Case: 19-50888 Document: 00515930384 Page: 1 Date Filed: 07/08/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 8, 2021
No. 19-50888 Lyle W. Cayce
Clerk
Bradley Terwilliger; Benjamin Matcek;
Jimmy Dan Smith,
Plaintiffs—Appellees,
versus
Abelino Reyna, in his individual capacity;
Brent Stroman, in his individual capacity;
Manuel Chavez, in his individual capacity;
Robert Lanning, in his individual capacity;
Jeffrey Rogers, in his individual capacity,
Defendants—Appellants,
consolidated with
_____________
No. 19-50909
____________
Ester Weaver; Walter Weaver; Sandra Lynch;
Michael Lynch; Julie Perkins; Justin Waddington,
Plaintiffs—Appellees,
versus
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Abelino Reyna, Elected District Attorney for
McLennan County, Texas, in his individual capacity;
Brent Stroman, Chief of Police for the Waco Police
Department, in his individual capacity; Manuel
Chavez, Waco Police Department Detective, in his
individual capacity; Robert Lanning, in his Individual
Capacity; Det. Jeffrey Rogers, in his Individual
Capacity,
Defendants—Appellants,
consolidated with
___________
No. 19-50910
_____________
Daryle Walker; Michael Woods; Don Fowler; David
Cepeda; Kevin Rash; Richard Kreder; Greg Corrales;
Bobby Joe Samford; Jimmy Spencer, Jr.; Craig Rodahl;
Arley Harris, III; Richard Dauley,
Plaintiffs—Appellees,
versus
Abelino "Abel" Reyna, Elected District Attorney for
McLennan County, Texas, in his individual capacity,
Defendant—Appellant,
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consolidated with
_____________
No. 19-51029
_____________
Daryle Walker; Michael Woods; Don Fowler; David
Cepeda; Kevin Rash; Richard Kreder; Greg Corrales;
Bobby Joe Samford; Jimmy Spencer, Jr.; Craig Rodahl;
Arley Harris, III; Richard Dauley,
Plaintiffs—Appellees,
versus
Brent Stroman, Chief of Police for the Waco Police
Department, in his individual capacity; Manuel
Chavez, Waco Police Department Detective, in his
individual capacity; Robert Lanning, in his individual
capacity; Jeffrey Rogers, in his individual capacity,
Defendants—Appellants,
consolidated with
_____________
No. 20-50032
_____________
Christopher Eaton; Owen Bartlett; James Venable,
Plaintiffs—Appellees,
versus
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Chief Brent Stroman, in his individual capacity;
Detective Manuel Chavez, in his individual capacity;
Assistant Chief Robert Lanning, in his individual
capacity; Detective Jeffrey Rogers, in his individual
capacity; Abelino "Abel" Reyna,
Defendants—Appellants,
consolidated with
_____________
No. 20-50276
_____________
Theron Rhoten; Jonathan Lopez; Ryan William Craft;
Jim Albert Harris; Bonar Crump, Jr.; Juan Carlos
Garcia; Drew King,
Plaintiffs—Appellees,
versus
Chief Brent Stroman, in his individual capacity;
Detective Manuel Chavez, in his individual capacity;
Assistant Chief Robert Lanning, in his individual
capacity; Detective Jeffrey Rogers, in his individual
capacity; District Attorney Abelino Reyna, in his
individual capacity,
Defendants—Appellants,
__________________________________________________
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Jim Albert Harris; Bonar Crump, Jr; Juan Carlos
Garcia; Drew King,
Plaintiffs—Appellees,
versus
Manual Chavez, in his individual and official capacity;
Chief Brent Stroman, in his individual capacity;
Robert Lanning, in his individual capacity; Jeffrey
Rogers, in his individual capacity; Abelino Reyna, in
his individual and official capacity
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Texas
USDC 1:16-CV-599; 1:16-CV-1195; 1:17-CV-235;
1:16-CV-871; 1:16-CV-648; 1:17-CV-426
Before Higginbotham, Jones, and Higginson, Circuit Judges.
Edith H. Jones, Circuit Judge:
A deadly shootout occurred at the Twin Peaks restaurant in Waco,
Texas, at a gathering of hundreds of motorcyclists, including gang members.
The Plaintiffs here filed several lawsuits against Waco public officials based
on their arrests and detentions following the rampage. The series of § 1983
suits alleged Fourth Amendment violations against Abelino Reyna, the then-
District Attorney of McLennan County; Brent Stroman, Chief of the Waco
Police Department; Robert Lanning, the Assistant Waco Police Chief;
Manuel Chavez and Jeffrey Rogers, both Waco Police Department
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detectives. 1 The Defendants moved to dismiss asserting their qualified
immunity and have appealed because the district court denied the motion in
part. Since the specific facts lodged in each case against the Defendants are
largely identical and the appellate briefing nearly verbatim alike by both sides,
this court consolidated the appeals.
