Angello Osborne v. Peter Georgiades

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2468

ANGELLO A. D. OSBORNE,

Plaintiff - Appellee,

v.

PETER GEORGIADES, Police Corporal,

Defendant – Appellant,

and

DIONE WHITE, LGSW; MEREDITH LYNN PIPITONE,

Defendants.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cv-00182-RDB)

Argued: May 10, 2016 Decided: February 8, 2017

Before GREGORY, Chief Judge, TRAXLER, Circuit Judge, and Joseph
F. ANDERSON, Jr., Senior United States District Judge for the
District of South Carolina, sitting by designation.

Affirmed by unpublished opinion. Chief Judge Gregory wrote the
opinion, in which Judge Anderson joined. Judge Traxler wrote a
dissenting opinion.

ARGUED: Deborah Street Duvall, HARFORD COUNTY DEPARTMENT OF
LAW, Bel Air, Maryland, for Appellant. Robert Louis Smith, Jr.,
LAW OFFICE OF ROBERT L. SMITH, JR., Baltimore, Maryland,
for Appellee. ON BRIEF: Melissa Lambert, County Attorney,
Kristin L. Lewis Noon, Assistant County Attorney, HARFORD COUNTY
DEPARTMENT OF LAW, Bel Air, Maryland, for Appellant.

Unpublished opinions are not binding precedent in this circuit.
GREGORY, Chief Judge:

Plaintiff-appellee Angelo Osborne sued Defendant-appellant

Corporal Peter Georgiades, as well as Dione White and Meredith

Lynn Pipitone, alleging violations of his constitutional rights

under 42 U.S.C. §§ 1983 and 1985. Specifically, Osborne

contends that Georgiades, in the process of investigating him

for alleged sexual abuse of his minor child, unreasonably seized

him in violation of the Fourth and Fourteenth Amendments.

Georgiades moved for summary judgment on grounds of qualified

immunity. The district court denied the motion, holding that

Georgiades is not entitled to qualified immunity. For the

reasons stated below, we affirm the judgment of the district

court.

I.

A.

As a preliminary matter, we view the facts in the light

most favorable to Osborne, the nonmoving party. See ACLU of

Md., Inc. v. Wicomico County, 999 F.2d 780, 784 (4th Cir. 1993).

Osborne and Pipitone are the parents of two minor children—a

daughter (“JMLO”), five years old at the time of the events in

question, and a son (“CJP”), then two years old. On November 1,

2010, Pipitone contacted the Harford County Child Advocacy

Center to report the alleged sexual assault of JMLO. Pipitone

3
claimed that JMLO did not want to spend Halloween with her

father. JMLO purportedly told Pipitone that a few weeks prior,

Osborne had

Sealed App. 63. *

Later that day, White, a licensed social worker for the

Harford County Child Advocacy Center, interviewed Pipitone.

After speaking with Pipitone, White interviewed JMLO. Although

Georgiades was not present, he remained in telephone contact

with White and observed the interview from a nearby room via

live video feed for purposes of investigating the allegations.

White employed the Rapport, Anatomical Identification, Touch

Inquiry, Abuse Scenario, Closure (“RATAC”) method when

questioning JMLO. RATAC focuses on reducing any potential

trauma to the child during the interview.

In her initial responses to White’s questions, JMLO

consistently denied that Osborne, or anyone else, had touched

her on parts of her body covered by a bathing suit.

Id. In

*The
Court will cite to the audio and video recording of
JMLO’s interview because the transcript, Sealed App. 36-56,
contains numerous errors.

4
total, JMLO denied abuse six times. See J.A. 250, 252, 255

(classifying JMLO’s responses as “denials”).

Id. After approximately three minutes of similar

questions, JMLO changed course and finally replied, “He did.”

Id.

JMLO went on to state

Id.

Id.

JMLO also described

She then referred to an incident at Osborne’s

house in which CJP got in “trouble” with Osborne’s girlfriend.

Id. Although it is not entirely clear what CJP did, JMLO stated

“that’s why I’m never going over there again.” Id. White never

asked any follow-up questions concerning that incident.

5
Instead, White asked several questions regarding whether

Osborne’s girlfriend and CJP “saw it happen.” Id. JMLO again

changed course and stated that Osborne’s girlfriend was not

present when the alleged abuse occurred and that CJP was asleep.

Id.

After JMLO described and demonstrated with dolls the

alleged acts of abuse, White placed a phone call to Georgiades,

who suggested other topics to discuss. J.A. 226, 237. After

this call, she asked JMLO whether CJP was present during the

second instance of abuse. JMLO stated that CJP was asleep in

the bed next to her. Id. at 54. JMLO also stated Osborne

Id. at 55. White then asked

Id.

Their conversation was then interrupted by a second phone

call from Georgiades. After this conversation, White asked JMLO

a series of questions regarding

At this point, Georgiades immediately placed a

third phone call, resulting in White terminating the interview.

White and Georgiades spoke on three occasions throughout the

interview.

6
 After White completed the interview, Pipitone called

Osborne to accuse him of sexually assaulting their daughter.

With Pipitone’s consent, Georgiades listened in on the call.

During that conversation, Osborne consistently denied Pipitone’s

accusations. Osborne also told Pipitone he would take a

polygraph test if she took one. J.A. 318, 319-20.

The most recent assault allegedly occurred on October 16,

2010. Dr. Paul Lomonico conducted a thorough physical exam of

JMLO on November 3, 2010, for evidence of sexual assault. He

examined her entire body,

Sealed App. 58.

His medical report indicated “no physical signs . . . of sexual

abuse” but noted, “This does not rule out abuse.” Id.

On December 15, 2010, Georgiades met with Diane Tobin

(“Tobin”), a Deputy State’s Attorney for Harford County,

Maryland. After reviewing the video of the JMLO interview,

Tobin accepted the case for prosecution. For over a month,

Georgiades attempted to contact Osborne, but was unsuccessful.

On January 21, 2011, Georgiades spoke to Osborne, who stated

that he would only speak with Georgiades with his attorney

present. Id. at 68.

7
 On January 24, 2011, Georgiades applied for an arrest

warrant. Georgiades’s affidavit disclosed only JMLO’s

accusations of sexual abuse but not her repeated denials, nor

the results of the medical examination. An arrest warrant was

issued, and Osborne was arrested on the same day. Osborne was

charged with eight counts of sexual—assault-based offenses. On

January 25, 2011, Osborne was detained in the Harford County

Detention Center, with bail set for $500,000. A grand jury

subsequently indicted Osborne on February 15, 2011, on sixteen

counts of sexual-assault-related crimes. Osborne was

incarcerated without bond for over eight months, until October

3, 2011, when a bond was set for $25,000. The state eventually

declined to prosecute Osborne on December 13, 2011, instead

placing his case on the inactive “stet” docket.

B.

Osborne initiated the present action on January 23, 2014.

Osborne claims that White, with Georgiades’s guidance,

fabricated evidence against him by asking JMLO “unduly

suggestive and leading” questions “designed and intended to

cajole the minor child into making up a story to support”

Pipitone’s accusations. J.A. 9. Osborne also claims that

Georgiades knowingly omitted relevant facts from his application

for Osborne’s arrest warrant. Osborne denies ever assaulting or

even attempting to assault the minor child. He argues that his

8
arrest and ensuing incarceration were “without justification,

without probable cause, and were motivated by [Defendants’]

wanton, malicious[,] and reckless desire to inflict great

emotional and physical distress and pain and suffering upon”

him. Id. at 11.

