A federal judge concluded on Monday that a former Denver prosecutor could not be sued for allegedly causing the arrests of two plaintiffs after they failed to appear for trial on the scheduled date, even though the trial had been postponed.

Victoria Carbajal and Luis Leal first filed suit more than a decade ago, alleging they were under subpoena to testify in a state criminal trial in July 2011. The judge rescheduled the trial but did not modify the subpoena. Allegedly, after Carbajal and Leal did not appear on the original trial date, prosecutor Rebekah Watada testified before a different judge about the pair’s absence. The judge issued an arrest warrant for both plaintiffs for contempt of court.

Carbajal and Leal — who described themselves as “two innocent and elderly citizens, who are also disabled” — were jailed and given $10,000 bonds. Shortly afterward, the district attorney’s office dropped the contempt charges.

On two occasions, federal judges dismissed their claim of malicious prosecution against Watada, who is now a Westminster municipal judge. Twice, the U.S. Court of Appeals for the 10th Circuit reversed those decisions. Most recently, the 10th Circuit reinstated the malicious prosecution claim in 2024 after a U.S. Supreme Court decision clarified the elements for such claims.

In May 2025, U.S. District Court Judge Philip A. Brimmer directed the parties to submit additional arguments on whether Watada was entitled to qualified immunity, a judicially created doctrine that shields government employees from civil liability unless they violate a person’s clear legal rights.

“The failure to appear in response to a subpoena issued by a criminal court is sufficient to establish probable cause for the issuance of an arrest warrant,” wrote Watada’s lawyers. “Because there was probable cause, there can be no legitimate malicious prosecution claim against Ms. Watada.”

Carbajal and Leal, representing themselves, countered that there was no probable cause for their arrest “because there was no trial or need for testimony. The entire contempt process was a fraud. No duty existed to appear in a nonexistent and imaginary trial proceeding.”

In a March 2 order, Brimmer agreed with Watada.

“The Court finds that, given the complaint alleges that plaintiffs were subpoenaed to appear on July 27, 2011, and is fairly read to allege that they did not appear,” he wrote, “defendant reasonably believed that there was substantial probability a violation … occurred and therefore probable cause existed for issuance of arrest warrants for contempt of court.”

Brimmer added that courts elsewhere have found that a subpoena creates a “continuing duty” to appear in court. The plaintiffs failed to cite a prior decision establishing that prosecutors act unconstitutionally by seeking a warrant for someone who fails to appear on the required date, even if the trial has been rescheduled.

“The Court also has not identified any cases that would clearly establish this right,” he added.

The case is Carbajal et al. v. Watada.