Having considered the facts and arguments, we REVERSE and
RENDER as to Defendants Stroman and Lanning, AFFIRM in part and
REVERSE in part as to Defendants Reyna, Chavez, and Rogers, and
REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
The thirty-one plaintiffs were arrested after the Twin Peaks shooting
for the felony charge of Engaging in Organized Criminal Activity
(“EIOCA”). TEX. PENAL CODE § 71.02. Some are members of
“independent motorcycle clubs” and others unaffiliated with clubs. They
were detained at the scene immediately after the bloodbath or off premises
later that day.
Hundreds of bikers representing numerous motorcycle clubs gathered
for a meeting of the Texas Confederation of Clubs & Independents (“COC”)
on May 17, 2015 at the Twin Peaks restaurant in Waco, Texas. Members of
both the Bandidos Motorcycle Club and Cossacks Motorcycle Club were
present. Local law enforcement, aware of animosity between the Bandidos
and Cossacks, monitored the meeting from the perimeter of the restaurant.
1
Other defendants were included in the lawsuits, but only these particular
appellants pursued an interlocutory appeal.
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Uniformed and undercover agents were present in an intelligence gathering
capacity but had no evidence of planned violence. Nonetheless, violence
erupted around noon. The ensuing shootout left nine victims dead and at
least another twenty injured. Law enforcement officers, who had been forced
to engage in defensive shooting, took control of the scene immediately after
the violence and began investigating. Defendant Chavez was the detective in
charge of the investigation.
After several hours, all COC attendees were transferred to the Waco
Convention Center for questioning by law enforcement. Individual
interviews continued well into the evening until the decision was made to
arrest the motorcyclists who fit predetermined criteria—specifically,
whether their support for or affiliation with the Bandidos or Cossacks was
indicated by motorcycle club association and/or clothing, patches, key chains
or other items.
Detective Chavez prepared and signed a form warrant affidavit which
stated that:
[O]n or about May 17, 2015, in McLennan County, Texas, the
said _________ did then and there, as a member of a criminal
street gang, commit or conspire to commit murder, capital
murder, or aggravated assault, against the laws of the State.
My probable cause for said belief and accusation is as follows:
Three or more members and associates of the Cossacks
Motorcycle Club (Cossacks) were in the parking lot of the
Twin Peaks restaurant in Waco, McLennan County Texas.
Three or more members of the Bandidos Motorcycle clubs
(Bandidos) arrived in the parking lot of the Twin Peaks
restaurant and engaged in an altercation with the members and
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associates of the Cossacks. During the course of the
altercation, members and associates of the Cossacks and
Bandidos brandished and used firearms, knives or other
unknown edged weapons, batons, clubs, brass knuckles, and
other weapons. The weapons were used to threaten and/or
assault the opposing factions. Cossacks and Bandidos
discharged firearms at one another. Members of the Waco
Police Department attempted to stop the altercation and were
fired upon by the Bandidos and/or Cossacks. Waco Police
Officers returned fire, striking multiple gang members. During
the exchange of gunfire, multiple persons where [sic] shot.
Nine people died as a result of the shooting between the
members of the biker gangs. Multiple other people were
injured as a result of the altercation. The members and
associates of the Cossacks and Bandidos were wearing common
identifying distinctive signs or symbols and/or had an
identifiable leadership and/or continuously or regularly
associate in the commission of criminal activities. The Texas
Department of Public Safety maintains a database containing
information identifying the Cossacks and their associates as a
criminal street gang and the Bandidos and their associates as a
criminal street gang.
After the altercation, the subject was apprehended at the scene,
while wearing common identifying distinct signs or symbols or
had an identifiable leadership or continuously or regularly
associate in the commission of criminal activities.
After the altercation, firearms, knives or other unknown edged
weapons, batons, clubs, brass knuckles, and other weapons
were recovered from members and associates of both criminal
street gangs.
Multiple motorcycles with common identifying signs or
symbols of the Cossacks and Bandidos and their associates
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were recovered at the scene. Additional weapons including:
firearms, ammunition, knives, brass knuckles, and other
weapons were found on the motorcycles.
The Plaintiffs were among 177 individuals arrested within the next
several days using this form affidavit. Detective Chavez later testified that
the names of those to be arrested pursuant to the warrant had been furnished
to him. Eventually, only one case went to trial, a mistrial resulted, and the
state dropped or reduced charges against the arrestees. No one has been
prosecuted for the murders or injuries.