After the district court dismissed all claims against White

and Pipitone, Georgiades moved for summary judgment on the sole

remaining claim that he violated Osborne’s Fourth Amendment

right against unreasonable seizure under 42 U.S.C. § 1983.

Georgiades argued that he is entitled to qualified immunity for

his actions. The district court concluded that Georgiades is

not entitled to immunity for the acts underlying Osborne’s §

1983 claim—fabrication of evidence and omission of material

facts from the warrant application. First, the court held that

because the contents of the conversations between White and

Georgiades were not “disclosed,” a reasonable jury could

conclude that Georgiades exerted pressure that resulted in the

fabrication of evidence against Osborne. J.A. at 331. Second,

the court found that a reasonable jury could conclude that

Georgiades’s warrant application contained omissions made

deliberately or with reckless disregard for any misleading

effect and that the omitted evidence had the potential to negate

probable cause. Id. at 333. This appeal timely followed.

9
 II.

We review an award of summary judgment on the basis of

qualified immunity de novo. Durham v. Horner, 690 F.3d 183, 188

(4th Cir. 2012). In reviewing the district court’s denial of

summary judgment based on qualified immunity, “we accept as true

the facts that the district court concluded may be reasonably

inferred from the record when viewed in the light most favorable

to the plaintiff.” Yates v. Terry, 817 F.3d 877, 884 (4th Cir.

2016) (citation omitted). “To the extent that the district

court has not fully set forth the facts on which its decision is

based, we assume the facts that may reasonably be inferred from

the record when viewed in the light most favorable to the

plaintiff.” Id. (citation omitted). “[T]his usually means

adopting . . . the plaintiff’s version of the facts.” Iko v.

Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (quoting Scott v.

Harris, 550 U.S. 372, 378 (2007)).

III.

Qualified immunity shields government officials from

liability in a § 1983 suit unless their conduct violated

“clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). To determine whether an official is

entitled to qualified immunity, we ask (1) whether the facts

10
illustrate that the official violated the plaintiff’s

constitutional right; and (2) whether the right was clearly

established law at the time of the alleged event such that “a

reasonable officer would have understood that his conduct

violated the asserted right.” Miller v. Prince George’s County,

475 F.3d 621, 627 (4th Cir. 2007) (quoting Saucier v. Katz, 533

U.S. 194, 201-02 (2001)). The answer to both questions must be

in the affirmative to defeat the official’s motion for summary

judgment on qualified immunity grounds. Id.

A.

First, we consider whether the facts demonstrate that

Georgiades violated Osborne’s asserted constitutional right.

Osborne maintains that the facts outlined above, considered in

the light most favorable to him, allege a claim that he was

seized without probable cause in violation of the Fourth

Amendment. “The Fourth Amendment prohibits law enforcement

officers from making unreasonable seizures, and seizure of an

individual effected without probable cause is unreasonable.”

Brooks v. City of Winston–Salem, 85 F.3d 178, 183 (4th Cir.

1996). Osborne specifically contends that his seizure was

unreasonable because it resulted from (1) Georgiades’s

fabrication of evidence and (2) the omission of material facts

from the warrant application.

11
 1.

Osborne alleges that Georgiades fabricated evidence by

directing White to ask JMLO misleading questions, thereby

resulting in JMLO’s false account of sexual abuse. The district

court held that a reasonable jury could conclude that Georgiades

committed a constitutional violation by exerting pressure that

caused the fabrication of evidence against Osborne and directly

resulted in his unreasonable seizure. J.A. 331. The district

court further held that the right to be free from deprivation of

liberty due to an officer’s fabrication of evidence was clearly

established at the time of Georgiades’s alleged conduct. J.A.

332. As such, the district concluded that Georgiades was not

entitled to qualified immunity for the alleged fabrication.

Georgiades has waived his challenges to these holdings by

raising them for the first time in his reply brief. See Metro.

Reg’l Info. Sys., Inc. v. Am. Home Realty Network, 722 F.3d 591,

602 n.13 (4th Cir. 2013) (stating that appellant’s failure to

address issue in opening brief will deem issue waived or

abandoned). Therefore, Georgiades’s challenges are not properly

before us, and we will not address the district court’s holdings

on the fabrication claim.

2.

Osborne, arrested pursuant to a warrant, also contends that

Georgiades unlawfully omitted certain key facts from the warrant

12
application. Relying on the two-prong standard set forth in

Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (requiring

intent and materiality), the district court held that Osborne

must show that Georgiades “deliberately or with reckless

disregard for the truth made material false statements in his

affidavit, . . . or omitted from that affidavit material facts

with the intent to make, or with reckless disregard of whether

they thereby made, the affidavit misleading.” J.A. 332 (quoting

Miller, 475 F.3d at 627).

Below, we consider the district court’s holdings as to the

intent and materiality prongs to determine whether Georgiades’s

omissions amount to a constitutional violation.

a.

Initially, we conclude that Georgiades has waived any

challenge to the district court’s holding regarding his intent

to mislead. The district court held that a reasonable jury

could conclude that Georgiades’s warrant application contained

omissions made deliberately or with reckless disregard for any

misleading effect. J.A. 332. Georgiades only makes a passing

reference to the district court’s holding, contending in a

footnote that “Osborne has failed to demonstrate that the

omissions were made with reckless disregard for the truth. . . .

However, the Court need not reach this issue since probable

cause existed for the warrant against Osborne.” Appellant’s Br.

13
15 n.4. Georgiades makes no attempt to explain the basis for

his belief, nor does he present any argument on why summary

judgment should have been granted in his favor on this issue.

The issue is therefore waived. See, e.g., Belk, Inc. v. Meyer

Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (concluding that

defendant waived issue for failure to develop argument in

brief).

b.

Next, we consider the district court’s holding regarding

the materiality of the omitted facts. Id. at 333. Georgiades

argues that the district court erred by concluding that the

omitted facts “could” and “had the potential” to negate a

finding of probable cause. J.A. 333. We agree that the

district court employed the wrong standard, but the error was

harmless because the omissions met the proper standard under

Franks.

The correct materiality standard under Franks requires that

the omissions be necessary to the neutral and disinterested

magistrate’s finding of probable cause. Evans v. Chalmers, 703

F.3d 636, 650 (4th Cir. 2012) (quoting Miller, 475 F.3d at 628).

The omission “must be such that its inclusion in the affidavit

would defeat probable cause for arrest.” United States v.

Colkley, 899 F.2d 297, 301 (4th Cir. 1990). The court must

insert the facts recklessly omitted and determine whether or not

14
the “corrected” warrant affidavit would establish probable

cause. Miller, 475 F.3d at 628. If the “corrected” warrant

affidavit establishes probable cause, the omissions do not

amount to a constitutional violation. Id.

