Fadwa Safar v. Lisa Tingle

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1420

FADWA SAFAR; JAN ESHOW,

Plaintiffs - Appellants,

v.

LISA TINGLE; STEPHANIE RODRIGUEZ,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T. S. Ellis, III, Senior District Judge. (1:15-cv-00467-TSE-TCB)

Argued: March 21, 2017 Decided: June 7, 2017

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Wilkinson
wrote the opinion, in which Judge Diaz joined. Judge Floyd wrote a separate concurring
opinion.

ARGUED: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES,
Alexandria, Virginia, for Appellants. Alexander Francuzenko, COOK CRAIG &
FRANCUZENKO PLLC, Fairfax, Virginia; Julia Bougie Judkins, BANCROFT,
MCGAVIN, HORVATH & JUDKINS, PC, Fairfax, Virginia, for Appellees. ON
BRIEF: Maxwelle C. Sokol, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellants. Broderick C. Dunn, Philip C. Krone, COOK CRAIG &
FRANCUZENKO PLLC, Fairfax, Virginia, for Appellee Lisa Tingle
WILKINSON, Circuit Judge:

Plaintiffs Jan Eshow and Fadwa Safar were arrested, and Safar briefly

incarcerated, for an allegation of fraud that was mistakenly reported and almost

immediately retracted. They brought suit under 42 U.S.C. § 1983 and state tort law

against the police officer and prosecutor who, at different stages of the criminal process,

learned that no crime had occurred and yet failed to take steps to withdraw an arrest

warrant. For the reasons that follow, we affirm the grants of immunity to the police

officer and prosecutor on the § 1983 claims. As to the state law claims, however, we

remand with instructions to dismiss the claims without prejudice to plaintiffs’ right to

proceed in state court.

I.

This case is an appeal from a Rule 12(b)(6) dismissal, which requires us to “accept

as true all of the factual allegations contained in the complaint.” Owens v. Baltimore City

State’s Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014). To survive a motion to

dismiss, the complaint must state a “plausible claim for relief” that

“permit[s] the court to infer more than the mere possibility of misconduct.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).

What began as a simple exercise in bargain shopping took an unfortunate turn.

Plaintiffs Eshow and Safar are married residents of Alexandria, Virginia. In September

2012, Eshow purchased around $1,000 of home flooring from Costco in Pentagon City,

Virginia. Shortly thereafter, while browsing another Costco store, he saw that the same

flooring was on sale. After learning that he could take advantage of the sale price at the

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store of purchase, on October 17, 2012 Eshow returned to the Pentagon City Costco to

get the discount. Store personnel explained that he should purchase the identical flooring

at the current markdown and then immediately return it, using his initial sales receipt as

the basis for the refund. Eshow followed these instructions and obtained a refund on the

joint account he shared with Safar.

A few hours later, Costco called the Arlington County Police Department to

report—mistakenly—that Eshow and Safar had fraudulently secured a refund on goods

they never purchased. Officer Stephanie Rodriguez, along with another colleague,

responded to the report and reviewed a video showing Eshow seeking the refund.

Rodriguez filed an affidavit requesting arrest warrants for both plaintiffs, and a

magistrate judge issued the warrants.

The next day, Costco representatives contacted Rodriguez and notified her that the

allegations against Eshow and Safar were unfounded—no fraud had in fact occurred.

Rodriguez did not take any steps to correct her affidavit or withdraw the arrest warrants.

Eight months went by without incident until Eshow was pulled over for speeding

in Fairfax County, Virginia. Based on the outstanding arrest warrant, the police officers

handcuffed Eshow in front of his family and placed him under arrest. On July 31, 2013,

Eshow appeared before the Arlington County General District Court to contest the fraud

charge. At the hearing, a Costco representative explained to Rodriguez and Lisa Tingle,

the assistant commonwealth’s attorney, that the charge was erroneous and should be

dropped. Tingle moved for nolle prosequi and the court dismissed the case against

Eshow.

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 Both Rodriguez’s investigative notes and Tingle’s case file indicated that identical

charges were pending against Safar, but neither took any action to withdraw her arrest

warrant. Rodriguez and Tingle had previously been trained in the standard procedures for

withdrawing warrants from statewide law enforcement databases. In particular, “an

attorney for the Commonwealth may at any time move for the dismissal and destruction

of any unexecuted warrant or summons issued by a magistrate.” VA. CODE ANN. § 19.2-

76.1 (West 2011).

In late 2013, Eshow and Safar applied for American citizenship. After passing her

citizenship test, Safar turned to the next requirement and sought clearance letters from

local police in counties where she previously resided. On December 23, 2013, Safar

reported to the police headquarters in Prince George’s County, Maryland to get a

clearance letter. Upon reviewing her file, an officer informed her that she was under

arrest pursuant to an active warrant. Safar was incarcerated in Maryland, and a magistrate

advised her that a transfer to Arlington, Virginia could not be arranged until the county

judges returned from the holiday.

As part of the incarceration process, Safar was strip searched and inspected for

smuggled contraband. She was the primary caregiver for three young children at the time

and was denied the opportunity to use a breast pump. Safar remained in jail for three days

until December 26, 2013, when she was transferred to Arlington, Virginia and released.

The following day the case against her was dismissed nolle prosequi by a different

assistant commonwealth’s attorney.

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 Plaintiffs filed a complaint against Rodriguez and Tingle in federal district court.

Eshow and Safar asserted claims of unconstitutional arrest under § 1983. They also

alleged, according to Virginia tort law, that the failure to withdraw Safar’s arrest warrant

was grossly negligent.

Rodriguez and Tingle moved to dismiss all claims, and on April 4, 2016 the

district court granted their motions. First, the district court rejected plaintiffs’ § 1983

claims against Rodriguez. Neither the Fourth Amendment nor the Due Process Clause

provided a basis for relief, the court reasoned, and Rodriguez was entitled to qualified

immunity in any event. Turning to the § 1983 claim against Tingle, the court found that

she was shielded by absolute prosecutorial immunity. Finally, the court held that

plaintiffs failed to state a claim for gross negligence under Virginia law. This appeal

followed.

