United States Court of Appeals,
Fifth Circuit.
No. 96-40151.
Peggy Nell HART, Plaintiff-Appellee,
v.
Harold B. O'BRIEN, DPS Officer, et al., Defendants,
Harold B. O'Brien, DPS Officer; Frank Montana, DPS Officer;
C.T. Myrick, Law Enforcement Officer; Carl Motley; Jeff Starnes,
Assistant Lamar County Attorney, Defendants-Appellants.
Nov. 6, 1997.
Appeals from the United States District Court for the Eastern
District of Texas.
Before BARKSDALE, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Various state and county officials searched the home of Peggy
Nell Hart ("Hart"), arrested her, and charged her with possession
of marijuana. She remained in jail more than two weeks. After the
state dismissed the charges, Hart filed suit pursuant to 42 U.S.C.
§ 1983 and state law against Red River County, Texas ("the county")
and a number of the officials involved in the case. These
officials include Jeff Starnes, an assistant county attorney in
Lamar County; Harold O'Brien and Frank Montana, both Texas
Department of Public Safety ("DPS") narcotics officers; and Carl
Motley and Tommy Myrick, who were at the time Red River County
sheriff's deputies (collectively, "the officials"). The county and
the officials then moved for summary judgment, with the county
arguing that it could not be vicariously liable for the actions of
its officials and the officials variously asserting absolute,
1
qualified, and official immunity. The district court granted the
county summary judgment and Myrick summary judgment in part, but
denied the rest of the motions. The officials mount an
interlocutory appeal of the portion of the district court's
judgment dealing with immunity. Finding error as a matter of law,
we reverse the district court's judgment on qualified immunity and
official immunity; we render judgment in favor of all the
officials on the federal claims and in favor of O'Brien and Montana
on the state law claims.
I
In reviewing a district court's denial of a motion for summary
judgment on the grounds of immunity, we must view the facts in the
light most favorable to the nonmovant. Blackwell v. Barton, 34
F.3d 298, 301 (5th Cir.1994).1
Hart and David Conine lived near each other in a rural area of
Red River County. Conine resided in a trailer and Hart in a white
house with black trim and shutters; their homes were separated by
a pasture and partly surrounded by dense woods. However, the
summary judgment evidence also reveals that Hart, at times, spent
the night at Conine's trailer.
On August 11, 1992, the state and county conducted an aerial
survey of the property surrounding the trailer and the white house
with black trim, and they discovered several marijuana patches.
1
Our recitation of facts accepts Hart's evidence and
reasonable inferences from it as true and should not be construed
as expressing any view as to the weight or credibility of her
evidence. Salas v. Carpenter, 980 F.2d 299, 304 n. 3 (5th
Cir.1992).
2
O'Brien was assigned to investigate. O'Brien believed that the
marijuana was growing on land owned or controlled by Conine, and
determined that Conine had been arrested in 1985 for growing
marijuana and operating a methamphetamine laboratory on the same
property. O'Brien, along with Montana and nine police officers,
conducted surveillance on the Conine residence and the surrounding
property for about two weeks. O'Brien and Montana jointly
supervised the operation. The agents ultimately determined that
six marijuana patches existed: three were in a tree line across a
pasture from Hart's home (one being directly across the pasture
from the home), one was near a trash dump southwest of the Hart
residence, one was northeast of the trash dump, and one was amidst
some trees directly behind the Hart home.
The officers saw Hart engage in certain activities (or saw
signs of such activities) that led them to believe she was residing
in Conine's trailer. Hart does not contest that the officers made
the following observations:
! On August 12, Hart stayed overnight at Conine's residence.
! On August 13, Hart and Conine left the property. Upon Hart
and Conine's return the next day, the officers observed them
unloading clothes from Conine's vehicle and taking them into
the trailer.
! Hart spent that night in the trailer.
! Hart stayed at least two other nights in the trailer during
the two-week surveillance period.
! Hart went out to eat occasionally with Conine.
! Hart would feed the animals in and around Conine's barn.
! The officers observed Jerry Benton, a known marijuana
grower, visit the Conine residence. Hart was at the residence
3
during at least some of Benton's visit.
! Conine and Hart drove in the direction of the trash dump,
which is located near one of the marijuana patches. Hart
exited the truck to open the gate to the dump and stayed there
until Conine finished dumping some trash.2
Around August 24, O'Brien and Starnes drafted a search and
arrest warrant and two supporting affidavits, both signed by
O'Brien. The affidavits contained information on the activities
the officers saw. The warrant, as signed by the state district
judge, commands the appropriate law enforcement officers "to enter
the suspected place and premises described in [the attached]
Affidavit and to there search for the property described in said
Affidavit and bring it before me and persons described in said
Affidavit and arrest them and bring them before me." In the first
affidavit, the "property to be searched" included Conine's trailer
and barn, a vacant white-frame house, "a single-family, white frame
residence with black trim and shutters," various outbuildings, and
a number of cars (hereinafter "the property"). Hart lived in the
white house with black trim and shutters, although the affidavit
did not say so. The affidavit did refer to two of the cars "on the
property" as being registered to Hart. The affidavit also noted
2
The officers also assert in affidavits and deposition
testimony that they observed Hart and Conine embrace, Conine
urinate in front of Hart, Hart make breakfast for Conine and
Benton, Hart come out on the porch of the trailer in the morning
wearing a robe, and Conine make "heat runs" (i.e., drive his car in
a certain way to determine if he was being followed) with Hart in
the car. Hart disputes these alleged observations. Because we are
to view the facts in the light most favorable to Hart, Blackwell,
34 F.3d at 301, we will not consider disputed facts in determining
whether the officers had, or reasonably believed that they had,
probable cause to search Hart's home or to arrest her.
4
that the property was controlled by Conine and "[a]n unknown white
female, approx. 5'6" tall with brown hair and medium build." The
affidavit "charges and accuses" Conine and the unknown white female
of possessing marijuana.
The second affidavit contained the facts allegedly supporting
probable cause. This affidavit repeats the information about the
white house with black trim and shutters and the two cars
registered to Hart. The only other reference to Hart is the
following:
During the almost continuous surveillance on Conine's
property, affiant observed Conine enter and leave the property
on numerous occasions. On several of those occasions, Conine
and/or an unknown, white female with light brown hair who is
residing at the mobile home, has stopped by the white frame
house with black trim and shutters, entered the residence and
returned a short time later. The unknown, white female has
been seen by Affiant driving a blue Buick, registered to a
Peggy Hart. Peggy Hart is married to Stanley Hart, who
according to [Drug Task Force ("DTF") ] files, is a known
marihuana cultivator in Red River County, Texas.
This paragraph contains at least two pieces of inaccurate
information. First, Hart did not reside at the mobile home, though
she did stay over on several occasions. Rather, she lived in the
adjacent white frame house with black trim. Second, Hart was not
married to Stanley Hart. Instead, a different Peggy Hart was
married to Stanley Hart. The officers claim that the first piece of
information came from their surveillance of the property. Starnes
admits that he helped prepare the affidavit3 and that he gave the
second piece of information to O'Brien for inclusion in the
3
For simplicity, we will refer to the two affidavits as "the
affidavit."
5
affidavit.
O'Brien swore and subscribed to the affidavit. Based on this
affidavit, a state district judge signed the search and arrest
warrant on August 24. The next day, a team of law enforcement
officers (Motley and Myrick among them), led by O'Brien and
Montana, converged on the property to execute the search and arrest
warrant. Starnes accompanied them. Starnes concedes that, after
he saw Hart, he realized that she was not the Peggy Hart married to
Stanley Hart, and that the affidavit was partially based on
erroneous information. However, he did not attempt to halt the
execution of the warrant.
There was some debate about whether Hart, after being
arrested, should be left behind to care for Conine's animals.
Nonetheless, O'Brien and Montana executed the warrant; they
instructed Myrick to arrest Hart and Motley to take her to jail.
The officers also arrested Conine and took him to jail. During the
search of the property, the officers seized a number of items,
including 1,132 live marijuana plants.4 While executing the search
warrant, the officers found drugs and drug paraphernalia in
Conine's trailer, including two baggies of marijuana, two bongs,
the butt of a marijuana cigarette in an ashtray, firearms,
ammunition, and $19,000 in cash. In addition, officers found
4
Several weeks after Conine's and Hart's arrest, a survey of
the land revealed that the marijuana plants had not been growing on
land owned by Conine (or Hart). Apparently, "Conine was taking
advantage of the isolated nature of the area to grow marihuana on
neighboring tracts of land." United States v. Conine, 33 F.3d 467,
468 (5th Cir.1994).
6
cocaine in Conine's barn and a bag of marijuana seeds inside a shed
adjacent to his property. The only objects seized that have been
identified specifically as Hart's were some personal papers found
in a storage shed on Conine's property. Conine subsequently pled
guilty to a drug charge and is now incarcerated. See generally
United States v. Conine, 33 F.3d 467 (5th Cir.1994).
After Motley took Hart to jail, he filed a criminal complaint
against her, charging her with possession of marijuana with intent
to deliver and writing the words "federal hold" on the document.
According to Motley's deposition testimony, Starnes, O'Brien,
Montana, and Myrick had previously discussed putting Hart on
federal hold, and Motley did so, pursuant to O'Brien's
instructions. Hart was given a hearing before a state magistrate
judge on the charge in the complaint. At the hearing, the
magistrate was supposed to determine, among other things, whether
probable cause existed for further detention and the amount of
bail. The magistrate denied bail. On the charge sheet from the
hearing (which is signed by the magistrate), the phrase " *Bail is
denied" is circled and next to it someone has written "Federal
Hold."
However, no federal official had lodged a federal detainer
against Hart. Motley testified in his deposition that he thought
the "federal hold" was intended to detain Hart long enough to allow
federal Drug Enforcement Agency ("DEA") officers to speak to her.
Apparently, the officers wanted to give federal authorities the
opportunity to intervene in the case before Hart could post bail.