Probable cause for an arrest “exists where the facts and

circumstances within [the officer’s] knowledge and of which [he

or she] had reasonably trustworthy information are sufficient in

themselves to warrant a man of reasonable caution in the belief

that an offense has been . . . committed by the person to be

arrested.” Clipper v. Takoma Park, Md., 876 F.2d 17, 19 (4th

Cir. 1989) (citing Dunaway v. New York, 442 U.S. 200, 208 n.9

(1979)).

Osborne contends that a “corrected” affidavit would not

have established probable cause for his arrest. As corrected,

Georgiades’s warrant application would have shown that (1) JMLO

repeatedly denied (six times in total) that she was sexually

abused by Osborne; (2) she then stated, and demonstrated by

using dolls,

; (3) the most recent acts of abuse occurred on October 16,

2010; and (4) a thorough medical exam conducted on November 3,

2010 revealed no physical signs of sexual abuse. Considering

the totality of the circumstances presented by this information,

15
the “corrected” warrant application would not have established

probable cause to arrest Osborne.

The facts and circumstances presented by the “corrected”

warrant application are not sufficient in themselves to warrant

a person of reasonable caution in the belief that Osborne

committed the offense stated in the application. The corrected

warrant application would have asked the magistrate to issue a

warrant for Osborne’s arrest in spite of JMLO’s inconsistent

allegations of abuse and direct evidence that may contradict

that any abuse occurred-Dr. Lomonico’s medical examination and

report.

As such, the omitted facts

are material because their inclusion would have defeated

probable cause.

B.

Georgiades has never contended that the right asserted by

Osborne was not clearly established. For the reasons stated

above, this issue is undoubtedly waived. And even if not

waived, this contention is without merit.

The Fourth Amendment right to be arrested only on probable

cause was clearly established at the time of the events at issue

here. Miller, 475 F.3d at 632; Brooks, 85 F.3d at 183. More

specifically, it was also clearly established “that the

16
Constitution did not permit a police officer deliberately, or

with reckless disregard for the truth, to make . . . omissions

to seek a warrant that would otherwise be without probable

cause.” Miller, 475 F.3d at 631-32 (collecting cases). The

objective standard for qualified immunity accommodates the

allegation of material omissions “because a reasonable officer

cannot believe a warrant is supported by probable cause if the

magistrate is misled by [omitted facts] that the officer knows

or should know [would negate probable cause].” Smith, 1010 F.3d

at 355.

We therefore conclude that Georgiades is not entitled to

qualified immunity.

IV.

Georgiades also argues that the February 15, 2011, grand

jury indictment “conclusively determined the existence of

probable cause, which unless rebutted by Osborne, nullifies

Osborne’s claims of false arrest and false imprisonment.”

Appellant’s Br. 9. Georgiades, however, failed to raise this

argument in the district court.

This Court has repeatedly held that issues raised for the

first time on appeal generally will not be considered. Muth v.

United States, 1 F.3d 246, 250 (4th Cir. 1993) (collecting

cases). “The matter of what questions may be taken up and

17
resolved for the first time on appeal is one left primarily to

the discretion of the courts of appeals, to be exercised on the

facts of individual cases.” In re Under Seal, 749 F.3d 276, 285

(4th Cir. 2014) (quoting Singleton v. Wulff, 428 U.S. 106, 121

(1976)). In this circuit, we exercise that discretion

sparingly. Exceptions to this general rule are made only in

very limited circumstances, such as when the newly raised

argument establishes “fundamental error” or a denial of

fundamental justice. Stewart v. Hall, 770 F.2d 1267, 1271 (4th

Cir. 1985). The error must be “so serious and flagrant that it

goes to the very integrity of the trial.” Id.

Because fundamental error is a more limited standard than

the plain-error standard applied in criminal cases, we use the

plain-error standard “as something of an intermediate step in a

civil case.” In re Under Seal, 749 F.3d at 285-86. If a party

in a civil case fails to meet the plain-error standard, it is

clear that he also fails to establish fundamental error. Id.

Under the plain-error standard, we may correct an error not

raised before the district court only where the appellant

demonstrates: (1) there is in fact an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute;

(3) the error affected the appellant’s substantial rights,

meaning it affected the outcome of the district court

proceedings; and (4) the error seriously affects the fairness,

18
integrity, or public reputation of judicial proceedings. United

States v. Marcus, 560 U.S. 258, 262 (2010). We have refused,

however, to conduct plain error review where the party “failed

to make its most essential argument in its briefs or at oral

argument: . . . that the district court fundamentally or even

plainly erred.” In re Under Seal, 749 F.3d at 292.

Here, Georgiades has not made his most essential argument.

His “failure to argue for plain error and its application on

appeal surely marks the end of the road for [his] argument for

reversal not first presented to the district court.” Id. Thus,

Georgiades’s argument is waived.

V.

For the foregoing reasons, the district court’s denial of

Georgiades’s summary judgment motion is

AFFIRMED.

19
TRAXLER, Circuit Judge, dissenting:

We are talking about a five year old little girl. She

described how her father sexually molested her to a trained and

experienced forensic interviewer, using anatomically correct

drawings and dolls to demonstrate what he did to her. The

majority holds it was illegal to arrest the father.

The little girl initially denied being abused during the

interview and a medical examination conducted over two weeks

after the abuse showed no signs of physical injury.

Notwithstanding the fact that a trained and experienced social

worker and interviewer, with full knowledge of the two

additional facts, determined that sexual abuse was indicated

under Maryland law, the majority holds there can be no arrest

because there was no probable cause. If this were a published

case which would set precedent for this circuit, you could say

goodbye to the prosecution of many child sexual abuse cases,

because those two facts are common to sexual abuse cases

involving children.

This little girl is like most five year olds who have

been sexually abused. She does not want to talk about it. The

video of her forensic interview makes that plain. There are

many reasons why this occurs and why children, more often than

not, initially deny sexual abuse, particularly abuse by a

parent or other trusted adult. The child may have been

20
threatened not to talk by her abuser. She may have been told

not to tell (as was the case with this little girl) or led into

a promise to “keep our secret.” She may be simply embarrassed.

A child’s reluctance to talk about sexual abuse happens all the

time. But such initial denials do not mean the abuse did not

occur and they cannot be accepted at face value. More questions

must be asked and different interview approaches must be

explored. It takes a trained and skilled interviewer to get

past these initial denials to uncover the truth of what happened

in a reliable way. That is precisely what happened here.

Likewise, the absence of physical trauma is not unusual,

because there are degrees of sexual abuse. A lack of injury

does not mean no sexual abuse occurred. This child told the

interviewer S.J.A.

46. The particular incident caused pain to her but not physical

injury. Hence the validity of the examining doctor’s conclusion

that the absence of physical trauma did not mean that no sexual

abuse occurred.

According to the majority’s holding in this case, if a

small child initially and briefly denies sexual abuse and the

medical examination shows no injury, but is otherwise

inconclusive, then there is no probable cause to arrest the

abuser. Yet, in Maryland, a sex offender can be convicted at

trial solely on the testimony of his young victim. There is no

21
requirement of corroboration, and initial denials by the child

do not affect the admissibility of her testimony about what

happened. It is for the jury to decide whether the child’s

statement is enough, or whether the initial denials render her

testimony unreliable. The majority is requiring more evidence

for an arrest than Maryland requires for a conviction.

