UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-30234
_______________________
STANLEY GORDY,
Plaintiff-Appellee,
versus
WILLIAM BURNS, Detective/Agent, Individually and
in his official capacity as an officer of the
Jefferson Parish Sheriff’s Department; ET AL.,
Defendants,
WILLIAM BURNS, Detective/Agent, Individually and
in his official capacity as an officer of the
Jefferson Parish Sheriff’s Department;
R. GERDES, Detective/Agent, Individually and
in his official capacity as an officer of the
Jefferson Parish Sheriff’s Department;
G. SIMONE, Lieutenant, Individually and
in his official capacity as an officer of the
Jefferson Parish Sheriff’s Department; and
HARRY LEE, Individually and
in his official capacity as the sheriff of the
Jefferson Parish Sheriff’s Department,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans Division
_________________________________________________________________
June 17, 2002
Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Stanley Gordy filed this § 1983 action against officers
of the Jefferson Parish Sheriff’s Department. Gordy’s sole viable
claim was for malicious prosecution arising from his arrest for
possession of marijuana with intent to distribute. Following a
non-jury trial, a magistrate judge entered judgment for Gordy and
awarded him $20,000 in damages. Having reviewed the record, we
conclude that the officers are entitled to judgment as a matter of
law because there was probable cause to support the drug charges.
I. BACKGROUND
In late August 1997, Lieutenant Glenn Davis of the
Jefferson Parish Sheriff’s Department received a telephone call
from an agent of the federal Drug Enforcement Administration. The
DEA agent informed Lieutenant Davis that United Parcel Service
employees in California had discovered a package containing
approximately 20 pounds of marijuana addressed to “C. Charles” at
an apartment in Metairie, Louisiana. Davis drove to the apartment
and observed that the name on the mailbox was “M. Gordy” (rather
than “C. Charles”), but he assumed that the addressee’s name was
fictitious. Later that evening, Lieutenant Davis submitted an
affidavit and application for a search warrant to a Jefferson
Parish district judge. The affidavit read in part, “[U]pon arrival
of the package containing the marijuana[,] a controlled delivery
2
will be attempted. . . . Officers request that a search warrant be
issued subsequent to this delivery.” The judge issued the search
warrant.
Lieutenant Gerard Simone and Officers William Burns and
Robert Gerdes delivered the package on September 2, 1997. There is
conflicting testimony as to whether a UPS agent went to the door or
whether Lieutenant Simone posed as a UPS agent. The key fact,
however, is that defendant Stanley Gordy accepted the package from
someone he believed was a UPS delivery-man. Gordy admits signing
the receipt using his nickname, “Chuck Gordy,” but he insists that
he did not look carefully at the package before signing for it.
The officers waited a few minutes before approaching the
apartment to execute the search warrant. It is undisputed that
Gordy stepped out of the apartment, paused for a moment, and then
went back inside and locked the door. Gordy testified that he was
going to McDonald’s when he realized that he had no cash, so he
went to retrieve his wallet. The officers testified that Gordy
scampered inside after making eye contact with the officers, who
were wearing “raid jackets” identifying them as policemen. The
officers forced their way into the apartment, arrested Gordy, took
custody of the package, and searched the apartment before taking
Gordy to the sheriff’s office.
Officer Burns prepared the police report on behalf of the
officers. Officer Burns’s report omitted certain facts, most
notably that Gordy had not opened the package and that the package
3
contained approximately 15 pounds of marijuana instead of 20
pounds, as the officers had expected.
Gordy was charged with possession of marijuana with
intent to distribute, and a bill of information was filed.
However, the district attorney ultimately decided not to prosecute
the case and issued a nolle prosequi on March 2, 1998. The record
of these state court proceedings was expunged at Gordy’s request,
and neither party introduced evidence indicating why the district
attorney abandoned the prosecution.
On March 1, 1999, Gordy filed this action under 42 U.S.C.
§ 1983 against Jefferson Parish Sheriff Harry Lee, Lieutenant
Simone, and Officers Burns and Gerdes. Gordy’s complaint included
claims for false arrest, unlawful search and seizure, false
imprisonment, excessive force, and malicious prosecution -- all in
violation of the Fourth and Fourteenth Amendments. The parties
agreed to a non-jury trial before a magistrate judge. See 28
U.S.C. § 636(c).