7
The next day, O'Brien filed a superseding complaint against
Hart, charging her with possession of marijuana in an amount
between five and fifty pounds. The magistrate judge conducted a
hearing on the new charge, this time setting bail at $50,000. On
September 11, seventeen days after Hart's arrest, someone posted
bail for her and she was released on bond. Prosecutors
subsequently dismissed the charges against Hart because of
insufficient evidence.
Hart then sued Starnes, O'Brien, Montana, Motley, Myrick, and
Red River County under 42 U.S.C. § 1983, asserting that her arrest
and subsequent incarceration had violated her rights under the
Fourth and Fourteenth Amendments and that the search of her
property violated her rights under the Fourth Amendment. She also
alleged pendent state claims against these defendants for false
imprisonment, malicious prosecution,5 and intentional infliction of
emotional distress. Hart alleges that Starnes and O'Brien inserted
false statements into the affidavit either intentionally or with
reckless disregard for the truth. Hart's theory is that the
officials knew she was not involved in Conine's marijuana
cultivation, but, in order to pressure her into providing evidence
against him, they arrested her, charged her with a drug offense,
detained her without bail for a day, and then did nothing to try to
free her during the two weeks or so she remained jailed.
At this point, it is worth summarizing the officials'
5
Hart did not sue Myrick or the county for malicious
prosecution.
8
involvement in this matter. O'Brien and Montana jointly supervised
the surveillance and search of the property. O'Brien requested the
warrant. O'Brien and Montana instructed the officers to execute
the warrant by arresting Hart and taking her to jail. Myrick did
not participate in the surveillance, but he was involved in the
search of the property and Hart's arrest. After the search, Motley
took Hart to jail and signed the initial criminal complaint against
her, writing "federal hold" on it. O'Brien signed a new criminal
complaint against Hart the next day. Starnes advised the officers
during the investigation, assisted O'Brien in the preparation of
the warrant application, and was present during the execution of
the warrant.
Starnes, Motley, Myrick, and Red River County moved for
summary judgment on various grounds. In particular, Starnes
asserted absolute and qualified immunity against the federal claims
and Motley and Myrick claimed qualified immunity against the
federal claims. Also, O'Brien and Montana moved for summary
judgment, professing that they were qualifiedly immune against the
federal claims and officially immune against the state ones. After
Hart filed her response to the summary judgment motions, O'Brien
and Montana filed an "objection" to certain evidence that Hart
submitted in response to their particular motion.
The district court then (1) granted the county summary
judgment; (2) granted Myrick summary judgment based on qualified
immunity on the federal claims and as a matter of law on the
intentional infliction of emotional distress claim; (3) denied the
9
remaining motions for summary judgment; and (4) dismissed the
objection to certain of Hart's evidence as moot.
In this interlocutory appeal, all the officials assert that
the district court erred in denying their motions for summary
judgment on the grounds of immunity; Starnes asserts that he has
absolute or qualified immunity, and O'Brien, Motley, Montana, and
Myrick aver that they have qualified and official immunity. In
addition, O'Brien and Montana argue that the district court erred
in refusing to strike certain evidence Hart submitted in opposition
to their summary judgment motion.
Hart disputes these contentions. She also maintains that we
do not have jurisdiction over the interlocutory appeal.
II
We review de novo the denial of a motion for summary judgment
on the grounds of qualified or absolute immunity. Nerren v.
Livingston Police Dep't, 86 F.3d 469, 470 & n. 1 (5th Cir.1996).
In doing so, we employ the same criteria as the district court, and
construe all facts and inferences in the light most favorable to
the nonmoving party. Id.; LeJeune v. Shell Oil Co., 950 F.2d 267,
268 (5th Cir.1992). Summary judgment is appropriate where the
moving party establishes that "there is no genuine issue of
material fact and that [it] is entitled to a judgment as a matter
of law." Fed.R.Civ.P. 56(c). The moving party must show that, if
the evidentiary material of record were reduced to admissible
evidence in court, it would be insufficient to permit the nonmoving
party to carry its burden of proof. Celotex v. Catrett, 477 U.S.
10
317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).
Once the moving party has carried its burden under Rule 56,
"its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). The
opposing party must set forth specific facts showing a genuine
issue for trial and may not rest upon the mere allegations or
denials of its pleadings. Fed.R.Civ.P. 56(e); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d
202 (1986).
III
We must first examine the basis of our jurisdiction. Mosley
v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). A court of appeals has
jurisdiction of appeals from all final district court decisions.
28 U.S.C. § 1291. Under the collateral order doctrine, however,
interlocutory appeals from district court orders denying summary
judgment on the basis of absolute or qualified immunity may be
immediately appealed, assuming these orders are based on an issue
of law. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806,
2816, 86 L.Ed.2d 411 (1985).
Recently, the Supreme Court clarified the scope of Mitchell.
In Johnson v. Jones, 515 U.S. 304, 312, 115 S.Ct. 2151, 2156, 132
L.Ed.2d 238 (1995), the Court distinguished between orders that
resolve legal wrangles and those that determine "evidence
sufficiency" disputes. If, for example, the district court denies
11
summary judgment on the basis that, given the set of undisputed
facts, the defendant official's conduct was not objectively
reasonable in light of clearly established law, the official may
seek immediate appeal. If the district court denies summary
judgment on the grounds that material facts exist which a party may
or may not be able to prove at trial, the official must await final
judgment before appealing. Id.
In Behrens v. Pelletier, --- U.S. ----, ----, 116 S.Ct. 834,
842, 133 L.Ed.2d 773 (1996), the Supreme Court interpreted its
holding in Johnson. It emphasized that Johnson did not stand for
the proposition that a party must delay an appeal until final
judgment if the district court based summary judgment on an
evidence sufficiency determination, i.e., if the court determined
that "material issues of fact remained." If that were true, then
a party could never appeal a denial of summary judgment. Rather,
the Behrens court ruled, Johnson merely held that:
determinations of evidentiary sufficiency at summary judgment
are not immediately appealable merely because they happen to
arise in a qualified-immunity case; if what is at issue in
the sufficiency determination is nothing more than whether the
evidence could support a finding that particular conduct
occurred, the question decided is not truly "separable" from
the plaintiff's claim, and hence there is no "final decision"
under ... Mitchell.
Id. --- U.S. at ----, 116 S.Ct. at 842.6
6
In Johnson, the defendant officers claimed that they did not
beat the plaintiff and were not present while others beat him. The
district court determined that a triable issue existed on that
point, and denied summary judgment in favor of the officers. The
Supreme Court ruled that this denial could not be appealed until
final judgment.
In Behrens, the defendant was a supervisory agent of the
12
In the instant case, the district court did not deny summary
judgment because there is a genuine dispute of material fact that
the officials are responsible for searching Hart's home, arresting
her, and not taking any action to end her detention. The parties
did not disagree over whether the officials had engaged in such
conduct. Rather, the court denied summary judgment because (1)
"disputed issues of material fact" existed over whether the
officials violated Hart's clearly established constitutional rights
of which a reasonable person would have known under Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983), and similar cases and (2) the underlying facts are too
unsettled to determine if the officials acted with objective
reasonableness. In short, the district court determined that there
were sufficient uncontested facts to establish that the officers
engaged in the conduct in question, but that there were
insufficient uncontested facts to decide whether the officials
enjoyed immunity as a matter of law. Hence, the officials may
argue on interlocutory appeal (as they do here) that, contrary to
the district court's judgment, enough uncontested facts exist to
determine that they are immune as a matter of law and that, on the
Federal Home Loan Bank Board and responsible for monitoring the
operations of a thrift. The defendant wrote the thrift, suggesting
that it replace its managing officer, the plaintiff in the action.
The thrift then asked the plaintiff to resign; when he refused, it
fired him. The defendant did not dispute his actions. Rather, he
moved for summary judgment, contending that he had not violated any
of the plaintiff's clearly established rights regarding his
employment. The district court denied the motion. The Supreme
Court held that this denial could be immediately appealed.
13
basis of these facts, they are immune. Behrens, --- U.S. at ----,
116 S.Ct. at 842; Coleman v. Houston Indep. Sch. Dist., 113 F.3d
528, 531 (5th Cir.1997).
Accordingly, under Mitchell, Johnson, and Behrens, we have
jurisdiction over the officials' interlocutory appeal of the
district court's denial of summary judgment on the grounds of
immunity for Hart's section 1983 claims. This means that we also
have jurisdiction over the officials' appeal of denial of summary
judgment on the grounds of immunity for Hart's state claims. Cantu
v. Rocha, 77 F.3d 795, 803-04 (5th Cir.1996).
IV
O'Brien and Montana filed an "objection" to certain evidence
that Hart submitted in response to their summary judgment motion.
Specifically, they allege (1) that statements made in connection
with the "federal hold" are inadmissible under Rules 602 and 802 of
the Federal Rules of Evidence and (2) that a statement made by
Motley regarding the alleged motivation for arresting Hart is
inadmissible under Rule 602 and in violation of Rule 56(e) of the
Federal Rules of Civil Procedure.7 The district court held that
"[b]ecause the disposition of defendant's motion for summary
judgment does not turn in any way on the consideration of the
disputed evidence, the motion to strike is denied as moot."
7
Rule 602 provides that "[a] witness may not testify to a
matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter."
Rule 802 forbids inadmissible hearsay. Rule 56(e) requires
affidavits to be "made on personal knowledge [and to] set forth
such facts as would be admissible in evidence...."
14
Defendants, however, assert that the district court nevertheless
considered both pieces of evidence in denying their motion and
allege that the court erred in refusing to strike the evidence from
the summary judgment record. While we review the district court's
denial of summary judgment on grounds of immunity de novo, we
review evidentiary rulings for manifest error. Allen v.
Pennsylvania Engineering Corp., 102 F.3d 194, 195 (5th Cir.1996).
A
Hart testified in her deposition that her neighbor had told
Hart that, on the first day of Hart's detention, the neighbor had
attempted to arrange for a bail bondsman to bail her out of jail.