I.

A.

Under Maryland’s child abuse and neglect statute, local

social services departments are charged, along with law

enforcement, with investigating allegations of child abuse. See

Md. Code Fam. Law § 5-706. At the conclusion of an

investigation, the department must determine whether child abuse

is “indicated,” “ruled out,” or “unsubstantiated.” See Md. Code

Regs. § 07.02.07.12.

On November 1, 2010, Meredith Pipitone reported to the

Harford County Child Advocacy Center that her 5 year-old

daughter, “JMLO,” had been sexually abused by Osborne, JMLO’s

father. Later that day, Pipitone brought JMLO to the child

advocacy center and talked to Dion White, a licensed social

worker and trained forensic interviewer in child sexual abuse

cases.

In accordance with Maryland law, White immediately

conducted a forensic interview of JMLO. White’s interview

22
followed the RATAC method. See Jennifer Anderson et al, The

Cornerhouse Forensic Interview Protocol: RATAC, 12 T.M. Cooley

J. of Prac. & Clinical L. 193, 202 (2010). RATAC, an acronym

for “Rapport, Anatomy Identification, Touch Inquiry, Abuse

Scenario, and Closure,” see id., is a well-recognized and

widely-accepted model for interviewing and questioning children

about sexual abuse. A trained interviewer generally goes

through the steps sequentially and begins by establishing a

rapport and gaining the child’s trust. The interviewer then

utilizes anatomical drawings “to identify different parts of the

body, to develop a common language,” for the child to use in

identifying body parts. J.A. 210. She then moves to the Touch

Inquiry, wherein the child is asked about “what parts of the

body may not be okay for someone to touch.” J.A. 211. Finally,

the interviewer delves into whether the allegations of abuse

have occurred – the “Abuse Scenario” – and ultimately reaches

closure with the child.

Of particular relevance in this case is the “Abuse

Scenario” component, pursuant to which the interviewer seeks to

determine if the allegations of abuse have actually occurred.

Generally, the interviewer “start[s] with open-ended questions”

and “use[s] the child’s spontaneity.” J.A. 211. However, the

interviewers are also taught to use direct questions, or yes-no

questions, or multiple choice when necessary. According to

23
J.A. 46-47. At that point, JMLO proceeded to describe in

S.J.A. 55.

Based on the results of the RATAC interview, White’s

written assessment was “that th[e] child was sexually abused” as

described in detail during the forensic interview. White

provided the following official disposition, pursuant to state

law: “Sexual Abuse of [JMLO] is ruled ‘Indicated,’ in

accordance with the provisions of [Maryland] Family Law Article

5-701 and [the Code of Maryland Regulations] 07.02.07.12 (A-2).”

S.J.A. 63.

Corporal Peter Georgiades of the Harford County Sheriff’s

Office was assigned to investigate the case and appeared at the

child advocacy center to monitor the interview of JMLO. There

is no evidence in the record that Corporal Georgiades talked to

JMLO before the interview. There is no evidence in the record

that he knew JMLO or her mother or her father. He was not

physically present in the room while White interviewed JMLO, but

instead observed what transpired from another room by means of a

27
live video feed. Georgiades and White were able to communicate

by phone during the interview, which they did three times during

the 37 minutes White talked to JMLO.

Following the interview, JMLO’s mother called Osborne and

relayed what JMLO had described to White during the interview.

Law enforcement recorded the call. Osborne denied JMLO’s story.

Rather than seek a warrant immediately, Corporal Georgiades

elected to continue the investigation. In particular, Corporal

Georgiades wanted to afford Osborne an opportunity to provide an

explanation for JMLO’s statements; however, Georgiades’ attempts

to contact Osborne were unsuccessful, despite Georgiades having

left his card at Osborne’s residence multiple times.

On November 3, 2010, Dr. Lomonico was advised by DSS that

JMLO had reported

S.J.A. 58.

Although Dr. Lomonico found “no physical signs in today’s exam

for sexual abuse,” he concluded that “[t]his does not rule out

abuse.” S.J.A. 58. Maryland law specifically provides that

“[p]hysical injury is not required for a finding of indicated

sexual abuse.” Md. Code Regs. § 07.02.07.12(A)(2)(b); see also

Md. Code, Fam. Law § 5-701(b)(2) (defining “abuse” to include

“sexual abuse of a child, whether physical injuries are

sustained or not.”). Moreover, under Maryland law, any

penetration, “however slight,” is sufficient to establish rape.

28
Kackley v. State, 493 A.2d 364, 366 (Md. Ct. Spec. App. 1985).

White later testified without contradiction that “[i]n my

experience there’s seldom trauma. . . . [W]hen a doctor, Dr.

Lomonico would look at a child, there is seldom evidence or an

observation o[f] physical trauma.” S.J.A. 34. White’s

experience consisted of her investigation of an average of 100

cases a year, since 2004, amounting to over one thousand cases,

the majority of which were sexual abuse cases.

On December 15, 2010, six weeks after the initial

statements by JMLO, Corporal Georgiades met with the prosecutor,

Deputy State’s Attorney Diane Tobin, to have his case assessed.

After viewing the entire video of White’s interview of JMLO and

discussing the merits of the case with Georgiades, Tobin

accepted the case for prosecution.

Despite the go-ahead from the prosecutor, Corporal

Georgiades still persisted in his efforts to contact Osborne.

Even after leaving his card several more times, Georgiades was

not able to get Osborne to contact him. On January 14, 2011,

Georgiades contacted Osborne’s girlfriend by telephone,

believing her to be a possible witness to the reported

incidents. The girlfriend told Georgiades that Osborne did not

trust the police and would not contact them, but she agreed she

would encourage Osborne to call. Finally, on January 24, 2011,

Osborne called Georgiades but explained that he wanted to talk

29
with his attorney before saying anything else. Osborne then

ended the call.

On January 24, 2011, Corporal Georgiades applied for an

arrest warrant. After recounting the allegations from JMLO’s

mother in his warrant application, Georgiades expressly referred

to the recorded interview: “[JMLO] was brought to the [child

advocacy center] on Monday 11/1/2010 and a forensic interview

was conducted. The Interview was both visually and audibly

recorded.” J.A. 160. Georgiades then briefly summarized the

portions of JMLO’s interview that supported probable cause to

believe that Osborne had sexually abused his daughter.

The arrest warrant was issued and Osborne was charged with

8 sexual-assault counts. Subsequently, a grand jury presented

with the evidence issued a 16-count indictment for sexual-

assault offenses. Osborne was held in jail for more than 8

months pending trial. Ultimately, the State’s Attorney’s Office

placed Osborne’s case on the “stet docket” rather than moving

forward to trial and released Osborne.

B.

Osborne sued the police officer. He asserted under 42

U.S.C. § 1983 that his arrest by Corporal Georgiades constituted

an unreasonable seizure in contravention of the Fourth Amendment

because Corporal Georgiades (1) included “fabricated” evidence

in the warrant application in that he knowingly and

30
intentionally induced JMLO to invent facts supporting the sexual

abuse allegations, see J.A. 330-31, and (2) omitted from his

application for an arrest warrant JMLO’s initial denials of

sexual abuse as well as the fact that a medical examination did

not reveal any physical trauma, see J.A. 332-33.

