at 438 (first alteration in original).
34 974 F.2d 293, 299 (2d Cir. 1992).
35 Id.

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13 Nos. 19-2418, 19-2443
or she was required to turn over exculpatory information to the
prosecutor.
To begin, plaintiffs affirmatively pleaded that Stephenson was
a member of the state police department who examined crime scene
evidence on the NHPD’s behalf. Specifically, the complaints alleged
that Stephenson was employed as a forensic and firearms examiner
in the Connecticut State Police Forensic Science Laboratory, which
“served as the forensics arm of the NHPD.”36 The State Police
Laboratory is statutorily charged with “provid[ing] technical
assistance to law enforcement agencies,”37 principally for the
purposes of determining “(1) [t]hat a crime was committed [or]
(2) [t]hat the crime is connected to the victim or perpetrator(s).”38 In
the criminal investigation against Horn and Jackson, Stephenson
fulfilled precisely that role: plaintiffs alleged that the NHPD sent
Stephenson shell casings and bullet fragments from the crime scene
for testing, and that Stephenson analyzed this evidence in order to
help identify the perpetrator. As an employee of a division of the
Connecticut State Police whose principal function was to assist law
enforcement in carrying out its investigative efforts, Stephenson
reasonably would have understood himself to be a member of the
police to whom Brady applies.
That Stephenson was a technical specialist, and not a sworn
officer, does not place him beyond the scope of Walker. It is well
settled that the absence of precedent involving “fundamentally
similar” facts is not fatal to a finding that the law is clearly
36 Jackson Compl. ¶ 128; see also Horn Compl. ¶¶ 157, 276.
37 Conn. Gen. Stat. § 29-7b (1999).
38 Jackson Compl. ¶ 127.

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14 Nos. 19-2418, 19-2443
established.39 “[T]he salient question . . . is whether the state of the
law . . . gave [the defendant] fair warning that [his] alleged treatment
of [the plaintiff] was unconstitutional.”40 Here, no reasonable police
forensic examiner would have understood Walker to turn on the
distinction between sworn and unsworn police officers advanced by
Stephenson. While that case involved alleged misconduct by a sworn
police detective,41 it did not distinguish between sworn and unsworn
police officers, and Stephenson puts forward no compelling
explanation for why the sworn / unsworn distinction would be at all
relevant to the decision’s constitutional holding. Regardless of
whether the police official concealed material that he collected as a
sworn officer or material that he analyzed as an unsworn forensic
examiner, “a contrivance by a state to procure the conviction and
imprisonment of a defendant”42 violates due process all the same.
That the police official in Walker was a sworn officer is as irrelevant to
the Brady analysis as the fact that he happened to be a police detective,
as opposed to a patrol officer.
If anything, it is Stephenson’s interpretation, if accepted, that
would require officials to parse the factual nuances of Brady and its
progeny. Jackson alleged that the State Police Laboratory staffs its
forensic examiners with former, sworn detectives from the NHPD,
and that Stephenson himself was an NHPD detective immediately
prior to joining the State Police Laboratory. There is no suggestion in
the relevant case law that these forensic examiners would have
somehow relinquished their Brady obligations upon transferring from
the NHPD to the State Police Laboratory. To the contrary, these
39 Hope, 536 U.S. at 741.
40 Id.
41 Walker, 974 F.2d at 295.
42 Brady, 373 U.S. at 86 (quoting Mooney, 294 U.S. at 112).

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15 Nos. 19-2418, 19-2443
allegations further support the conclusion that no reasonable forensic
examiner in Stephenson’s position would have drawn a distinction
between sworn and unsworn officers in understanding the duty of
disclosure established in Walker.
Our conclusion, based on Walker, that Brady applies to forensic
examiners in state crime laboratories is reinforced by decisions of our
sister circuits that by 1999 had reached the same conclusion. The Fifth
Circuit found that “the law was sufficiently clear in 1984 that a state
crime lab technician would have known that suppression of
exculpatory . . . test results would violate a defendant’s rights.”43 The
Sixth Circuit observed that, “at least as early as April or May of 1990,”
the legal norm that “a forensic expert may be subject to suit under §
1983 for deliberately withholding the existence of exculpatory
forensic evidence” was clearly established.44 The Tenth Circuit stated
that it had “no doubt that . . . an official in [a state crime lab chemist’s]
position in 1986 had ‘fair warning’ that the deliberate or reckless
falsification or omission of evidence was a constitutional violation.”45
This pattern of decisions is not undermined by the single,
Eighth Circuit case cited by Stephenson for support.46 In Villasana v.
Wilhoit, the crime laboratory technician concealed reports from the
prosecutor in accordance with agency policy.47 Focusing on the issue
of fault, the court concluded that the technician was entitled to
43 Brown v. Miller, 519 F.3d 231, 238 (5th Cir. 2008).
44 Moldowan v. City of Warren, 578 F.3d 351, 397 (6th Cir. 2009).
45 Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004); see also Jones
v. City of Chicago, 856 F.2d 985, 993, 995 (7th Cir. 1988) (Posner, J.) (affirming
jury’s verdict that a police laboratory technician was liable under 42 U.S.C.
§ 1983 for omitting exculpatory information from a lab report).
46 See Villasana v. Wilhoit, 368 F.3d 976 (8th Cir. 2004).
47 Id. at 980.