In addition, Hart testified that Shelly Dodson, a trustee at the
Red River County jail, had told her that someone at the jail had
informed the bail bondsman that Hart could not be released because
of the federal hold. Hart did not offer affidavits or deposition
testimony from either her neighbor, Dodson, or the bail bondsman in
opposition to defendants' summary judgment motion.
O'Brien and Montana assert that this evidence is inadmissible
hearsay. Moreover, they assert that, even though the district court
disavowed any reliance on Hart's testimony, the court nonetheless
considered the evidence. In support of their assertion, they cite
the following statement by the court: "The plaintiff ... contends
that her bail was denied because Motley ... falsely told the
justice of the peace that a "federal hold' had been placed on
Hart's property." However, this statement is not a finding of the
district court; it is merely a statement of Hart's claim and
15
theory of the case. Moreover, the district court explicitly set
forth the evidence it considered in support of Hart's
theory—undisputed evidence that the words "bail denied federal
hold" appear on the criminal complaint signed by Motley and the
fact, also undisputed by the parties, that there is no such thing
as a "federal hold." The court nowhere mentions the challenged
hearsay testimony. We therefore find that the district court did
not rely on Hart's testimony, even though it did not explicitly
strike the evidence from the summary judgment record.
However, insofar as Hart's testimony is relevant to our de
novo review of defendants' summary judgment motion, we decline to
consider it. Hart's testimony concerning what Dodson told her
about what a third-party said to a bail bondsman is inadmissible
double hearsay under Fed.R.Evid. 801 and 802 and does not otherwise
fall within an exception to the hearsay rule.
B
O'Brien and Montana next challenge the following statement
offered by Hart in her brief in opposition to summary judgment:
"Defendant Former Deputy Motley admits that he may have thought
that Plaintiff Hart was taken to jail in an effort to get her to
testify against Mr. Conine. In fact, he states that today he might
believe that intent was the motivating force behind the decision to
have Plaintiff Hart arrested and carried to jail." In her response
to the summary judgment motion, Hart cites to the following
exchange from Motley's deposition:
Q: Is it your view that Ms. Hart was taken to jail, and that you
were told to take her to jail, in an effort to get her to
16
testify on Conine?
A: No.
Q: Have you ever told anybody that?
A: No.
...
Q: In fact, isn't it your view that the motivating force behind the
decision to have Ms. Hart arrested and carried to jail was to
get her to testify against Conine?
A: No.
...
Q: Well, you don't remember believing that?
A: I might think that today.
Q: Okay. Well, that's what I'm trying to find out.
A: It wasn't my case. All I did was transport her.
O'Brien and Montana argue that Motley's statement concerning the
other officers' motivation in arresting her is speculative and
inadmissible under Fed.R.Evid. 602.
The officers assert that the district court relied on this
evidence by pointing to the following statement by the district
court: "Hart's theory of events is essentially that the defendants
knew she was not guilty of any illegal activity, but arrested her,
filed criminal charges against her, and held her in jail without
bail in order to pressure her into providing incriminating
information about Conine." Once again, the district court
explicitly set forth the evidence it considered with respect to
Hart's theory: evidence that Montana told her "Your ass is in
trouble, you better sing like a bird," Hart's testimony that Motley
17
told her several days after her arrest that he thought she was
innocent, and Motley's deposition testimony that he does not recall
making such a statement to Hart. The district court did not mention
the challenged evidence.
The officers argue that the district court nonetheless relied
on the challenged evidence when it determined that "making all
inferences in the plaintiff's favor, ... Motley signed a criminal
complaint against Hart when he knew she had committed no crime."
However, this conclusion is supported by the evidence upon which
the district court explicitly stated that it would rely—that is,
Hart's testimony that Motley told her he thought she was innocent.
We find no evidence that the district court relied on the
challenged evidence in denying summary judgment.
Furthermore, we decline to consider Motley's deposition
testimony concerning the motivation of the other officers in our de
novo review of the summary judgment evidence. Under Rule 602, lay
witnesses may offer opinion testimony about matters of which they
have personal knowledge. See Fed.R.Evid. 602. This may include
the motivation or intent of another person, if the witness has an
adequate basis for his or her opinion, such as personal knowledge
or an opportunity to observe the surrounding circumstances.
Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461,
1466-67 (5th Cir.), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107
L.Ed.2d 89 (1989) (allowing lay witness, "with some hesitancy," to
testify concerning motivation for plaintiff's employment
termination). See also John Hancock Mut. Life Ins. Co., 585 F.2d
18
1289, 1294 (5th Cir.1978) (allowing witness who observed
altercation first hand to testify to victim's belief that his wife
would never shoot him); Bohannon v. Pegelow, 652 F.2d 729, 732
(7th Cir.1981) (permitting witness who had observed arrest to
testify that she believed arrest was motivated by racial
prejudice).
In this case, however, the court has no means by which to
evaluate the basis for Motley's testimony. Motley did not
participate in the investigation or surveillance, was not present
until the day of the arrest, and did not participate in the
decision to arrest Hart. Motley's deposition testimony does not
reveal whether his current belief is based on observations gathered
at or around the time of the arrest itself. In short, we have no
assurance that Motley has sufficient personal knowledge to draw a
reliable conclusion about the officers' motivations. Therefore, we
find that Motley's testimony is inadmissible under Rules 602 and
701, and we will not consider the evidence in our review of the
district court's denial of summary judgment as to O'Brien and
Montana.8
V
Starnes alleges that the district court mistakenly decided
that he did not have absolute immunity as a matter of law against
8
Motley's opinion may be admitted against him pursuant to
Fed.R.Evid. 801(d)(2) as an admission of a party opponent.
However, as we discuss below, the officers reasonably believed they
had probable cause to detain Hart, and their intent to question her
about Conine does not make the arrest actionable under section
1983.
19
Hart's federal claims. In making this determination, the district
court found that Starnes' "primary role was as a legal advisor to
the officers conducting the investigation and executing the
search." Starnes disputes this finding. We review denial of
summary judgment de novo. Coleman v. Houston Indep. Sch. Dist.,
113 F.3d 528, 533 (5th Cir.1997). In determining whether a genuine
issue of material fact remains on this point, we do not review
whether the evidence "could support a finding that particular
conduct occurred," Behrens, --- U.S. at ----, 116 S.Ct. at 842, but
we may "take, as given, the facts that the district court assumed
when it denied summary judgment" and determine whether those facts
state a claim under clearly established law. Cantu v. Rocha, 77
F.3d 795, 803 (5th Cir.1996).
We normally look to state law to determine the lawfulness of
an arrest by a state officer for a state offense. Michigan v.
DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343
(1979); Ker v. California, 374 U.S. 23, 37-38, 83 S.Ct. 1623,
1632, 10 L.Ed.2d 726 (1963) (plurality). However, in a section
1983 action, a plaintiff alleging unlawful search and arrest by
state officers asserts that he was deprived of rights secured by
the federal constitution or federal statute. Therefore, state law
governing searches and arrests does not control. Fields v. City of
S. Houston, 922 F.2d 1183, 1189-90 & n. 7 (5th Cir.1991).
The Supreme Court has adopted a "functional approach" to the
question of absolute immunity, one that looks to "the nature of the
function performed, not the identity of the actor who performed
20
it." Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47
L.Ed.2d 128 (1976). A prosecutor is absolutely immune for
initiating and pursuing a criminal prosecution. Specifically, a
prosecutor is absolutely immune when he acts in his "role as
advocate for the State," Burns v. Reed, 500 U.S. 478, 491, 111
S.Ct. 1934, 1942, 114 L.Ed.2d 547 (1991) (internal quotation marks
omitted), or when his conduct is "intimately associated with the
judicial phase of the criminal process." Id. at 492, 111 S.Ct. at
1942 (internal quotation marks omitted). However, a prosecutor
does not enjoy absolute immunity for acts of investigation or
administration. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113
S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993).
A prosecutor has the burden of establishing that he was an
"advocate" for each function at issue. See Burns, 500 U.S. at 486,
111 S.Ct. at 1939; see also Buckley, 509 U.S. at 274, 113 S.Ct. at
2616 ("The question ... is whether the prosecutors have carried
their burden of establishing that they were functioning as
"advocates' when they were endeavoring to determine whether the
bootprint at the scene of the crime had been made by petitioner's
foot."). Even if a prosecutor fails to show absolute immunity for
a given activity, he may still show qualified immunity. Buckley,
509 U.S. at 273, 113 S.Ct. at 2615-16.
Hart premises her claims against Starnes on four arguments.
First, she alleges that Starnes knowingly or recklessly provided
the false information in the warrant affidavit that Hart was
married to Stanley Hart, a known drug cultivator. Second, she
21
asserts that Starnes allowed the search and arrest to continue when
he knew that the affidavit described the wrong Peggy Hart. Third,
she avers that Starnes participated in the decision to place a
federal hold on Hart. Fourth, she claims that Starnes went with
O'Brien to visit Hart in jail to coerce her into providing
information for the case against Conine.
A
Hart's first argument pertains to Starnes' function of
providing information for inclusion in an affidavit supporting a
warrant. With this function, Starnes acted as a legal adviser to
the officers and, much like the officers who participated in the
surveillance, an investigator. A prosecutor is not absolutely
immune for giving legal advice to the police, Burns, 500 U.S. at
496, 111 S.Ct. at 1945, and a prosecutor who acts in the role of a
policeman is liable like a policeman if, in so acting, he deprives
a plaintiff of rights under the Constitution or federal laws.
Joseph v. Patterson, 795 F.2d 549, 556 (6th Cir.1986), cert.
denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987).
Moreover, "[a] prosecutor neither is, nor should consider himself
to be, an advocate before he has probable cause to have anyone
arrested." Buckley, 509 U.S. at 274, 113 S.Ct. at 2616. In short,
until charges have been filed against an individual, a prosecutor
is not absolutely immune for cooperating with law enforcement
officers in obtaining a search warrant against that person based on
false information. See Guerro v. Mulhearn, 498 F.2d 1249, 1256
(1st Cir.1974) (ruling that prosecutor did not have absolute
22
immunity where defendant alleged that prosecutor had cooperated
with police defendants in obtaining a search warrant based on
perjured testimony); see also Barr v. Abrams, 810 F.2d 358, 361-62
(2d Cir.1987) (ruling that prosecutors were absolutely immune for
filing criminal information charging plaintiff with contempt and
then applying to court for arrest warrant on that charge);
McSurely v. McClellan, 697 F.2d 309, 320 (D.C.Cir.1982) (holding
that prosecutor was only protected by qualified immunity for
preparing pre-indictment search and arrest warrants). Therefore,
Starnes does not enjoy absolute immunity from liability arising out
of the inaccurate information in the affidavit.
