
    Kenley HINRICHS, a married man, Plaintiff-Appellee, v. Connie VIETZ, individually, Defendant-Appellant.
    No. 00-35946. D.C. No. CV-00-00046-EJL.
    United States Court of Appeals, Ninth Circuit.
    Submitted July 9, 2001.
    
    Decided Sept. 4, 2001.
    Before ALARCON, FERNANDEZ, and TASHIMA, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Connie Vietz, a prosecuting attorney for the County of Ada, Idaho, appeals from the district court’s denial of her summary judgment motion based upon her claim of qualified immunity. We reverse.

We have jurisdiction over this interlocutory appeal and reverse because our review of the record demonstrates that there are no issues of material fact and Vietz is entitled to immunity as a matter of law. See Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.2000); Knox v. Southwest Airlines, 124 F.3d 1103, 1106-07 (9th Cir.1997). Of course, even where the district court perceives a material dispute of fact, the defendant can assert on appeal that no material dispute really exists. See Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir.1996).

That is the case here. We start with the familiar proposition that when Vietz was performing her discretionary duties, qualified immunity attached unless “in the light of pre-existing law the unlawfulness” of her actions was “apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). When a prosecutor, who is seeking a warrant, omits some information, she is still entitled to a grant of qualified immunity unless it is shown that the omission was material, that is that the warrant would not have issued had the information been included. See Morley v. Walker, 175 F.3d 756, 760 (9th Cir.1999); Liston v. County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997). Here we have little doubt that the state magistrate judge could have issued the warrant, even if the error regarding the length of the pipe in question had been brought to his attention. There can be, no doubt that the complaining witness did fix the value of the pipe at the stated figure, regardless of any mistake in the police report regarding the exact length of the pipe.

More than that, there is no substantial showing that Vietz propounded a deliberate falsehood or acted in reckless disregard of the truth when she appeared before the magistrate judge and read the police report to him. Absent that showing, qualified immunity should have followed. See Morley, 175 F.3d at 760; Liston, 120 F.3d at 974; Hervey v. Estes, 65 F.3d 784, 788 (9th Cir.1995). Simply put, Vietz’s failure to note the error in the police report when she read it to the magistrate judge has very little tendency to demonstrate that she knowingly or recklessly omitted information from her testimony.

Therefore, Vietz should not be put to the disruption and expense wrought by a trial. In fine, she is entitled to qualified immunity.

REVERSED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     