II.

The bulk of plaintiffs’ complaint alleges claims under § 1983. Section 1983, of

course, is not an independent source of substantive rights, but simply a vehicle for

vindicating preexisting constitutional and statutory rights. See Graham v. Connor, 490

U.S. 386, 393–94 (1989). The first step in any such claim is to pinpoint the specific right

that has been infringed. See Baker v. McCollan, 443 U.S. 137, 140 (1979).

Plaintiffs contend that Rodriguez’s and Tingle’s failure to withdraw the arrest

warrants after learning that the charges were erroneous constituted an unconstitutional

arrest. They assert that the alleged omissions breach two constitutional guarantees: the

Fourth Amendment and the Fourteenth Amendment’s Due Process Clause.

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 As an initial matter, we are mindful of the Supreme Court’s injunction that the

Due Process Clause is not the proper lens through which to evaluate law enforcement’s

pretrial missteps. Compared to the “more generalized notion” of due process, the Fourth

Amendment “provides an explicit textual source of constitutional protection against

[unreasonable seizures and arrests],” Graham, 490 U.S. at 395, and “define[s] the

‘process that is due’ for seizures of persons or property in criminal cases,” Gerstein v.

Pugh, 420 U.S. 103, 125 n.27 (1975). Consequently, a police officer who withholds

exculpatory information does not violate the Fourteenth Amendment unless the officer’s

failure to disclose deprived the plaintiff of the “right to a fair trial.” Taylor v. Waters, 81

F.3d 429, 436 n.5 (4th Cir. 1996). Further, insofar as plaintiffs’ claims sound in generic

negligence, the Due Process Clause “is simply not implicated” by acts of official

carelessness. Daniels v. Williams, 474 U.S. 327, 328 (1986). The Fourth Amendment,

then, is the only actionable ground for relief.

Having identified the constitutional right at issue, we now turn to the precise scope

of the Fourth Amendment guarantee and defendants’ respective claims for immunity.

A.

Rodriguez contends that any cognizable Fourth Amendment claim against her is

barred by the doctrine of qualified immunity. Qualified immunity “takes cognizance of

human imperfections,” West v. Murphy, 771 F.3d 209, 213 (4th Cir. 2014), and protects

government officials from liability for “bad guesses in gray areas,” Braun v.

Maynard, 652 F.3d 557, 560 (4th Cir. 2011) (quoting Maciariello v. Sumner, 973 F.2d

295, 298 (4th Cir. 1992)). The doctrine strikes a balance between two key societal

6
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). Determining whether qualified immunity applies therefore presents a two-

pronged inquiry: “whether the facts . . . make out a violation of a constitutional right”

and “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.” Id. at 232. We may address either prong of the analysis first. See id. at 236.

The animating principle here is one of fair notice. Because police officers, like

private citizens, have a right to fair warning, the defense “operates to ensure that before

they are subjected to suit, officers are on notice that their conduct is unlawful.” Hope v.

Pelzer, 536 U.S. 730, 740 (2002). Courts thus inquire whether the “contours of” a

plaintiff’s asserted right were “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.

635, 640 (1987). For a right to be clearly established, “existing precedent must have

placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011). And it is a “longstanding principle that ‘clearly established law’

should not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552

(2017) (per curiam) (quoting Ashcroft, 563 U.S. at 742). Rather, the “clearly established

law must be ‘particularized’ to the facts of the case” so as to avoid transforming qualified

immunity into “a rule of virtually unqualified liability.” Id. (quoting Anderson, 483 U.S.

at 639–40). Before concluding that an officer has breached a clearly established right,

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then, we must “identify a case where an officer acting under similar circumstances . . .

was held to have violated the Fourth Amendment.” Id.

In Rodriguez’s case, such legal notice was lacking. For starters, this suit does not

cleanly fall within an established category of Fourth Amendment claims. The claim does

not challenge an officer’s action, which is standard Fourth Amendment fare, but a failure

to act which is much more open-ended. Cf. DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs., 489 U.S. 189, 195–96 (1989) (declining to impose on officials an affirmative duty

to prevent harm and thus convert the Constitution into a sword rather than a shield

against government interference). Plaintiffs cannot state a false arrest claim, since

Rodriguez took no part in the actual seizure and the arresting officers acted pursuant to a

facially valid warrant. See Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998) (“[A]

claim for false arrest may be considered only when no arrest warrant has been

obtained.”). Nor do plaintiffs make out a failure to investigate claim, which tests an

officer’s effort to establish probable cause before seeking a warrant. See Wadkins v.

Arnold, 214 F.3d 535, 541 (4th Cir. 2000).

Here the complaint presupposes an altogether novel duty: after a magistrate issued

the arrest warrants based on probable cause, Rodriguez had the duty to take steps to

withdraw the warrants upon learning that the charges were meritless. By no means do we

diminish the dreadful ordeal that Rodriguez might have averted by seeking to retract the

warrants. But that is a different matter from holding that Rodriguez had an affirmative

duty in law to do so. We need not decide whether such a duty exists: the critical point is

that the proposed duty was certainly not clearly established.

8
 Tellingly, plaintiffs fail to note what exactly the duty was or where in the law the

obligation was to be found. They do not sketch out the procedures officer Rodriguez was

supposed to follow, identify the point in the criminal process when such steps should

have been taken, or explain why it was her responsibility to have the warrants revoked.