The magistrate judge dismissed all of Gordy’s claims
except malicious prosecution as time-barred. See Jacobsen v.
Osborne, 133 F.3d 315, 319 (5th Cir. 1998)(“[F]or a § 1983 action,
the court looks to the forum state’s personal-injury limitations
period. In Louisiana, that period is one year.”). The magistrate
judge also dismissed all claims against Sheriff Lee because there
was no evidence that Lee was personally involved or that the
4
officers were acting pursuant to a policy implemented by the
sheriff. See Sanders v. English, 950 F.2d 1152, 1159-60 (5th Cir.
1992). Gordy has not appealed these rulings.
The sole claim at trial, then, was malicious prosecution.
Gordy argued that he was prosecuted because the officers
maliciously provided false or misleading information to the
district attorney. The magistrate judge agreed. After ruling that
the officers were not entitled to qualified immunity, the
magistrate judge entered judgment for Gordy and awarded him $12,000
in compensatory damages and $8,000 in punitive damages. This
appeal followed.
II. DISCUSSION
A
It would be an understatement to say that this circuit’s
caselaw regarding so-called “Fourth Amendment malicious
prosecution” claims under § 1983 is both confused and confusing.
See, e.g., Kerr v. Lyford, 171 F.3d 330, 342-43 (5th Cir. 1999)
(Jones, J., concurring). Deciding the issue presented in this case
forces us to return to first principles.
Unquestionably, state-law tort claims -- such as the
common-law tort of malicious prosecution -- are not, by themselves,
actionable under § 1983. Price v. Roark, 256 F.3d 364, 370 (5th
Cir. 2001)(citing Nesmith v. Taylor, 715 F.2d 194, 196 (5th Cir.
1983)). Because § 1983 requires some showing that the plaintiff
5
has been deprived of a federal right, but no constitutional
provision specifically guarantees against the institution of
groundless criminal prosecutions, a “malicious prosecution” claim
under § 1983 is a misnomer.
Nevertheless, the rule in this circuit is that the
elements of the state-law tort of malicious prosecution and the
elements of the constitutional tort of “Fourth Amendment malicious
prosecution” are coextensive. See Piazza v. Mayne, 217 F.3d 239,
245 (5th Cir. 2000). Although Piazza purported not to decide this
issue, the rule is rooted firmly in Fifth Circuit precedent.
See Evans v. Ball, 168 F.3d 856, 863 n.9 (5th Cir.
1999)(“[M]alicious prosecution may be a constitutional violation,
but only if all of its common law elements are established. . .
.”); Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999)(same).
Most other circuits emphasize, however, that a malicious
prosecution claim under § 1983 is more appropriately characterized
as “a Fourth Amendment claim for unreasonable seizure which
incorporates certain elements of the common law tort.” Lambert v.
Williams, 223 F.3d 257, 261 (4th Cir. 2001)(citing decisions from
the First, Second, Seventh, Tenth, and Eleventh Circuits). As the
Eleventh Circuit succinctly put it, the “federal ‘right’ to be free
from malicious prosecution is actually a description of the right
to be free from an unlawful seizure which is part of the
prosecution.” Whiting v. Traylor, 85 F.3d 581, 584 n.4 (11th Cir.
1996); see also Singer v. Fulton County Sheriff, 63 F.3d 110, 116
6
(2d Cir. 1995)(“The Fourth Amendment right implicated in a
malicious prosecution action is . . . the right to be free of
unreasonable or unwarranted restraints on personal
liberty.”); Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807,
813 (1994)(plurality opinion) (emphasizing the Fourth Amendment’s
concern about “pretrial deprivations of liberty”).1 In most other
circuits, a § 1983 plaintiff who alleges malicious prosecution must
prove a violation of his Fourth Amendment right to be free from
unreasonable seizures in addition to certain elements of the
common-law tort of malicious prosecution.2
But in the Fifth Circuit, a plaintiff in a § 1983
malicious prosecution action need establish only the elements of
common-law malicious prosecution. This circuit repeatedly has
indicated -- without explanation -- that courts must look to the
elements of a malicious prosecution claim under the law of the
1
It remains unclear whether Albright will be extended to approve the
constitutionalizing of malicious prosecution claims, see Kerr, supra, (Jones, J.
concurring), but the federal courts have so applied Albright.