Corporal Georgiades moved for summary judgment on the basis

of qualified immunity. The district court denied summary

judgment, ruling that (1) a reasonable jury could conclude that

Corporal Georgiades manufactured the case against Osborne by

directing White to pose questions designed to mislead or confuse

JMLO and (2) the omissions from Georgiades’ affidavit were

material to the probable cause determination. The district

court reasoned that “the presence of this contradictory

evidence” such as the initial denials from JMLO and the lack of

trauma findings by the examining doctor “could certainly negate

a finding of probable cause,” meaning that “a neutral,

reasonable judicial officer could choose to credit this evidence

over the evidence of JMLO’s account of abuse.” J.A. 333

(emphasis added). As to its first decision, for reasons I will

show, the district court was clearly incorrect. As to the

second ruling, the district court was wrong on the law, a point

acknowledged by the majority.

II.

31
 We review de novo a district court’s decision to deny a

summary judgment motion based on qualified immunity. See Danser

v. Stansberry, 772 F.3d 340, 345 (4th Cir. 2014). Summary

judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

In § 1983 actions, government officials are entitled to

qualified immunity so long as they have not violated “clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). “Officials are not liable for bad guesses

in gray areas; they are liable for transgressing bright lines.”

S.P. v. City of Takoma Park, Md., 134 F.3d 260, 266 (4th Cir.

1998) (internal quotation marks omitted). The doctrine of

qualified immunity protects “all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341 (1986). This doctrine “balances two important

interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555 U.S.

223, 231 (2009). It “gives government officials breathing room

to make reasonable but mistaken judgments.” Stanton v. Sims,

134 S. Ct. 3, 5 (2013) (per curiam) (internal quotation marks

32
omitted). The application of the qualified immunity doctrine

serves two purposes: first, to protect an officer from an

unnecessary trial where the doctrine plainly applies at the

pretrial stage, see Johnson v. Jones, 515 U.S. 304, 312 (1995),

and second to prevent liability when a trial resolves facts

establishing that qualified immunity is applicable, see Merchant

v. Bauer, 677 F.3d 656, 665 n.6 (4th Cir. 2012).

In determining whether an officer is entitled to summary

judgment on the basis of qualified immunity, we employ a two-

part inquiry. See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014)

(per curiam). Courts are “permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555

U.S. at 236. The first question is “whether the facts, viewed

in the light most favorable to the plaintiff, show that the

officer’s conduct violated a federal right.” Smith v. Ray, 781

F.3d 95, 100 (4th Cir. 2015); see Saucier v. Katz, 533 U.S. 194,

201 (2001). “The second [question] of the qualified-immunity

inquiry asks whether the right was clearly established at the

time the violation occurred such that a reasonable person would

have known that his conduct was unconstitutional.” Ray, 781

F.3d at 100; see Ridpath v. Bd. of Governors Marshall Univ., 447

F.3d 292, 306 (4th Cir. 2006). “The answer to both . . .

33
questions must be in the affirmative in order for a plaintiff to

defeat a defendant police officer’s motion for summary judgment

on qualified immunity grounds.” Miller v. Prince George’s Cty.,

Md., 475 F.3d 621, 627 (4th Cir. 2007) (internal alteration and

quotation marks omitted). As neither question can be answered

in the affirmative in this case, Corporal Georgiades is entitled

to summary judgment based on qualified immunity.

A. No Constitutional Violation

Osborne claims that he was arrested without probable cause

in violation of the Fourth Amendment’s guarantee against

unreasonable seizures. “The Fourth Amendment prohibits law

enforcement officers from making unreasonable seizures, and

seizure of an individual effected without probable cause is

unreasonable.” Brooks v. City of Winston–Salem, N.C., 85 F.3d

178, 183 (4th Cir. 1996). Osborne was arrested pursuant to a

warrant, and the Fourth Amendment does not permit the issuance

of a warrant “but upon probable cause.” U.S. Const. amend. IV.

An arrest made pursuant to a facially valid warrant may be

presumed to rest upon probable cause, and Osborne does not

contend that the arrest warrant was invalid on its face.

Rather, Osborne claims that Corporal Georgiades misled the

magistrate by including facts he knew to be false and by

omitting material facts from the warrant application. Our

analysis, therefore, is guided by Franks v. Delaware, 438 U.S.

34
154 (1978), “as to whether asserted material false statements

and omissions in the . . . supporting affidavit[] . . . state a

constitutional claim.” Evans v. Chalmers, 703 F.3d 636, 649-50

(4th Cir. 2012). To succeed on his claim, Osborne must prove

that Corporal Georgiades deliberately or with a “reckless

disregard for the truth” made false statements of material fact

in his affidavit, Franks, 438 U.S. at 171, or omitted from that

affidavit “material facts with the intent to make, or in

reckless disregard of whether they thereby made, the affidavit

misleading,” United States v. Colkley, 899 F.2d 297, 300 (4th

Cir. 1990) (internal quotation marks omitted). Furthermore, to

establish his claim, Osborne must prove that the fabricated or

omitted facts were material. “It is well-established that a

false or misleading statement in a warrant affidavit does not

constitute a Fourth Amendment violation unless the statement is

necessary to the finding of probable cause.” Wilkes v. Young,

28 F.3d 1362, 1365 (4th Cir. 1994) (emphasis added) (internal

quotation marks omitted).

1. The Alleged False Statements in the Warrant Affidavit

Osborne contends that JMLO’s account of sexual abuse was

false, resulting from coercive interview techniques and pressure

applied by Corporal Georgiades. And, according to Osborne, the

inclusion of this manufactured account in Georgiades’ warrant

affidavit resulted in the issuance of the warrant and his

35
unreasonable seizure. The district court found that “a

reasonable jury could certainly conclude that Corporal

Georgiades exerted pressure that resulted in the fabrication of

evidence against [Osborne]” based solely on the following: that

Corporal Georgiades spoke by phone with White three times during

the interview and that Corporal Georgiades ended the interview

after JMLO indicated

J.A. 331.

The district court’s conclusion, in my view, finds

absolutely no support in the record and amounts to rank

speculation. To survive summary judgment here, Osborne must

adduce evidence showing that Corporal Georgiades deliberately

caused fabricated or falsified evidence. See Devereaux v.

Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc); Myers v.

Morris, 810 F.2d 1437, 1458 (8th Cir. 1987) (requiring “a

specific affirmative showing of dishonesty”), abrogated on other

grounds, Burns v. Reed, 500 U.S. 478 (1991). It is Osborne’s

burden to produce evidence of fabrication, not Georgiades’

burden to negate it.

Georgiades asserted a general right to qualified immunity

in his opening brief to this court, but the majority is correct

that he did not specifically challenge the district court’s

ruling on the fabrication allegation. I think nevertheless we

should reach this issue for several reasons. First, Georgiades

36
in his brief did claim the defense of qualified immunity. When

this defense is presented, a court may determine whether there

is proof that the official violated the plaintiff’s

constitutional rights. Second, the record irrefutably shows

there was no fabrication of evidence. There is not a shred of

evidence of any coercion or any fabrication of any type. Third,

Georgiades’s lawyer used a substantial portion of her oral

argument to challenge the allegations of fabrication and she was

thoroughly questioned by judges on the panel about it, all

without anyone objecting to its relevance or suggesting that

waiver precluded counsel from adressing the fabrication issue.

