IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41297
JAMES YORK BROWN,
Plaintiff-Appellant,
versus
ROLAND SCOTT LYFORD; ET AL.,
Defendants,
ROLAND SCOTT LYFORD; ANN GOAR; DEBBIE MINSHEW; BROOKS FLEIG; STEVE
BAGGS; UPSHUR COUNTY, TEXAS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
February 20, 2001
Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This is an appeal from a judgment of the district court
granting summary judgment to various defendants in a section 1983
lawsuit. This suit arose from an aborted criminal investigation of
child abuse and murder, presenting claims against arresting
officials including malicious prosecution and false arrest. We
hold that the officer defendants were entitled to qualified
immunity, and that none was a policymaking official for the county
defendant. We AFFIRM the judgment of the district court.
1
I
In 1990, Ann Goar and Debbie Minshew as employees of the Texas
Department of Protective and Regulatory Services were assigned to
counsel the children of Loretta and Wendell Kerr. The Kerr
children came into foster care upon allegations of sexual abuse
leveled against Wendell Kerr. The counseling later expanded to
include the children of Wanda Geer Hicks, whom Wendell Kerr had
started dating. The Kerr and Hicks children began to tell of being
tortured, molested, and sodomized by their parents, grandparents,
and various strangers, abuse including satanic rituals involving
masks and knives. Their stories related the murder, dismemberment,
post-mortem rape, and cannibalism of babies and children by the
abusing adults. Goar and Minshew recruited two private occult
investigators, Brooks Fleig and Steve Baggs to assist in an
investigation of these accounts by the children. Roland Scott
Lyford was appointed prosecutor pro tem after Upshur County’s
regular district attorney recused himself from the case. Lyford
participated closely in the investigation, and in 1993 at Lyford’s
recommendation the county hired Fleig and Baggs as criminal
investigators.
Child Protective Services criticized the methods of the
investigators in interviewing the Kerr and Hicks children. CPS
particularly criticized the use of a “holding technique,” in which
investigators physically restrained children while they answered
2
questions. CPS also objected to the suggestive nature of the
questions asked by the investigators. Suggestive questions were
asked of both the children and the adult witnesses. An adult,
Wanda Hicks,1 later recanted, explaining that she developed her
story out of the questions investigators put to her. Despite a
grand jury indictment, all charges were ultimately dropped.
Wendell Kerr had a corroborated alibi for the times of the alleged
crimes, and the mishandling of the child witnesses made their
testimony unreliable.
Yet, evidence also pointed in the opposite direction. Medical
examination of the children found genital and anal scarring
consistent with sexual molestation. An adult, Lucas Geer,
confessed to police that he participated in ritualistic child abuse
and child murder, a confession corroborating the stories told by
the Kerr and Hicks children. A search of the Kerr property found
three shallow grave-like depressions in the soil, a shovel with
blood residue on it, an area matching the children’s description of
where the abuses occurred, two devil masks, a blood-stained
mattress cover, and four knives said by the children to have been
used to murder and dismember children. Pursuant to a plea
agreement, two of the charged adults identified items retrieved
from the Kerr household as devices used to restrain and torture
children. Finally, plastic bags were found buried on the Kerr
1
Then named Wanda Kerr due to her marriage.
3
property, containing bone fragments. Before Lyford took his
evidence to the grand jury, the Texas Human Skeletal Identification
Laboratory issued a report stating the remains were most probably
human. Another report from a different laboratory, filed months
after the indictment was issued, concluded that the remains were
not human.
While the defendants were investigating the Kerr case,
Sergeant James Brown was investigating the disappearance of Kelly
Wilson. Wilson was 17 when she was reported missing in Gilmer,
Texas. In 1993, one of the Kerr children, identified as “R.S.,”
claimed that Kelly Wilson had been abducted, raped, and murdered by
the Kerrs. As a result, Brown’s investigation began to overlap
with the investigation being conducted by defendants.
In a conversation between Brown and defendants, Brown said he
had separately investigated the Kerr and Hicks children’s
allegations, and observed that Wendell Kerr, a key suspect, was not
in Texas when Kelly Wilson disappeared. Brown asserts that
defendants viewed his comments as interfering with their
investigation. Lyford told Brown that Lyford was now investigating
the disappearance of Kelly Wilson, that he did not want Brown
interfering, and that if Brown interfered, “we’re going to have a
problem.”
