Greenpoint Tactical Income Fund LLC v. ALLEN J. PETTIGREW and DARREN C. HALVERSON

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1411
GREENPOINT TACTICAL I NCOME F UND LLC, et al.,
Plaintiffs-Appellants,
v.
A LLEN J. PETTIGREW and DARREN C. HALVERSON ,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:20-cv-00444-PP — Pamela Pepper, Chief Judge.
____________________
A RGUED NOVEMBER 30, 2021 — DECIDED J UNE 27, 2022
____________________
Before WOOD and HAMILTON , Circuit Judges.*
HAMILTON , Circuit Judge. Plaintiffs Greenpoint Tactical In-
come Fund LLC and its affiliates and managers were the sub-
ject of an FBI investigation into suspected fraud, particularly
with respect to Greenpoint’s asset valuation practices. The
* Circuit Judge Kanne heard argument in this case but died on June
16, 2022. He did not participate in the decision of this case, which is being
resolved under 28 U.S.C. § 46(d) by a quorum of the panel.

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2 No. 21-1411
investigation led to issuance of a search warrant for plaintiffs’
properties and seizure of some assets. Following execution of
the warrant, plaintiffs filed this suit against FBI Special Agent
Allen Pettigrew and Assistant United States Attorney Darren
Halverson. Plaintiffs allege that Agent Pettigrew and AUSA
Halverson violated their Fourth Amendment rights by sub-
mitting a false and misleading affidavit in support of the
search warrant. They seek damages pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). The district court dismissed the suit for failure to
state a claim, concluding that plaintiffs were seeking to extend
Bivens to a “new context” and that “special factors” counseled
hesitation in doing so. Greenpoint Tactical Income Fund v. Petti-
grew, No. 20-cv-444, 2021 WL 461560, at *8 (E.D. Wis. Feb. 9,
2021), quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1859 (2017). We
affirm the district court’s dismissal but on different grounds.
Even assuming that Bivens can reach the Fourth Amendment
violations alleged here, defendant Halverson is entitled to ab-
solute prosecutorial immunity on these claims, and Agent
Pettigrew is entitled to qualified immunity on them.
I. Factual and Procedural Background
A. Greenpoint Tactical Income Fund and Its Affiliates
Because the district court dismissed the case for failure to
state a claim, we give plaintiffs the benefit of their factual al-
legations and draw reasonable inferences in their favor. Lax v.
Mayorkas, 20 F.4th 1178, 1181 (7th Cir. 2021). Plaintiffs are
Greenpoint Tactical Income Fund LLC and several affiliated
entities and individuals. Greenpoint is a private investment
fund that has over 100 individual investors. Greenpoint in-
vests in various assets, including rare gems and fine minerals,
which are the focus of this case. Its wholly-owned subsidiary,

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No. 21-1411 3
plaintiff GP Rare Earth Trading Account, LLC, maintains
Greenpoint’s assets. Plaintiffs Chrysalis Financial, LLC and
Greenpoint Asset Management II, LLC manage Greenpoint
and are managed in turn by plaintiffs Christopher Nohl and
Michael Hull respectively. Hull also manages an investment
advisory firm, plaintiff Bluepoint Investment Counsel, LLC,
that was working with Greenpoint in March 2017.
B. The Investigation
In May 2016, the United States Securities and Exchange
Commission referred a case it had been working on to FBI
Special Agent Allen Pettigrew for further investigation. At
that stage, the targets of the investigation were Bluepoint In-
vestment Counsel and Greenpoint Asset Management LLC.
The SEC also notified Agent Pettigrew that Greenpoint itself
may have been using “suspicious valuation practices for its
assets.”
Months later, after investigating the SEC’s referral, Agent
Pettigrew filed a search warrant application in March 2017
seeking access to plaintiffs’ properties and assets. Agent
Pettigrew’s supporting affidavit explained that he had been
investigating Christopher Nohl, Michael Hull, and Patrick
Hull for suspected mail and wire fraud.1 The affidavit
asserted that there was probable cause to believe that Nohl
and Michael Hull had “engaged in a scheme to defraud
investors by systematically overvaluing assets held by the
private investment fund that Nohl and … Hull[] manage[d].”
Agent Pettigrew asserted that the motive for the scheme was
to increase the management fees and profit allocations paid to
1 Patrick Hull is not a plaintiff in this action.