B
Hart's second argument deals with the "function" of
preventing an arrest during the execution of a warrant after
realizing that information in the affidavit supporting the warrant
was inaccurate. "[A] prosecutor who assists, directs or otherwise
participates with, the police in obtaining evidence prior to an
indictment undoubtedly is functioning more in his investigative
capacity than in his quasi-judicial capacities of deciding which
suits to bring and ... conducting them in court," and is thus only
entitled to qualified immunity. Marrero v. City of Hialeah, 625
F.2d 499, 505 (5th Cir.1980) (citation and internal quotations
omitted), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d
337 (1981); see also Buckley, 509 U.S. at 274, 113 S.Ct. at 2616
(noting that a prosecutor is not absolutely immune for planning and
executing a raid on a suspected weapons cache).
23
However, Starnes may also enjoy absolute immunity under Mays
v. Sudderth, 97 F.3d 107 (5th Cir.1996), for his refusal to prevent
the search of Hart's home and her arrest during the execution of
the warrant. In Mays, we held that "an official acting within the
scope of his authority is absolutely immune from a suit for damages
to the extent that the cause of action arises from his compliance
with a facially valid judicial order issued by a court acting
within its jurisdiction." Id. at 113. In reaching this
conclusion, we determined that the common law provided officials
with such immunity at the time 42 U.S.C. § 1983 was enacted in
1871. See Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894,
2912, 57 L.Ed.2d 895 (1978) (holding that to determine if
government official is absolutely immune, court must undertake a
considered inquiry into the immunity historically accorded the
relevant official at common law and the interests behind it). We
relied heavily on a Supreme Court decision, Erskine v. Hohnbach, 81
U.S. (14 Wall.) 613, 20 L.Ed. 745 (1871), which referred to
absolute immunity for "ministerial officers acting in obedience to
process, or orders issued to them by tribunals or officers invested
by law with authority to pass upon and determine particular facts,
and render judgment thereon...." Id. at 616.
In the instant case, the magistrate ordered that the search
and arrest warrant be carried out by "the Sheriff or any Peace
Officer of Lamar County, Texas or any Peace Officer of the State of
Texas." Starnes is not a sheriff or peace officer of Lamar County
or the State of Texas, and is not otherwise mentioned in the
24
warrant. See Tex. Penal Code Ann. § 1.07(a)(36) (defining "peace
officer"); Tex.Code Crim. Proc. Ann. art. 2.12 (same); Tex.Code
Crim. Pro. Ann. art. 15.01 ("A "warrant of arrest' is a written
order from a magistrate directed to a peace officer or some other
person specially named, commanding him to take the body of the
person accused of an offense...."); Deltenre v. State, 808 S.W.2d
97 (Tex.Crim.App.1991) (discussing statutes). While Starnes was
present during the search of Hart's property and her arrest, he was
not acting in obedience to the magistrate's commands in the search
and arrest warrant; the warrant was not even addressed to him.
Thus, since Starnes was not "comply[ing]" with the warrant, he may
not be "clothe[d] ... with the absolute judicial immunity enjoyed
by the judge issuing the order." Mays, 97 F.3d at 108. He
participated in the search and seizure at the peril of receiving
only qualified immunity.9
9
This conclusion not only accords with our earlier decision in
Marrero, but also with those of other circuits which have addressed
the issue. See Hummel-Jones v. Strope, 25 F.3d 647, 653 & n. 10
(8th Cir.1993) (analyzing prosecutor's liability for participation
in unreasonable search of birthing clinic under qualified
immunity); Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir.1990)
(ruling that allegations suggesting that prosecutor may have
participated in executing arrest were not covered by absolute
immunity); Mullinax v. McElhenney, 817 F.2d 711, 715 (11th
Cir.1987) (holding that prosecutors were only qualifiedly immune
for their involvement in raid on jail cell); Joseph, 795 F.2d at
556 (holding that "we have no doubt" that prosecutor's
participation in search with police of defendant's store that went
beyond scope of warrant was not subject to absolute
immunity);McSurely, 697 F.2d at 319-20 (holding that prosecutor was
only entitled to qualified immunity for participating in raid);
Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978) (holding that
prosecutors who helped implement wiretap were not absolutely
immune), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298
(1979); Hampton v. City of Chicago, 484 F.2d 602, 609 (7th
Cir.1973) (holding that prosecutor, who allegedly participated in
25
C
Hart's third contention deals with the function of
recommending the denial of bail. This function is intimately
associated with the judicial phase of the criminal process, and
deals with the initiation and pursuit of criminal prosecution. In
carrying it out, a prosecutor is acting as an advocate, rather than
as an investigator or administrator, and enjoys absolute immunity
against any claims arising out of this function. See Lerwill v.
Joslin, 712 F.2d 435, 438 (10th Cir.1983) (stating that "a
prosecutor's advocacy of a given amount of bail" is entitled to
absolute immunity).
D
Finally, Starnes suggests that he is absolutely immune with
regard to Hart's claim that he visited her in jail to pressure her
to provide information against Conine. However, there is no
dispute that, at the time of the visit, ample probable cause
existed to arrest and detain Conine. Therefore, assuming Hart's
characterization of the visit is correct, Starnes was simply
attempting to gather information relevant to his prosecution of
Conine. Accordingly, Starnes was acting as an advocate and is
absolutely immune from Hart's claim here. See Hill v. City of New
the planning and execution of a purportedly illegal raid on
apartment, did not warrant absolute immunity any more than the
police officers allegedly acting under his direction), cert.
denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974); cf.
Pachaly v. City of Lynchburg, 897 F.2d 723, 727 (4th Cir.1990)
(finding that prosecutor was absolutely immune for participating in
an allegedly illegal post-indictment search that the prosecutor
asserted was necessary to obtain evidence to prosecute the
indictment).
26
York, 45 F.3d 653, 662-63 (2d Cir.1995) (noting that prosecutor's
interview of witness who allegedly made inculpatory statements
about accused would only be investigatory function if prosecutor
lacked probable cause to arrest accused and results of interview
contributed to his finding of probable cause).
In sum, we find that Starnes is not absolutely immune for
allegedly providing inaccurate information for the warrant
affidavit, nor for allowing the search and arrest to continue when
he knew that the affidavit described a different Peggy Hart;
however, we find that he is absolutely immune from the claims that
he participated in the decision to place Hart on federal hold and
that he tried to coerce Hart into providing information about
Conine. As to Hart's first two arguments, Starnes argues that he
is immune from suit because of qualified immunity. We consider
this claim in our discussion of the qualified immunity claims of
the police officers in the next section.
VI
All the officials, including Starnes, aver that the district
court erred in not granting them summary judgment on the grounds of
qualified immunity against Hart's federal claims. Generally
speaking, qualified immunity protects government officials
performing discretionary functions from civil liability under
federal law unless their conduct violates a "clearly established
[federal] statutory or constitutional right[ ] of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A
27
plaintiff must show that "when the defendant acted, the law
established the contours of a right so clearly that a reasonable
official would have understood his acts were unlawful." Anderson
v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d
523 (1987). In evaluating an immunity defense to a constitutional
claim, the court must first determine whether the plaintiff has
alleged the violation of a constitutional right at all. Siegert v.
Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277
(1991). We now examine in turn whether O'Brien, Montana, Motley,
and Starnes enjoy qualified immunity.
A
Hart argues that O'Brien violated her Fourth Amendment rights
in four different ways, and that he is not entitled to qualified
immunity for any of them. First, he submitted the affidavit with
the two inaccurate statements to the magistrate and requested the
warrant without probable cause; second, he made the original
decision to detain Hart; third, he placed Hart on "federal hold;"
fourth, he permitted Hart to remain in jail even though he knew
that there had not been probable cause to arrest her.
1
Hart contends that O'Brien violated her Fourth Amendment
rights by submitting an affidavit to the magistrate without
probable cause. Subsumed in the qualified immunity inquiry are two
other questions involving the reasonableness, if any, of O'Brien's
use of the inaccurate statements without further investigation. We
will first consider whether O'Brien is immune for including the
28
inaccurate statements in the affidavit of probable cause. Then we
will consider whether he is immune from Hart's claim that he swore
to an affidavit and conducted a search without sufficient facts to
show probable cause.
Under Siegert, we must consider at the threshold whether Hart
even alleges a Fourth Amendment violation with regard to the false
information claims. 500 U.S. at 232, 111 S.Ct. at 1793. The
Supreme Court in Franks v. Delaware established that an officer is
liable for swearing to false information in an affidavit in support
of a search warrant, provided that: (1) the affiant knew the
information was false or would have known it was false except for
the affiant's reckless disregard for the truth; and (2) the
warrant would not establish probable cause without the false
information. 438 U.S. at 171, 98 S.Ct. at 2684. Allegations of
negligence or innocent mistake are insufficient. Id. Therefore
Hart's claim that O'Brien was at least reckless in including the
inaccurate statements states a valid cause of action under the
Fourth Amendment.
Next, we will consider whether O'Brien's sworn statement that
Hart lived in Conine's trailer was knowingly false or reckless.
O'Brien argues that, based on the surveillance observations,
reasonable police officers would agree with the conclusion that
Hart was residing in the trailer. Indeed, the officers saw that
Hart spent a great deal of time with Conine during the surveillance
period. The undisputed facts establish that she went on a trip out
of town with Conine and was observed upon her return carrying
29
clothing from the car into the trailer; she was in the trailer at
least part of the time during the visit of a known marijuana
grower; she performed certain domestic chores in and around the
trailer; and she stayed overnight in the trailer at least four
times. O'Brien stated in the affidavit for probable cause that the
property had been under almost continuous surveillance during the
two weeks in question; therefore it is reasonable to assume that
Hart spent the other nights during the two-week surveillance away
from the trailer.