The Plaintiffs filed multiple § 1983 suits centering on their allegedly
unlawful arrests without probable cause. Among others not covered here,
one of their claims alleges that the Chavez affidavit facially failed to establish
probable cause. Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092 (1986). A
second claim asserted that intentional or reckless false statements in the
affidavit resulted in a warrant lacking probable cause. Franks v. Delaware,
438 U.S. 154, 98 S. Ct. 2674 (1978). The Plaintiffs also pled § 1983
conspiracy and bystander liability claims. 2 The Defendants moved to dismiss
on qualified immunity grounds, and District Attorney Reyna additionally
claimed absolute prosecutorial immunity from suit. The district court
dismissed the Malley claims as to all Defendants but denied the motion with
2
For the first time on appeal, the Plaintiffs have raised a supervisory liability claim.
We do not consider this untimely addition. Their argument that the complaint contained
facts sufficient to put the Defendants on notice of the supervisory theory of liability is
unpersuasive. An argument “not raised before the district court . . . is . . . ‘waived and
cannot be raised for the first time on appeal.’” In re Deepwater Horizon, 857 F.3d 246, 251
(5th Cir. 2017) (quoting LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.
2007)).
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respect to the Franks, conspiracy, and bystander claims. The Defendants
then filed this interlocutory appeal based on the denial of qualified and
absolute immunity. Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806 (1986). 3
II. DISCUSSION
This court reviews de novo a district court’s denial of a motion to
dismiss on grounds of qualified or absolute immunity. Morgan v. Chapman,
969 F.3d 238, 244 (5th Cir. 2020). That ruling is a collateral order
susceptible of immediate appellate review. Behrens v. Pelletier, 516 U.S. 299,
307, 116 S. Ct. 834, 839 (1996). Our review is “restricted to determinations
‘of question[s] of law’ and ‘legal issues,’ and . . . do[es] not consider ‘the
correctness of the plaintiff’s version of the facts.’” Atteberry v. Nocona Gen.
Hosp., 430 F.3d 245, 251–52 (5th Cir. 2005) (quoting Mitchell, 472 U.S. at
528, 105 S. Ct. at 2816). Further, all well-pleaded facts must be accepted as
true and viewed in the light most favorable to the plaintiffs. Anderson v.
Valdez, 845 F.3d 580, 589 (5th Cir. 2016).
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974
(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. These standards are the
same when a motion to dismiss is based on qualified immunity. Dyer v.
3
No cross-appeal was filed to preserve the Malley claims.
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Houston, 964 F.3d 374, 379 (5th Cir. 2020). The crucial question is “whether
the complaint pleads facts that, if true, would permit the inference that
Defendants are liable under § 1983 . . . and would overcome their qualified
immunity defense.” Hinojosa v. Livingston, 807 F.3d 657, 664 (5th Cir. 2015).
It is the plaintiff’s burden to demonstrate that qualified immunity is
inappropriate. See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir.
2009).
On appeal, D.A. Reyna asserts absolute prosecutorial immunity, and
all Defendants claim qualified immunity from the Plaintiffs’ Franks claim and
other liability theories. We discuss each of these issues in turn.
A. Absolute Immunity
Prosecutors are shielded by absolute immunity for activities
“intimately associated with the judicial phase of the criminal process,”
including “initiating a prosecution and [] presenting the State’s case.”
Imbler v. Pachtman, 424 U.S. 409, 430–31, 96 S. Ct. 984, 995 (1976).
Absolute immunity is premised on the nature of the function performed by
the prosecutor, not on the actor’s title. Forrester v. White, 484 U.S. 219, 229,
108 S. Ct. 538, 545 (1988). Consequently, a prosecutor’s absolute immunity
does not extend to “advising the police in the investigative phase of a criminal
case” where qualified immunity is sufficient. Burns v. Reed, 500 U.S. 478,
493, 111 S. Ct. 1934, 1943 (1991). Further, a prosecutor has no absolute
immunity for personally attesting to the truth of evidence presented to the
court or exercising judgment going to the truth or falsity of that evidence.
Spivey v. Robertson, 197 F.3d 772, 775 (5th Cir. 1999) (discussing Kalina v.
Fletcher, 522 U.S. 118, 118 S. Ct. 502 (1997)).