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4 No. 21-1411
Nohl and Hull, which were based on the value of
Greenpoint’s assets.
As further evidence supporting his suspicions, Agent Pet-
tigrew’s affidavit included details about the significant profits
and financial benefits that Greenpoint, Nohl, and Hull had re-
ceived in the less than three years of Greenpoint’s existence.
For example, the affidavit noted that Greenpoint had reported
an increase of 313% in the value of its gems and minerals in
less than three years. According to the affidavit, that increase
was also reflected in claims of over $43.1 million in unrealized
gains that were based largely on appraisals. The affidavit also
reported that Greenpoint’s management, Chrysalis and
Greenpoint Asset Management II, received major allocations
of money that were based wholly or in large part on these un-
realized gains that had been driven by appraisals of gems and
minerals. Specifically, by December 2015, Greenpoint’s man-
agement received at least 15% of every investor dollar and
amended the profit distribution structure giving themselves
over $6.5 million in additional funds. Those changes also al-
lowed the management to retain even more money without
investors receiving much benefit. The affidavit also noted that
the distributions and allocations to Greenpoint’s management
had been based almost entirely on the gem and mineral ap-
praisals that Nohl had solicited.
A federal magistrate judge found probable cause and is-
sued the search warrant. On March 22, 2017, FBI agents exe-
cuted the warrant at plaintiffs’ offices and homes and seized
documents, computers, and other items. One unusual feature
of this search was that the agents also seized Greenpoint’s
gems, fine minerals, and other materials. Then the agents and
their consultants assessed the values of the gems and

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No. 21-1411 5
minerals. Within a few months, the government returned to
plaintiffs all the gem and mineral assets that had been seized
during the raid. The criminal investigation ended without
criminal charges against any of the plaintiffs or their associ-
ates.
C. District Court Proceedings
Plaintiffs filed this lawsuit in March 2020 seeking damages
pursuant to Bivens v. Six Unknown Named Agents of Federal Bu-
reau of Narcotics, 403 U.S. 388 (1971), alleging that the search
and seizure of their property violated the Fourth Amend-
ment. In the complaint, plaintiffs alleged that Agent Pettigrew
“intentionally, knowingly, and recklessly made … false state-
ments and representations or material omissions” in the
search warrant affidavit. Plaintiffs also named Assistant
United States Attorney Darren Halverson as a defendant.
They claimed that AUSA Halverson “intentionally, know-
ingly, and recklessly assisted Pettigrew in the preparation and
filing of the false statement[s] and representations or material
omissions.” Plaintiffs’ complaint identified six representa-
tions in Agent Pettigrew’s affidavit that they asserted were
false and/or deliberately misleading. Those alleged misrepre-
sentations in the affidavit included:
• that Greenpoint was misleading investors
because its offering memorandum “retained
its emphasis on investments in distressed
real estate assets,” even though “the major-
ity of the investment dollars received by
[Greenpoint] [were] used to purchase gems
and fine minerals;”

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6 No. 21-1411
• that appraisers James Zigras and William
Metropolis did not actually complete the ap-
praisals attributed to them, based on lan-
guage in the affidavit that the appraisals
were “purported to be completed by” those
individuals;
• that it was unclear whether Metropolis’s ap-
praisals were based on fair market value or
some other basis because his reports “did
not specify the valuation type for the
amount;”
• that Nohl improperly influenced Metropo-
lis’s valuation of the assets because Metrop-
olis, in response to Nohl’s appraisal request,
sent him a note asking for “an idea of what
you might need for numbers;”
• that the lack of insurance to cover any of the
unrealized gains for GP Rare Earth’s gems
and minerals was further evidence of plain-
tiffs’ fraudulent scheme; and
• that comments from a former GP Rare Earth
officer that he left the company “due to un-
ethical and possible illegal activities” and
that the “new inventory was inflated and
may be a set up for a claim or misleading in-
vestors” provided additional evidence of
Greenpoint’s illegal practices.
Plaintiffs alleged that they were entitled to relief because de-
fendants’ representations caused plaintiffs’ properties and as-
sets to be searched and seized without probable cause.

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No. 21-1411 7
Defendants moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. They offered
four grounds: (1) there is no viable implied cause of action
pursuant to Bivens in the factual context of this case; (2) abso-
lute immunity bars the claims against AUSA Halverson; (3)
qualified immunity bars the claims against AUSA Halverson
and Agent Pettigrew; and (4) plaintiffs failed to allege plausi-
bly that the warrant affidavit was false and misleading in a
material way, that AUSA Halverson violated an actionable
court rule, or that the FBI caused improper damage to plain-
tiffs’ property.
Relying on the Supreme Court’s analysis in Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017), the district court granted the
motion to dismiss, concluding that no Bivens implied cause of
action is available here. Greenpoint Tactical Income Fund, 2021
WL 461560, at *1, *14. The court reasoned that plaintiffs were
seeking to apply Bivens to a “new context” and that various
“special factors” counsel against extending Bivens relief to this
case. Id. at *12–14. The court did not address absolute or
qualified immunity. Id. at *14.
II. Analysis
A. Legal Standard
We review de novo a district court’s decision granting a
motion to dismiss pursuant to Rule 12(b)(6). Lax, 20 F.4th at
1181. We will “construe the complaint in the light most favor-
able to the plaintiff, accept all well-pleaded facts as true, and
draw all reasonable inferences in the plaintiff’s favor.” Id. The
complaint must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Warciak v.
Subway Restaurants, Inc., 949 F.3d 354, 356 (7th Cir. 2020),