Hart said that she lived in the white house with black trim
during this time. However, since Hart did not own the house, even
a reasonable investigation into property records would not have
established that Hart lived there. Hart later testified that she
did not hold title to the house or surrounding property; she was
living there by herself with permission of the owner. More
importantly, there is evidence suggesting that a reasonable police
officer may have thought that Hart had established a second
residence in Conine's trailer. See United States v. Risse, 83 F.3d
212, 216 (8th Cir.1996) (rejecting defendant's argument that
because officers knew defendant had other residence, they could not
have reasonably believed defendant lived at premises searched;
"[w]e have found no authority ... that a person can have only one
residence for Fourth Amendment purposes."); Washington v. Simpson,
806 F.2d 192, 196 (8th Cir.1986) (finding that suspect "resided" at
the house, for purposes of entering premises to execute arrest
warrant, when she stayed there two to four nights per week, kept
30
certain personal belongings there, and gave that address as
residence when booked by police).
We are confident that a reasonably competent officer in
O'Brien's position would conclude that Hart resided at the trailer.
O'Brien's conclusion was not knowingly inaccurate, and although it
was not ineluctable from what he observed, its inclusion in the
affidavit was not reckless. Therefore, qualified immunity will
protect O'Brien from suit on the basis of this inaccuracy in the
affidavit. Franks, 438 U.S. at 171, 98 S.Ct. at 2684.
Second, we consider whether O'Brien reasonably relied on
Starnes's statement that plaintiff Hart was married to known drug
cultivator Stanley Hart. As an initial matter we note that the
statement that "Peggy Hart is married to Stanley Hart, who
according to DTF files, is a known marihuana cultivator in Red
River County, Texas" is technically "true." A Peggy Hart was
married to Stanley Hart. However, it would be absurd to wrest this
sentence out of the context of the affidavit. We must interpret
affidavits for arrest or search warrants in a commonsense and
realistic manner. United States v. Ventresca, 380 U.S. 102, 108,
85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Obviously, this
reference to "Peggy Hart [being] married to Stanley Hart" was
intended to refer to the "Peggy Hart" in whose car the "unknown
white female" was seen driving. And that Peggy Hart (who was also
the "unknown white female") was the plaintiff, Peggy Nell Hart.
It is theoretically possible that O'Brien may have been able
to determine that the statement was inaccurate through additional
31
investigation. For instance, O'Brien had discovered that a couple
of the cars on the property were registered to a Peggy Hart.
Perhaps he may have been able to ascertain from public records that
the Peggy Hart who lived near Conine was a different person than
the Peggy Hart who was married to Stanley Hart. However, the
summary judgment evidence adduces no genuine issue that additional
investigation would have revealed this mistake. In addition, the
information that Hart was married to Stanley Hart was somewhat in
tension with the other information in the affidavit that Hart
resided with Conine; perhaps this information should have prompted
additional investigation. Once again, the summary judgment record
leaves us to speculate whether such additional investigation would
have been fruitful. We have reviewed the summary judgment record
thoroughly, and conclude that there is no genuine issue that a more
extensive investigation would have established that there were two
Peggy Harts.
Moreover, it is uncontested that O'Brien obtained the
information about Hart being married to Stanley Hart from Starnes
after O'Brien had concluded his investigation and as he was
preparing his affidavit. O'Brien testified that, for this reason,
he did not independently investigate the accuracy of the
information. A reasonably competent officer might rely without
investigation on information from a trustworthy source such as a
prosecutor, especially if the prosecutor indicates that the
information comes from law enforcement records. The summary
judgment record contains no indication that O'Brien had reason to
32
believe that there were two Peggy Harts within the county, or that
the Peggy Hart that Starnes knew about (who was linked to a known
marijuana cultivator) was different from the Peggy Hart who owned
the cars seen on the property (who was also linked to a different
known marijuana cultivator).
Under the circumstances, we find that a reasonably competent
police officer would have thought that the statement had sufficient
internal indicia of reliability to be included in the affidavit
without further investigation (though they would have attributed
the statement to Starnes). O'Brien's use of Starnes's statement
may or may not have been negligent, but O'Brien was not reckless in
including it in the affidavit. Therefore he is qualifiedly immune
from suit based on this error in the affidavit. Franks, 438 U.S.
at 171, 98 S.Ct. at 2684.
We turn to the broader issue: whether O'Brien's reasonable
belief that Hart resided at the trailer and was married to a known
marijuana cultivator, coupled with the other evidence, is
sufficient to establish that he reasonably thought that there was
probable cause to search Hart's home and arrest her.
The objective standard of Harlow applies to claims of
unlawful search and arrest such as this, in which the plaintiff
alleges that the officer who requested the warrant intentionally or
recklessly sought an affidavit without probable cause. "Only where
the warrant application is so lacking in indicia of probable cause
as to render official belief in its existence unreasonable, will
the shield of immunity be lost." Malley v. Briggs, 475 U.S. 335,
33
344-45, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986) (citation
omitted); see also Anderson, 483 U.S. at 644-45, 107 S.Ct. at
3041-42 (applying Malley to unconstitutional searches). The
crucial issue "is whether a reasonably well-trained officer in [the
defendant's] position would have known that the affidavit failed to
establish probable cause and that he should not have applied for
the warrant." Malley, 475 U.S. at 345, 106 S.Ct. at 1098. The
officer "will not be immune if, on an objective basis, it is
obvious that no reasonably competent officer would have concluded
that a warrant should issue; but if officers of reasonable
competence could disagree on this issue, immunity should be
recognized." Id. at 341, 106 S.Ct. at 1096. In other words, there
must not even "arguably" be probable cause for the search and
arrest for immunity to be lost. Santiago v. Fenton, 891 F.2d 373,
386 (1st Cir.1989). Probable cause does not require proof beyond
a reasonable doubt, but only a showing of the probability of
criminal activity. United States v. Brown, 941 F.2d 1300, 1302
(5th Cir.), cert. denied, 502 U.S. 1008, 112 S.Ct. 648, 116 L.Ed.2d
665 (1991). A magistrate's findings on the issue of probable cause
are entitled to great deference. Id.
"Probable cause exists when the facts available at the time
of the arrest would support a reasonable person's belief that an
offense has been, or is being, committed and that the individual
arrested is the guilty party." Blackwell, 34 F.3d at 303.
Probable cause may exist even though officers have observed no
unlawful activity and are unaware of the identity of a defendant.
34
United States v. Pentado, 463 F.2d 355, 361 (5th Cir.), cert.
denied, 409 U.S. 1079, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972) and
cert. denied, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973).
"The observation of unusual activity for which there is no
legitimate, logical explanation can be the basis for probable
cause." United States v. Alexander, 559 F.2d 1339, 1343 (5th
Cir.1977), cert. denied, 434 U.S. 1078, 98 S.Ct. 1271, 55 L.Ed.2d
785 (1978).
However, "a person's mere propinquity to others independently
suspected of criminal activity does not, without more, give rise to
probable cause to search that person." Ybarra v. Illinois, 444
U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (citing
Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20
L.Ed.2d 917 (1968)). "Where the standard is probable cause, a
search or seizure of a person must be supported by probable cause
particularized with respect to that person." Id.
The evidence in the affidavit includes the following: (1)
Conine "and/or" the "unknown white female" with Hart's physical
characteristics have entered the "white frame house with black trim
and shutters" (i.e., Hart's house), (2) a couple of Hart's cars are
on the property to be searched, (3) the "unknown white female" was
seen driving one of Hart's cars, and (4) Conine and the "unknown
white female" are "in charge of and controlled" the property. In
addition, because we have decided that O'Brien's inclusion of
inaccurate statements was not reckless under Franks, we must also
consider O'Brien's belief that Hart lived in the trailer with
35
Conine and that Hart was married to a known drug cultivator, in
determining whether O'Brien reasonably believed probable cause
existed.
Some of these statements are not very probative of probable
cause. For example, the fact that Hart's house and cars are on the
property to be searched is not suspicious, given the fact that her
house happened to be near Conine's trailer and she would have been
expected to park her cars near her home. The fact that Hart often
visited the trailer and sometimes stayed overnight, or the fact
that she would sometimes go to Conine's barn, do not establish that
she was growing marijuana with Conine. There is no undisputed
evidence that she visited the marijuana patches on the property to
be searched. Finally, the officials neither saw nor found any
evidence of drugs or drug paraphernalia in Hart's home or on her
property, the only areas indisputably under her control.
However, from the perspective of the officers, Hart lived
smack-dab in the middle of 1,132 marijuana plants, 188 of which
were located directly behind her house. She spent a fair amount of
time with Conine and in his trailer, and she appeared to reside in
the trailer with a suspected (and previously convicted) marijuana
cultivator. She also appeared to the officers pursuing the warrant
to be married to another marijuana cultivator. She had been
present when a known drug cultivator visited Conine, and she had
driven with Conine to the gate of the trash dump adjacent to
Conine's illicit crops.
It was clear in this case from the presence of the marijuana
36
crops that a crime was being committed; nevertheless, the evidence
connecting Hart to the crime was thin. It is not a crime under
federal law or Texas law to maintain a social relationship with a
drug cultivator. The question in qualified immunity, however, is
not whether the officers actually had probable cause, but rather
whether they acted recklessly in swearing a warrant based on the
information they possessed. The officers lose their immunity only
if it is "obvious that no reasonably competent officer would have
concluded that a warrant should issue; but if officers of
reasonable competence could disagree on this issue, immunity should
be recognized." Malley, 475 U.S. at 341, 106 S.Ct. at 1096. In
this case, the call on probable cause was very close, and we cannot
say that no reasonable officer would have thought he had probable
cause to arrest Hart. Our conclusion is bolstered by the fact that
the neutral and detached magistrate, faced with the same facts,
determined that probable cause existed. This tends to support the
reasonableness of the officers' request for the warrant based on
their observations.