Fourth, given the importance of the interest the court has in

eliminating baseless claims early on, I would take this

opportunity to address and get rid of this allegation.

Osborne presented absolutely no evidence suggesting that

Georgiades somehow manipulated JMLO into falsely accusing

Osborne of sexual abuse, and the district court relied upon

sheer speculation in concluding otherwise. The sole factual

basis for the district court’s opinion was that Corporal

Georgiades and White spoke by telephone during the interview.

From that fact and that fact alone, the district court

conjectured that Georgiades directed White to ask questions

designed to manipulate JMLO into falsely accusing Osborne of

abuse. The majority apparently believes we are bound by the

37
opinion of the district court. If there were any facts in the

record to support his conclusion, I might agree. But this record

is completely devoid of any evidence that Officer Georgiades

exerted any pressure or fabricated any evidence.

First and foremost, the child had already told White about

Osborne’s molestation of her and described in detail what

Osborne had done to her before there was the first phone

conversation between Corporal Georgiades and White. This fact

alone renders the fabrication claim frivolous. Second, there is

absolutely no evidence in the record at all as to what was said

during those phone conversations. And, third, neither the

district court in its order nor Osborne on appeal identified a

single improper question posed to JMLO during the interview,

which was recorded from start to finish and followed the widely-

accepted RATAC forensic interview model. Thus, there is simply

no evidence that Georgiades violated Osborne’s constitutional

rights by causing fabricated evidence to be elicited during that

interview and this claim should be eliminated.

2. Information Omitted from the Warrant Application

Osborne also claims that Corporal Georgiades deliberately

or with a reckless disregard for the truth omitted important

“contradictory evidence” from the warrant application--namely

JMLO’s initial denials of abuse and the “dearth of any physical

evidence of abuse,” J.A. 333—in order to mislead the magistrate

38
into issuing a warrant. The district court denied summary

judgment, concluding (1) that a reasonable factfinder could

decide that Corporal Georgiades had the requisite intent to

mislead the magistrate, and (2) that the omitted “contradictory

evidence” was material because it “could certainly negate a

finding of probable cause.” Id. In my view, and with due

respect for the district court, these decisions were clearly in

error.

a. Intent

“To satisfy the Franks’ intentional or reckless falsity

requirement for an omission, the defendant must show that facts

were omitted with the intent to make, or in reckless disregard

of whether they thereby made, the affidavit misleading.” United

States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008) (internal

quotation marks omitted). That is, “the omission must be

designed to mislead or must be made in reckless disregard of

whether it would mislead.” Id. (internal quotation marks and

alteration omitted). To establish “reckless disregard,” the

defendant must show that the “officer failed to inform the

judicial officer of facts he knew would negate probable cause.”

Miller, 475 F.3d at 627 (internal question marks and alteration

omitted).

Officers applying for a warrant “cannot be expected to

include in an affidavit every piece of information gathered in

39
the course of an investigation,” Colkley, 899 F.2d at 300, and

they are “not required to include every piece of exculpatory

information in [such] affidavits,” Evans, 703 F.3d at 651. Not

every omission amounts to a constitutional violation:

[B]ecause every piece of information cannot be
expected to be included, the very process of selecting
facts to include for the demonstration of probable
cause must also be a deliberate process of omitting
pieces of information. Certainly, such intentional
omissions do not satisfy the requirement of Franks. .
. . [If] this type of intentional omission is all
that Franks requires, the Franks intent prerequisite
would be satisfied in almost every case. Accordingly,
merely showing an intentional omission of a fact from
a warrant affidavit does not fulfill Franks’
requirements.

Tate, 524 F.3d at 455 (internal quotation marks and citations

omitted).

Other than the mere fact that Corporal Georgiades omitted

JMLO’s initial denials and the inconclusive medical report, the

record is bereft of evidence suggesting that he misled the

issuing magistrate intentionally or recklessly. In fact, all of

the evidence is to the contrary. Neither the district court nor

Osborne point to any evidence of the required intent other than

the fact that allegedly contradictory evidence was omitted. The

district court concluded that a jury could infer the requisite

intent or recklessness from the mere fact of omission itself.

This court, however, has refused to embrace “the validity of

inferring bad motive under Franks from the fact of omission [of

40
contradictory information] alone, for such an inference

collapses into a single inquiry the two elements—

‘intentionality’ and ‘materiality’—which Franks states are

independently necessary.” Colkley, 899 F.2d at 301. In

Colkley, we concluded that the defendant failed to show that the

officer applying for the warrant intended to mislead the

magistrate even though he omitted from his affidavit the fact

that none of the six eyewitnesses were able to identify

defendant out of a photo lineup and that he used only the height

description provided by one eyewitness but did not mention that

other witnesses indicated the bank robber was shorter than the

defendant. See id. at 300-01. Likewise, in Simmons v. Poe, we

held that an officer had not acted with a reckless disregard for

the truth where he included in his affidavit only the profile

factors that were consistent with the suspect and omitted

several inconsistent profile factors as well as the victim’s

initial belief that her attacker was of a different race. See

47 F.3d 1370, 1383-84 (4th Cir. 1995).

The record does not create any question of fact as to

whether Georgiades omitted JMLO’s initial denials or the results

of the medical examination with the intent to mislead the

magistrate or with a reckless disregard for the truth. In fact,

I am unable to find any evidence in the record showing that

Georgiades even knew about the existence of Dr. Lomonico’s

41
report before he applied for the warrant. Actually, insofar as

the record contains facts relating to Corporal Georgiades’

intent with regard to the arrest warrant, they suggest that he

harbored no deceit and wanted to make sure he covered all his

bases before arresting Osborne. He had seen the interview of

the little girl. The opinion of Dion White, the experienced

social worker who interviewed JMLO, was that sexual abuse of

JMLO had indeed occurred. He knew the child’s father had told

her not to tell anybody about what he had done. In addition,

prior to applying for the arrest warrant, Georgiades took the

recording of the interview to Tobin, the prosecutor, for her

assessment of the case. After watching the interview, which

included JMLO’s initial denials, and discussing the merits of

the case with Georgiades, Tobin wanted to move forward with the

prosecution. Only after receiving the go-ahead from the

prosecutor did Georgiades prepare and submit his warrant

application, which specifically stated that there was a

recording of JMLO’s interview. Thus, he disclosed the video to

the magistrate who could have watched and seen for himself what

JMLO said if he so desired.

The consultation with Tobin shows, at the least, that

Georgiades fully disclosed his evidence to the legal expert who

was assigned by the State of Maryland to handle the case.