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8 No. 21-1411
quoting Fed. R. Civ. P. 8(a)(2). The facts also must be sufficient
to “state a claim to relief that is plausible on its face.” Id., quot-
ing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
complaint presents plausible claims when it “allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Warciak, 949 F.3d at 356, quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
B. Bivens Relief
1. The Abbasi Framework
In Abbasi, the plaintiffs alleged that they had been
detained and subjected to harsh conditions after the 9/11
terrorist attacks because of their race, religion, or national
origin. They sought damages from individual federal officials
under Bivens. 137 S. Ct. at 1853–54. Bivens held that courts may
recognize an implied cause of action allowing individuals to
recover damages for unconstitutional conduct by federal
agents acting under color of federal law. 403 U.S. at 389, 397.
Since Bivens was decided in 1971, circuit and district courts
have recognized Bivens as a foundation for damages claims
against individual federal officials for a wide range of alleged
constitutional violations. The case law governing those claims
has often paralleled the law under 42 U.S.C. § 1983 for similar
claims against state and local government officials, including
defenses of absolute and qualified immunity and standards
for available damages.
In recent years, however, the Supreme Court has been
adopting a narrower view of Bivens than has prevailed in the
lower courts. The Court in Abbasi considered whether the de-
fendants, who included high-level executive branch officials
(the former Attorney General, former FBI Director, and

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No. 21-1411 9
former Immigration and Naturalization Service Commis-
sioner) and prison wardens, could be sued under Bivens for
the alleged constitutional violations. 137 S. Ct. at 1853–54. The
Court referred to its recent reluctance to recognize implied
private rights of action in statutes and noted that expanding
Bivens to new “contexts” is now considered a “‘disfavored’ ju-
dicial activity.” Id. at 1857, quoting Iqbal, 556 U.S. at 675. The
Court emphasized: “It is not necessarily a judicial function to
establish whole categories of cases in which federal officers
must defend against personal liability claims….” Id. at 1858.
Rather, the Court explained, lower courts should focus on
separation of powers principles when deciding whether to
recognize an implied cause of action to enforce constitutional
rights. Id. at 1857.
The Abbasi Court thus introduced a new analysis for eval-
uating claims under Bivens. The first question a court must ask
is whether the plaintiff’s claim presents a new Bivens “con-
text,” “i.e., whether the case is different in a meaningful way
from previous Bivens cases decided by this Court.” Id. at 1864
(internal quotation marks omitted). If it is, the court must then
decide whether there are “special factors counselling hesita-
tion” in allowing the claim to go forward. Id. at 1857, quoting
Carlson v. Green, 446 U.S. 14, 18 (1980). The focus of that in-
quiry is “whether the Judiciary is well suited, absent congres-
sional action or instruction, to consider and weigh the costs
and benefits of allowing a damages action to proceed.” Id. at
1858.
The Supreme Court itself has ruled in favor of Bivens
plaintiffs in only three cases decided by full opinion on the
merits: Bivens itself, Davis v. Passman, 442 U.S. 228 (1979), and
Carlson v. Green. The plaintiff in Bivens claimed that federal

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10 No. 21-1411
agents violated his Fourth Amendment right to be free from
unreasonable searches and seizures when they arrested him
and searched his home without a warrant or probable cause.
403 U.S. at 389. In Davis, the plaintiff sued a United States Rep-
resentative for violating the equal protection component of
the Fifth Amendment Due Process Clause by discriminating
against her on the basis of sex when he fired her. 442 U.S. at
230–31. Carlson presented a claim against federal prison offi-
cials for deliberate indifference to the serious medical needs
of a prisoner, ultimately resulting in his death, in violation of
the Eighth Amendment. 446 U.S. at 16 & n.1.
Lower courts have looked at that range of claims and have
understandably viewed Bivens as authorizing damages claims
for a wide range of constitutional violations under clearly es-
tablished law. It is difficult to identify a principled basis for
allowing those three constitutional claims and not others, at
least where other special factors, such as military discipline or
alternative remedial systems, are not applicable. See, e.g.,
Schweiker v. Chilicky, 487 U.S. 412 (1988) (rejecting procedural
due process claim against Social Security officials); Chappell v.
Wallace, 462 U.S. 296 (1983) (rejecting race discrimination
claim against military officers); Bush v. Lucas, 462 U.S. 367
(1983) (rejecting First Amendment suit by federal employee);
Doe v. Rumsfeld, 683 F.3d 390, 394–96 (D.C. Cir. 2012) (declin-
ing to apply Bivens remedy to plaintiff’s claim, stemming from
his detention by the military, in part because of special factors
related to the military, national security, and intelligence);
Richards v. Kiernan, 461 F.3d 880, 885 (7th Cir. 2006) (affirming
dismissal of plaintiff’s Bivens action because federal statute
provided the “exclusive remedy for an alleged constitutional
violation … arising out of federal employment”); Robbins v.
Bentsen, 41 F.3d 1195, 1202–03 (7th Cir. 1994) (same).

