Brown v. Lyford

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-41297

JAMES YORK BROWN,
Plaintiff-Appellant,

versus
ROLAND SCOTT LYFORD; ET AL.,
Defendants,

ROLAND SCOTT LYFORD; ANN GOAR; DEBBIE MINSHEW; BROOKS FLEIG; STEVE
BAGGS; UPSHUR COUNTY, TEXAS,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Texas

February 20, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit
Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is an appeal from a judgment of the district court

granting summary judgment to various defendants in a section 1983

lawsuit. This suit arose from an aborted criminal investigation of

child abuse and murder, presenting claims against arresting

officials including malicious prosecution and false arrest. We

hold that the officer defendants were entitled to qualified

immunity, and that none was a policymaking official for the county

defendant. We AFFIRM the judgment of the district court.

1
 I

In 1990, Ann Goar and Debbie Minshew as employees of the Texas

Department of Protective and Regulatory Services were assigned to

counsel the children of Loretta and Wendell Kerr. The Kerr

children came into foster care upon allegations of sexual abuse

leveled against Wendell Kerr. The counseling later expanded to

include the children of Wanda Geer Hicks, whom Wendell Kerr had

started dating. The Kerr and Hicks children began to tell of being

tortured, molested, and sodomized by their parents, grandparents,

and various strangers, abuse including satanic rituals involving

masks and knives. Their stories related the murder, dismemberment,

post-mortem rape, and cannibalism of babies and children by the

abusing adults. Goar and Minshew recruited two private occult

investigators, Brooks Fleig and Steve Baggs to assist in an

investigation of these accounts by the children. Roland Scott

Lyford was appointed prosecutor pro tem after Upshur County’s

regular district attorney recused himself from the case. Lyford

participated closely in the investigation, and in 1993 at Lyford’s

recommendation the county hired Fleig and Baggs as criminal

investigators.

Child Protective Services criticized the methods of the

investigators in interviewing the Kerr and Hicks children. CPS

particularly criticized the use of a “holding technique,” in which

investigators physically restrained children while they answered

2
questions. CPS also objected to the suggestive nature of the

questions asked by the investigators. Suggestive questions were

asked of both the children and the adult witnesses. An adult,

Wanda Hicks,1 later recanted, explaining that she developed her

story out of the questions investigators put to her. Despite a

grand jury indictment, all charges were ultimately dropped.

Wendell Kerr had a corroborated alibi for the times of the alleged

crimes, and the mishandling of the child witnesses made their

testimony unreliable.

Yet, evidence also pointed in the opposite direction. Medical

examination of the children found genital and anal scarring

consistent with sexual molestation. An adult, Lucas Geer,

confessed to police that he participated in ritualistic child abuse

and child murder, a confession corroborating the stories told by

the Kerr and Hicks children. A search of the Kerr property found

three shallow grave-like depressions in the soil, a shovel with

blood residue on it, an area matching the children’s description of

where the abuses occurred, two devil masks, a blood-stained

mattress cover, and four knives said by the children to have been

used to murder and dismember children. Pursuant to a plea

agreement, two of the charged adults identified items retrieved

from the Kerr household as devices used to restrain and torture

children. Finally, plastic bags were found buried on the Kerr

1
Then named Wanda Kerr due to her marriage.

3
property, containing bone fragments. Before Lyford took his

evidence to the grand jury, the Texas Human Skeletal Identification

Laboratory issued a report stating the remains were most probably

human. Another report from a different laboratory, filed months

after the indictment was issued, concluded that the remains were

not human.

While the defendants were investigating the Kerr case,

Sergeant James Brown was investigating the disappearance of Kelly

Wilson. Wilson was 17 when she was reported missing in Gilmer,

Texas. In 1993, one of the Kerr children, identified as “R.S.,”

claimed that Kelly Wilson had been abducted, raped, and murdered by

the Kerrs. As a result, Brown’s investigation began to overlap

with the investigation being conducted by defendants.

In a conversation between Brown and defendants, Brown said he

had separately investigated the Kerr and Hicks children’s

allegations, and observed that Wendell Kerr, a key suspect, was not

in Texas when Kelly Wilson disappeared. Brown asserts that

defendants viewed his comments as interfering with their

investigation. Lyford told Brown that Lyford was now investigating

the disappearance of Kelly Wilson, that he did not want Brown

interfering, and that if Brown interfered, “we’re going to have a

problem.”