The officers may have been negligent in their investigation,
and wrong to conclude that they had probable cause. However,
negligence is insufficient to create liability for police officers
under Malley. Therefore we find that O'Brien is protected by
qualified immunity on this point.
2
Hart alleges that O'Brien violated her constitutional rights
by instructing Motley to take her in to the police station without
37
probable cause, even though Montana made the actual decision to
take her into custody. Hart's allegations against O'Brien do not
state a constitutional claim, because O'Brien and the other
officers were directed by the probable cause warrant to arrest
Hart. Hart does not contend that the warrant for her arrest was
facially invalid, nor that the officers executed the warrant in any
way other than that prescribed by the judge. We have stated that
police officers acting pursuant to a facially valid judicial
warrant enjoy qualified immunity for executing the warrant. Hamill
v. Wright, 870 F.2d 1032, 1036 (5th Cir.1989). O'Brien was
strictly complying with a facially valid judicial order, issued by
a court acting within its jurisdiction, and he is therefore
entitled to qualified immunity on this claim.10
3
Motley testified that O'Brien instructed him to put Hart on
federal hold to ensure that she stayed in jail until federal DEA
officers could speak to her. The magistrate claims in an affidavit
that he does not "recall" there being a federal hold or any
discussions about a federal hold, and states that any such hold
would not have affected the length of Hart's stay in jail. The
magistrate avers that he would have denied bail for a day
regardless of whether there was a federal hold because the
"investigation scene was still ongoing." However, the sheriff at
10
In addition, O'Brien and the other officers would have been
entitled to absolute immunity for executing a facially valid
warrant issued by a court of competent jurisdiction. Mays, 97 F.3d
at 108. However, none of the officers moved for summary judgment
on grounds of absolute immunity.
38
the time and Hart herself have testified that they each believed
that the magistrate denied bail because of the federal hold.
The federal hold remained in place for one day. Hart alleges
that O'Brien violated due process by causing her to be denied bail
by falsely suggesting to the magistrate (through Motley) that there
was a federal detainer on her. If a state detainee has an
outstanding federal warrant or has been indicted on federal
charges, a federal official may place a detainer on the detainee,
asking the state to hold him for federal authorities. Davis v.
Attorney General, 425 F.2d 238, 239 (5th Cir.1970). Presented with
a federal detainer, the state may deny the detainee bail, hold him
in custody pursuant to state law, and then turn him over to the
federal government for prosecution. Reno v. Koray, 515 U.S. 50, 62
n. 5, 115 S.Ct. 2021, 2028 n. 5., 132 L.Ed.2d 46 (1995); United
States v. Dovalina, 711 F.2d 737, 740 (5th Cir.1983).
In this case, no federal detainer existed. Moreover, there
was no basis for such a detainer since the federal government had
not charged Hart with anything. Motley's explanation for the
"federal hold"—that O'Brien wanted to assure that Hart would be
available to be interviewed by federal agents—does not justify
detention without bail. See 18 U.S.C.App. 2 (interstate agreement
on detainers); Tex.Code Crim. Pro. Ann. art. 51.14 (same).
However, causation is an element of a section 1983 claim;
O'Brien's actions must have actually caused the deprivation of
liberty of which Hart complains. See 42 U.S.C. § 1983 (providing
that a state official is only liable where he "subjects, or causes
39
to be subjected" a person to deprivation of any rights, privileges,
or immunities secured by Constitution and laws). The magistrate
denied Hart bail on the first day of her detention only; Hart,
however, was unable to post bail for over two weeks after her
initial confinement. We can reasonably assume, then, that she
could not have posted bail one day after her initial confinement
had it been set, and thus that the federal hold had no effect on
the length of her detention.11 Therefore, Hart did not suffer any
loss of liberty caused by O'Brien's actions. Accordingly, Hart has
failed to state a constitutional claim against O'Brien based on
denial of bail; Siegert therefore dictates that qualified immunity
bars this claim as well. 500 U.S. at 232, 111 S.Ct. at 1793.
4
Hart alleges that O'Brien is responsible for damages stemming
from her two-week detention because he did not disclose "patently
exculpatory evidence" to the prosecutor, namely his alleged
knowledge that there was no probable cause for her arrest. Police
detainer, even of one innocent of any wrongdoing, pursuant to a
valid warrant does not give rise to a constitutional claim. Baker
v. McCollan, 443 U.S. 137, 143-44, 99 S.Ct. 2689, 2694, 61 L.Ed.2d
433 (1979) (holding that police detainer of misidentified suspect
for three days, pursuant to a valid warrant, does not state a claim
under section 1983). However, a plaintiff states a section 1983
11
Given that the magistrate later set bail at $50,000, Hart
cannot reasonably claim that the magistrate would have released her
on her own recognizance on the first day of her detention absent
O'Brien's alleged misconduct.
40
claim against a police officer who, after learning of "patently
exculpatory evidence," deliberately fails to disclose it to the
prosecutor. Sanders v. English, 950 F.2d 1152, 1162 (5th
Cir.1992). Such deliberate concealment can be the basis for an
inference that a defendant police officer maliciously initiated and
maintained a prosecution. Id. at 1163.
In Sanders, a police lieutenant arrested a robbery suspect
after a victim identified him. Id. at 1156. In the days
immediately following the arrest, several people brought
exculpatory evidence to the lieutenant's attention: people told
the officer, for example, that the victim and Sanders (the
arrestee) were related, calling into question the victim's
inability to identify Sanders until several days after the crime in
an informal lineup; an eyewitness who had helped police artists
compose a sketch of the suspect told the officer that Sanders was
the wrong person; other victims of the same assailant were unable
to identify Sanders as their assailant; and a few days after the
arrest, the lieutenant learned that Sanders had a credible alibi
supported by three witnesses. Id. Faced with all of this evidence
showing that Sanders was not the robber, the police lieutenant
"deliberately looked the other way in the face of exonerative
evidence indicating that he had arrested the wrong man...."
There is no similar exculpatory evidence in the instant case.
Hart alleges that O'Brien knew there was no probable cause to
arrest her, but refused to notify prosecutors of this fact. Hart
cites O'Brien's later deposition in which he testified that "the
41
target of the investigation was Mr. Conine. And Mr. Conine's
property.... We wasn't [sic] going down there to try to arrest
[Hart] and send her to the penitentiary. We was [sic] after Mr.
Conine, his property, and his weed, we believed to be his
marijuana." In addition, O'Brien admitted that he visited Hart in
jail to encourage her to provide information against Conine. None
of this constitutes "patently exculpatory evidence," however,
because it does not tend to show that Hart was not guilty.
Even if Conine was the primary target of the investigation
and Hart's arrest were merely pretextual, the lawfulness of Hart's
arrest does not depend on the actual motivations of the arresting
officers. Whren v. United States, --- U.S. ----, ----, 116 S.Ct.
1769, 1774, 135 L.Ed.2d 89 (1996) (holding that the proper focus of
Fourth Amendment inquiry is objective conduct, and not subjective
intent, of police officer); Anderson v. Creighton, 483 U.S. 635,
641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523(1987) (noting that
malignant motive of officers is irrelevant under Harlow test to
question of qualified immunity); United States v. Causey, 834 F.2d
1179 (5th Cir.1987) (en banc) (holding that pretextual arrest did
not violate Fourth Amendment where arrest was objectively supported
by probable cause).
In addition, this case presents facts almost opposite of
Sanders. O'Brien and the other officers at this point knew that
Hart had spent much time in Conine's trailer, and that the trailer
was littered with drugs, drug paraphernalia, and cash. After they
arrested her, they certainly had some evidence that Hart knew about
42
Conine's illicit activities. This evidence is inculpatory, not
exculpatory, and further supports the officers' decision to keep
Hart in jail. We therefore find that O'Brien was immune from suit
for illegal detention as well.
In sum, O'Brien enjoys qualified immunity from suit for
intentionally or recklessly including incorrect statements in the
affidavit, for his instruction to other officers to arrest Hart,
for pursuing the warrant, for illegal detention, and for
recommending that Hart be held pursuant to a federal hold.
B
Hart claims that Montana and Motley violated her Fourth
Amendment rights—Montana by instructing Motley to take her into
custody, and Motley by taking her to jail. She also claims that
both are liable for their participation in the discussion and
decision to impose a federal hold, and for deliberately withholding
exculpatory information from the prosecutor.
As suggested above, Montana and Motley are qualifiedly immune
for the decision to arrest Hart and for taking her to jail, because
they were acting pursuant to a facially valid warrant issued by a
court of competent jurisdiction. Hamill, 870 F.2d at 1036. There
is some proof that, shortly after Hart's arrest, Montana told her
something to the effect that her "ass is in a world of trouble" and
she needed to "sing like a bird" against Conine, suggesting that
Montana kept Hart detained only to elicit evidence against Conine.
There is also some evidence that Motley heard these statements.
The question of whether the officers had probable cause to
43
keep Hart incarcerated is different from the question of whether
they had probable cause to arrest her. Nonetheless, just as in the
context of Hart's claims against O'Brien, we find that Hart does
not state a claim for illegal detention. Montana withheld no
exculpatory evidence from the prosecutor, and he had a reasonable
belief that there was probable cause to detain her, pursuant to a
facially valid warrant. Therefore, the fact that he wanted to
question her about Conine is not, in itself, actionable under
section 1983. Furthermore, as suggested above, even construing the
facts in the light most favorable to Hart, Montana's and Motley's
participation in imposing a "federal hold" does not amount to a
constitutional violation. Hart did not suffer any loss of liberty
caused by their actions.
Therefore, Montana and Motley are entitled to qualified
immunity on all of Hart's allegations against them.
C
Starnes's claim to qualified immunity is on slightly different
footing because he is not a police officer. In section V, we held
that Starnes was absolutely immune from Hart's claims that he
participated in the decision to place her on "federal hold" and
that he tried to persuade her to provide information about Conine.