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No. 21-1411 11
2. The Parties’ Arguments on Appeal
Plaintiffs argue that the core holding of Bivens provides
them with a remedy against defendants. As noted, plaintiff
Bivens alleged Fourth Amendment violations in the form of a
warrantless search. Defendants here obtained a warrant, but
plaintiffs allege they obtained it by deliberately misleading
the judge who issued it. Plaintiffs see the two contexts as so
closely related that this action falls within Bivens’ sphere of
Fourth Amendment claims arising from law enforcement
activities. Several pre-Abbasi cases recognized that plaintiffs
could sue federal agents who allegedly obtained warrants
based on fabricated or misleading affidavits. Those cases
support plaintiffs’ position, though such claims were
sometimes defeated on immunity defenses. E.g., Hernandez-
Cuevas v. Taylor, 723 F.3d 91, 104–05 (1st Cir. 2013) (affirming
denial of qualified immunity); Unus v. Kane, 565 F.3d 103, 123–
25 (4th Cir. 2009) (affirming grant of qualified immunity);
Technical Ordnance, Inc. v. United States, 244 F.3d 641, 646–50
(8th Cir. 2001) (reversing denial of qualified immunity);
Mendocino Environmental Center v. Mendocino County, 14 F.3d
457, 462–64 (9th Cir. 1994) (affirming denial of qualified
immunity); Salmon v. Schwarz, 948 F.2d 1131, 1137–39 (10th
Cir. 1991) (affirming in part denial of qualified immunity).
Courts also applied Bivens to cases where federal agents
presented false or misleading information before a grand jury
that resulted in an indictment and arrest. E.g., Webb v. United
States, 789 F.3d 647, 660–63 (6th Cir. 2015) (reversing in part
summary judgment for defendants); Hammond v. Kunard, 148
F.3d 692, 695–98 (7th Cir. 1998) (affirming denial of absolute
and qualified immunity).

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12 No. 21-1411
Even if this action is deemed to arise in a new Bivens con-
text, plaintiffs assert, no factors would make an extension of
Bivens here “unwarranted or improvident.” Allowing a Bivens
remedy would not lead to an improper, wide-ranging inquiry
into the evidence that officers and prosecutors used to obtain
the warrant, especially considering that courts conduct simi-
lar inquiries and analyses in deciding motions to suppress ev-
idence in criminal cases and in § 1983 cases against state and
local law enforcement officials. Plaintiffs also emphasize that
they will be left with no remedy for defendants’ alleged un-
constitutional overreach if they cannot pursue a Bivens action.
Defendants contend that plaintiffs seek an improper
extension of Bivens to a new context. Defendants see a
principled difference between officers who violate the Fourth
Amendment by carrying out a warrantless search (as in Bivens
itself) and those who violate it by deceiving a court into
issuing a search warrant, as alleged here. They also assert that
other factors weigh against applying Bivens in this case,
including that doing so would intrude into law enforcement
operations and would exceed the courts’ power where
Congress has not chosen to provide a remedy for individuals
like plaintiffs who have not faced criminal proceedings or
statutory intentional torts. For support, defendants cite circuit
court decisions analyzing this issue using the post-Abbasi
framework. E.g., Annappareddy v. Pascale, 996 F.3d 120, 135–38
(4th Cir. 2021) (affirming dismissal in relevant part); Cantú v.
Moody, 933 F.3d 414, 423–24 (5th Cir. 2019) (affirming
dismissal); Farah v. Weyker, 926 F.3d 492, 498–502 (8th Cir.
2019) (reversing denial of dismissal).

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No. 21-1411 13
3. General Application
In the wake of Abbasi’s new limits on Bivens claims, some
courts have taken a fresh look at the precedents that have au-
thorized Bivens claims in this context of alleged false and mis-
leading warrant applications, choosing instead to limit Bivens
to cases of warrantless searches and seizures. E.g., Annap-
pareddy, 996 F.3d at 135–38 (affirming dismissal of plaintiff’s
Bivens action against defendants for falsifying affidavit to ob-
tain search warrant); Cantú, 933 F.3d at 423–24 (affirming de-
nial of Bivens relief where plaintiff alleged that defendants vi-
olated his Fourth Amendment rights by falsifying affidavits
that led to his unlawful seizure); Farah, 926 F.3d at 498–502
(reversing denial of motion to dismiss Bivens claim where
plaintiffs alleged that defendant provided false information
and deceived prosecutors and grand jury into instituting
criminal proceedings).
In contrast, other courts (or panels) have taken the view
that Abbasi does not require them to disregard earlier Bivens
precedents as long as they were not inconsistent with Abbasi.
E.g., Hicks v. Ferreyra, 965 F.3d 302, 311–12 (4th Cir. 2020)
(noting that before Abbasi, courts regularly applied Bivens to
Fourth Amendment claims like plaintiff’s so plaintiff’s action
was “not an extension of Bivens so much as a replay”); Jacobs
v. Alam, 915 F.3d 1028, 1035–39 (6th Cir. 2019) (explaining that
plaintiff’s Bivens claims based on excessive force, fabrication
of evidence, and other misconduct were “run-of-the-mill
challenges … that fall well within Bivens itself”).
In Abbasi, the Supreme Court cautioned that any hesitation
about extending Bivens is “not intended to cast doubt on the
continued force, or even the necessity, of Bivens in the search-
and-seizure context in which it arose.” 137 S. Ct. at 1856.