Shortly thereafter, R.S. implicated Brown in the charges of
child abuse and the disappearance of Kelly Wilson. He stated that
the police would not help, that they were also “bad,” and described
4
in general terms a person resembling Brown as having participated
in the abuse. Later, Connie Martin – one of the adults involved -
also implicated Brown by name. At the same time, the case against
Brown had problems. Wanda Kerr was unable to identify Brown in a
photo lineup. The narratives told by witnesses other than R.S.
never mentioned Brown.
Lyford took this evidence to the Upshur County Grand Jury,
which indicted the alleged abusers, including Brown. Brown was
arrested and spent six days in jail. As we explained, charges were
later dropped. Considerable media coverage surrounded these
events. The Kerrs sued under section 1983. The district court
dismissed on immunity grounds. We affirmed in Kerr v. Lyford.2
This case concerns largely the same events, but is Brown’s lawsuit
rather than the Kerrs’s. In his original complaint, Brown asserted
a broad range of constitutional violations,3 as well as a variety
of state law claims.4 In rendering judgment, the district court
read Brown’s complaint to invoke federal constitutional rights to
2
171 F.3d 330 (5th Cir. 1999).
3
Specifically, Brown claimed to have been deprived of the the
right not to be falsely accused of capital murder, the right not to
be falsely arrested, the right not to be subjected to unlawful
searches and seizures, the right not to be deprived of liberty
without due process of law, the right not to be deprived of
property without due process of law, the right of equal protection
of law, and the right of privacy.
4
Those were malicious prosecution, intentional infliction of
emotional distress, negligence, gross negligence, and civil
conspiracy.
5
be free from unreasonable seizure, false arrest, false
imprisonment, and malicious prosecution, a reading Brown does not
challenge. The district court held that Goar, Minshew, Fleig, and
Baggs were entitled to qualified immunity, Lyford to absolute
immunity, and all were entitled to summary judgment. It granted
summary judgment to Upshur County. Brown appeals.
II
To overcome the qualified immunity of government officials,
Brown must show 1) a constitutional violation; 2) of a right
clearly established at the time the violation occurred; and 3) that
the defendant actually engaged in conduct that violated the clearly
established right.5
To date, the Fifth Circuit accepts that malicious prosecution
can deprive a person of constitutional rights. This
“constitutional tort” has seven elements:
1. criminal action commenced against the plaintiffs;
2. that the prosecution was caused by the defendants or with
their aid;
3. that the action terminated in the plaintiffs’ favor;
4. that the plaintiffs were innocent;
5. that the defendants acted without probable cause;
5
Kerr, 171 F.3d at 339.
6
6. that the defendants acted with malice; and
7. that the criminal proceeding damaged the plaintiffs.6
The “constitutional torts” of false arrest, unreasonable seizure,
and false imprisonment also require a showing of no probable
cause.7
These defendants have qualified immunity if they had probable
cause to believe that Brown committed a crime. “For purposes of
malicious prosecution, probable cause means ‘the existence of such
facts and circumstances as would excite the belief, in a reasonable
mind, acting on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for which he was
prosecuted.’”8
Brown points to the statements of three witnesses in the
summary judgment record as establishing the absence of probable
cause. First, Shane Phelps, the assistant Attorney General who
took over from Lyford, stated in an affidavit that “the evidence
6
Kerr, 171 F.3d at 340.
7
See, e.g., Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir.
2000) (holding that qualified immunity protects government
officials from a charge of wrongful arrest where a reasonable
official would believe probable cause was present); Thomas v.
Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988) (“Claims of false
arrest, false imprisonment, and malicious prosecution involve the
guarantees of the fourth and fourteenth amendments when the
individual complains of an arrest, detention, and prosecution
without probable cause.”).
8
Kerr, 171 F.3d at 340 (quoting Moore v. McDonald, 30 F.3d
616, 620 n.2 (5th Cir. 1994)).
7
supporting the indictment of Sgt. Brown was fatally deficient and
did not even rise to the level of probable cause.” Second, Dr.
Richard Ault, an expert retained by Brown, expressed in an
affidavit his opinion that the methods used in interviewing the
various witnesses were excessively coercive, such that the
statements of those witness could not “produce objective
information that a reasonable law enforcement officer could use in
the course of” an investigation. Third, Dr. Bruce Perry, an expert
testifying as part of a later grand jury investigation reviewing
Lyford’s investigation, said that both the adult and child
witnesses came from abusive homes and were therefore prone to
reading a questioner’s face and saying what they thought the
questioner wanted to hear, in order to protect themselves from
abuse. Perry also expressed his opinion that the interviewing
techniques used were highly coercive and suggestive.
