Case: 19-60331 Document: 00515575538 Page: 1 Date Filed: 09/23/2020
REVISED 9/23/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 22, 2020
Lyle W. Cayce
No. 19-60331 Clerk
Robin Mayfield; Owen Mayfield; William Mayfield; The
Estate of Mark Stevens Mayfield,
Plaintiffs—Appellees,
versus
Vickie Currie, Individually and in her Official Capacity,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:17-CV-514
Before Dennis, Graves, and Willett, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
This is a qualified immunity suit in which Defendant-Appellant
challenges the district court’s denial of her motion to dismiss. We
REVERSE and REMAND.
I
Mark Mayfield (“Mr. Mayfield”), a lawyer, was a founder of the
Mississippi Tea Party. In 2014, he supported State Senator Chris
McDaniel’s primary challenge to then-sitting U.S. Senator Thad Cochran.
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The facts underlying this case involve four other supporters of Mr.
McDaniel: John Mary; Rick Sager; Clayton Kelly; and Richard Wilbourn III
(collectively, “the conspirators”).
As the district court describes it, the conspirators “thought [Senator]
Cochran was a hypocrite and an adulterer who lived with his longtime aide in
Washington, D.C.[,] while his aging wife, Rose, was left alone in a Madison,
Mississippi assisted living facility called St. Catherine’s Village.” They
therefore planned to take a photo of Mrs. Cochran in her room at St.
Catherine’s and use it in an attack ad against her husband. The conspirators
sought the assistance of Mr. Mayfield, whose mother lived in the same
facility. Mr. Mayfield refused to photograph Mrs. Cochran himself but
agreed to show the conspirators the location of her room. In late March or
early April of 2014, Mr. Mayfield met one of the conspirators at St.
Catherine’s and pointed “down the hall” to the location of Mrs. Cochran’s
room. On April 20, 2014, one of the conspirators went to Mrs. Cochran’s
room and took a video of her lying in bed. He posted an attack ad on YouTube
six days later. The ad, which contained a still photo of Mrs. Cochran in her
bed, went viral before being taken down in a matter of hours.
About one month later, the Madison Police Department arrested Mr.
Mayfield and two of the conspirators. The basis for Mr. Mayfield’s arrest
warrant was the affidavit of Officer Vickie Currie, who stated that Mr.
Mayfield had communicated with the conspirators and assisted them in their
effort to photograph Mrs. Cochran. The police, based on an affidavit from
Officer Chuck Harrison (“Mr. Harrison”), also executed search warrants at
Mr. Mayfield’s home and office. Mr. Mayfield’s largest client left him the
next day, causing the “complete collapse of his law practice.” Mr. Mayfield
became depressed and was prescribed medication for sleep, depression, and
anxiety. On June 27, 2014, Robin Mayfield (“Mrs. Mayfield”) found her
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husband dead of a gunshot wound to the head. The coroner ruled the death
a suicide.
Mrs. Mayfield, her sons, and Mr. Mayfield’s estate (together,
“Plaintiff-Appellees”) filed suit against several parties, including Officer
Currie, based on 42 U.S.C. § 1983 and § 1988. Officer Currie and Officer
Harrison filed a motion to dismiss. The district court found that Plaintiff-
Appellees’ claims were timely, but “require[d] additional briefing to
determine whether the plaintiffs have stated a claim sufficient to overcome
Officer Currie and Harrison’s qualified immunity defense.” It therefore
granted the officers’ motion in part and denied the motion in part, without
prejudice to refiling. Shortly thereafter, Officer Currie filed a renewed
motion to dismiss. The district court denied that motion, finding only that
“[i]t was not objectively reasonable for her to present to the judge such a
bare-bones warrant application lacking any underlying facts and
circumstances showing [Mr. Mayfield’s] unlawful conduct.” This appeal
followed.