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14 No. 21-1411
Instead, the Court explained, because Bivens is such “settled
law … in this common and recurrent sphere of law enforce-
ment,” it should be retained. Id. at 1857. The Court’s Bivens
decision in Hernández v. Mesa, 140 S. Ct. 735 (2020), is also con-
sistent with this comment about Bivens’ continued force. In
Hernández, the plaintiffs sought relief following a cross-border
shooting where a U.S. Border Patrol official shot and killed
their son, a young Mexican national. Id. at 740. The Court
found it “glaringly obvious” that the plaintiffs’ claims pre-
sented a new Bivens context because “Bivens concerned an al-
legedly unconstitutional arrest and search carried out in New
York City,” whereas the incident in Hernández occurred in an
international context at the border. Id. at 743–44. The Court
did not focus on the absence of a search warrant in Bivens but
framed the issue in terms of an unconstitutional arrest and
search in the United States, without trying to distinguish
among various scenarios involving warrants or different
grounds for warrantless searches or seizures.
A domestic search authorized pursuant to a fabricated
warrant affidavit is far different from the cross-border shoot-
ing in Hernández. It does not raise questions of foreign policy
or national security. Plaintiffs allege here the sort of Fourth
Amendment violation familiar to federal courts and close to
the heart of Bivens. As a result, we are not persuaded that Ab-
basi or Hernández overturned the line of cases recognizing
Fourth Amendment Bivens claims based on fabricated war-
rant affidavits and/or grand jury testimony. The Supreme
Court previously recognized that a search conducted with a
warrant that lacked particularity was equivalent to a warrant-
less search. Groh v. Ramirez, 540 U.S. 551, 558–59 (2004).

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No. 21-1411 15
Searches conducted with a “plainly invalid” warrant can still
violate the Fourth Amendment. Id. at 557, 563.2
Also, plaintiffs’ allegations are similar to the cases cited
above applying Bivens as a remedy against federal actors who
procured warrants based on false and misleading affidavits.
Adjudication of plaintiffs’ accusations here does not require a
novel intrusion into law enforcement operations. Such an in-
quiry is common in criminal cases where an accused defend-
ant seeks to suppress evidence because statements in an affi-
davit supporting a warrant were deliberately or recklessly
false, e.g., Franks v. Delaware, 438 U.S. 154, 171–72 (1978) (al-
lowing an evidentiary hearing after the defendant makes a
preliminary proffer that false statements were knowingly, in-
tentionally, or recklessly included in affidavit), and in § 1983
actions against state and local law enforcement officials, e.g.,
Lawson v. Veruchi, 637 F.3d 699, 700, 704–05 (7th Cir. 2011).
C. Absolute and Qualified Immunity
Defendants argue as alternative grounds for affirmance
that the complaint shows that AUSA Halverson is entitled to
absolute immunity on these claims and that Agent Pettigrew
is entitled to qualified immunity from liability. We agree.
We may affirm a district court’s dismissal of a claim on any
ground supported in the record as long as the plaintiff has
2 The Supreme Court recently held in Egbert v. Boule, No. 21-147, 596
U.S. –, 142 S. Ct. –, 2022 WL 2056291 (2022), that Bivens does not extend to
Fourth Amendment violations by federal officials engaged in border-
related functions. Id. at *3. The opinion in Egbert is consistent with the
Court’s cutting back on the scope of Bivens but does not change our
understanding of Bivens’ continued force in its domestic Fourth
Amendment context.

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16 No. 21-1411
had a fair opportunity to address the issue. Dibble v. Quinn,
793 F.3d 803, 807 (7th Cir. 2015); see also Regains v. City of Chi-
cago, 918 F.3d 529, 533 (7th Cir. 2019). The immunity issues
were fully briefed before the district court and before this
court, so we base our decision on those grounds without
wrestling to the ground the effects of Abbasi here.
1. Absolute Immunity for AUSA Halverson
Prosecutors enjoy absolute immunity from federal tort li-
ability, including Bivens liability, for their work as prosecu-
tors. Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976). This im-
munity is intended to prevent any threat that harassing civil
litigation might interfere with prosecutors’ independent judg-
ment and their duties to the public. Id. at 422–23.
This immunity follows the work done by a prosecutor as
a prosecutor; it does not necessarily apply to every official ac-
tion by a person who holds office as a prosecutor. Courts ap-
ply a functional test to determine whether absolute immunity
applies to a particular claim. Buckley v. Fitzsimmons, 509 U.S.
259, 269 (1993). The functional test focuses on “the nature of
the function” the prosecutor performed, not simply the posi-
tion she held. Id., quoting Forrester v. White, 484 U.S. 219, 229
(1988). The question is whether the prosecutor was acting as
an advocate in the challenged actions or was instead acting in
some other capacity, such as investigator or administrator. Id.
at 273. Extensive case law offers guidance in drawing these
lines and allows us to draw them here on the basis of plain-
tiffs’ allegations in their complaint.
A prosecutor’s advocacy role refers to “acts undertaken by
a prosecutor in preparing for the initiation of judicial proceed-
ings or for trial.” Buckley, 509 U.S. at 273. These actions include