Moreover, a Virginia police officer does not “ha[ve] the authority to unilaterally

withdraw or dismiss a lawfully issued arrest warrant.” 2003 Op. Va. Att’y Gen. No. 03-

025, 2003 WL 21403098 (Va. A.G.). Only an attorney for the Commonwealth may move

the court for dismissal. See VA. CODE ANN. § 19.2-76.1. And while Rodriguez might

have raised the issue with a supervisor or relayed her concerns to a prosecutor, we are

unaware of a nebulous duty requiring police officers to follow some undefined procedure

whenever they come across further information that casts doubt on an active arrest

warrant. After all, “in a situation in which a warrant has issued upon probable cause, a

police officer is not called upon either to exercise discretion or to weigh the proof.”

Brady v. Dill, 187 F.3d 104, 112 (1st Cir. 1999); see also id. at 111 (“[I]t is the magistrate

and not the policeman who should decide whether probable cause has dissipated to such

an extent following arrest that the suspect should be released.”).

This is no abstract point. Although plaintiffs assure us that this is an exceptional

circumstance where probable cause had completely dissipated, we must be careful not to

make bad law out of an ostensibly “easy” case. “[T]he intuitively sensed obviousness of a

case induces a rush to judgment, in which a convenient rationale is too readily embraced

without full consideration of its . . . future ramifications.” O’Bannon v. Town Court

Nursing Ctr., 447 U.S. 773, 804 (1980) (Blackmun, J., concurring in the judgment). To

9
say that an affirmative duty attached here fails to emphasize the limits of such an

obligation and how it might function in practice. Probable cause is fluid; after an arrest

warrant is sworn out there often comes to light additional evidence that may be more or

less exculpatory. Sometimes a victim may recant, as Costco did here. Or perhaps a

complaining witness offers new or conflicting testimony. In either case, an officer is

forced to make a discretionary call about whether the subsequent information undermines

a magistrate’s finding of probable cause and, if so, how best to proceed.

Given the vagaries of these evidentiary judgments, courts should not lightly enter

the business of micromanaging police investigations and impose a categorical duty on

officers governing the termination of allegedly stale arrest warrants. Indeed, if every

failure of a police officer to act in some unspecified way on the basis of new information

gave rise to liability, we would invite a legion of cases urging us to second-guess an

officer’s decision about whether to second-guess a magistrate’s finding of probable

cause.

In any event, to the extent that plaintiffs struggle to define a Fourth Amendment

right, they face an even bigger obstacle demonstrating that such a duty was clearly

established. Plaintiffs frame the constitutional right at the highest level of generality,

asserting that centuries of “Anglo-American law” forbid a state official from “knowingly

caus[ing] or permit[ting] the arrest of an innocent citizen.” App. Br. at 9. That is certainly

true, as far as it goes. But what plaintiffs fail to do is “identify a case where an officer

acting under similar circumstances . . . was held to have violated the Fourth

Amendment.” White, 137 S. Ct. at 552.

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 The absence of controlling cases suggests that Rodriguez did not have a clearly

established affirmative duty to take steps to revoke the arrests warrants. In fact, all the

indications from our case law point to the opposite conclusion. In Taylor v. Waters, 81

F.3d 429 (4th Cir. 1996), for instance, we held that a police investigator did not violate

the Fourth Amendment when he declined to terminate post-arrest proceedings after

hearing from the plaintiff’s roommate that the plaintiff was not involved in the alleged

drug offense. See id. at 433. Once a neutral magistrate finds probable cause and issues an

arrest warrant, we reasoned, “the Fourth Amendment does not impose any further

requirement of judicial oversight or reasonable investigation to render pretrial seizure

reasonable.” Id. at 436. Accordingly, an officer’s failure to act upon allegedly

exculpatory evidence “does not render the continuing pretrial seizure of a criminal

suspect unreasonable under the Fourth Amendment.” Id. at 437.

So too in Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996), we

rejected a similar Fourth Amendment claim alleging that an arresting officer did not

attempt to halt the criminal proceedings after learning that the plaintiff had not committed

the suspected offenses. See id. at 184–85. Once again, we took notice of the initial

process provided by a neutral magistrate and in the continuing ability of judicial

proceedings to test the strength of a case against those detained. Thus, when “a pretrial

seizure has been rendered reasonable by virtue of a probable cause determination,” any

“continuing pretrial seizure of a criminal defendant . . . is [also] reasonable.” Id. at 184.

Any other rule would subject those in law enforcement to the prospect of suits for an

endless variety of supposed pretrial failures or omissions.

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 We do not require that a prior case be identical to the case at bar to advance a civil

suit. See Ashcroft, 563 U.S. at 741. But despite their assertions to the contrary, plaintiffs

cannot marshal a “settled Fourth Amendment principle” that would have put Rodriguez

on notice that she was violating the Constitution. See White, 137 S. Ct. at 552. Given the

absence of an established duty to act, we award qualified immunity to Rodriguez on the

§ 1983 claims.

B.

Tingle asserts for her part that she is entitled to absolute prosecutorial immunity. It

is well settled that prosecutorial activities that are “intimately associated with the judicial

phase of the criminal process” are absolutely immune from civil suit. Imbler v.

Pachtman, 424 U.S. 409, 430 (1976). Recognizing that “harassment by unfounded

litigation” could “cause a deflection of the prosecutor’s energies from his public duties”

and lead the prosecutor to “shade his decisions instead of exercising the [appropriate]

independence of judgment,” the Supreme Court in Imbler determined that the protection

afforded by qualified immunity was inadequate. Id. at 423. A prosecutor, the Court

explained, inevitably makes many on-the-spot judgments that “could engender colorable

claims.” Id. at 425. In light of the “substantial danger of liability even to the honest

prosecutor” that such suits pose when they survive the pleadings, the immunity that a

prosecutor enjoys is absolute. Id.