II
“On interlocutory appeal, we review a district court’s denial of a
qualified-immunity-based motion to dismiss de novo.” Benfield v. Magee, 945
F.3d 333, 336 (5th Cir. 2019) (citing Club Retro, L.L.C. v. Hilton, 568 F.3d
181, 194 (5th Cir. 2009)). “We accept all well-pleaded facts as true, drawing
all reasonable inferences in the nonmoving party’s favor.” Id. “We do not,
however, accept as true legal conclusions, conclusory statements, or ‘“naked
assertion[s]” devoid of “further factual enhancement.”’” Id. at 336–37
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a Rule
12(b)(6) motion to dismiss, a plaintiff must plead factual allegations that, if
true, “raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “That is, the well-pleaded facts must
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make relief plausible, not merely possible.” Benfield, 945 F.3d at 337 (citing
Iqbal, 556 U.S. at 678).
“The doctrine of qualified immunity protects government officials
from civil damages liability when their actions could reasonably have been
believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)
(en banc). “To defeat a claim of qualified-immunity, the plaintiff has the
burden to demonstrate the inapplicability of the defense.” McLin v. Ard, 866
F.3d 682, 689 (5th Cir. 2017) (citing Atteberry v. Nocona Gen. Hosp., 430 F.3d
245, 253 (5th Cir. 2005)). The plaintiff must show “(1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.” Whitley v. Hanna, 726
F.3d 631, 638 (5th Cir. 2013) (internal quotation marks omitted) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). We “have discretion to decide
which prong of the qualified-immunity analysis to address first.” Morgan, 659
F.3d at 371 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
III
Plaintiff-Appellees’ Section 1983 claim against Officer Currie is
rooted in the Fourth Amendment.1 They allege that Officer Currie violated
1
Plaintiff-Appellees’ Amended Complaint invokes the First, Fourth, Fifth, Eighth,
and Fourteenth Amendments. But Plaintiff-Appellees’ claims against Officer Currie,
whether characterized as claims for false arrest or for malicious prosecution, fall under the
Fourth Amendment. See, e.g., Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019) (holding that,
in order to bring a First Amendment claim for retaliatory arrest, a plaintiff generally must
first show the absence of probable cause for the arrest, i.e., a Fourth Amendment violation);
Castellano v. Fragozo, 352 F.3d 939, 945, 953 (5th Cir. 2003) (en banc) (“The initiation of
criminal charges without probable cause may set in force events that run afoul of explicit
constitutional protection—the Fourth Amendment if the accused is seized and arrested,
for example.”); see also Blackwell v. Barton, 34 F.3d 298, 302 (5th Cir. 1994) (“We hold that
Blackwell’s section 1983 claim against Barton for illegal arrest and detention is properly
considered under the Fourth Amendment, the more specific constitutional right implicated
by her allegations.”).
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Mr. Mayfield’s constitutional rights when she “submitted to a municipal
judge a warrant-application affidavit that (a) was completely devoid of facts
showing the elements of any crime, much less the crime cited in the warrant,
and (b) withheld known facts that would have shown no crime was
committed . . . and that the intent of the accused target was political speech
protected by the First Amendment.” Based on that allegedly defective
affidavit, the municipal court judge issued a warrant for Mr. Mayfield’s
arrest. Officer Currie responds that there was no constitutional violation
because the issuance of the arrest warrant broke the causal chain, immunizing
her from liability.
“It is well settled that if facts supporting an arrest are placed before an
independent intermediary such as a magistrate or grand jury, the
intermediary’s decision breaks the chain of causation for false arrest,
insulating the initiating party.” Deville v. Marcantel, 567 F.3d 156, 170 (5th
Cir. 2009) (citing Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled
on other grounds by Castellano, 352 F.3d at 949 (en banc)) (quotation marks
omitted).