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No. 21-1411 17
“the professional evaluation of the evidence assembled by the
police and appropriate preparation for its presentation at trial
or before a grand jury after a decision to seek an indictment
has been made.” Id.; accord, e.g., Brunson v. Murray, 843 F.3d
698, 704–05 (7th Cir. 2016) (affirming summary judgment be-
cause absolute immunity applied to defendant prosecutor’s
preparation of formal charges against plaintiff and his ap-
pearance at the probable cause hearing, which all occurred
“after the police investigation had ended”); Anderson v. Simon,
217 F.3d 472, 475–76 (7th Cir. 2000) (affirming dismissal of suit
because defendant prosecutor’s review of evidence and ulti-
mate refusal to file charges was covered by absolute immun-
ity); see also Jones v. Cummings, 998 F.3d 782, 788 (7th Cir.
2021) (similar); Davis v. Zirkelbach, 149 F.3d 614, 617 (7th Cir.
1998) (similar).
In contrast, a prosecutor acts in an investigative capacity
when he fills the role of a detective or officer “searching for
the clues and corroboration that might give him probable
cause to recommend that a suspect be arrested.” Buckley, 509
U.S. at 273. A prosecutor’s actions “before he has probable
cause to have anyone arrested” may be investigative. Id. at
274; accord, Hill v. Coppleson, 627 F.3d 601, 605–06 (7th Cir.
2010) (dismissing appeal for lack of jurisdiction based on
factual dispute about when defendant prosecutor became
involved with case and met with plaintiff—after there was
probable cause to arrest plaintiff or before—when officers
were still searching for evidence to support arrest).
Ultimately, prosecutors may claim only qualified immunity
for actions taken in an investigative capacity. Buckley, 509 U.S.
at 273; Bianchi v. McQueen, 818 F.3d 309, 316 (7th Cir. 2016).

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18 No. 21-1411
Plaintiffs’ complaint alleges that AUSA Halverson was act-
ing in an investigative capacity because they claim he was in-
volved in reviewing and drafting the search warrant affidavit.
In their reply brief, plaintiffs contend that those activities
were merely “litigation-inducing conduct” not shielded by
absolute immunity because there was apparently no probable
cause for an arrest, and they were never prosecuted. Mink v.
Suthers, 482 F.3d 1244, 1262 (10th Cir. 2007) (“Absolute im-
munity applies to the ‘prosecutor’s role in judicial proceed-
ings, not for every litigation-inducing conduct.’”), quoting
Burns v. Reed, 500 U.S. 478, 494 (1991).
Defendants first counter that the complaint lacks specific
facts about what AUSA Halverson did when he helped pre-
pare the affidavit, and they assert that whatever steps he took
“would have been directly tied to his judicial function.” They
contend that reviewing Agent Pettigrew’s affidavit in its draft
form was similar to preparing a witness to testify in a trial or
a hearing in support of a warrant application. As a result, de-
fendants contend that Halverson’s activities were not investi-
gative and that he is entitled to absolute immunity.
Even reading the facts in the light most favorable to
plaintiffs, we agree with defendants that AUSA Halverson is
entitled to absolute immunity. Plaintiffs’ allegations against
him concern his activities as an advocate. In Buckley, the
Supreme Court explained that a prosecutor’s advocacy
responsibilities include evaluating the evidence assembled by
officers. 509 U.S. at 273. Plaintiffs’ complaint here alleges that
AUSA Halverson assisted Agent Pettigrew in preparing the
search warrant affidavit. They also claim that Halverson
“directed” Pettigrew in preparing the warrant affidavit, but
they do not explain what supposed direction Halverson gave.