Shortly thereafter, R.S. implicated Brown in the charges of

child abuse and the disappearance of Kelly Wilson. He stated that

the police would not help, that they were also “bad,” and described

4
in general terms a person resembling Brown as having participated

in the abuse. Later, Connie Martin – one of the adults involved -

also implicated Brown by name. At the same time, the case against

Brown had problems. Wanda Kerr was unable to identify Brown in a

photo lineup. The narratives told by witnesses other than R.S.

never mentioned Brown.

Lyford took this evidence to the Upshur County Grand Jury,

which indicted the alleged abusers, including Brown. Brown was

arrested and spent six days in jail. As we explained, charges were

later dropped. Considerable media coverage surrounded these

events. The Kerrs sued under section 1983. The district court

dismissed on immunity grounds. We affirmed in Kerr v. Lyford.2

This case concerns largely the same events, but is Brown’s lawsuit

rather than the Kerrs’s. In his original complaint, Brown asserted

a broad range of constitutional violations,3 as well as a variety

of state law claims.4 In rendering judgment, the district court

read Brown’s complaint to invoke federal constitutional rights to

2
171 F.3d 330 (5th Cir. 1999).
3
Specifically, Brown claimed to have been deprived of the the
right not to be falsely accused of capital murder, the right not to
be falsely arrested, the right not to be subjected to unlawful
searches and seizures, the right not to be deprived of liberty
without due process of law, the right not to be deprived of
property without due process of law, the right of equal protection
of law, and the right of privacy.
4
Those were malicious prosecution, intentional infliction of
emotional distress, negligence, gross negligence, and civil
conspiracy.

5
be free from unreasonable seizure, false arrest, false

imprisonment, and malicious prosecution, a reading Brown does not

challenge. The district court held that Goar, Minshew, Fleig, and

Baggs were entitled to qualified immunity, Lyford to absolute

immunity, and all were entitled to summary judgment. It granted

summary judgment to Upshur County. Brown appeals.

II

To overcome the qualified immunity of government officials,

Brown must show 1) a constitutional violation; 2) of a right

clearly established at the time the violation occurred; and 3) that

the defendant actually engaged in conduct that violated the clearly

established right.5

To date, the Fifth Circuit accepts that malicious prosecution

can deprive a person of constitutional rights. This

“constitutional tort” has seven elements:

1. criminal action commenced against the plaintiffs;

2. that the prosecution was caused by the defendants or with

their aid;

3. that the action terminated in the plaintiffs’ favor;

4. that the plaintiffs were innocent;

5. that the defendants acted without probable cause;

5
Kerr, 171 F.3d at 339.

6
 6. that the defendants acted with malice; and

7. that the criminal proceeding damaged the plaintiffs.6

The “constitutional torts” of false arrest, unreasonable seizure,

and false imprisonment also require a showing of no probable

cause.7

These defendants have qualified immunity if they had probable

cause to believe that Brown committed a crime. “For purposes of

malicious prosecution, probable cause means ‘the existence of such

facts and circumstances as would excite the belief, in a reasonable

mind, acting on the facts within the knowledge of the prosecutor,

that the person charged was guilty of the crime for which he was

prosecuted.’”8

Brown points to the statements of three witnesses in the

summary judgment record as establishing the absence of probable

cause. First, Shane Phelps, the assistant Attorney General who

took over from Lyford, stated in an affidavit that “the evidence

6
Kerr, 171 F.3d at 340.
7
See, e.g., Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir.
2000) (holding that qualified immunity protects government
officials from a charge of wrongful arrest where a reasonable
official would believe probable cause was present); Thomas v.
Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988) (“Claims of false
arrest, false imprisonment, and malicious prosecution involve the
guarantees of the fourth and fourteenth amendments when the
individual complains of an arrest, detention, and prosecution
without probable cause.”).
8
Kerr, 171 F.3d at 340 (quoting Moore v. McDonald, 30 F.3d
616, 620 n.2 (5th Cir. 1994)).

7
supporting the indictment of Sgt. Brown was fatally deficient and

did not even rise to the level of probable cause.” Second, Dr.

Richard Ault, an expert retained by Brown, expressed in an

affidavit his opinion that the methods used in interviewing the

various witnesses were excessively coercive, such that the

statements of those witness could not “produce objective

information that a reasonable law enforcement officer could use in

the course of” an investigation. Third, Dr. Bruce Perry, an expert

testifying as part of a later grand jury investigation reviewing

Lyford’s investigation, said that both the adult and child

witnesses came from abusive homes and were therefore prone to

reading a questioner’s face and saying what they thought the

questioner wanted to hear, in order to protect themselves from

abuse. Perry also expressed his opinion that the interviewing

techniques used were highly coercive and suggestive.