But that shield against liability, known in this circuit as the
independent-intermediary doctrine, is not absolute. There are two ways to
overcome the doctrine relevant here. First, in Malley v. Briggs, the Supreme
Court held that an officer can be held liable for a search authorized by a
warrant when the affidavit presented to the magistrate was “so lacking in
indicia of probable cause as to render official belief in its existence
unreasonable.” 475 U.S. 335, 344–45 (1986). “The Malley wrong is not the
presentment of false evidence, but the obvious failure of accurately presented
evidence to support the probable cause required for the issuance of a
warrant.” Melton v. Phillips, 875 F.3d 256, 264 (5th Cir. 2017) (en banc)
(citing Michalik v. Hermann, 422 F.3d 252, 261 (5th Cir. 2005)). And second,
under Franks v. Delaware, 438 U.S. 154 (1978), and its progeny, officers who
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“deliberately or recklessly provide[ ] false, material information for use in an
affidavit” or who “make[] knowing and intentional omissions that result in a
warrant being issued without probable cause” may still be held liable. Melton,
875 F.3d at 264 (citing Hart v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997),
and Michalik, 422 F.3d at 258 n.5). Officer Currie invoked both Malley and
Franks in her motion to dismiss. The district court denied that motion but
cabined its analysis to Malley. So that’s where we begin.
“The question to be asked, under Malley, is whether a reasonably well-
trained officer in [Officer Currie’s] position would have known that his
affidavit failed to establish probable cause and that he should not have applied
for a warrant.” Jennings v. Joshua Indep. Sch. Dist., 877 F.2d 313, 317 (5th Cir.
1989) (internal quotation marks and citation omitted). Officer Currie argues
that “the information [she] and other investigators provided to [the
magistrate] throughout the course of their investigation clearly was sufficient
to establish probable cause to issue a warrant for Mayfield’s arrest.” We
agree.
The affidavit submitted by Officer Currie in support of the arrest
warrant application for Mr. Mayfield was indeed sparse. If it were the only
document before the court, the analysis would quickly resolve in Plaintiff-
Appellees’ favor. But it is not. In the week preceding Mr. Mayfield’s arrest,
Officer Currie and her colleagues presented a series of affidavits and warrant
applications in connection with the Cochran case. Those materials were all
reviewed and signed by the same municipal judge. And they were
significantly more in-depth than the affidavit challenged by Plaintiff-
Appellees. Indeed, the affidavits submitted by Officer Currie’s colleague in
support of an application to search Mr. Mayfield’s residence and office—
which were submitted alongside the arrest warrant application—are quite
detailed.
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Officer Currie does not cite any cases holding that, in determining
whether an officer would have known that her affidavit failed to establish
probable cause, it is appropriate to consider other affidavits and applications
submitted to the same judge regarding the same case. But in the context of
qualified immunity, it is the plaintiff’s burden to establish that an allegedly
violated right was clearly established. See, e.g., Wigginton v. Jones, 964 F.3d
329, 338 (5th Cir. 2020). Plaintiff-Appellees have not met that burden.
Indeed, their own Amended Complaint acknowledges that the municipal
judge signed the arrest warrant in question “on the basis of the Currie
affidavit and the Harrison affidavits,” and references the other warrants
submitted by Officer Currie and her colleagues. The district court’s
conclusion that Plaintiff-Appellees adequately alleged a Malley wrong was
therefore error.
As noted above, however, the independent-intermediary doctrine
does not begin and end with Malley. The parties also raised Franks before the
district court and on appeal. But the district court did not analyze that issue,
perhaps out of reliance on the principle that “a plaintiff cannot hold an officer
liable under Franks for intentionally omitting important exculpatory
information from a warrant affidavit when the officer has also committed a
Malley violation by presenting a facially deficient warrant affidavit to the
issuing judge.” See Kohler v. Englade, 470 F.3d 1104, 1113–14 (5th Cir. 2006).
“[I]t is the settled law of our circuit that the district court should have
the first opportunity to address all of the issues contained in the appeal.”
F.D.I.C. v. Lee, 130 F.3d 1139, 1141 (5th Cir. 1997). We therefore conclude
that remand for further consideration of Franks is appropriate.