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No. 21-1411 19
These assertions do not suggest that AUSA Halverson was
doing anything more than evaluating the evidence that Agent
Pettigrew had gathered and presented to him. If that were
sufficient to establish that a prosecutor was acting in an
investigative capacity, then absolute immunity would
disappear for seeking search warrants. See Anderson, 217 F.3d
at 475–76 (explaining that reviewing and weighing the
evidence to decide whether to proceed with charges was “a
necessary part of a prosecutor’s role of advocate”).
Plaintiffs’ limited allegations about AUSA Halverson are
readily distinguishable from cases where we have held that a
prosecutor was or could have been acting in an investigative
capacity. For example, in Fields v. Wharrie, 740 F.3d 1107 (7th
Cir. 2014), we considered whether one of the defendants was
entitled to absolute immunity from allegations that he fabri-
cated witness testimony during the investigation of the plain-
tiff. We concluded that absolute immunity did not apply, af-
firming in part the district court’s denial of his motion to dis-
miss, in light of evidence that the defendant helped procure
false statements from prospective witnesses a month before
the plaintiff was even arrested. Id. at 1113–14.
Similarly, in Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir.
2012), we ultimately dismissed the case for lack of jurisdiction
because of a dispute about when probable cause developed.
But we did point to evidence in the record that the prosecutor
was involved in the investigation at its earliest stages, well be-
fore “anyone had sought his advice as a lawyer.” Id. at 578–
80. And in Olson v. Champaign County, 784 F.3d 1093 (7th Cir.
2015), we held that a prosecutor who actually swears to the
truth of the facts in an information or warrant application ra-
ther than just signing and filing it is not acting as an advocate.

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20 No. 21-1411
Id. at 1103. He is instead performing the same function as a
police witness. Id. In this case, however, there is no allegation
that AUSA Halverson was interviewing witnesses himself,
was actively involved in the investigation as it was unfolding,
or vouched himself for the truth of the allegations in Agent
Pettigrew’s affidavit.
The facts here are more like Lewis v. Mills, 677 F.3d 324 (7th
Cir. 2012), where the plaintiff attempted to hold the prosecu-
tor liable for allegedly fabricating evidence as part of an in-
vestigation against him. We affirmed the district court’s find-
ing that the prosecutor’s actions were within his advocate role
because he played no meaningful role in the investigation and
did not receive the case for his review until the investigation
was complete and ready for a grand jury. Id. at 331–32; see
also Bianchi, 818 F.3d at 318 (affirming absolute immunity for
claim that defendant prosecutor presented false statements to
grand jury and at trial). Because plaintiffs have not alleged
that AUSA Halverson acted outside his prosecutorial role in
helping to prepare a search warrant affidavit, after others had
gathered the relevant evidence, and in presenting it to a judge,
he is entitled to absolute immunity.
2. Qualified Immunity for Agent Pettigrew
Qualified immunity provides a shield from individual lia-
bility for officers “if a reasonable officer could have believed
that the action taken was lawful, in light of clearly established
law and the information the officer possessed at the time.”
Phillips v. Community Insurance Corp., 678 F.3d 513, 527–28 (7th
Cir. 2012). When evaluating a defense of qualified immunity,
courts must consider (1) “whether the facts that a plaintiff has
alleged or shown make out a violation of a constitutional
right” and (2) “whether the right at issue was ‘clearly

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No. 21-1411 21
established’ at the time of defendant’s alleged misconduct.”
Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal citations
omitted), quoting Saucier v. Katz, 533 U.S. 194, 201 (2001); Bet-
ker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012).
The Fourth Amendment guarantees the right to be free
from unreasonable searches and seizures. We have long rec-
ognized that a request for a warrant violates the Fourth
Amendment if an officer “knowingly, intentionally, or with
reckless disregard for the truth, makes false statements in re-
questing the warrant and the false statements were necessary
to the determination that a warrant should issue.” Knox v.
Smith, 342 F.3d 651, 658 (7th Cir. 2003). Such reckless disre-
gard for the truth can be shown through evidence that the of-
ficer “‘entertained serious doubts as to the truth’ of the state-
ments, had ‘obvious reasons to doubt’ their accuracy, or failed
to disclose facts that he or she ‘knew would negate probable
cause.’” Betker, 692 F.3d at 860, quoting Beauchamp v. City of
Noblesville, 320 F.3d 733, 743 (7th Cir. 2003). The Fourth
Amendment is also violated when an officer “intentionally or
recklessly withhold[s] material information from a warrant
application.” Whitlock v. Brown, 596 F.3d 406, 408 (7th Cir.
2010). Accord, e.g., Rainsberger v. Benner, 913 F.3d 640, 645–49
(7th Cir. 2019) (affirming denial of qualified immunity on
summary judgment because evidence omitted from warrant
affidavit undermined officer’s theory of case and resulted in
affidavit with “unremarkable” evidence from which “[a] pru-
dent person could not draw” conclusion that plaintiff com-
mitted crime).
An officer is not entitled to qualified immunity if he know-
ingly or recklessly included false, material information in an
affidavit or if he intentionally or recklessly omitted facts