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The Plaintiffs allege that Reyna was the driving force behind the mass
arrests and told Asst. Chief Lanning that “‘all bikers wearing colors’ should
be arrested.” Further, the Plaintiffs allege, Reyna was present at the scene
“investigating the shooting” and “publicly acknowledged that he took the
unusual step of assisting law enforcement and was involved in the actual
investigation of the incident.” The complaint states that “Reyna
investigated the scene within hours of the incident, took photographs of the
scene, reviewed information as it became known, and in all respects inserted
himself in the role of an investigator/detective.” The Plaintiffs allege that
Reyna was continuously updated on May 17 as to the status of the
investigation. Moreover, Reyna had access to video footage corroborative of
law enforcement interviews that revealed many COC attendees, including
many of those arrested, had no connection to the violence or parties involved
in the violence.
Reyna acknowledges that he received information gleaned by Texas
Department of Public Safety investigative interviews, which furnished the
factual basis for the offense criteria used in the probable cause affidavits. He
contends that in so doing, he was acting as an advocate supplying legal advice
based on the investigators’ facts. Were this the sum of his activities, it would
fall comfortably within the protection of absolute immunity. See Spivey,
197 F.3d at 776 (discussing Kalina, 522 U.S. at 123–31, 118 S. Ct. at 505–10).
Formulating factual criteria sufficient to satisfy probable cause from the
investigative materials reflects a prosecutor’s “suggesting legal conclusions
on the facts already given.” Id. Nor would this conclusion be contraindicated
by the allegation that Reyna merely involved himself in the decision to arrest
by informing Chief Stroman that there was “sufficient probable cause to
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arrest any biker who was present and appeared by virtue of clothing or
personal effects to be affiliated with the Bandidos or Cossacks.”
As shown by the preceding recitation, however, merely giving legal
advice was not the sum of Reyna’s alleged conduct in personally investigating
the scene of the fracas and taking photographs. That he was allegedly
“[c]reating or manufacturing new facts” distinguishes Reyna’s actions at the
scene from those of an advocate supplying legal advice. Id. Moreover,
although the ultimate import of this is less clear, the fact that Reyna was
constantly in touch as the investigation proceeded and had access to allegedly
exculpatory video and interview evidence, yet still decided to approve a
global arrest warrant for EIOCA, implies that he “exercised judgement going
to the truth or falsity of the evidence.” Id. Taking the facts as pled in the
light most favorable to the Plaintiffs, Reyna’s conduct exceeded his
prosecutorial function, and some of his actions were more akin to those of a
law enforcement officer conducting an investigation. See Buckley v.
Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 2616 (1993) (“When a
prosecutor performs the investigative functions normally performed by a
detective or police officer, it is neither appropriate nor justifiable that, for the
same act, immunity should protect the one and not the other.” (internal
quotations and citations omitted)). Based on the pleadings pertaining to his
investigative activity, D.A. Reyna’s immunity is limited to that of a law
enforcement officer.
B. Franks Liability
The Plaintiffs assert that the warrant affidavit signed by Detective
Chavez was woefully deficient and false with respect to each of them, causing
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their false arrests and extended detentions without probable cause. They
contend that all of the Defendants can be held liable for the affidavits’
shortcomings. Assessing these liability claims and the Defendants’
responsive qualified immunity claims on the bare pleadings is difficult.
The Plaintiffs allege that these Defendants knowingly or with reckless
disregard for the truth provided false information to secure the arrest
warrants. Franks, 438 U.S. at 171, 98 S. Ct. at 2684; Hart v. O’Brien,
127 F.3d 424, 448 (5th Cir. 1997). The Franks case arose in the context of a
search warrant, but its rationale extends to arrest warrants. See Melton v.
Phillips, 875 F.3d 256, 262 (5th Cir. 2017) (en banc). Liability under Franks
can arise from either material misstatements or material omissions in warrant
affidavits. Michalik v. Hermann, 422 F.3d 252, 258 n.5 (5th Cir. 2005);
United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980) (citing cases).
Functionally, the holding of Franks is an exception to the independent
intermediary doctrine, which provides 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.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d
808, 813 (5th Cir. 2010) (citation and internal quotation marks omitted). But
“the chain of causation remains intact if it can be shown that the deliberations
of that intermediary were in some way tainted by the actions of the
defendant.” Id. To determine taint, the essential inquiry is whether “there
remains sufficient content in the warrant affidavit to support a finding of
probable cause” after the “material that is the subject of the alleged falsity or
reckless disregard is set to one side.” Franks, 438 U.S. at 171–72, 98 S. Ct. at
2684.
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The issues raised here by the Plaintiffs concern both the sufficiency of
the affidavit signed by Chavez and the extent to which non-signer Defendants
may be held responsible for any material false statements or omissions.