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IV
The portion of the district court order denying Officer Currie’s
motion to dismiss pertaining to Malley is REVERSED, and this case is
REMANDED for further proceedings consistent with this opinion.
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Don R. Willett, Circuit Judge, concurring:
Stating the correct outcome is easy in this case; untangling a knotty
constitutional inquiry to arrive at that outcome, less so. Today’s bottom-line
disposition is certainly correct: Reversing the denial of Officer Currie’s
Malley-based motion to dismiss, and remanding the Franks issue. I write
separately only to point out that the Mayfields have not shown any
constitutional violation, much less a clearly established one.
* * *
The court begins (and ends) its immunity analysis on “clearly
established law” grounds, declining to address—let alone determine—
whether Officer Currie violated the Fourth Amendment in the first place.
True, the Supreme Court has blessed our “sound discretion” to pivot solely
on prong two of the qualified-immunity analysis.1 And “clearly established
law” is often outcome-determinative. But just because we can jump straight
to prong two without undertaking the nettlesome task of determining if
anyone’s rights were violated doesn’t mean we should. Leapfrogging the
constitutional merits does make for easier sledding.2 But such skipping,
1
See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“The judges of the district
courts and the courts of appeals should be 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.”). See also Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (“address[ing] only the qualified immunity question, not
whether there was a Fourth Amendment violation in the first place”).
2
Zadeh v. Robinson, 928 F.3d 457, 479–80 (5th Cir. 2019) (Willett, J., concurring
in part and dissenting in part).
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jurists and scholars lament, leads to “‘constitutional stagnation’—fewer
courts establishing law at all, much less clearly doing so.”3
The modern immunity regime, as with many judge-invented
doctrines, could use greater precision. And one way to advance constitutional
clarity is to give courts and public officials more matter-of-fact guidance as to
what the law prescribes and proscribes. Yes, scrutinizing the alleged
constitutional offense requires more work. More time. More resources.
Overworked federal courts already resemble Lucy and Ethel in the chocolate
factory.4
But since we require plaintiffs to prove a violation of clearly
established law, it seems only fair that we do our part in establishing what that
law is. How can a plaintiff produce precedent if fewer courts are producing
precedent? How can a plaintiff show a violation if fewer courts are showing
what constitutes a violation? The result:
Section 1983 meets Catch-22. . . . Important constitutional
questions go unanswered precisely because no one’s answered
them before. Courts then rely on that judicial silence to
conclude there’s no equivalent case on the books. No
precedent = no clearly established law = no liability. An
Escherian Stairwell. Heads government wins, tails plaintiff
loses.5
Ordinary citizens are told that ignorance of the law is no excuse. The
judge-created rules of qualified immunity are, well, different. Accordingly,
judges should, whenever possible, shrink the universe of uncertainty and
3
Id. at 479 (quoting Aaron L. Nielson & Christopher J. Walker, The New Qualified
Immunity, 89 S. Cal. L. Rev. 1, 12 (2015)).
4
I Love Lucy: Job Switching (CBS television broadcast Sept. 15, 1952).
5
Zadeh, 928 F.3d at 479–80.
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“clearly establish” which alleged misdeeds violate the law, and which do not,
thus narrowing the presumed knowledge gap between those who enforce our
laws and those who live under them.
I
Officer Currie is shielded from civil liability “insofar as [her] conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.”6 Specifically, the Mayfields must
show: “(1) that [Officer Currie] violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.”7
As explained below, the Mayfields fall doubly short: There is no
Fourth Amendment violation at all, clearly established or otherwise.
A
The Mayfields argue that Officer Currie violated Mr. Mayfield’s
Fourth Amendment right8 because her warrant-application affidavit for his
arrest unreasonably lacked probable cause under Malley v. Briggs.9 Officer
6
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted).
7
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818).
