Ninth Circuit Revives Claims Against Prosecutor Over Alleged False Warrant Affidavit

Court rules prosecutor not immune when acting as 'complaining witness' in warrant application

Jan. 29, 2026 at 9:15pm

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The Ninth Circuit Court of Appeals has revived civil claims against a former Multnomah County Deputy District Attorney, finding that allegations he submitted knowingly false statements in a warrant affidavit to secure an arrest warrant and charges are not shielded by prosecutorial immunity. The court ruled that when a prosecutor acts as a 'complaining witness' in a warrant application, immunity does not apply to alleged Fourth Amendment violations based on false statements.

Why it matters

This ruling could impact how prosecutors approach warrant affidavits when they personally certify facts, rather than relying solely on investigators. It may also affect how courts evaluate claims of political motivation in protest-related charging decisions, and what evidence would be relevant in such cases.

The details

The case stems from a 2019 protest by Joey Gibson and Russel Schultz outside a Portland-area Antifa hangout known as the Cider Riot bar. During the protest, Gibson called on community members to take lawful steps to stop Antifa from engaging in criminal activity. Prosecutors later filed charges against Gibson and sought a secret arrest warrant, which was signed by Deputy District Attorney Brad Kalbaugh, who personally swore to the statements offered to establish probable cause.

  • In 2019, Gibson conducted and live streamed a public protest outside the Cider Riot bar.
  • Soon after the protest, prosecutors filed baseless charges and sought a secret arrest warrant against Gibson.
  • On January 29, 2026, the Ninth Circuit Court of Appeals issued a published decision reversing the district court's dismissal of claims against Kalbaugh.

The players

Joey Gibson

One of the plaintiffs in the civil lawsuit, who was arrested and charged following the 2019 protest.

Russel Schultz

One of the plaintiffs in the civil lawsuit, who was arrested and charged following the 2019 protest.

Brad Kalbaugh

A former Deputy District Attorney for Multnomah County, who personally swore to the statements in the warrant affidavit to obtain the arrest warrant.

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What they’re saying

“Today's decision is an important victory for accountability and basic constitutional truth. Prosecutors cannot personally swear to facts to secure an arrest warrant, and then claim immunity when those sworn facts are false. The Ninth Circuit said it plainly: knowingly false statements used to obtain a warrant violate the Fourth Amendment, and 'the act's unlawfulness was apparent.'”

— Angus Lee, Attorney for the plaintiffs

“This is a procedural case that is prone to misunderstanding. A person filing a lawsuit can allege any fact they want in their complaint. At the motion to dismiss stage, the court must assume that all facts in the complaint are true. The Multnomah County District Attorney's office believes this allegation to be false and has every confidence that former DDA Kalbaugh will prevail on the merits if plaintiffs seek to refile their claim.”

— Spokesperson, Multnomah County District Attorney's Office

What’s next

Plaintiffs will proceed on remand, including amending pleadings as required and pursuing discovery regarding the warrant submissions and decision making that led to the arrests.

The takeaway

This ruling could have significant implications for how prosecutors approach warrant affidavits, particularly when they personally certify the facts used to establish probable cause. It also raises questions about the role of political motivations in protest-related charging decisions and the evidence needed to prove 'knowing' falsehoods or material omissions in warrant applications.