1. Sufficiency of the Affidavit
Probable cause is a “‘practical, nontechnical conception’ that deals
with ‘the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.’” Maryland v.
Pringle, 540 U.S. 336, 370, 124 S. Ct. 795, 799 (2003) (internal citations and
quotations omitted). It turns “‘on the assessment of probabilities in
particular factual contexts—not readily, or even usefully, reduced to a neat
set of legal rules.’” Id. at 371, 124 S. Ct. at 800 (quoting Illinois v. Gates,
462 U.S. 213, 232, 103 S. Ct. 2317, 2329 (1983)). Instead, courts must look
to the “totality of the circumstances” and decide “whether these historical
facts, viewed from the standpoint of an objectively reasonable police officer”
demonstrate “a probability or substantial chance of criminal activity.”
District of Columbia v. Wesby, 138 S. Ct. 577, 586, 588 (2018) (quotations and
citations omitted). But while “[p]robable cause ‘is not a high bar,’” id. at
586 (quotation and citation omitted), “the belief of guilt must be
particularized with respect to the person to be searched or seized,” Pringle,
540 U.S. at 371, 124 S. Ct. at 800.
We emphasize that standing alone, as the district court held, the
warrant affidavit sufficiently alleged probable cause to arrest those to whom
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its facts applied. 4 That members or associates of the Bandidos and Cossacks
instigated and were involved in the Twin Peaks shootout, and that their
conduct rose to the level of violating the EIOCA were conclusions reasonably
and objectively drawn from the events of the day. Against this backdrop,
however, the issue raised by the Plaintiffs’ allegations is whether the facts
and resulting “belief of guilt” were sufficiently particularized as to each of
them. Id.
Broadly, the Plaintiffs can be sorted into two groups: those detained
at the Twin Peaks and those arrested elsewhere. The latter group includes
Bradley Terwilliger, Benjamin Matcek, and Jimmy Dan Smith, who were
initially arrested away from the scene, in the parking lot of a closed business,
on separate charges 5 and were re-arrested several days later on the EIOCA
charge pursuant to the form affidavit. The remaining twenty-eight Plaintiffs
were all detained at the scene. All thirty-one Plaintiffs challenge the
sufficiency of the affidavit on essentially similar grounds. First, they deny
affiliation with the Bandidos or Cossacks, 6 and any involvement with or
membership in a “criminal street gang.” They all claim that any jackets,
vests, or insignia they were wearing were lawful and that their behavior before
4
This court reviews probable cause determinations de novo. United States v. Lopez-
Moreno, 420 F.3d 420, 430 (5th Cir. 2005).
5
Terwilliger was arrested for unlawfully carrying a weapon (“UCW”). Matcek
was arrested for UCW and criminal trespass. Smith was arrested and charged with
“Directing Activities of Criminal Street Gangs.” TEX. PENAL CODE § 71.023.
6
Many, however, are members of other allegedly independent motorcycle clubs.
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and during the incident was lawful. 7 Merely denying these facts is
insufficient to establish colorable Franks liability, as is noted below. But the
Plaintiffs go further in alleging that the Defendants deliberately excluded
relevant information that would have weighed against individualized
probable cause, such as video evidence, witness interviews, and membership
in motorcycle clubs known to be independent and not affiliated with the
Bandidos or Cossacks.
Assuming that the foregoing allegations constitute materially false
statements or omissions in the warrant affidavit as to each Plaintiff, Franks
requires the court to determine whether, excluding such errors and
omissions, the remaining “corrected affidavit” establishes probable cause for
the warrant’s issuance. Winfrey v. Rogers, 901 F.3d 483, 495 (5th Cir. 2018)
(citing Franks, 438 U.S. at 156, 98 S. Ct. at 2676). In this case, the remaining
particularized facts in the affidavit are that “[a]fter the altercation, the
subject was apprehended at the scene, while wearing common identifying
distinct signs or symbols.” And for the Plaintiffs not arrested on-scene,
including Terwilliger who asserts he had no “common identifying distinct
signs,” the remaining uncontested facts are even slimmer. Taking these
allegations as true and viewing in them in the light most favorable to the
Plaintiffs, the “corrected” content of the affidavit is insufficient to establish
particularized probable cause for arrest based on supposed violations of the
EIOCA.
7
Terwilliger denies even having any patches, vest, jacket, or keychain indicating
membership in a motorcycle club because he is not a member of any motorcycle club.
Matcek claims he was not even present during the shootout.
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Franks, of course, requires more than bare assertions of falsehood.