8
The Fourth Amendment protects the right to be free from “unreasonable
searches and seizures.” U.S. Const. amend. IV. Because an arrest qualifies as a
“seizure” of a “person,” it “must be reasonable under the circumstances.” Ashcroft, 563
U.S. at 735–36 (citation omitted). “Fourth Amendment reasonableness is predominantly
an objective inquiry” that asks “whether the circumstances, viewed objectively, justify [the
challenged] action.” Id. at 736. (internal quotation marks and citations omitted).
9
475 U.S. 335 (1986). The Mayfields also argue that Officer Currie violated the
Fourth Amendment on the theory that she maliciously concealed information that would
have, if included, deprived the warrant of probable cause. See Franks v. Delaware, 438 U.S.
154 (1978). But because the district court did not address the alleged omissions or their
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Currie argues there is no constitutional violation because the municipal court
judge issued the warrant for Mr. Mayfield’s arrest and, under the
independent-intermediary doctrine, the judge’s decision breaks the chain of
causation and insulates her from liability.10
To start, the Malley analysis does not answer the constitutional
question. In Malley, the Supreme Court clarified that, in the context of an
arrest warrant, qualified immunity shields officers from liability unless the
“warrant application is so lacking in indicia of probable cause as to render
official belief in its existence unreasonable.”11 This merely restates the
ordinary qualified-immunity standard: that officers are only liable when
“every ‘reasonable official would [have understood] that what he is doing
violates’” the constitutional right at issue.12
impact on probable cause, if any, we properly remand the case with respect to the Franks
analysis. Therefore, we limit our discussion to the Malley analysis.
However, it is worth explicitly clarifying that Malley and Franks involve distinct
applications of qualified immunity to Fourth Amendment violations: Malley centers on the
officer’s lack of facts to support the probable cause for a warrant, while Franks focuses on
the officer’s malicious motive in providing—or withholding—material information for use
in the affidavit. Some of our prior cases synthesized Franks and Malley, but, as we recently
made clear en banc, malice has no place in the Malley analysis. Melton v. Phillips, 875 F.3d
256, 264 (5th Cir. 2017) (en banc) (correctly viewing Franks and Malley as distinct
applications of qualified immunity to Fourth Amendment violations).
10
Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009). But the independent-
intermediary doctrine is not impervious: Malley recognized that an officer is not immune,
even if the judge issues an arrest warrant based on that officer’s affidavit, where the warrant
application lacks probable cause. See Malley, 475 U.S. at 344–45.
11
Malley, 475 U.S. at 344–45 (citation omitted).
12
Ashcroft, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
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So, setting aside the clearly established law issue, I would address
head-on the constitutional merits: Did Mr. Mayfield suffer a Fourth
Amendment violation on the grounds that the warrant relied on too few facts
to support probable cause? “Because probable cause deals with probabilities
and depends on the totality of the circumstances, it is a fluid concept that is
not readily, or even usefully, reduced to a neat set of legal rules.”13 Our
arrest-warrant affidavit cases, like Blake v. Lambert, instruct that probable
cause exists when facts are stated in the arrest-warrant affidavit from which
a judge could independently determine a crime was likely committed.14
On its own, Officer Currie’s affidavit is rather lean, identifying Mr.
Mayfield, reciting the charged offense, and citing the corresponding statutes.
But her affidavit has facts (unlike the constitutionally deficient one in Blake,
which did not). Officer Currie’s affidavit states that Mr. Mayfield assisted his
co-conspirators and provided them with information that enabled them to
photograph and film Mrs. Cochran in her room at St. Catherine’s.15 And
13
District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (internal quotation marks
and citations omitted).
14
921 F.3d 215, 220–21 (5th Cir. 2019).
In the context of a warrantless arrest, “probable cause requires only a probability
or substantial chance of criminal activity, not an actual showing of such activity.” Illinois v.
Gates, 462 U.S. 213, 243 n.13 (1983). This “is not a high bar.” Kaley v. United States, 571
U.S. 320, 338 (2014).