At the same time, the Imbler Court was careful to note that absolute immunity

may not attach when a prosecutor is acting as an “administrator and investigative officer”

rather than as “an officer of the court.” Id. at 430–31 & n.33. Although the Court had

12
little difficulty concluding that “initiating a prosecution and . . . presenting the State’s

case” are prosecutorial activities, id. at 431, it acknowledged that “[d]rawing a proper line

between these functions may present difficult questions,” id. at 431 n.33. Going forward,

courts should apply a “functional” analysis that considers whether the “reasons for

absolute immunity apply with full force” to the conduct at issue. Id. at 430.

In the decades following Imbler, the Supreme Court began to plot the point at

which a prosecutor begins to function as an advocate in judicial proceedings. The line

between the investigative and advocacy phase typically turns on the difference between

the “detective’s role in searching for the clues and corroboration that might give him

probable cause to recommend that a suspect be arrested” and the “advocate’s role in

evaluating evidence and interviewing witnesses as he prepares for trial.” Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993). Accordingly, the Supreme Court has held that a

prosecutor is not entitled to absolute immunity when providing advice to police during a

criminal investigation, see Burns v. Reed, 500 U.S. 478, 496 (1991), or when “acting as a

complaining witness rather than a lawyer” in support of a warrant application, see Kalina

v. Fletcher, 522 U.S. 118, 129, 132 (1997). But when a prosecutor appears in court to

present evidence in support of a search warrant, Burns, 500 U.S. at 492, or decides to

seek an arrest warrant based on an evaluation of probable cause, see Kalina, 522 U.S. at

129, absolute immunity kicks in.

The Supreme Court again considered the boundary between administrative and

advocacy activities in Van de Kamp v. Goldstein, 555 U.S. 335 (2009), holding that a

prosecutor performing an ostensibly “administrative” task still enjoys absolute immunity

13
if the act is done in service of an advocacy function. See id. at 349. The Court drew a

distinction based on the activity’s proximity to the conduct of a trial: certain kinds of

administrative obligations are “directly connected with the prosecutor’s basic trial

advocacy duties,” id. at 346, and “require legal knowledge and the exercise of related

discretion,” id. at 344, whereas others such as “workplace hiring, payroll administration,

[and] the maintenance of physical facilities” are more tangentially related (if at all) to a

trial, id. As such, a district attorney and his chief assistant were absolutely immune from

liability related to training staff prosecutors on impeachment material and managing a

trial-related information system. See id. at 349.

A prosecutor’s decision to seek an arrest warrant is protected by absolute

immunity, see Kalina, 522 U.S. at 129, but it remains an open question whether a

prosecutor receives absolute immunity when she fails to withdraw an arrest warrant after

learning that no crime had been committed. Because a prosecutor’s decision whether to

withdraw an arrest warrant is “intimately associated with the judicial phase of the

criminal process,” Imbler, 424 U.S. at 430, we conclude that Tingle is entitled to absolute

immunity.

Plaintiffs contend that retracting a stale warrant is merely a ministerial duty and

thus cannot be protected by absolute immunity. This argument misses the mark. To the

extent a decision to revoke an arrest warrant can be cast as administrative, it is “directly

connected with the prosecutor’s basic trial advocacy duties,” Van de Kamp, 555 U.S. at

346, and “require[s] legal knowledge and the exercise of related discretion,” id. at 344.

Under Virginia law, a prosecutor does not have unilateral authority to withdraw an arrest

14
warrant and must first file a motion to dismiss with the appropriate court. See VA. CODE

ANN. § 19.2-76.1. Filing and arguing motions in court is garden-variety trial work that

falls comfortably within a prosecutor’s core advocacy duties. See Dababnah v. Keller-

Burnside, 208 F.3d 467, 471 (4th Cir. 2000) (“Failure to grant a prosecutor immunity for

actions taken in open court in pursuit of a court order would be a portentous step.”). The

decision to file a motion to rescind, moreover, generally involves the exercise of

substantial discretion. A prosecutor is not bound to withdraw a warrant every time a

victim purports to recant or conflicting information comes to light. Rather, prosecutors

engage in the familiar task of “evaluating evidence” and determining whether to retain

the warrant based on a revised assessment of probable cause. Buckley, 509 U.S. at 273.

Consequently, we find that the choice to move the court for withdrawal is an extension of

the prosecutor’s fundamental judgment of “whether and when to prosecute.” Imbler, 424

U.S. at 431 n.33; see also Kalina, 522 U.S. at 129–30.

Moreover, deciding whether or not to withdraw an arrest warrant is one of those

advocacy functions “to which the reasons for absolute immunity apply with full force.”

Imbler, 424 U.S. at 430. If absolute immunity does not insulate prosecutors for their

refusal to withdraw an arrest warrant, it would work an end run around Kalina and give

rise to an anomalous regime where criminal defendants could mount civil suits against

prosecutors for the maintenance of arrest warrants even though those same defendants

could not challenge the initial decision to seek a warrant. Given the frequency with which

prosecutors come across new information after a warrant is sworn out, we are hesitant to

15
open the door to all manner of collateral attacks on what at bottom is a prosecutor’s

appraisal of probable cause.

We recognize, of course, that Safar’s case, at least as alleged in the complaint,

presents a stark scenario where the charges have been wholly discredited. But absolute

immunity “does not exist to help prosecutors in the easy case; it exists because the easy

cases bring difficult cases in their wake.” Van de Kamp, 555 U.S. at 349. In the mine run

of cases, which generally turn on thorny factual questions, prosecutors should not be

subject to “the constant dread of retaliation” for the maintenance of arrest warrants.

Imbler, 424 U.S. at 428. As the Supreme Court recognized in Imbler, allowing such suits

to proceed would trammel an advocate’s “independence of judgment,” id. at 423, and

might “pose substantial danger of liability even to the honest prosecutor,” id. at 425.

