Did the court clerk unconstitutionally exercise a judicial function under the Fourth Amendment and Gerstein v. Pugh

QUESTIONS PRESENTED In Gerstein v. Pugh, 420 U.S. 130 (1974), this Court found a prosecutor was disqualified from making a determination of probable cause for the issuance of an arrest warrant It reiterated that the “... Fourth Amendment requires a judicial determination to extended restraint of liberty following an arrest.” (p. 114)“ and that ... the existence of a probable cause must be decided by a neutral and detached magistrate. ...” (p. 112). More recently in Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1998), the Court adopted a functional approach for extending judicial immunity to non-judicial officials who exercise discretionary judgment comparable to those of judges. The combination of these two decisions has a profound effect on the present case. Here a municipal judge delegated his core judicial functions for determining probable cause and issuing arrest warrants to his court clerk without any review on his part. The Eighth Circuit Court of Appeals held that although the clerk was likely disqualified from making probable cause decisions under Pugh, supra, she was nevertheless entitled to quasi-judicial immunity for her discretion in exercising the delegated authority. It also held the municipal judge was immune because he would have had jurisdiction to make probable cause determinations and issue arrest warrants on his own. This case therefore presents three questions: 1. Did the court clerk unconstitutionally exercise a judicial function under the Fourth Amendment and Gerstein v. Pugh, supra by issuing arrest warrants and setting bonds and conditions for pretrial release? 2. If so, is the clerk entitled to quasi-judicial immunity for the unconstitutional ii exercise of discretion in issuing arrest warrants? 3. Is the municipal judge entitled to judicial immunity for delegating to his clerk the full authority to make probable cause determinations and issue arrest warrants?