Georgiades also extended to Osborne numerous invitations to tell

42
his side of the story. None of the evidence points to an intent

to “railroad” Osborne. Accordingly, Osborne has failed to

establish the requisite intent required to sustain his claim

that Georgiades violated his constitutional rights.

b. Materiality

“It is well-established that a false or misleading

statement in a warrant affidavit does not constitute a Fourth

Amendment violation unless the statement is necessary to the

finding of probable cause.” Wilkes, 28 F.3d at 1365 (emphasis

added) (internal quotation marks omitted). Where a plaintiff

alleges that an officer has omitted material facts, he must

establish that without such omissions there would have been no

probable cause. See Miller, 475 F.3d at 632 (“[T]he

Constitution [does] not permit a police officer deliberately, or

with reckless disregard for the truth, to make material

misrepresentations or omissions to seek a warrant that would

otherwise be without probable cause.”).

In concluding that the facts omitted from Georgiades’

affidavit were material, the district court did not apply the

correct standard of materiality. The district court stated that

the omitted facts had the “potential to negate probable cause”

and that a “reasonable judicial officer could choose to credit

this evidence over the evidence of JMLO’s account of abuse.”

J.A. 333.

43
 This court rejected virtually this same formulation of

materiality in Colkley, where the district court “believed that

the affiant’s omission was material because it ‘may have

affected the outcome’ of the probable cause determination.” 899

F.2d at 301. We explained that the court had “misstated” the

Franks materiality standard, under which “an omission must do

more than potentially affect the probable cause determination:

it must be necessary to the finding of probable cause.” Id.

(emphasis added) (internal quotation marks omitted). * The

possibility that the omitted facts could be credited by a

magistrate over the facts included in the warrant affidavit does

not make such facts material under this standard. For the

omitted facts to be material, their inclusion in the warrant

affidavit must necessarily defeat probable cause. See id.

In order to assess the materiality of an omission, we must

insert the omitted information “and then determine whether or

*Wefurther noted that the idea that a warrant affidavit
must include “potentially exculpatory evidence” was akin “to
import[ing] the rule of Brady v. Maryland into the warrant
application process.” United States v. Colkley, 899 F.2d 297,
302 (4th Cir. 1990) (internal citation omitted). Brady is
concerned with the fairness of criminal trials and “with the
justice of the finding of guilt that is appropriate at trial,”
while Franks “recognizes that the information an affiant reports
. . . may not ultimately be accurate . . . so long as the
affiant did not deliberately mislead the magistrate.” Id. at
303 (internal quotation marks omitted). Thus, “a requirement
that all potentially exculpatory evidence be included in an
affidavit would severely disrupt the warrant process.” Id.

44
not the ‘corrected’ warrant affidavit would establish probable

cause.” Miller, 475 F.3d at 628 (internal quotation marks

omitted). Even if JMLO’s initial denials and the result of Dr.

Lomonico’s examination had been inserted into Corporal

Georgiades’ affidavit, there was still a sufficient basis for a

reasonable jurist to find probable cause. The affidavit

described the statements made by JMLO during her forensic

interview and included details from JMLO regarding sexual

activity that would have been beyond the understanding and

experience of a typical five-year old. And the medical report

did not necessarily negate JMLO’s claims, as Dr. Lomonico

himself seemed to recognize, expressly stating that his exam did

not rule out abuse. The conflicting evidence presented a

question for the jury as to JMLO’s credibility and the ultimate

guilt of Osborne, but it did not necessarily defeat probable

cause for an arrest.

B. No Clearly Established Constitutional Right

Because “[q]ualified immunity shields an officer from suit

when []he makes a decision that, even if constitutionally

deficient, reasonably misapprehends the law governing the

circumstances,” we focus our inquiry on the body of law at the

time of the police conduct to determine “whether the officer had

fair notice that [the] conduct was unlawful.” Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam). The clearly-

45
established inquiry “must be undertaken in light of the specific

context of the case, not as a broad general proposition.”

Saucier, 533 U.S. at 201. But “[w]e do not require a case

directly on point” to find the requirement satisfied so long as

“existing precedent [has] placed the statutory or constitutional

question beyond debate.” Ashcroft v. al–Kidd, 131 S. Ct. 2074,

2083 (2011) (internal quotation marks omitted).

In deciding whether an officer’s conduct violated clearly

established law, “we have long held that it is case law from

this Circuit and the Supreme Court that provide notice of

whether a right is clearly established.” Hill v. Crum, 727 F.3d

312, 322 (4th Cir. 2013) (internal quotation marks and

alteration omitted).

In determining whether a right was clearly established
at the time of the claimed violation, courts in this
circuit ordinarily need not look beyond the decisions
of the Supreme Court, this court of appeals, and the
highest court of the state in which the cases arose. .
. . If a right is recognized in some other circuit,
but not in this one, an official will ordinarily
retain the immunity defense.

Id. (internal quotation marks omitted).

The district court determined, and my friends in the

majority agree, that Corporal Georgiades should have understood

that his conduct was unlawful because it was clearly established

in 2010 under Franks v. Delaware that an officer violates the

constitution by deliberately, or with a “reckless disregard for

46
the truth,” omitting material facts from an arrest warrant

affidavit. 438 U.S. at 155-56.

Although the general Franks principle is unquestionably

well-established, we do not stop there. The law requires that

we go farther and assess the right in a more particularized

sense in the context of the specific facts of this case. As the

Supreme Court has admonished, courts must not “define clearly

established law at a high level of generality,” al-Kidd, 131 S.

Ct. at 2084, but rather must identify a constitutional right

that was “‘clearly established’ in a more particularized, and

hence more relevant, sense,” Anderson v. Creighton, 483 U.S.

635, 640 (1987).

Thus, even though it was clearly established on a general

level that an officer could not omit material facts from a

warrant application with a reckless disregard for the truth, the

contours of this right were not clearly established by Supreme

Court or Fourth Circuit precedent in the particularized context

of this case. In light of cases such as Colkley and Simmons, it

was not clear that Officer Georgiades’ omissions, which would

not have defeated probable cause, were unconstitutional. The

majority cannot cite a single case to show that the right they

claim was clearly established. The general rule established by

Franks did not afford Corporal Georgiades fair notice that his

specific conduct was unlawful, and my friends in the majority

47
cannot show that such conduct was contrary to clearly

established law.

III.

A.

Georgiades argued that the issuance of the indictment

settled the question of whether there was probable cause for the

prior arrest of Osborne. The indictment is regular on its face

and there are absolutely no allegations in Osborne’s complaint

asserting any wrongdoing or improprieties in the proceedings

before the Grand Jury. Likewise there is no evidence in the

Joint Appendix regarding what evidence the Grand Jury had before

it. There being nothing out of the ordinary regarding the Grand

Jury proceedings or the indictment, I would not speculate about

what might have happened or what could have happened in the

Grand Jury room. I would hold at the very least that the

indictment broke any chain of causation that might have existed.

See Durham v. Horner, 690 F.3d 183, 189-90 (4th Cir. 2012).

Besides, there was an independent decision made by the

prosecutor that the evidence was strong enough to go forward

with the case before Officer Georgiades ever sought a warrant.

It is uncontradicted that Officer Georgiades went over the

merits of his case with Diane Tobin, the Deputy State’s

Attorney, before making an arrest. Tobin watched the entire

video of the child’s statements, including the “denials” at the

48
beginning of the interview and nevertheless accepted the case

for prosecution. We should remember here that in a malicious

prosecution context, similar in principle to the issues before

us, we quoted with approval the following statement:

A law enforcement officer who presents all relevant
probable cause evidence to a prosecutor . . . is
insulated from a malicious prosecution claim where
such intermediary makes an independent decision . . .
unless the officer (1) concealed or misrepresented
facts or (2) brought such undue pressure to bear on
the intermediary that the intermediary's independent
judgment was overborne.