There are also existing safeguards that deter egregious prosecutorial misconduct in

this arena. Prosecutors remain subject to criminal sanction for willful acts of abuse. Id. at

429. And “[t]he organized bar’s development and enforcement of professional standards

for prosecutors” provides a “well-developed and pervasive mechanism” for controlling

official malpractice. Malley v. Briggs, 475 U.S. 335, 343 n.5 (1986); accord Imbler, 424

U.S. at 429 (“[A] prosecutor stands perhaps unique, among officials whose acts could

deprive persons of constitutional rights, in his amenability to professional discipline by

an association of his peers.”). Protections such as these “obviate the need for damages

actions to prevent unjust results.” Mitchell v. Forsyth, 472 U.S. 511, 522–23 (1985).

We acknowledge that granting absolute immunity leaves Safar, who was

“genuinely wronged” by Tingle’s oversight, “without civil redress” under § 1983. Imbler,

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424 U.S. at 427. Yet the overall value of prosecutorial discretion may require that we

accept the possibility that such discretion might be abused in the occasional case. As

Justice Powell observed, the alternative of qualifying a prosecutor’s immunity “would

disserve the broader public interest” by “prevent[ing] the vigorous and fearless

performance of the prosecutor’s duty that is essential to the proper functioning of the

criminal justice system.” Id. at 427–28.

III.

Although the federal side of this case has come to a close, the fact that immunity

may preclude a federal suit does not mean all avenues of redress are unavailable.

Section 1983, for one, is not a “font” of state tort law that subjects every malfunction to

correction by the federal judiciary. See Paul v. Davis, 424 U.S. 693, 701 (1976); Baker,

443 U.S. at 146 (“Section 1983 imposes liability for violations of rights protected by the

Constitution, not for violations of duties of care arising out of tort law.”). “Our

Constitution deals with the large concerns of the governors and the governed.” Daniels,

474 U.S. at 332. It does not “purport to supplant traditional tort law in laying down rules

of conduct to regulate liability for injuries that attend living together in society.” Id.

Our federal system instead contemplates a scheme of shared responsibility

whereby state governments retain authority over conventional tort remedies. Compared to

the blunter instrument of constitutional law, states are better positioned to experiment and

fashion duties and remedies—whether through the legislature, courts, or private bar—that

address local needs as they arise. Such questions are fundamentally one of resource

allocation, which “involve a host of policy choices that must be made by locally elected

17
representatives, rather than by federal judges interpreting the basic charter of Government

for the entire country.” Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992).

Which brings us to plaintiffs’ remaining gross negligence claims. With respect to

the state tort claim against Tingle, the district court held that she was protected by

absolute immunity under Imbler. Likewise, the court dismissed the claim against

Rodriguez because it concluded that Virginia does not recognize a cause of action based

on negligent investigations or prosecution. See Safar v. Tingle, 178 F. Supp. 3d 338 (E.D.

Va. 2016).

It may be that Virginia does not recognize a claim for gross negligence. But given

the dearth of state law on negligent investigations, we think the definition of legal duties

under the law of tort is best left for the state courts to resolve. Accordingly, because all

federal claims have been found wanting, we instruct the district court on remand to

dismiss the state law claims without prejudice to plaintiffs’ right to advance their case in

state court. See Taylor, 81 F.3d at 437 (declining to exercise supplemental jurisdiction

over remaining state law claims and dismissing without prejudice); see also Fox v.

Custis, 712 F.2d 84, 89 n.4 (4th Cir. 1983). Whether plaintiffs’ allegations will ultimately

prove to be correct we cannot tell. At this stage, however, the truth of their pleadings

must be assumed, and the horrific sequence of events they have alleged makes us

reluctant to foreclose any prospect of relief.

The district court correctly held that plaintiffs’ § 1983 claims were barred by

qualified or absolute immunity. We think, however, that the better course in this

particular instance is to allow plaintiffs the opportunity to press their state tort claims in

18
state court. We thus affirm in part, reverse in part, and remand so that the dismissal of the

state claims shall be without prejudice.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

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FLOYD, Circuit Judge, concurring:

I agree with the majority’s ultimate resolution of this case on qualified immunity

grounds. However, because this case raises concerns for me regarding this Court’s

Fourth Amendment case law, and because I question the manner in which the majority

disposes of the state law claims, I find it necessary to write separately.

I.

The majority rightly concludes that there is no clearly established law which

Officer Stephanie Rodriguez could be said to have violated. Thus, she is entitled to

qualified immunity under our familiar two-step sequence where we determine (1)

whether there has been a violation of a constitutional right, and (2) whether that right was

“clearly established” at the time of the alleged misconduct. Pearson v. Callahan, 555

U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The majority

reaches this conclusion by taking the analysis out of order—which courts are permitted to

do 1—and does not ultimately decide whether there has been a violation of a constitutional

right.

1
In the same case permitting courts to take the qualified immunity analysis out of
order, the Supreme Court also recognized that it is “often appropriate” and “often
beneficial” to conduct the inquiry in order. Pearson, 555 U.S. at 236. This is so because
“the two-step procedure promotes the development of constitutional precedent and is
especially valuable with respect to questions that do not frequently arise in cases in which
a qualified immunity defense is unavailable.” Id. Thus, as the Court has acknowledged,
failure to define the contours of the constitutional duty at the first step of the qualified
immunity analysis leaves the law undeveloped, leaves officers without notice of how they
are expected to perform their duties in compliance with the Constitution, and leaves
future plaintiffs without recourse due to the absence of any clearly established law.

20
 Although I agree with the majority’s conclusion, its analysis reveals aspects of this

Circuit’s Fourth Amendment case law that cause me great concern. As is familiar and

oft-repeated by the Supreme Court, “the Fourth Amendment’s ultimate touchstone is

‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citations omitted).

The seizures that occurred when Plaintiffs Jan Eshow and Fadwa Safar were arrested

strike me as manifestly unreasonable. The affiant for their warrants, Officer Rodriguez,

was aware that probable cause for their arrests had entirely dissipated. 2 Yet, she did

nothing to initiate any recall of the arrest warrants or to inform the Commonwealth’s

Attorney’s Office that the information on which she relied to obtain the warrants was

entirely undermined. I believe that the Fourth Amendment mandates that when probable

cause for an outstanding arrest warrant wholly disappears and the affiant is aware, the

affiant has a duty to take steps to rescind the warrant.