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22 No. 21-1411
where “it would have been clear to a reasonable officer that
the omitted fact[s] [were] material.” Rainsberger, 913 F.3d at
653–54, quoting Leaver v. Shortess, 844 F.3d 665, 669 (7th Cir.
2016). When evaluating whether an officer’s alleged lies and
omissions are material to the probable cause determination,
“[w]e eliminate the alleged false statements, incorporate any
allegedly omitted facts, and then evaluate whether the result-
ing ‘hypothetical’ affidavit would establish probable cause.”
Betker, 692 F.3d at 862.
Here, plaintiffs’ complaint identifies several statements in
Agent Pettigrew’s affidavit that they claimed were either false
or misleading. Even accepting plaintiffs’ allegations as true
and adding the omitted information, though, Agent Petti-
grew’s affidavit still stated facts sufficient to establish proba-
ble cause, or at least to make a reasonable officer believe there
was probable cause for the searches authorized by the magis-
trate judge.
The key accusation in the affidavit was that plaintiffs, in
particular Nohl and Hull, had engaged in a scheme to defraud
investors by overvaluing Greenpoint’s assets. In support of
that allegation, the affidavit noted that in the less than three
years since Greenpoint had been launched, it reported an in-
crease of 313% in the value of its gems and minerals. That dra-
matic increase included over $43.1 million in unrealized gains
that were largely based on changes in appraised values.
The affidavit also asserted that Greenpoint’s management
had received significant allocations of its profits that were
based wholly or largely on unrealized gains, also driven by
appraisals of gems and minerals that Greenpoint held. In par-
ticular, by December 2015, Greenpoint’s management, Chrys-
alis and Greenpoint Asset Management II, received at least

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No. 21-1411 23
15% of every investor dollar. They allocated over $6.5 million
in additional funds to themselves even though investors
would not receive any major returns. According to Agent Pet-
tigrew’s affidavit, the management’s distributions and alloca-
tions were also based almost entirely on new, higher apprais-
als that plaintiff Nohl solicited for the gems and minerals.
Adding to the case for probable cause, the SEC, after con-
ducting its own review, had referred its case to the FBI based
on what the SEC deemed “suspicious valuation practices” for
Greenpoint’s assets. The SEC explained that there were sev-
eral “irregularities” in Greenpoint’s documentation that
made the SEC examiners “suspicious of [Greenpoint’s] ac-
counting practices.”
In light of plaintiffs’ contention that Agent Pettigrew omit-
ted facts from his affidavit, we must also consider whether
those facts, if included, would have negated probable cause
for the searches and seizures. Plaintiffs claim that Agent Pet-
tigrew had access to emails and other documentation, which
he failed to disclose to the magistrate judge, that controverted
many of the assertions in his affidavit. For example, plaintiffs
contend that Pettigrew implied in the affidavit that the indi-
viduals who conducted the appraisals may not have really
done so, but he had emails from Nohl confirming the identity
of the appraisers. Also, they point to an email Nohl sent to
Metropolis, one of the appraisers, declining to suggest values
for the assets. That email, they assert, contradicts Pettigrew’s
allegation that Nohl tried to improperly influence the ap-
praisal. Plaintiffs also claim that Pettigrew’s allegation that the
underinsurance of Greenpoint’s assets provided evidence of
fraud would have been rebutted if he had included the

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24 No. 21-1411
documents showing the insurance company was in the pro-
cess of increasing coverage to cover all the assets.
This omitted evidence would perhaps provide innocent or
alternative explanations for plaintiffs’ suspicious behavior
but would not have negated probable cause. We have often
cautioned that “the mere existence of innocent explanations
does not necessarily negate probable cause.” United States v.
Funches, 327 F.3d 582, 587 (7th Cir. 2003); accord, e.g., United
States v. Carmel, 548 F.3d 571, 577 (7th Cir. 2008) (affirming de-
nial of Franks hearing because potential alternate, legal use of
seized materials did not undermine inference that defendant
used materials in connection with possession of illegal weap-
ons); United States v. Reed, 443 F.3d 600, 604–05 (7th Cir. 2006)
(acknowledging that a person may conceal money for reasons
unrelated to illegal drug transactions, but concluding that all
the evidence together established probable cause to arrest de-
fendants); Beauchamp, 320 F.3d at 744 (explaining that plain-
tiff’s “potentially solid claim of alibi might warrant more
credit than a bald assertion of innocence” but did not under-
mine probable cause because alibi did not “conclusively es-
tablish[] [plaintiff’s] whereabouts”).
To be sure, the omitted facts here do weigh in plaintiffs’
favor and against an inference of fraud, but those facts do not
override the other allegations in Pettigrew’s affidavit, which
plaintiffs do not claim were falsified. Those allegations in-
clude that Greenpoint reported and claimed remarkable
short-term, unrealized profits on its gems and minerals, that
Greenpoint’s management alone received significant financial
gains based on those unrealized profits driven by new and
questionable appraisals, and that the SEC also flagged plain-
tiffs’ behavior as suspicious. These allegations, even

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No. 21-1411 25
combined with the omitted facts, were sufficient to establish
probable cause or, at the very least, allowed a reasonable
agent in Pettigrew’s position to believe they amounted to
probable cause. Even giving plaintiffs the benefit of their fac-
tual allegations, Pettigrew is entitled to qualified immunity.
The district court’s judgment is AFFIRMED.

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