In the analogous context of a search warrant, “[p]robable cause exists when there
are reasonably trustworthy facts which, given the totality of the circumstances, are
sufficient to lead a prudent person to believe that the items sought constitute fruits,
instrumentalities, or evidence of a crime.” Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir.
2006) (citing Gates, 462 U.S. at 238–39).
15
The warrant affidavit provides that Mr. Mayfield “did willfully, unlawfully, and
feloniously conspire with John Mary and Clayton Kelly to commit the crime of
Photographing taping, or filming a person in violation of expectation of privacy (97-29-63)
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importantly, even if Officer Currie’s affidavit is bare bones, an affidavit can
be rehabilitated.16 Here, Officer Currie did not submit the contested affidavit
in a vacuum. There were additional supporting facts from which the
municipal court judge could independently determine probable cause.
Specifically, Officer Currie submitted the contested affidavit on the same
day, and to the same judge, that Officer Harrison submitted his search-
warrant affidavit for Mr. Mayfield’s house and office. And Officer Harrison’s
affidavit was far meatier, stating that Mr. Mayfield agreed to assist Mr. Mary
and Mr. Sager in creating their video of Mrs. Cochran and that Mr. Mayfield
provided Mr. Kelly with “detailed information” on how to get into St.
Catherine’s and locate Mrs. Cochran’s room.17 Plus, in the days immediately
prior to her submission of the contested affidavit, Officer Currie submitted
by communicating, planning, and assisting Clayton Kelly with information and resources
which aided and assisted Kelly in photographing and filming Rose Cochran inside of her
residence, her room at St. Catherine’s Village, without her knowledge or permission.”
16
“Because the Fourth Amendment does not require written warrants, an
otherwise invalid warrant can be rehabilitated by sworn oral testimony before a judicial
officer given contemporaneously upon presentation of the warrant application.” Spencer v.
Staton, 489 F.3d 658, 662 (5th Cir.), modified on other grounds on reh’g, 489 F.3d 466 (5th
Cir. 2017) (citing United States v. Hill, 500 F.2d 315, 320 (5th Cir. 1974), for the proposition
that a court may consider an affiant’s sworn oral testimony, extrinsic to the written
affidavit, in determining whether a warrant was founded on probable cause). Here, the
issuing municipal court judge had before him Officer Currie’s three sworn arrest-warrant
affidavits for Mr. Mayfield’s co-conspirators as well as Officer Harrison’s sworn search-
warrant affidavit for Mr. Mayfield’s home and office. Such evidence, though extrinsic to
the contested affidavit, rehabilitated the contested affidavit, assuming it needed
rehabilitation.
17
Officer Harrison’s search-warrant affidavit provides factual support for Officer
Currie’s affidavit: “John Mary stated that he and Richard Sager eventually made contact
with Mark Mayfield who agreed to assist them in creating th[e] video.” The affidavit later
notes, “Clayton Kelly was provided with detailed information on how to get into St.
Catherine’s Village and also how to locate and get into the area where her room was located
through the assistance of Mark Mayfield.”
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sworn arrest-warrant affidavits for three of Mr. Mayfield’s co-conspirators,
one of which explicitly refers to Mr. Mayfield’s involvement in the
conspiracy; all of these arrest-warrant affidavits were submitted to the very
same judge who received the affidavit at issue here.18 And finally, the
Mayfields admit that the municipal court judge signed Mr. Mayfield’s arrest
warrant on the basis of the Currie affidavit and the Harrison affidavit.19
In sum, the record evidence establishes that the municipal court judge
was presented with an arrest-warrant affidavit containing facts that were
corroborated and supplemented by other arrest and search-warrant
affidavits, which, considered together, establish probable cause and justify
the warrant for Mr. Mayfield’s arrest.20 Because the warrant was supported
by probable cause, the Mayfields have not shown a constitutional violation.