We now consider whether Starnes is qualifiedly immune from Hart's
claims stemming from the fact that he provided inaccurate
information for the warrant affidavit (i.e., the statement about
Hart being married to Stanley Hart, a known marijuana cultivator)
and from the fact that, even after realizing that this information
44
was incorrect, he refused to stop Hart's arrest.
1
Under Siegert, we must consider at the threshold whether Hart
even alleges a Fourth Amendment violation with regard to the false
information claim. 500 U.S. at 232, 111 S.Ct. at 1793. The
Supreme Court in Franks v. Delaware established that a search
violates the Fourth Amendment if it was conducted pursuant to a
warrant issued by a magistrate who was misled by information in an
affidavit, provided that the affiant knew the information was false
or would have known it was false except for his reckless disregard
for the truth. 438 U.S. at 171, 98 S.Ct. at 2684. However,
Starnes is not the affiant in this case, and, taken at face value,
Franks applies only to officers who sign a warrant affidavit or
otherwise request a warrant under oath: "[t]he deliberate falsity
or reckless disregard whose impeachment is permitted is only that
of the affiant, not of any nongovernmental informant." Id.
However, we need not take Franks only at face value. The
Court left open the possibility that a search or arrest violates
the Fourth Amendment where the affiant relies in good faith on
deliberate or reckless misstatements by another governmental
official in establishing probable cause. See id. at 164 n. 6, 98
S.Ct. at 2680 ("[P]olice [can] not insulate one officer's
deliberate misstatements merely by relaying it through an
officer-affiant personally ignorant of its falsity."). Several
circuits have held that a deliberate or reckless misstatement or
omission by a governmental official who is not the affiant may
45
nevertheless form the basis of a Franks claim. United States v.
Wapnick, 60 F.3d 948, 956 (2d Cir.1995), cert. denied, --- U.S. ---
-, 116 S.Ct. 1672, 134 L.Ed.2d 776 (1996); United States v.
DeLeon, 979 F.2d 761, 764 (9th Cir.1992); United States v.
Calisto, 838 F.2d 711, 714 (3d Cir.1988); United States v.
Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984); cf. Hale v. Fish,
899 F.2d 390, 401 (5th Cir.1990) (applying Franks test to officer
who did not sign or draft affidavit but whose presence at time of
warrant tended to influence judge issuing warrant).
We agree with the reasoning of these circuit courts that a
deliberate or reckless misstatement may form the basis for a Franks
claim against a government official who is not the affiant. "The
Fourth Amendment places restrictions and qualifications on the
actions of the government generally, not merely on affiants."
DeLeon, 979 F.2d at 764. A governmental official violates the
Fourth Amendment when he deliberately or recklessly provides false,
material information for use in an affidavit in support of a search
warrant, regardless of whether he signs the affidavit.
Although Starnes did not sign the affidavit and was not
present when O'Brien requested the warrant from the magistrate,
Starnes helped to draft the affidavit and admits he was the
exclusive source of the inaccurate information about Peggy Hart's
marital status. Hart alleges that Starnes provided the false
information intentionally or recklessly. Therefore, Hart has
stated a claim for violation of her Fourth Amendment rights under
Siegert.
46
The issue, then, becomes whether Starnes can demonstrate that
he did not violate any of Hart's clearly established Fourth
Amendment rights. Hart's arrest would violate the Fourth Amendment
if Starnes intentionally or recklessly included false information
in the affidavit and this information was necessary for probable
cause. Starnes provided the inaccurate information in the
affidavit about Hart being married to Stanley Hart, and he realized
that this information was incorrect the day of the raid. However,
there is no evidence that Starnes knew the information was
inaccurate before giving it to O'Brien to include in the
affidavit.12 Therefore, there is no genuine issue that he
intentionally provided false information for inclusion in the
affidavit.
The question remains whether Starnes exhibited a reckless
disregard for the truth in providing the information. Franks, 438
U.S. at 171, 98 S.Ct. at 2684. To prove reckless disregard for the
truth, Hart must present evidence that Starnes "in fact entertained
serious doubts as to the truth" of the statement that she was the
Peggy Hart married to Stanley Hart. St. Amant v. Thompson, 390 U.S.
727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968) (setting forth
12
Starnes later testified that Stanley Hart told him sometime
prior to the raid that he had been a marijuana cultivator but had
since stopped. Starnes also testified that, sometime prior to the
raid, the Peggy Hart married to Stanley Hart informed him that
Stanley had become a drug counselor. However, the fact that
Starnes had reason to believe that Stanley Hart had stopped growing
marijuana does not impugn the truthfulness of his statement that
Stanley Hart is someone known to have cultivated marijuana, nor
would it have established doubt in Starnes's mind that the Peggy
Hart married to Stanley Hart was not the Peggy Hart who owned the
vehicles parked on or near Conine's property.
47
standard for reckless disregard of truth in libel cases); see also
United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984), cert.
denied, 470 U.S. 1003, 105 S.Ct. 1354, 1355, 84 L.Ed.2d 377 (1985)
(adopting First Amendment standard for recklessness in Franks
context); United States v. Tomblin, 46 F.3d 1369, 1388 (5th
Cir.1995) (citing recklessness standard in Williams with approval).
There is some evidence in the record that Starnes knew the other
Peggy Hart, who worked at the Lamar County courthouse. However,
there is no evidence that Starnes had any reason to believe that
there might be two Peggy Harts within this rural community so as to
raise serious doubts as to the accuracy of his statements to
O'Brien.
Perhaps there are steps Starnes might have taken to verify the
information he provided, however, the summary judgment record does
not disclose what these might be, nor that they would actually show
the information to be inaccurate. Starnes is entitled to qualified
immunity on Hart's first claim.
2
Hart also claims that Starnes violated her constitutional
rights by failing to act at the arrest scene once he had seen her
and realized that some of the information supporting the warrant
was inaccurate. Starnes has admitted that he knew shortly before
Hart was arrested that the statement in the affidavit about Hart
being married to a known marijuana cultivator was incorrect, but
that he did not so inform the officers. Hart alleges that Starnes
had a duty to inform the police officers that the arrest warrant
48
was based on inaccurate information and a duty to stop execution of
the warrant.
Even assuming such a duty exists, however, Starnes did not
violate any of Hart's clearly established Fourth Amendment rights
at the time of her arrest. Law enforcement officers may have a
duty to discontinue an arrest upon discovery that information
contained in a warrant is incorrect if it is material. Cf.
Maryland v. Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 1018, 94
L.Ed.2d 72 (1987) (once officers were on notice of a risk that
apartment they were searching was erroneously included within terms
of warrant, they were required to withdraw and discontinue search);
United States v. Marin-Buitrago, 734 F.2d 889, 894 (2d Cir.1984)
(when definite and material change has occurred in facts underlying
magistrate's determination of probable cause, officers must report
new and correcting information to magistrate before acting on
warrant). However, we can find no controlling case law that
establishes a constitutional duty on a prosecutor tagging along on
a search to inform law enforcement officers of his doubts that the
warrant should be executed as written. Therefore, under Harlow,
Starnes is qualifiedly immune against Hart's failure-to-inform
allegation.
VII
Next, O'Brien and Montana argue that the district court erred
in determining that they did not have official immunity against
Hart's state-law claims. Starnes, Motley, and Myrick did not
assert official immunity defenses to Hart's state law claims;
49
therefore we consider the defenses only as to O'Brien and Montana.
The state-law claims include false imprisonment, malicious
prosecution, and intentional infliction of emotional distress.13
We review district court determinations of state law de novo.
Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217,
1221, 113 L.Ed.2d 190 (1991).
The Texas Supreme Court has stated that government employees
are entitled to official immunity from suit arising from
performance of their (1) discretionary duties in (2) good faith as
long as they are (3) acting within the scope of their authority.
City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994).
Official immunity in Texas is substantially the same as qualified
immunity under federal law. Id. at 656. One important difference,
however, is that official immunity does not incorporate the
requirement that the plaintiff show the violation of a clearly
established right. Rather, official immunity hinges on whether the
official's activities were undertaken in "good faith," that is,
whether they were objectively reasonable. Id. at 656-67.
The district court determined that the officers were acting
within the scope of their authority, but that fact issues remained
as to whether they were exercising their duties in good faith. The
district court also apparently assumed that the officers were all
13
The district court also denied the officials summary judgment
on the ground that triable issues of fact remained regarding
certain elements of the torts. Although the officials challenge
that decision and both sides have briefed the issues, we may not
entertain these arguments in the instant interlocutory appeal.
Johnson v. Jones, 515 U.S. 304, 314, 115 S.Ct. 2151, 2156, 132
L.Ed.2d 238 (1995).
50
exercising discretionary duties, and Hart does not argue otherwise
in this appeal. We consider each of Hart's state-law causes of
action in turn, examining the officers' good faith in each.
A
Hart maintains that, under Texas law, O'Brien and Montana are
liable for falsely imprisoning her. She alleges that O'Brien
instructed Myrick to arrest her, coordinated the federal hold, and
did nothing to prevent her two-week detention. She further avers
that Montana is liable for making the final decision to arrest her
and for discussing the federal hold with the others.
To establish false imprisonment, Hart must prove that
O'Brien, and Montana willfully detained her without her consent and
without authority of law. James v. Brown, 637 S.W.2d 914, 918
(Tex.1982). As a general matter, liability extends to anyone who
participates in the unlawful detention or who directs or requests
the detention. Cronen v. Nix, 611 S.W.2d 651, 653
(Tex.Civ.App.1980, writ ref'd n.r.e.), cert. denied, 454 U.S. 833,
102 S.Ct. 132, 70 L.Ed.2d 112 (1981). However, "[i]f an arrest or
detention is executed under process which is legally sufficient in
form and duly issued by a court of competent jurisdiction, an
action for false imprisonment will not lie." Id. There is no
dispute that the warrant was facially valid and was issued by a
court with competent jurisdiction. Therefore, Hart cannot charge
the officers who executed the warrant with false imprisonment. See
Emerson v. Borland, 927 S.W.2d 709, 720 (Tex.App.1996, writ denied)
(plaintiff arrested pursuant to facially valid warrant and
51
imprisoned for five days could not allege false imprisonment on the
basis that probable cause did not exist to issue warrant).