My belief that a seizure pursuant to a warrant for which probable cause has

entirely dissipated is unreasonable under the Fourth Amendment is not novel. Multiple

2
Probable cause in this case was formed when Officer Rodriguez responded to a
call from Costco at approximately 9:15pm on October 17, 2012. J.A. 65. Upon arrival,
she spoke exclusively with the Costco store manager, listened to his description of the
incident, and watched video footage provided by him. Id. The only outside investigative
work Officer Rodriguez conducted was to confirm the identities of Plaintiffs through
their Costco membership and through Maryland DMV records. Id. Relying on this
evidence, at 11:18pm and 11:21pm—approximately two hours after first responding to
Costco—Officer Rodriguez provided sworn testimony to a magistrate in Arlington
County to obtain two felony arrest warrants for Plaintiffs. J.A. 66–69. Then, at some
point the next day, October 18, 2012, a representative from Costco contacted Officer
Rodriguez to inform her that the allegations were mistaken and that no fraud had actually
occurred. Thus, because Costco’s complaint was the sole source of probable cause, the
retraction of this complaint caused all probable cause to dissipate.

21
justices of the Supreme Court have recognized this point, albeit in opinions that have no

binding force of law, as have several of our sister circuits.

In United States v. Watson, 423 U.S. 411, 414–24 (1976), the Supreme Court

addressed the constitutionality of a statute authorizing a warrantless arrest even in the

absence of exigent circumstances. In a concurring opinion, Justice Powell acknowledged

that permitting only warrant-based arrests and warrantless arrests limited to exigent

circumstances would be problematic. Id. at 431 (Powell, J., concurring). He explained

that officers attempting to meet such a standard who “procur[ed] a warrant as soon as

they had probable cause and then merely held it during their subsequent investigation . . .

would risk a court decision that the warrant had grown stale by the time it was used.”

Id. (emphasis added). Justice Powell further noted that “in some cases the original

grounds supporting the warrant could be disproved by subsequent investigation” which

would cause the warrant to “be stale because [it was] based upon discredited

information.” Id. at 431 n.5 (emphasis added).

Justice Marshall, joined by Justice Brennan in dissent, also recognized this

problem, stating that “probable cause to arrest, once formed, will continue to exist for the

indefinite future, at least if no intervening exculpatory facts come to light.” Id. at 449

(Marshall, J., dissenting) (emphasis added). Although Justice Marshall noted that “it is

virtually impossible for probable cause to become stale between procurement [of a

warrant] and arrest,” id. at 451, he explained that “it should be obvious that when the

probable cause supporting a warrant no longer exists, the warrant is void and the suspect

cannot be arrested,” id. at 452 n.18.

22
 Other Supreme Court Justices have also recognized the possibility of an arrest

warrant becoming stale due to exculpatory evidence coming to light before the execution

of the warrant. See Payton v. New York, 445 U.S. 573, 619 (White J., dissenting, joined

by Burger, C.J., and Rehnquist, J.).

Our sister circuits, in both published and unpublished opinions, have also

recognized this possibility. See United States v. Bizier, 111 F.3d 214, 219–20 (1st Cir.

1997) (noting that “probable cause would grow stale only if it emerges that it was based

on since discredited information,” but reasoning that the opposite happened in the case at

bar (citing Watson, 423 U.S. at 432 n.5 (Powell, J., concurring))); Russell v. Devereaux,

389 F. App’x 557, 560 (7th Cir. 2010) (noting that “probable cause to make an arrest

grows ‘stale only if it emerges that it was based on since discredited information’” in

rejecting a claim that probable cause was stale because nearly a year had passed between

investigation and arrest (quoting Bizier, 111 F.3d at 219)); United States v. Henderson,

613 F.3d 1177, 1181 (8th Cir. 2010) (noting similarly, but finding no intervening

exculpatory act); United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005)

(“If probable cause is established at any early stage of the investigation, it may be

dissipated if the investigating officer later learns additional information that decreases the

likelihood that the defendant has engaged, or is engaging, in criminal activity. A person

may not be arrested, or must be released from arrest, if previously established probable

cause has dissipated.”); United States v. Edwards, 632 F.3d 633, 640 (10th Cir. 2001)

(holding that “[i]f the police learn information that destroys their probable cause to arrest

a defendant, the arrest may become illegal,” but finding police had sufficient evidence to

23
believe an offense had occurred.). The Tenth Circuit has recently reaffirmed its belief in

this position. See United States v. Lopez, 849 F.3d 921, 929 (10th Cir. 2017) (relying on

Edwards to find that an officer could not detain a driver for driving without a license

once informed by the dispatcher that the driver had a valid license where the statute

prohibited conviction if the driver is able to present the valid license in court).

The duty I envision would be limited to those extreme cases where probable cause

has completely dissipated, a question we ask police officers to evaluate every day in the

context of warrantless arrests. Cf. Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016)

(“Whether probable cause exists in a particular situation always turns on two factors in

combination: the suspect’s conduct as known to the officer, and the contours of the

offense thought to be committed by that conduct.” (internal quotation marks and

alterations omitted)). Thus, it would not be a departure to require an officer, having

sworn under oath to facts in support of a warrant application, to have a responsibility to

inform the court when the facts have so drastically changed as to eliminate all probable

cause prior to the execution of the warrant the officer sought. 3

3
To the extent concerns arise about the implications of this duty in the context of
exclusion of evidence in a criminal case, the existence of a Fourth Amendment violation
does not necessarily mean that evidence is excluded, as the good faith exception to the
exclusionary rule often provides safe harbor. See, e.g., Herring v. United States, 555
U.S. 135, 140–47 (2009) (accepting the parties’ agreement that the Fourth Amendment
was violated when the defendant was arrested pursuant to a warrant incorrectly listed as
active in a computer database, but ultimately finding that the exclusionary rule did not
bar any evidence obtained incident to the search due to the arresting officer’s good faith
belief that the warrant was valid).