Instead, they “must be accompanied by an offer of proof . . . [and] point out
specifically the portion of the warrant affidavit that is claimed to be false; and
they should be accompanied by a statement of supporting reasons.” Franks,
438 U.S. at 171, 98 S. Ct. at 2684. Evidence must be proffered and
“[a]ffidavits or sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.” Id. While the Plaintiffs
have met their burden of alleging a Franks violation sufficient to withstand
the test of Iqbal/Twombly, if they press this litigation, they must offer tangible
proof to overcome the “presumption of validity with respect to the affidavit
supporting the . . . warrant.” Id. Each Plaintiff must demonstrate that, as to
him, the affidavit was deliberately or recklessly false. 8
2. Extent of Franks Liability
In this circuit, a law enforcement officer “must have assisted in the
preparation of, or otherwise presented or signed a warrant application in
order to be subject to liability under Franks.” Melton, 875 F.3d at 263. If an
officer does not present or sign the affidavit, liability attaches only if “he
helped prepare the complaint by providing information for use in it.” Id. at
264. The analysis must consider the role played by each defendant.
8
Franks counsels that every statement in a warrant affidavit need not be “truthful”
in an absolute sense. 438 U.S. at 165, 98 S. Ct. at 2681. This is because “probable cause
may be founded upon hearsay and upon information received from informants, as well as
information within the affiant’s own knowledge that sometimes must be garnered hastily
. . . [b]ut surely it is to be ‘truthful’ in the sense that the information put forth is believed
or appropriately accepted by the affiant as true.” Id. Further, allegations of negligence or
innocent mistake are insufficient. Id. at 171, 98 S. Ct. at 2684.
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Chavez, to begin, is within the compass of potential Franks liability
because he signed the warrant affidavit and swore to the validity of the facts
included in it. Melton, 875 F.3d at 263. 9
Reyna, however, neither signed nor swore to the affidavit. Thus,
Franks liability can only attach if he provided material information for use in
the affidavit. The Plaintiffs plead generally that Reyna, among others,
“caused an affidavit against each Plaintiff to be presented.” Such conclusory
language is insufficient standing alone. In more detail, the Plaintiffs plead
that Reyna was provided with evidence both from the scene and interviews
of attendees. But, acting contrary to the information provided to him, he
stated that “all bikers wearing colors” should be arrested. Accordingly, and
treating his function as that of an investigator, Reyna generated the basic facts
set out in the probable cause affidavit. Thus, the Plaintiffs allege that Reyna
“knew the exact wording of the affidavit” and knew or recklessly disregarded
the fact that, based on the exculpatory evidence he had learned, probable
cause did not exist to arrest some individuals potentially fitting the warrant’s
criteria. These allegations are sufficient to tie him to potential Franks
liability.
Detective Rogers may also be implicated in potential Franks liability
based on the pleadings. Taken in the light most favorable to their claim, the
Plaintiffs allege he was a Waco Police Department gang detective who
knowingly or with reckless disregard supplied false or materially misleading
9
That Chavez may have received information from others when authoring the
affidavit is not, contrary to the Plaintiffs’ contention, material to his liability under Franks.
See supra note 8.
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information identifying the Plaintiffs as members of or affiliated with
“criminal street gangs.”
Liability, however, is not sufficiently alleged as to Asst. Police Chief
Lanning or Chief Stroman. Lanning was present at the Twin Peaks and,
according to the pleadings, was “actively involved” in the investigation and
aware of the entirety of the factual circumstances as well as the contents of
the affidavit. But under Melton, “awareness” is not tantamount to
“assisting” in the preparation of the warrant, much less the same as
preparing or signing the affidavit. Further, the Plaintiffs fail to sufficiently
allege that he “provided” material information. Hart, 127 F.3d at 448.
Chief Stroman, as the pleadings acknowledge, was in touch with these events
while out of town vacationing on the east coast. He was allegedly informed
by Reyna that sufficient probable cause existed to arrest individuals fitting the
established criteria and he subsequently approved the arrests. Consequently,
the Plaintiffs only allege generally that he “caused” the affidavit to be
presented. This connection is insufficient under Melton and Hart.
C. Qualified Immunity
When a defendant invokes qualified immunity, the burden shifts to the
plaintiff to plead specific facts to overcome the defense. McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). To discharge this
burden, plaintiffs must successfully allege that the defendants “violated a
statutory or constitutional right, and . . . that the right was ‘clearly
established’ at the time of the challenged conduct.” Morgan v. Swanson,
659 F.3d 359, 370 (5th Cir. 2011). “To be ‘clearly established’ for purposes
of qualified immunity, ‘[t]he contours of the right must be sufficiently clear
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that a reasonable official would understand that what he is doing violates that
right.’” Kinney v. Weaver, 367 F.3d 337, 349–50 (5th Cir. 2004) (en banc).