A plaintiff must clear a significant hurdle to defeat

qualified immunity. “[T]here must not even ‘arguably’ be probable

cause for the search and arrest for immunity to be lost.”9 That

is, if a reasonable officer could have concluded that there was

probable cause upon the facts then available to him, qualified

immunity will apply. Defendants point to the following evidence

9
Hart v. O’Brien, 127 F.3d 424, 444 (5th Cir. 1997). Hart
was abrogated by the Supreme Court’s decision in Kalina v.
Fletcher, 522 U.S. 118 (1997), but upon a different issue. Kalina
extended the time during which a prosecutor is absolutely immunized
beyond the time recognized in Hart.

8
that, at least arguably, established probable cause to arrest

Brown. First, R.S. implicated Brown in the disappearance of Kelly

Wilson. Second, Paulette Kerr stated she was afraid of Brown and

that Brown had been dating Kelly Wilson. Third, Connie Martin

implicated Brown in the disappearance of Kelly Wilson and the abuse

of the Kerr children. Fourth, these witnesses were credible

because their stories were consistent with one another and because

physical evidence from the bodies of the Kerr children and the Kerr

property tended to support their stories. Fifth, Brown’s

investigation of the Wilson disappearance contained suspicious

irregularities.

We cannot say that the testimony of several eyewitnesses,

corroborated in some aspects by physical evidence, did not even

arguably create probable cause. Qualified immunity “gives ample

room for mistaken judgements,” by protecting “all but the plainly

incompetent or those who knowingly violate the law.”10 That is the

balance that courts have struck between compensating wronged

individuals for deprivation of constitutional rights and

frustrating officials in discharging their duties for fear of

personal liability.11 While Doctors Ault and Perry raise doubts as

to the credibility of the witnesses in this case, we cannot say

that all reasonable officers should have seen in these witnesses

10
See Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)
(quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).
11
See Shipp v. McMahon, 234 F.3d 907, 915 (5th Cir. 2000).

9
the psychological tendency to confabulate that Ault and Perry saw,

nor can we say that all reasonable officers should have understood

these interviews to be so coercive that the matter should not have

been taken to a grand jury. This is especially true where, as

here, aspects of those statements were corroborated by physical

evidence. We agree with the district court that defendants Goar,

Minshew, Flieg, and Baggs are entitled to qualified immunity.

III

The district court granted Lyford summary judgment on the

grounds that he was absolutely immune from suit as a prosecutor.

Brown contests this reasoning, arguing that Lyford engaged in

actionable investigative activities before donning his

“prosecutor’s hat.” The circuits are divided on the proper

approach to this situation.12 We need not confront that dispute in

this case. The judgment of the district court should be affirmed

if Lyford was, like the other defendants and as he urges to us

also, entitled to qualified immunity.13

12
Compare Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir.
1994) (holding that merely collecting false evidence is not
independently actionable, and the use of such evidence is protected
by absolute immunity), with Zahrey v. Coffey, 221 F.3d 342, 349-55
(2d Cir. 2000) (holding that where the same prosecutor collects
false information and uses it to procure an indictment, the
indictment cannot sever the causal chain and protect the prosecutor
from liability for his investigatory acts).
13
See United States v. Real Prop. Located at 14301 Gateway
Blvd. West, El Paso County, Texas, 123 F.3d 312, 313 (5th Cir.
1997) (“It is well-settled, however, that we will not reverse a
judgment of the district court if it can be affirmed on any ground,

10
 We may properly determine whether Lyford is entitled to

qualified immunity.14 When faced with similar situations, we have

remanded to the district court for a determination of qualified

immunity.15 In this case, however, we have the benefit of the

district court’s determinations as to defendants Goar, Minshew,

Fleig, and Baggs, and the accusations against Lyford track the

accusations against those four defendants. Since qualified

immunity is immunity not only from damages but also from suit

itself, it is to be determined as early as possible.16 It makes

little sense to remand this issue to the district court, because

the outcome is foreordained. The district court has already held

that Goar, Minshew, Fleig, and Baggs are entitled to qualified

regardless of whether the district court articulated the ground.”).
14
See Buckley, 20 F.3d at 793 (“Although qualified immunity
is an affirmative defense . . . no principle forbids a court to
notice that such a defense exists, is bound to be raised, and is
certain to succeed when raised. So much is established for res
judicata and the statute of limitations, two other affirmative
defenses. . . . Defendants inform us that they want the benefit of
qualified immunity. Because this is a legal defense, we would not
defer to the district court’s resolution. Courts should resolve
immunity issues at the earliest possible time, preferably before
allowing discovery. . . . That time is now.”).
15
See Galvan v. Garmon, 710 F.2d 214, 215 (5th Cir. 1983)
(holding that a probation officer was not entitled to absolute
immunity, and remanding for consideration of qualified immunity);
Ryland v. Shapiro, 708 F.2d 967, 975-76 (5th Cir. 1983) (holding
that charges made against prosecutors were outside the scope of
their prosecutorial role and absolute immunity therefore did not
apply; remanding for consideration of qualified immunity).
16
See Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995); Spann
v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993).