24
 Although I believe that the Fourth Amendment mandates such a duty, I recognize

that announcing such a duty in this case would stand in tension with our decisions in

Taylor v. Waters, 81 F.3d 429 (4th Cir. 1996) and Brooks v. City of Winston-Salem, N.C.,

85 F.3d 178 (4th Cir. 1996), as the majority notes. See ante at 11. 4 I fear that the

holdings in these cases are overbroad, and ultimately stray too far from their facts in

appearing to establish a bright line rule that all potential liability for an officer cuts off at

the moment of a warrant being issued, absent a materially false statement or material

omission in the warrant application. See Miller v. Prince George’s Cty., Md., 475 F.3d

621, 627–28 (4th Cir. 2007) (holding that an officer cannot intentionally or with reckless

disregard for the truth make materially false statements or omit material facts from an

arrest warrant affidavit).

If we adhere to the idea of reasonableness in understanding the Fourth

Amendment, as we must, then the holdings of Taylor and Brooks appear to be in tension

with that idea. Thus, I write separately to note this problem in the hopes that a future en

banc court may have the chance to consider the impact of Taylor and Brooks and

considerably narrow the scope of their holdings.

4
Officer Rodriguez also points to the fact that an officer has no duty to investigate
every exculpatory lead before establishing probable cause. See, e.g., Torchinsky v.
Siwinski, 942 F.2d 257, 264 (4th Cir. 1991). This is both unremarkable and inapposite.
Neither I nor the Plaintiffs suggest that Officer Rodriguez was required to undertake a
more searching investigation before seeking the warrants, or even continue investigating
after the warrants were obtained. But I do not believe Officer Rodriguez could then
ignore information that entirely negated probable cause after the warrant was obtained on
the basis that she had no duty to investigate.

25
 II.

Next, I agree with my colleagues in the majority that the district court was

incorrect to adjudicate Plaintiff’s state law gross negligence claims on the grounds that

Virginia state law recognizes no duty for negligent investigation. 5 However, I write

separately to note two issues: (1) the federal cases relied upon by the district court

regarding the existence of a duty under Virginia state law include no citations to Virginia

state law, and should be viewed by future courts with great skepticism; and (2) the

manner in which this Court is disposing of this issue requires clarification.

A.

The district court relied on a series of three cases to support the proposition that

“Virginia does not recognize a cause of action for the negligent investigation or incorrect

initiation of criminal process.” Safar v. Tingle, 178 F. Supp. 3d 338, 352 (E.D. Va.

2016); see id. at 352 & n.13 (citing Boyce v. Bennett, No. 14-cv-249, 2015 WL 6873547,

at *8 (E.D. Va. Nov. 9, 2015); Durham v. Horner, 759 F. Supp. 2d 810, 815 (W.D. Va.

2010); Lewis v. McDorman, 820 F. Supp. 1001, 1008 (W.D. Va. 1992), aff’d on other

grounds 28 F.3d 1210 (4th Cir. 1994) (unreported table decision)). The problem is that

not one of these cases cites to any Virginia state law.

5
In doing so, I understand that we are vacating the portion of the district court’s
decision finding that the prosecutor was protected by absolute immunity on the state
claims. It is worth noting that the Supreme Court of Virginia has expressly disavowed
Imbler v. Pachtman, 424 U.S. 409 (1976), and its progeny for defining the contours of
prosecutorial immunity under Virginia state law. Andrews v. Ring, 585 S.E.2d 780, 785
(Va. 2003). I do not understand the district court’s holdings on state law to be binding on
the parties should they choose to litigate the matter in the future in state court.

26
 In the oldest of these three cases, Lewis, in dismissing a claim against a detective

for willful and wanton negligence, the court stated—without citation—that there is no

“duty upon police officers to exercise reasonable care in conducting investigations or in

playing a role in prosecutions.” Lewis, 820 F. Supp. at 1008. The court faulted the

plaintiff for failing to cite any cases in support, but went on to explain that it was the

court’s view that “no such duty exists and that Virginia simply has never recognized a

cause of action based on negligent investigations or prosecution.” Id. Relying

exclusively on Lewis, the court in Durham similarly held that “Virginia law recognizes

no such cause of action against police officers for conducting investigations.” Durham,

759 F. Supp. 2d at 815 (citing Lewis, 820 F. Supp. at 1008). Finally, the court in Boyce

relied solely on Lewis and Durham for the proposition that there was no “viable state-law

‘gross negligence’ cause of action against a city police officer for negligent investigation

and/or negligent production of investigative materials.” Boyce, 2015 WL 6873547, at *7

(citing Durham, 759 F. Supp. 2d at 815; Lewis, 820 F. Supp. 2d at 1008) (emphasis

omitted). 6

6
The court in Boyce also addressed the fact that Virginia appears to disfavor
malicious prosecution claims arising from criminal proceedings, which it found “suggests
a reason why Virginia courts may treat investigative tort actions against police officers
differently.” Id. at *8 n.11 (citing Ayyildiz v. Kidd, 266 S.E.2d 108, 110 (Va. 1980)).
However, it is worth noting that an earlier ruling in Boyce relied on cases other than
Lewis and Durham to find that “no Virginia court has explicitly held” that a duty to
conduct a competent investigation exists. See Boyce v. Bennett, No. 13-cv-249, 2014 WL
12561596, at *5–6 (E.D. Va. Nov. 3, 2014) (finding that state and federal cases on which
plaintiff attempted to rely were all resolved without addressing the existence of a duty,
and thus were inapposite as they failed to “explicitly” hold that a duty existed).