B
Turning to the second issue—“clearly established law”—the court
rightly concludes that the Mayfields fail to establish that the alleged Fourth
18
Officer Currie submitted arrest-warrant affidavits for Mr. Sager, for Mr. Mary,
and for Mr. Kelly. In the arrest-warrant affidavit for Mr. Mary, Officer Currie noted that
Mr. Mary “stated in some of the messages that an individual named ‘Mark’ would be
making the arrangements to have an individual . . . call Clayton Kelly with detailed
instructions on where to locate Rose Cochran’s room within St. Catherine’s Village.”
“Mark” is referring to Mr. Mayfield.
The judge also had before him search-warrant affidavits for Mr. Mayfield’s co-
conspirators: Officer Harrison submitted search-warrant affidavits for Mr. Kelly’s
residence and car and for Mr. Mary’s residence, and Officer Brown submitted a search-
warrant affidavit for Mr. Sager’s residence.
19
The Mayfields allege this fact in their Amended Complaint.
20
Compare Spencer, 489 F.3d at 662–63 (finding that the record was insufficient to
demonstrate that the officer’s testimony was sufficient to support probable cause and
noting that the officer did not allege that his oral statements were made under oath).
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Amendment violation was “clearly established” at the time of the challenged
conduct.21 To be clearly established, a right must be sufficiently clear “that
every ‘reasonable official would [have understood] that what he is doing
violates that right.’”22 An officer is not eligible for qualified immunity under
Malley when there is an “obvious failure of accurately presented evidence to
support the probable cause required for the issuance of a warrant.”23 Officer
Currie is entitled “to qualified immunity from suit unless, ‘on an objective
basis, it is obvious that no reasonably competent officer would have
concluded that a warrant should issue.’”24
We have held the standard in Malley is not satisfied when an officer
proffers a facially invalid warrant affidavit—one devoid of any facts—one
that “states nothing more than the charged offense, accompanied by a
conclusory statement” that the individual committed the offense.25 That was
Blake, where the officer’s arrest-warrant affidavit “simply identifie[d] [the
named individual], recite[d] the charged offense, and cite[d] the
corresponding . . . statutes.”26 Such a bare-bones affidavit fell short of Malley
because “[i]t d[id] not provide any supporting facts from which a [judge]
could independently determine probable cause.”27
21
Ashcroft, 563 U.S. at 735 (quoting Harlow, 457 U.S. at 818).
22
Id. at 741 (quoting Anderson, 483 U.S. at 640).
23
Melton, 875 F.3d at 264.
24
Spencer, 489 F.3d at 661 (quoting Malley, 475 U.S. at 341).
25
Id. at 662.
26
Blake, 921 F.3d at 220.
27
Id. See also Spencer, 489 F.3d at 662 (citations omitted) (describing a bare-bones
affidavit as one that “does not supply the factual basis for probable cause necessary for
issuance of an arrest warrant”).
16
Case: 19-60331 Document: 00515575538 Page: 17 Date Filed: 09/23/2020
No. 19-60331
And, while we have held that an officer is not entitled to qualified
immunity under Malley when the warrant was based solely on a skimpy
affidavit, the burden is on the Mayfields to cite a case holding that the Fourth
Amendment required the affidavit to establish probable cause on its own,
without consideration of other supporting documents.28 They have not done
so.
II
The Supreme Court has explicitly recognized our discretion to
address the qualified-immunity prongs in whatever order we choose. In my
judgment, the development of the law is best served by undertaking,
wherever possible, the threshold constitutional analysis. Respectfully, courts
should attempt to provide greater judicial guidance at the outset, explaining
whether a right was in fact violated, not merely whether a rights violation was
clearly established.
In any event, because the Mayfields have failed to show a
constitutional violation, let alone a clearly established one, Officer Currie
cannot be liable under Malley. And the court is right to remand the Franks
issue so that the district court can tackle it in the first instance.
28
Blake, 921 F.3d at 221.
17