2
In Price, this court appeared to be moving in that direction when it
stated that a § 1983 plaintiff must prove “that he was exposed to an unreasonable
search or seizure in violation of the Fourth Amendment.” Price, 256 F.3d at 370.
However, this position is problematic for two reasons. First, it does not appear
to represent the law of this circuit, which is that the elements of the common-
law tort and constitutional tort are “coextensive.” Second, regarding the facts
of this case, we have found no precedent to support the proposition that an
unreasonable search may serve as the foundation for a malicious prosecution claim
under § 1983. (Price involved an arrest and detention, not an unlawful search.)
Every circuit that has addressed the issue has held that a plaintiff must prove
an unlawful seizure. In addition to the Second and Eleventh Circuit decisions
cited in the text, see Britton v. Maloney, 196 F.3d 24, 28 (1st Cir. 1999);
Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998); Reed v. City of
Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996); and Taylor v. Meacham, 82 F.3d 1556,
1561 (10th Cir. 1996). Cf. Evans v. Ball, 168 F.3d 856, 861 (5th Cir.
1999)(expansively defining “seizure” for the purposes of § 1983 malicious
prosecution claims).
7
state where the offense was committed. The confusion that arises
is illustrated nicely by the post-Albright decision in Taylor v.
Gregg, 36 F.3d 453 (5th Cir. 1994). Taylor declared that a § 1983
plaintiff had to prove seven elements in order “[t]o prevail on a
[Fourth Amendment] malicious prosecution claim in Texas,” and those
seven elements were taken directly from Texas common law. Taylor,
36 F.3d at 455 (emphasis added)(citing Brown v. United States, 653
F.2d 196, 198-99 (5th Cir. 1981)).3 But in determining the meaning
of one of those elements -- termination in favor of the accused --
the court looked not to Texas decisions but to decisions from the
Second Circuit, the Fourth Circuit, and federal district courts
from around the country. Taylor, 36 F.3d at 455-56. Taylor
suggests that the elements of a federal constitutional claim are
determined by state common law but that the scope and meaning of
those common-law-derived elements are determined without regard to
state decisions. See also Brummett v. Camble, 946 F.2d 1178, 1183-
84 (5th Cir. 1991).4
3
Brown was a Federal Tort Claims Act case in which the plaintiff
alleged that he was subject to malicious prosecution after an FBI agent gave
false testimony to a grand jury. The FTCA provides that the United States may
be held liable “under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.” 28 U.S.C. § 1346(b). Consequently, the court had to
interpret and apply the tort law of the state of Texas because all the alleged
wrongful acts occurred there. Brown, 653 F.2d at 198. Because the
“constitutional tort” of malicious prosecution is rooted in the Fourth Amendment,
the proper role of state tort law is much less clear.
4
Other panels of this circuit, however, have given some weight to
state court decisions interpreting the elements of malicious prosecution. See,
e.g., Izen v. Catalina, 256 F.3d 324, 328 (5th Cir. 2001) (Bivens action)
(relying in part on Texas decisions as to when a prosecution terminates in favor
of the accused).
8
Given this circuit’s precedent, the plaintiff in this
case had to prove the six elements of malicious prosecution under
Louisiana tort law: (1) the commencement or continuance of an
original criminal proceeding; (2) its legal causation by the
present defendant against plaintiff who was defendant in the
original proceeding; (3) its bona fide termination in favor of the
present plaintiff; (4) the absence of probable cause for such
proceeding; (5) malice; and (6) damages. Piazza v. Mayne, 217 F.3d
239, 245 (5th Cir. 2000); Miller v. East Baton Rouge Parish
Sheriff’s Dep’t, 511 So.2d 446, 452 (La. 1987). Parenthetically,
if these events had taken place in Texas instead of Louisiana, the
plaintiff also would have had to prove that he was actually
innocent of the charges. See Taylor, 36 F.3d at 455. If malicious
prosecution is in some sense a federal constitutional tort, the
outcome of the case should not hinge on how a state defines and
shapes the elements of a tort claim. See also Frantz v. Village of
Bradford, 245 F.3d 869, 874-75 (6th Cir. 2001)(“We hold that
establishing a § 1983 cause of action requires a constitutional
violation and cannot differ depending on the tort law of a
particular state.”).