27
 It is true that no Virginia case cited by the parties on this appeal encompasses this

factual scenario. But it is equally true that no Virginia case stands for the proposition that

no such cause of action exists. A federal court sitting in diversity or hearing pendent

state law claims pursuant to 28 U.S.C. § 1367 must “apply the governing state law, or, if

necessary, predict how the state’s highest court would rule on an unsettled issue.”

Horace Mann Ins. Co. v. Gen. Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th Cir. 2008)

(citation omitted); see also S. Atl. Ltd. P’ship of Tenn., L.P. v. Riese, 284 F.3d 518, 530

n.15 (4th Cir. 2002) (“With respect to the various supplemental state law claims, we

apply the substantive law of the state under which the claims were filed . . . .” (citation

omitted)).

Without an underlying citation to Virginia state court decisions, treatises, or any

other authority, this daisy chain of citations of district court cases that relies on no

citations to Virginia state law cannot reasonably be understood to accurately depict the

state of Virginia law. Indeed, a different district court case has permitted a gross

negligence claim for negligently conducting an investigation to survive past summary

judgment, albeit without expressly finding that a duty to properly conduct an

investigation exists. Savage v. Cty. of Stafford, Va., 754 F. Supp. 2d 809, 817 (E.D. Va.

2010), aff’d on other issues, 488 F. App’x 766 (4th Cir. 2012) (per curiam). In fact, the

claim was tried, given to the jury to decide, and the jury then found in favor of the police

officer defendant. See Jury Verdict at 2, Savage v. Cty. of Stafford, Va., No. 09-cv-1328

(E.D. Va. Apr. 20, 2011), ECF No. 211. As such, I doubt the veracity of the claim made

in Lewis, Durham, and Boyce, and have grave doubts about the continued viability of

28
citing to this trio of cases for the proposition that no claim for gross negligence in

conducting an investigation can exist. Instead, I find this state law question unanswered

by Virginia authority.

B.

Turning next to how we have resolved this issue, in the absence of guidance from

the state courts, we would ordinarily certify an unsettled question of law to the state’s

highest court if the state so permits. See, e.g., C.F. Trust, Inc. v. First Flight Ltd. P’ship,

306 F.3d 126, 141 (4th Cir. 2002) (certifying two questions to the Supreme Court of

Virginia in the absence of sufficient information to determine whether Virginia law

would permit reverse veil-piercing against a limited partnership). The Court has not done

that today, instead remanding the case to the district court with instructions to dismiss the

state law claims without prejudice so Plaintiffs may pursue their state law claims in state

court. However, the Court has not clearly identified the basis for this action.

We have, in a case where the defendant removed a case originally filed in state

court to federal court, vacated the district court’s judgment on the state law claims and

remanded with instructions for the district court to remand the state law claims to the

state court where “[t]he questions presented . . . are relatively novel, complex and of great

local importance.” Fox v. Custis, 712 F.2d 84, 89–90 (4th Cir. 1983) (cited by the

majority, ante at 18). And indeed, we have recognized that in declining supplemental

jurisdiction under 28 U.S.C. § 1367(c), “a court may dismiss the claim or, if it was

29
removed, remand it to State court.” Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 616

(4th Cir. 2001) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988)).

Additionally, our case law makes clear that when a district court declines to

exercise supplemental jurisdiction pursuant to § 1367(c), that decision is reviewed for

abuse of discretion. Jordahl v. Democratic Party of Va., 122 F.3d 192, 203 (4th Cir.

1997); see also Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (“The doctrine of

supplemental jurisdiction ‘thus is a doctrine of flexibility, designed to allow courts to deal

with cases involving pendent claims in the manner that most sensibly accommodates a

range of concerns and values.’” (quoting Carnegie-Mellon, 484 U.S. at 350)). We then

evaluate that decision based on the factors listed in statute: “whether the State claims

involve novel or complex issues of State law; whether State law claims predominate;

whether the federal claims justifying the court’s jurisdiction remain[] in the case; or other

compelling reasons.” Hinson, 239 F.3d at 617.

What we are presented with in this case is the opposite situation—the district court

opted to exercise jurisdiction rather than decline it—and now we are reviewing that

decision. It appears that we are effectively, through the majority’s holding and our

Court’s case law, imposing an abuse of discretion review on a district court that chooses

to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367 rather than decline it

under § 1367(c). And it appears that we are using the same factors by which we evaluate

discretion to decline jurisdiction to evaluate discretion to exercise jurisdiction. I have no

30
qualms with doing so; however, I believe we do a disservice to future litigants and the

District Judges of this Circuit if we are not so clear in what we are doing. 7

III.

The circumstances of this case are both tragic and entirely avoidable. The district

court recognized this in dismissing the complaint:

[T]he legal conclusion reached is not intended to excuse Arlington County
from failing to take action it should have taken to avoid the unjust arrests,
including a more diligent investigation and requesting to withdraw
meritless arrest warrants. Notwithstanding the [findings on immunity],
most fair-minded people would conclude that it would be appropriate—
indeed, even necessary—for Arlington county to extend to [P]laintiffs a
formal and sincere apology for what occurred, and perhaps that legislative
relief in the form of a special bill would be appropriate here.

Safar, 178 F. Supp. 3d at 358 (citation omitted). I echo these sentiments here, but must

concur in the judgment of my colleagues that if any duty for Officer Rodriguez existed, it

was not clearly established.

7
Without this clarity, we may appear to be endorsing an improper abstention path
which would go against our “virtually unflagging obligation . . . to exercise the
jurisdiction given [us].” Colorado River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976) (citations omitted); see also Wohl v. Keene, 476 F.2d 171, 174 (4th
Cir. 1973) (“Abstention is not appropriate solely to avoid the decision of difficult state
law questions.” (citations omitted)). I do not understand the majority to be doing this.

31