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16 Nos. 19-2418, 19-2443
qualified immunity because “there [wa]s no evidence the defendants
acted in bad faith, that is, engaged in ‘a conscious effort to suppress
exculpatory evidence.’”48 Nowhere in Villasana did the court hold or
suggest that Brady is limited to certain subgroups of police officers.
To the contrary, it assumed that state crime laboratory technicians
have a constitutional duty not to withhold exculpatory information
intentionally.49
Finally, we easily reject Stephenson’s argument that he was
simply a “forensic witness[]” or “lay expert.”50 Plaintiffs alleged that
he was employed by the State Police Laboratory and was responsible
for analyzing physical evidence exclusively on behalf of the police. In
the criminal cases against plaintiffs, he is alleged to have worked
closely with the police and the prosecutor, including by testing
ballistics evidence, authoring multiple reports, and assisting the lead
prosecutor in preparing for trial. His role went beyond that of a third-
party expert witness retained to “help the trier of fact . . . understand
the evidence or to determine a fact in issue.”51 For the reasons set
forth above, we conclude that Stephenson is not entitled to qualified
immunity based on the facts appearing on the face of the complaints.
48 Id. (quoting California v. Trombetta, 467 U.S. 479, 488 (1984)).
49 Id. at 980–81 (affirming the grant of qualified immunity on the basis
that “Villasana failed to establish the bad faith required . . . to recover § 1983
damages from the Crime Laboratory officials”).
50 Appellant’s Br. 19, 28.
51 Fed. R. Evid. 702(a).

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17 Nos. 19-2418, 19-2443
II. Stephenson Is Not Entitled to Absolute Immunity
Stephenson asserts in the action brought by Horn that he has
absolute immunity for his role in creating the 2000 GRC Report.52
Absolute immunity protects “acts undertaken by a prosecutor in
preparing for the initiation of judicial proceedings or for trial, and
which occur in the course of his role as an advocate for the State.”53
The prosecutor is not immune for acts performed in an administrative
or investigative capacity.54 As relevant here, absolute immunity
extends “also [to] individual employees who assist . . . an official
[shielded by absolute immunity] and who act under that official’s
direction in performing functions closely tied to the judicial
process.”55
We need not reach the question of whether Stephenson
generated the 2000 GRC Report in furtherance of the prosecutor’s
advocacy function because there is no allegation that Nicholson
requested a new report. Horn pleaded simply that the “Assistant
State’s Attorney Nicholson . . . called . . . [and] asked Stephenson
whether it was possible the murder weapon could have been a
Beretta.”56 Then, “[o]n February 15, 2000, Stephenson generated a
new General Rifling Characteristics Report, this time manipulating
the report to increase the margin of error to +/- 4.”57 Even if we
concluded that adjusting the margin of error constituted prosecutorial
52 Stephenson did not assert an absolute immunity defense in
Jackson’s case because Jackson’s complaint did not reference any
communication between Stephenson and the prosecutor.
53 Kalina v. Fletcher, 522 U.S. 118, 126 (1997).
54 Hill, 45 F.3d at 661.
55 Id. at 660.
56 Horn Compl. ¶ 166.
57 Id. ¶ 167.

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18 Nos. 19-2418, 19-2443
advocacy, the complaint nowhere alleges that Nicholson asked, much
less instructed, Stephenson to create a new GRC Report using a larger
margin of error. Moreover, Horn affirmatively alleged that Nicholson
never saw the 2000 GRC Report prior to trial, which further suggests
it was not created at his request.
Undeterred, Stephenson asks us to make that inference based
on the timing and context of Nicholson’s phone call. This we cannot
do. In reviewing a motion to dismiss, we draw all reasonable
inferences in the plaintiff’s favor, including those that defeat an
immunity defense.58 The allegations here are consistent with Horn
and Jackson’s theory that Stephenson independently decided to
manipulate the margin of error upon learning that the memo based
on the 1999 GRC Report would weaken the state’s case against Horn
and Jackson. For these reasons, we conclude that Stephenson is not
entitled to an absolute immunity defense based on Horn’s pleadings.
C ONCLUSION
For the foregoing reasons, we AFFIRM the rulings of the
district court.
58 McKenna, 386 F.3d at 436.

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