The facts of this case present a novel problem arising
from our willy-nilly incorporation of state tort law into
constitutional litigation. In Louisiana malicious prosecution
actions, the state courts have held that if criminal charges are
dismissed prior to trial, a presumption arises that there was no
9
probable cause for the proceedings, and the burden shifts to the
defendant to prove the presence of probable cause and the absence
of malice. See Williams v. DiVittoria, 777 F.Supp. 1332, 1338
(E.D. La. 1991)(applying Louisiana tort law).5 This burden-
shifting approach cannot be warranted in § 1983 claims, but neither
party addressed the issue and it does not dictate the outcome of
this appeal.
To sum up thus far: The plaintiff in this case had to
prove all the elements of malicious prosecution under Louisiana
tort law. Nevertheless, a Fourth Amendment malicious prosecution
claim is essentially a federal constitutional claim, and federal
courts are bound neither by the state courts’ interpretation of
those elements nor (we think) by procedural requirements like the
burden-shifting framework imposed by Louisiana courts.
The crux of this case is whether there was probable cause
for the criminal proceedings against Gordy. With respect to
probable cause, this court has held that
For purposes of malicious prosecution, probable cause
means “the existence of such facts and circumstances as
5
Only a handful of states follow Louisiana’s approach. See H. D.
Warren, Annotation, Acquittal, Discharge, or Discontinuance or Criminal Charge
as Evidence of Want of Probable Cause in Malicious Prosecution Action, 59
A.L.R.2d 1413 at § 4(1958 & Supp.)(“The weight of authority supports the rule
that . . . discontinuance at the instance of the prosecuting attorney . . . and
other similar terminations of prosecutions whereon actions of malicious
prosecution have been based, constitute no evidence of want of probable cause,
raise no presumption thereof, and establish no prima facie case of want of
probable cause.”). See also Wheeler v. Nesbitt, 65 U.S. (24 How.) 544, 551
(1860)(applying the traditional common-law rule that “the onus probandi . . . is
upon the plaintiff to prove affirmatively . . . that the defendant had no
reasonable ground for commencing the prosecution”).
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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.”
Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999)(citation
omitted); see also Wheeler v. Nesbitt, 65 U.S. (24 How.) 544, 551-
52 (1860)(applying the identical common-law definition). Wheeler
makes clear that “prosecutor” is not used narrowly in the modern
sense of “prosecuting attorney” but in the sense of any person (or,
in a § 1983 action, any state actor) who initiates or procures a
criminal proceeding. Id. Consequently, an officer may be liable
for malicious prosecution if his “malice results in an improperly
motivated prosecution without probable cause” and even if the
officer had no direct influence over the prosecuting attorney.
Hand v. Gary, 838 F.2d 1420, 1426 (5th Cir. 1988); see also Wheeler
v. Cosden Oil & Chem. Co., 734 F.2d 254, 260 (5th Cir. 1984),
modified, 744 F.2d 1131 (5th Cir. 1984).6 In the typical case, an
officer maliciously causes a criminal proceeding to be brought by
providing false or misleading information to a prosecuting attorney
or grand jury. See, e.g., Sanders v. English, 950 F.2d 1152, 1163
(5th Cir. 1992). Nevertheless, the obtaining of an indictment will
not insulate state actors from a malicious prosecution claim if a
grand jury’s decision has been “tainted by the malicious actions of
6
Hand and Wheeler assumed that the “constitutional tort” of malicious
prosecution was rooted in Fourteenth Amendment principles of substantive due
process -- a position rejected by the Supreme Court in Albright v. Oliver, 510
U.S. 266, 114 S.Ct. 807 (1994). Nevertheless, these decisions are still good law
to the limited extent to which we rely upon them.
11
the government officials.” Hand, 838 F.2d at 1426. Another way of
stating the probable cause inquiry for purposes of malicious
prosecution, then, is to ask whether a reasonable officer -- at the
time when criminal proceedings were instituted and based solely on
the facts as the officers honestly and reasonably believed them to
be -- would believe to a “fair probability” that a crime had been
committed. Piazza, 217 F.3d at 246 (citations omitted).