A plaintiff must clear a significant hurdle to defeat
qualified immunity. “[T]here must not even ‘arguably’ be probable
cause for the search and arrest for immunity to be lost.”9 That
is, if a reasonable officer could have concluded that there was
probable cause upon the facts then available to him, qualified
immunity will apply. Defendants point to the following evidence
9
Hart v. O’Brien, 127 F.3d 424, 444 (5th Cir. 1997). Hart
was abrogated by the Supreme Court’s decision in Kalina v.
Fletcher, 522 U.S. 118 (1997), but upon a different issue. Kalina
extended the time during which a prosecutor is absolutely immunized
beyond the time recognized in Hart.
8
that, at least arguably, established probable cause to arrest
Brown. First, R.S. implicated Brown in the disappearance of Kelly
Wilson. Second, Paulette Kerr stated she was afraid of Brown and
that Brown had been dating Kelly Wilson. Third, Connie Martin
implicated Brown in the disappearance of Kelly Wilson and the abuse
of the Kerr children. Fourth, these witnesses were credible
because their stories were consistent with one another and because
physical evidence from the bodies of the Kerr children and the Kerr
property tended to support their stories. Fifth, Brown’s
investigation of the Wilson disappearance contained suspicious
irregularities.
We cannot say that the testimony of several eyewitnesses,
corroborated in some aspects by physical evidence, did not even
arguably create probable cause. Qualified immunity “gives ample
room for mistaken judgements,” by protecting “all but the plainly
incompetent or those who knowingly violate the law.”10 That is the
balance that courts have struck between compensating wronged
individuals for deprivation of constitutional rights and
frustrating officials in discharging their duties for fear of
personal liability.11 While Doctors Ault and Perry raise doubts as
to the credibility of the witnesses in this case, we cannot say
that all reasonable officers should have seen in these witnesses
10
See Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)
(quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).
11
See Shipp v. McMahon, 234 F.3d 907, 915 (5th Cir. 2000).
9
the psychological tendency to confabulate that Ault and Perry saw,
nor can we say that all reasonable officers should have understood
these interviews to be so coercive that the matter should not have
been taken to a grand jury. This is especially true where, as
here, aspects of those statements were corroborated by physical
evidence. We agree with the district court that defendants Goar,
Minshew, Flieg, and Baggs are entitled to qualified immunity.
III
The district court granted Lyford summary judgment on the
grounds that he was absolutely immune from suit as a prosecutor.
Brown contests this reasoning, arguing that Lyford engaged in
actionable investigative activities before donning his
“prosecutor’s hat.” The circuits are divided on the proper
approach to this situation.12 We need not confront that dispute in
this case. The judgment of the district court should be affirmed
if Lyford was, like the other defendants and as he urges to us
also, entitled to qualified immunity.13
12
Compare Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir.
1994) (holding that merely collecting false evidence is not
independently actionable, and the use of such evidence is protected
by absolute immunity), with Zahrey v. Coffey, 221 F.3d 342, 349-55
(2d Cir. 2000) (holding that where the same prosecutor collects
false information and uses it to procure an indictment, the
indictment cannot sever the causal chain and protect the prosecutor
from liability for his investigatory acts).
13
See United States v. Real Prop. Located at 14301 Gateway
Blvd. West, El Paso County, Texas, 123 F.3d 312, 313 (5th Cir.
1997) (“It is well-settled, however, that we will not reverse a
judgment of the district court if it can be affirmed on any ground,
10
We may properly determine whether Lyford is entitled to
qualified immunity.14 When faced with similar situations, we have
remanded to the district court for a determination of qualified
immunity.15 In this case, however, we have the benefit of the
district court’s determinations as to defendants Goar, Minshew,
Fleig, and Baggs, and the accusations against Lyford track the
accusations against those four defendants. Since qualified
immunity is immunity not only from damages but also from suit
itself, it is to be determined as early as possible.16 It makes
little sense to remand this issue to the district court, because
the outcome is foreordained. The district court has already held
that Goar, Minshew, Fleig, and Baggs are entitled to qualified
regardless of whether the district court articulated the ground.”).
14
See Buckley, 20 F.3d at 793 (“Although qualified immunity
is an affirmative defense . . . no principle forbids a court to
notice that such a defense exists, is bound to be raised, and is
certain to succeed when raised. So much is established for res
judicata and the statute of limitations, two other affirmative
defenses. . . . Defendants inform us that they want the benefit of
qualified immunity. Because this is a legal defense, we would not
defer to the district court’s resolution. Courts should resolve
immunity issues at the earliest possible time, preferably before
allowing discovery. . . . That time is now.”).