Evans v. Chalmers, 703 F.3d 636, 648 (4th Cir. 2012) (internal

quotation marks omitted).

Here, there is no evidence either exception applies, and

the approval of the case for prosecution by the Deputy State’s

Attorney and her subsequent submission of the case to the Grand

Jury should insulate Officer Georgiades from any liability

because he sought and obtained this prosecutor's independent

evaluation before he ever applied for an arrest warrant. She

saw the “denials” and still advised Officer Georgiades she would

go forward with the case. Under these circumstances, no fault

can be attributed to the officer, and he should receive the

benefits of immunity as well as our commendation for the

appropriate steps he took.

The majority would not reach this issue because it was not

argued to the district court. Although it does appear to be

49
raised for the first time on appeal, I would reach it for two

reasons: First, Osborne did not object to this question being

before us and in fact briefed the issue for our consideration.

Second, there is no evidence, or even any allegations, of any

wrongdoing with regard to the grand jury indictment or the

submission of the case to the prosecutor for a legal evaluation.

B.

My friends in the majority and I agree that the district

court used the wrong standard to evaluate the effect of the

omissions on the question of probable cause. The correct test is

whether the omissions necessarily negated probable cause. My

friends do not believe the child’s responses are reasonably

reliable to establish even probable cause because, in their

view, what five-year-old JMLO relates about the two nights

cannot be squared with her initial denials and lack of physical

injury. I must be watching a different interview video because

I see nothing that negates probable cause or warrants such a

dismissal of a five-year-old victim’s account of her abuse.

The events the child described happened on two separate

nights that her father had her in his bed, and it was not

necessary for the interviewer to try to make JMLO pinpoint

exactly what action or what statements were made on which

nights. What I do see is a five-year-old girl telling an

experienced forensic interviewer—both verbally and

50
demonstratively with dolls—about sex acts committed on her. And

it strains reason to conclude that she was coached or

manipulated by anyone into making these graphic sexual

statements during the interview. As I pointed out earlier, the

“denials” that my friends make so much of do not bother me in

the least. I frankly do not see how a five year old child’s

initial refusal to talk to a stranger about being sexually

abused by her father, who has told her not to tell anyone about

what he did, can have anything more than a fleeting effect on an

evaluation of the truthfulness of her description of what

happened to her. And the doctor’s report does not count for

much, as it is equivocal and expressly does not exclude the

prior occurrence of some type of sexual abuse. Given that

sexual abuse does not necessarily result in trauma, I would not

hesitate in saying the doctor’s report does not negate the

probable cause established by JMLO’s descriptions of what

happened. In short, the so-called omissions were not material

and do not come close to preventing the arrest of Osborne.

IV.

The majority relies on the prudential doctrine of waiver to

dispose of virtually every issue in this appeal, including the

question of whether the law was clearly established at the time

of Corporal Georgiades’s alleged constitutional violations. An

appellate court, of course, always possesses discretion to reach

51
an otherwise waived issue. See United States v. Vinson, 805

F.3d 120, 122 n.1 (4th Cir. 2015). But the circumstances in the

case before us make it particularly appropriate that we exercise

our discretion to decide whether the law was clearly

established.

First, it is especially proper that an appellate court

reach an otherwise waived issue if that issue is logically

antecedent to, and ultimately dispositive of, the dispute before

it. For example, in United States National Bank of Oregon v.

Independent Insurance Agents of America, the Supreme Court

concluded that the Eleventh Circuit Court of Appeals had

properly decided an issue first raised in supplemental post-

argument briefing, even though the appellants had failed to

raise it in either their opening or reply brief. See 508 U.S.

439, 447 (1993). The Court reached this conclusion because the

issue which had not been raised was “antecedent to” and

“dispositive of” the question addressed in the opening brief.

Id.

The same reasoning applies here. The question of whether

the law was clearly established is “antecedent to” and, if

decided in the appellants’ favor, “dispositive of” the issue

that is before us on appeal—whether Corporal Georgiades is

shielded from trial by qualified immunity. If the law was not

clearly established, then it is irrelevant whether or Corporal

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Georgiades actually violated the law because he would be

shielded by qualified immunity and, as a result, entitled to

judgment as a matter of law. See Behrens v. Pelletier, 516 U.S.

299, 306 (1996) (“Unless the plaintiff's allegations state a

claim of violation of clearly established law, a defendant

pleading qualified immunity is entitled to dismissal before the

commencement of discovery.” (internal quotation marks omitted)).

Second, the standard policy bases for applying the waiver

doctrine do not apply with the same force in the qualified

immunity context. Much like the final judgment rule, see 19

James Wm. Moore, Moore’s Federal Practice § 201.10[1] (3d ed.

2011) (“The purposes of the final judgment rule are to avoid

piecemeal litigation, [and] to promote judicial efficiency . . .

.”), the waiver doctrine aims to “preserve[] judicial

resources,” United States v. Benton, 523 F.3d 424, 428 (4th Cir.

2008). Qualified immunity is an “immunity from suit rather than

a mere defense to liability; and like an absolute immunity, it

is effectively lost if a case is erroneously permitted to go to

trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Accordingly, even though interlocutory appeals are generally

disfavored, immediate review of a district court’s denial of a

claim of qualified immunity is permitted “to the extent that it

turns on an issue of law.” Id. at 530. Likewise, in light of

the strong policy favoring an official’s “entitlement not to

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stand trial or face the other burdens of litigation,” id. at

526, we should exercise our discretion here and decide whether

the law was clearly established at the time of the alleged

violation—all the more so where, as here, the question is not

even close on the merits.

Finally, the majority’s dogged application of waiver

produces an ironic result. Even if Georgiades did not raise

qualified immunity in this appeal, he raised it as an

affirmative defense in his answer to the complaint and will thus

be permitted to press the defense when the case goes to trial.

In my view, the majority’s insistence on avoiding the merits and

applying the waiver rule in this case does nothing except kick

the can down the road.

V.

The initial denials by JMLO are consistent with common

experience in child sexual abuse cases where threats, or

innocent promises by children to keep a secret, are the norm and

easily account for the denials that are so familiar to those who

work in this area. Likewise, the fact that there was no

physical trauma. The absence of this information in a warrant

application does not undermine the probable cause established by

this five-year-old girl’s detailed description of the sexual

abuse by her father.

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 Finally, the majority has elected not to publish this case.

The redeeming feature of this choice is that under our law this

case cannot be used in the future as legal authority for

qualified immunity purposes. In that context, thankfully, it

will be irrelevant. See Hogan v. Carter, 85 F.3d 1113, 1118

(4th Cir. 1996) (en banc) (“Since unpublished opinions are not

even regarded as binding precedent in our circuit, such opinions

cannot be considered in deciding whether particular conduct

violated clearly established law for purposes of adjudging

entitlement to qualified immunity.”). Nevertheless, I dissent

because, in my view, the lower court decision must be reversed.

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