The key purpose is to create “fair warning,” thus the “clearly established”
prong can be satisfied “despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so long as the prior
decisions gave reasonable warning that the conduct then at issue violated
constitutional rights.” Hope v. Pelzer, 536 U.S. 730, 740, 122 S. Ct. 2508,
2516 (2002).
The Plaintiffs here assert the clearly established right to be free from
arrest without a good faith showing of probable cause. Winfrey, 901 F.3d at
494. Further, it is clearly established that a warrant is not evidence of
probable cause “if (1) the affiant, in support of the warrant, includes ‘a false
statement [made] knowingly and intentionally, or with reckless disregard for
the truth’ and (2) ‘the allegedly false statement is necessary to the finding of
probable cause.’” 10 Id. (quoting Franks, 438 U.S. at 155–56, 98 S. Ct. at
2676).
As described above, accepting the Plaintiffs’ well-pleaded allegations
as true, we agree with the district court that the Plaintiffs state a plausible
Franks claim against Defendants Chavez, Reyna, and Rogers. We do not
opine further on whether the Plaintiffs may ultimately adduce evidence of
these Defendants’ deliberate or reckless misstatements or omissions
10
Since the Warrants Clause dictates that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,” a warrant presumptively establishes
probable cause. U.S. CONST. amend. IV, cl. 2. That presumption can be attacked,
primarily through a claim under Malley or Franks.
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sufficient to prove the case and deprive the Defendants of qualified
immunity. 11
D. Alternate Theories of Liability
In addition to their Franks claim, the Plaintiffs also allege conspiracy
and bystander claims. Neither survives. To support a conspiracy claim
under § 1983, the plaintiff must allege facts that suggest “an agreement
between the . . . defendants to commit an illegal act” and “an actual
deprivation of constitutional rights.” Cinel v. Connick, 15 F.3d 1338, 1343
(5th Cir. 1994). The complaint states that the Defendants “entered into a
conspiracy to deprive Plaintiffs of their right to be free from unlawful
seizure” and “acted in concert either to orchestrate or to carry out the illegal
seizure . . . when they knew there was no probable cause to arrest them.”
The complaint further states that the Defendants “caused a warrant to be
issued” and were aware that Chavez was swearing to a false statement and
“encouraged [him].” Absent from the complaint is any sufficiently pled
agreement to violate the Plaintiffs’ constitutional rights. “A conclusory
allegation of agreement at some unidentified point does not supply facts
adequate to show illegality.” Twombly, 550 U.S. at 557, 127 S. Ct. at 1966.
Regarding bystander liability, this court has held that “an officer who
is present at the scene and does not take reasonable measures to protect a
suspect from another officer’s [constitutional violation] may be liable under
11
We also do not opine on whether, to the extent Chavez and Rogers each relied
on legal advice supplied by D.A. Reyna, they may not have had the mens rea necessary for
a Franks violation.
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section 1983.” Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). The
Plaintiffs allege “that all of the individual Defendants (1) knew that a fellow
officer was violating their rights by arresting them without probable cause;
(2) had a reasonable opportunity to prevent the harm; and (3) chose not to
act.” When first asserting bystander liability in their response to the motion
to dismiss, the Plaintiffs described in two paragraphs the Fifth Circuit case
law and the enumerated elements of the claim, but nothing more. “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678, 129 S. Ct.
at 1949 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1966). The district
court erroneously allowed these claims to proceed.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment denying
qualified immunity to Stroman and Laming is REVERSED and
RENDERED. The judgment denying immunity to Reyna, Chavez and
Rogers is AFFIRMED IN PART as to potential Franks liability but
REVERSED IN PART as to conspiracy and bystander claims, and the case
is REMANDED for further proceedings.
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Stephen A. Higginson, Circuit Judge, concurring in part and
dissenting in part:
I agree with the majority that the Plaintiffs have done enough to
survive the motion to dismiss stage. But I disagree as to the theory on which
they should be permitted to proceed. I therefore respectfully dissent as to
part II.B-C.
In my view, the warrant affidavit at the center of this case has a Malley
defect, not a Franks defect. This court has held that a warrant affidavit that
facially lacks probable cause can’t trigger the Franks analysis. Blake v.
Lambert, 921 F.3d 215, 222 (5th Cir. 2019) (citing Kohler v. Englade, 470 F.3d
1104, 1113-14 (5th Cir. 2006)). That is because if a warrant affidavit lacks
probable cause on its face, any included false statement or omission can’t be
material to the existence of probable cause. Kohler, 470 F.3d at 1113 (“Th[e]
materiality analysis presumes that the warrant affidavit, on its face, supports
a finding of probable cause.”). Thus, a facially deficient affidavit must be
assessed under Malley rather than Franks. Id. at 1113-14.