B
We now apply these principles to the facts of this case.
As noted above, the magistrate judge concluded that the defendants
had no probable cause to believe that an offense had been
committed, that the officers misstated or omitted facts in their
police report provided to the district attorney, that they did so
maliciously, and that the officers’ actions were a legal cause of
Gordy’s prosecution on drug charges. The existence of probable
cause is a mixed question of law and fact: Although factual
findings are reviewed for clear error, we review the legal
conclusion reached by the district court de novo. Cf. Ornelas v.
United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663 (1996)(“[A]s
a general matter determinations of . . . probable cause should be
reviewed de novo on appeal. Having said this, we hasten to point
out that a reviewing court should take care both to review findings
of historical fact only for clear error. . . .”).
The magistrate judge’s determination that the officers
lacked probable cause is based entirely on technical deficiencies
12
in the search warrant issued by the Jefferson Parish district
judge. Although the officer’s affidavit requested that a search
warrant be issued “subsequent to this [controlled] delivery,” the
warrant itself -- which was issued just two hours after the officer
received the tip from the DEA agent in California -- authorized the
officers to search the apartment “forthwith”. The magistrate judge
ruled that, first, the search warrant went “beyond the scope
justified by probable cause because there was no justification for
searching ‘forthwith,’”; and, second, the defect in the search
warrant could not be cured by the affidavit or by the fact that the
officers did not execute the search warrant until after the package
was delivered.
We need not address the substance of the magistrate
judge’s analysis. The validity of the search warrant is irrelevant
to whether an officer reasonably could have believed that Gordy had
committed the crime of possessing marijuana with intent to
distribute. The most obvious reason is that probable cause to
institute criminal proceedings must be determined as of the time
that charges were filed.7 The magistrate judge erred by focusing
on probable cause to search the apartment, even though she had
already dismissed Gordy’s § 1983 claim for an unreasonable search
in violation of the Fourth Amendment.
7
It is undisputed that the officers’ involvement with this case ended
when charges were filed.
13
The correct question, then, is whether the officers, at
the time Gordy was charged, had probable cause to believe that he
was guilty of possessing marijuana with intent to distribute. We
focus on what the officers reasonably and honestly believed: First,
the package sitting on the floor of the apartment contained a
significant amount of marijuana. Second, the package was addressed
to the apartment where Gordy lived with his mother. Third,
although the addressee was “C. Charles,” Lieutenant Davis testified
that he had worked on at least ten cases where drug traffickers had
used false names on packages. Fourth, Gordy accepted the package
and placed it inside the apartment. Fifth, he signed for the
package using his nickname, “Chuck,” a variation of “Charles.”
And, sixth, as the police were approaching the apartment, Gordy
(for whatever reason) walked outside the apartment but quickly went
back inside and locked the door. These basic facts are beyond
dispute and are sufficient to establish probable cause to believe
that Gordy had committed a criminal offense.
To be sure, there was evidence suggesting that Gordy may
not have been guilty of the offense. Gordy insisted that the
package was misaddressed and that he did not know what was in the
box. There was also the undisputed fact that Gordy had not opened
the box when the officers entered his apartment. Nor did the
police find any evidence of drug use or trafficking during their
search of the apartment. However, the probable cause inquiry does
not require a showing that the officer’s belief was correct or that
14
it was more likely true than false; rather, “the probable cause
analysis only requires that we find a basis for an officer to
believe to a ‘fair probability’ that a violation occurred.”
Piazza, 217 F.3d at 246. In light of the undisputed facts set
forth above, it is clear that the officers in this case satisfied
the probable cause standard and were therefore entitled to judgment
as a matter of law.
As there was probable cause to charge Gordy with
possession of marijuana, we need not reach the related issues
whether the officers caused Gordy’s prosecution by omitting
relevant information from the police report, whether they acted out
of malice, or whether they were entitled to qualified immunity.
III. CONCLUSION
For the foregoing reasons, the judgment of the magistrate
judge is REVERSED, and the case is REMANDED for entry of judgment
in favor of the defendants.
REVERSED and REMANDED.
15