15
See Galvan v. Garmon, 710 F.2d 214, 215 (5th Cir. 1983)
(holding that a probation officer was not entitled to absolute
immunity, and remanding for consideration of qualified immunity);
Ryland v. Shapiro, 708 F.2d 967, 975-76 (5th Cir. 1983) (holding
that charges made against prosecutors were outside the scope of
their prosecutorial role and absolute immunity therefore did not
apply; remanding for consideration of qualified immunity).
16
See Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995); Spann
v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993).
11
immunity.
As to his conduct before the grand jury, Lyford was entitled
to absolute immunity. As to his investigatory conduct leading to
the grand jury, he was entitled to the same qualified immunity that
protects Goar, Minshew, Flieg, and Baggs. Lyford is situated
similarly to Goar, Minshew, Flieg, and Baggs, except that he was
the person who brought the case before the grand jury -- an act for
which he receives absolute immunity. Lyford was therefore entitled
to qualified immunity for his investigative acts. Accordingly, the
judgment of the district court as to Lyford is AFFIRMED.
IV
Plaintiff also sued Upshur County, seeking to hold it liable
for the conduct of Fleig and Lyford. Under Monell v. Department of
Social Services,17 a county cannot be held liable under section 1983
on a theory of respondeat superior, but it can be held liable when
conduct depriving a person of constitutional rights was pursuant to
county policy. Brown does not contend that, apart from the role of
Lyford, Upshur County had a policy of charging and arresting
innocent people. Rather he urges that Lyford acted as a
policymaking official. We disagree, and hold Lyford was not a
17
436 U.S. 658, 694 (1978).
12
policymaking official for Upshur County.18
Brown argues that the elected district attorney is a
policymaking official and Lyford as prosecutor pro tem in this case
held all the rights and duties of the elected district attorney.19
Brown concedes that under Esteves v. Brock,20 Lyford was not a
policymaking official for Upshur County when he was acting in his
prosecutorial capacity, because then he was enforcing state rather
than county law. Brown seeks to invoke the exception in Esteves,
permitting Monell liability for those duties of a prosecutor that
are administrative or managerial in nature. Brown misunderstands
the holding of Esteves.
Esteves is clear that a county may only be held liable for
acts of a district attorney when he “functions as a final
policymaker for the county.”21 Thus, for example, a district
18
The district court held that because Fleig and Lyford were
immune, Upshur County was also not subject to suit, citing City of
Los Angeles v. Heller, 475 U.S. 796 , 799 (1986). Heller, however,
held only that if no claim is stated against officials–if plaintiff
does not show any violation of his constitutional rights–then there
exists no liability to pass through to the county. When, however,
a plaintiff states a claim but the official is protected by
qualified immunity, that defense protects only the individual
officer, not the municipality. See, e.g, Babb v. Dorman, 33 F.3d
472, 475 n.5 (5th Cir. 1994). Accordingly, we must reach the
question of whether Lyford was a policymaking official for Upshur
County.
19
Brown does not argue that Fleig was a policymaking official
for Upshur County, and we put him aside.
20
106 F.3d 674 (5th Cir. 1997).
21
106 F.3d at 678.
13
attorney with the final word on hiring or firing within the
district attorney’s office sets county policy regarding those
decisions. That can then support Monell liability for the county.
Here, however, Brown has made no showing that Lyford in some way
beyond his role as a prosecutor pro tem functioned as the final
policymaking authority for Upshur County in the investigation of
the Kerr and Hicks children’s claims. Upshur County officials have
testified that he did not, and there is no contrary evidence. The
sole basis for the contention that Lyford set county policy in his
investigative work was his status as prosecutor pro tem. But
Lyford as prosecutor pro tem stepped only into the shoes of the
elected district attorney for purposes of the case he was appointed
to handle. He did not assume general management of the array of
cases in that office. He was a one case prosecutor. While
Lyford’s authority over his one case was considerable, his charge
was too limited to make him a policymaking authority for the
county. His limited charge is made plain by the fact that he could
not hire or fire for Upshur County. Indeed he could not hire
Brooks and Flieg. He could only recommend that the County do so.
Brown has presented no evidence that Lyford had or exercised
sufficient policymaking authority for Upshur County to warrant the
imposition of Monell liability. The district court did not err in
granting summary judgment to Upshur County.
V
14
The judgment of the district court is AFFIRMED.
15