The majority describes that “the warrant affidavit sufficiently alleged
probable cause to arrest those to whom its facts applied.” Ante at 15 (majority
op.) (emphasis added). But therein lies the problem: the warrant affidavit
does not tell us to whom the facts apply. I see no particularized probable cause
on the face of the challenged warrant affidavit that connects the subject of the
warrant to the crime of EIOCA that is alleged to have occurred.
See Maryland v. Pringle, 540 U.S. 366, 371 (2003) (describing that probable
cause “must be particularized with respect to the person to be searched or
seized” (citation omitted)).
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I agree with much of the majority’s analysis. First, I agree with the
majority that the warrant affidavit, on its face, supplies probable cause to
conclude that unspecified members of the Bandidos and Cossacks committed
EIOCA at the Twin Peaks shootout. See ante at 15 (majority op.). The
affidavit is flush with general facts that describe the involvement of the
Bandidos and Cossacks in the mayhem. However, the only statement in the
affidavit that is specific to the subject of the warrant is the following: “After
the altercation, the subject was apprehended at the scene, while wearing
common identifying distinct signs or symbols.” 1 Second, I further agree with
the majority that this statement alone does not provide particularized
probable cause to arrest any of the Plaintiffs for EIOCA. See id. at 17.
1
This description is a slightly modified copy and paste of the definition of
“criminal street gang” from the Texas penal code. See Tex. Penal Code § 71.01(d)
(“‘Criminal street gang’ means three or more persons having a common identifying sign
or symbol or an identifiable leadership who continuously or regularly associate in the
commission of criminal activities.” (emphasis added)). Note that, in the warrant affidavit,
the word “who” in the statute has been replaced with “or,” rendering the full sentence
grammatically nonsensical. See ante at 8 (majority op.).
Additionally, the warrant affidavit begins as follows:
[O]n or about May 17, 2015, in McLennan County, Texas, the said
_________ did then and there, as a member of a criminal street gang,
commit or conspire to commit murder, capital murder, or aggravated
assault, against the laws of the State.
Id. I understand this initial statement to be a description of the elements of the arresting
offense—EIOCA—rather than a factual statement in support of probable cause. Indeed,
the very next statement in the affidavit reads: “My probable cause for said belief and
accusation is as follows.” Thus, the description of the subject as “a member of a criminal
street gang” is a legal conclusion rather than a factual statement that could form the basis
of a Franks claim.
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Crucially, the affidavit does not describe what “common identifying distinct
signs or symbols” the subject was wearing, or even what group or association
the signs or symbols purportedly identify. There is thus nothing in that
statement that connects the subject to the Bandidos or Cossacks and the
EIOCA that members of those groups were alleged to have committed at the
Twin Peaks.
Given that the above statement is the only particularized statement
about the subject of the warrant on the face of the affidavit, I am unable to
find the particularized probable cause the majority says existed before it
“correct[s]” the affidavit. See id. What materially false statement has been
removed? Has a materially exculpatory fact been inserted that negates pre-
existing probable cause? The majority does not say. If, for example, the
affidavit had said that the subject of the warrant was a member of the
Bandidos or Cossacks (or was wearing their signs and symbols), then that
would be a material statement that Plaintiffs have plausibly alleged to be false.
But there is no such statement. And without such a statement, particularized
probable cause does not exist on the face of the warrant affidavit.
In fairness to the majority, the interlocutory nature of this appeal,
which Defendants-Appellants have brought to challenge the district court’s
denial of qualified immunity with respect to a Franks theory of liability, does
not afford the opportunity to squarely address the district court’s dismissal
of Plaintiffs’ Malley claims, which, in my analysis, was erroneous. Neither
party has briefed the issue of whether this panel could—or should—exercise
pendant appellate jurisdiction over the dismissed Malley claims instead of
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awaiting an appeal on any eventual final judgment. 2 But rather than send this
case back to the district court to have it travel further down a conceptually
flawed road, I would reverse its decision denying qualified immunity on the
Franks theory, leaving the Plaintiffs free to appeal their dismissed Malley
claims in due course.
2
Nevertheless, Plaintiffs-Appellees make clear in their brief to us that they do not
intend to abandon their Malley claims; instead, they await a final judgment to properly
appeal the district court’s dismissal of those claims. I understand the majority opinion to
prefer that this court address the dismissed Malley claims in the first instance via any appeal
following a final judgment.
27