11
immunity.

As to his conduct before the grand jury, Lyford was entitled

to absolute immunity. As to his investigatory conduct leading to

the grand jury, he was entitled to the same qualified immunity that

protects Goar, Minshew, Flieg, and Baggs. Lyford is situated

similarly to Goar, Minshew, Flieg, and Baggs, except that he was

the person who brought the case before the grand jury -- an act for

which he receives absolute immunity. Lyford was therefore entitled

to qualified immunity for his investigative acts. Accordingly, the

judgment of the district court as to Lyford is AFFIRMED.

IV

Plaintiff also sued Upshur County, seeking to hold it liable

for the conduct of Fleig and Lyford. Under Monell v. Department of

Social Services,17 a county cannot be held liable under section 1983

on a theory of respondeat superior, but it can be held liable when

conduct depriving a person of constitutional rights was pursuant to

county policy. Brown does not contend that, apart from the role of

Lyford, Upshur County had a policy of charging and arresting

innocent people. Rather he urges that Lyford acted as a

policymaking official. We disagree, and hold Lyford was not a

17
436 U.S. 658, 694 (1978).

12
policymaking official for Upshur County.18

Brown argues that the elected district attorney is a

policymaking official and Lyford as prosecutor pro tem in this case

held all the rights and duties of the elected district attorney.19

Brown concedes that under Esteves v. Brock,20 Lyford was not a

policymaking official for Upshur County when he was acting in his

prosecutorial capacity, because then he was enforcing state rather

than county law. Brown seeks to invoke the exception in Esteves,

permitting Monell liability for those duties of a prosecutor that

are administrative or managerial in nature. Brown misunderstands

the holding of Esteves.

Esteves is clear that a county may only be held liable for

acts of a district attorney when he “functions as a final

policymaker for the county.”21 Thus, for example, a district

18
The district court held that because Fleig and Lyford were
immune, Upshur County was also not subject to suit, citing City of
Los Angeles v. Heller, 475 U.S. 796 , 799 (1986). Heller, however,
held only that if no claim is stated against officials–if plaintiff
does not show any violation of his constitutional rights–then there
exists no liability to pass through to the county. When, however,
a plaintiff states a claim but the official is protected by
qualified immunity, that defense protects only the individual
officer, not the municipality. See, e.g, Babb v. Dorman, 33 F.3d
472, 475 n.5 (5th Cir. 1994). Accordingly, we must reach the
question of whether Lyford was a policymaking official for Upshur
County.
19
Brown does not argue that Fleig was a policymaking official
for Upshur County, and we put him aside.
20
106 F.3d 674 (5th Cir. 1997).
21
106 F.3d at 678.

13
attorney with the final word on hiring or firing within the

district attorney’s office sets county policy regarding those

decisions. That can then support Monell liability for the county.

Here, however, Brown has made no showing that Lyford in some way

beyond his role as a prosecutor pro tem functioned as the final

policymaking authority for Upshur County in the investigation of

the Kerr and Hicks children’s claims. Upshur County officials have

testified that he did not, and there is no contrary evidence. The

sole basis for the contention that Lyford set county policy in his

investigative work was his status as prosecutor pro tem. But

Lyford as prosecutor pro tem stepped only into the shoes of the

elected district attorney for purposes of the case he was appointed

to handle. He did not assume general management of the array of

cases in that office. He was a one case prosecutor. While

Lyford’s authority over his one case was considerable, his charge

was too limited to make him a policymaking authority for the

county. His limited charge is made plain by the fact that he could

not hire or fire for Upshur County. Indeed he could not hire

Brooks and Flieg. He could only recommend that the County do so.

Brown has presented no evidence that Lyford had or exercised

sufficient policymaking authority for Upshur County to warrant the

imposition of Monell liability. The district court did not err in

granting summary judgment to Upshur County.

V

14
The judgment of the district court is AFFIRMED.

15