In short, because the officers were acting pursuant to a
facially valid warrant, they could reasonably entertain a good
faith belief that their execution of the warrant was consistent
with Hart's rights. See Cantu, 77 F.3d at 810 (when allegations
fail to state a claim as a matter of state law, officer is entitled
to immunity). Therefore the officers enjoy official immunity
against this allegation.
B
By contrast, the issuance of a valid warrant will not shield
the officers from liability for malicious prosecution; indeed it
is conformity to valid process that separates the two causes of
action. As the Texas Supreme Court established long ago, arrests
without authority may be remedied by a claim for false
imprisonment, but any alleged wrongs committed by officers pursuant
to lawful process must be vindicated under a theory of malicious
prosecution. Hubbard v. Lord, 59 Tex. 384, 386 (Tex.1883) ("Where
the arrest is without authority, ..., [the court] may proceed here
as upon the same allegations and against the same parties as at
common law in the action of false imprisonment. Where the arrest
is made under lawful process, we must proceed alone against the
party who sued it out, and must allege malice and want of probable
cause.").
Hart asserts that O'Brien is liable for malicious prosecution
for including the two inaccurate statements in the affidavit of
52
probable cause, and that both officers are liable for the decision
to arrest her, for instigating the "federal hold," and for their
failure to provide exculpatory information to Starnes.
To prove malicious prosecution, a plaintiff must show: (1)
the commencement of a criminal prosecution against the plaintiff;
(2) causation (initiation or procurement) of the action by the
defendant; (3) termination of the prosecution in the plaintiff's
favor; (4) the plaintiff's innocence; (5) the absence of probable
cause for the proceedings; (6) malice in filing the charge; and
(7) damage to the plaintiff. Richey v. Brookshire Grocery Co., ---
S.W.2d ----, ----, No. 95-0692, 1997 WL 378134 at *2 (Tex. July 9,
1997).
The district court denied O'Brien and Montana summary judgment
on official immunity, holding that, because issues of fact remained
contested, it could not decide the issue on summary judgment. Just
as in the context of false imprisonment, if Hart fails to state a
claim for malicious prosecution, O'Brien and Montana are
necessarily entitled to official immunity under Texas law, because
the officers could reasonably believe that their actions were
consistent with Hart's rights. Cantu, 77 F.3d at 810.
The inclusion of inaccurate statements in a warrant for
probable cause and the failure to produce exculpatory evidence do
not state a claim for malicious prosecution under state law. As we
held in the qualified immunity analysis, O'Brien did not include
the inaccurate statements intentionally or recklessly, and
therefore as a matter of law, Hart cannot show malice as required.
53
Furthermore, consistent with this analysis, we find that O'Brien
was acting in good faith, affording him official immunity.
Moreover, as we also discussed in the qualified immunity section of
this opinion, the officers reasonably believed they had probable
cause to detain Hart, and her assertions that the officers should
have informed Starnes that they did not have probable cause do not
constitute exculpatory information.
O'Brien and Montana similarly are officially immune for the
decision to arrest Hart, because Hart has not shown the absence of
probable cause. "The probable-cause determination asks whether a
reasonable person would believe that a crime had been committed
given the facts as the complainant honestly and reasonably believed
them to be before the criminal proceedings were instituted."
Richey, --- S.W.2d at ----, 1997 WL 378134 at *2; see also Akin v.
Dahl, 661 S.W.2d 917, 921 (Tex.1983) (same), cert. denied, 466 U.S.
938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984). We have held in our
analysis of the officers' federal qualified immunity that the
officers reasonably believed they had probable cause to proceed
against Hart. Therefore Hart cannot assert a claim for malicious
prosecution against them for their decision to arrest her.
Hart's further assertion, that the officers are liable under
a malicious prosecution theory for placing her on federal hold, and
therefore denying her bail, is similarly unavailing. Bail is
simply the security given by an accused to ensure that she will
appear in court and answer the accusation brought against her.
Tex.Crim. Pro. Ann. Art. 17.01. Recommending the denial of bail
54
does not "continue" judicial proceedings; such proceedings persist
regardless of whether the court grants or denies a defendant bail.
Furthermore, we note that the magistrate set bail at $50,000 the
day after the federal hold, and Hart could not post this amount for
about two weeks. Thus, the federal hold cannot even be said to
have prolonged her detention. On this claim she both has failed to
show commencement or continuation of proceedings caused by the
officers' actions, and has failed to show damages. Therefore
O'Brien and Montana are entitled to official immunity for malicious
prosecution as a matter of law.
C
Hart alleges that O'Brien and Montana intentionally inflicted
emotional distress on her.14 Under Texas law, intentional
infliction of emotional distress has four elements: (1) the
defendant acted intentionally or recklessly; (2) the conduct was
extreme and outrageous; (3) the defendant's actions caused the
plaintiff emotional distress; and (4) the emotional distress
suffered by the plaintiff was severe. Mattix-Hill v. Reck, 923
S.W.2d 596, 597 (Tex.1996). A court should find liability for
outrageous conduct "only where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all
14
The district court granted Myrick summary judgment on the
merits for Hart's intentional infliction claim, and that ruling is
not on appeal here. Although Motley, Myrick, and Starnes alluded
to a defense of official immunity in their motion for summary
judgment on Hart's intentional infliction claim, the district court
did not rule on the motion and none of the three raises the defense
on appeal. Motley, Myrick, and Starnes did not assert official
immunity defenses to either of the other state law claims, either
before the district court or on appeal.
55
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community." Twyman v. Twyman,
855 S.W.2d 619, 621 (Tex.1993) (citation and internal quotation
marks omitted). "Liability does not extend to mere insults,
indignities, threats, annoyances, or petty oppressions." Ugalde v.
W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993)
(applying Texas law) (internal quotation marks omitted). Moreover,
to recover damages for this tort, the emotional distress the
defendant inflicts must be unreasonable under the circumstances and
"so severe that no reasonable man could be expected to endure it."
Motsenbocker v. Potts, 863 S.W.2d 126, 132 (Tex.App.1993, no writ).
Hart's allegations that O'Brien and Montana's decisions to
arrest her intentionally inflicted emotional distress do not state
a claim because the warrant commanded them to arrest her. Conduct
that is required or authorized by law cannot be extreme or
outrageous. Reck v. Londow, 926 S.W.2d 589, 593 (Tex.App.1995),
judgm't rev'd in part on other grounds, 923 S.W.2d 596 (Tex.1996).
Therefore Hart fails to state a claim on this count, and the
officers are officially immune from suit for deciding to arrest
Hart. Cantu, 77 F.3d at 810.
Moreover, Hart fails to state a claim against O'Brien and
Montana with regard to the federal hold. The hold lasted only one
day, and Hart remained in detention for two weeks after the hold
was lifted because she could not meet bail, which had been set at
$50,000. Thus, at most, any distress caused by the hold (as
opposed to her arrest or pretrial detention) would have stemmed
56
from her loss of opportunity to post bail a day earlier or,
alternatively, from the possible involvement of federal (as opposed
to state) officials in her case. We determine, as a matter of law,
that such alleged distress is not severe. Thus, O'Brien and
Montana enjoy official immunity from Hart's claim regarding the
federal hold.
Finally, we hold that Hart may not state a claim for
intentional infliction of emotional distress based on her
allegations that O'Brien and Montana arranged for her arrest
without probable cause. To state a claim for intentional
infliction of emotional distress, the plaintiff must show that the
defendant acted intentionally or recklessly. As we have
established, there is no genuine issue suggesting that the officers
did not reasonably believe they had probable cause to seek a
warrant from the magistrate judge, or that they acted unreasonably
in executing the warrant. Therefore, Hart fails to state a claim
that the officers intentionally inflicted emotional distress, and
the officers are officially immune on this score as well. See also
Halbert v. City of Sherman, Tex., 33 F.3d 526, 529 (5th Cir.1994)
(holding that even falsely informing police that someone is using
drugs is not sufficiently outrageous conduct to warrant recovery of
damages for intentional infliction of emotional distress).
Therefore we find that the officers are officially immune from
suit under any theory of intentional infliction of emotional
distress.
VIII
57
This is a complex, multiple-defendant, multiple-theory case.
We briefly summarize the state of the claims for the sake of
clarity. Hart sued the defendants under five theories: two
federal claims that the arrest and search were a violation of her
constitutional rights, and three state claims for false
imprisonment, malicious prosecution, and intentional infliction of
emotional distress. First, as to Hart's federal section 1983
claims: the district court granted summary judgment to Myrick and
Red River County on both federal claims. We have dismissed all the
remaining federal claims, against all defendants, on grounds of
qualified immunity (and absolute immunity for some of Starnes's
actions). Next, as to her state claims, the district court granted
summary judgment to Red River County on all claims, and to Myrick
on the intentional infliction count. In addition, we have held
that O'Brien and Montana are entitled to official immunity for all
three claims.
Therefore, Hart has live causes of action in state law only,
asserting false imprisonment against Motley, Myrick, and Starnes;
asserting malicious prosecution against Motley and Starnes (Hart
did not sue Myrick on this theory); and asserting intentional
infliction against Motley and Starnes.
IX
This case illustrates the difference, as a matter of law,
between simple negligence and recklessness. The officials in this
case certainly made mistakes, but we conclude that there is no
issue of material fact demonstrating that they acted intentionally
58
or recklessly. See Malley, 475 U.S. at 341, 106 S.Ct. at 1096
(Qualified immunity "provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.").
Starnes did not slander Hart, but provided seemingly reliable
(although ultimately erroneous) information from Drug Task Force
files. Even though the evidence connecting Hart to the crime was
thin, the officers reasonably could have believed that they had
enough to establish probable cause. In addition, they did exactly
what they were supposed to do with the information: they took
their evidence to a magistrate judge, who held that they had
probable cause for arrest. The officers conducted searches and
arrests only where they had a valid warrant.
Qualified and official immunities protect police officers in
the "gray area" between absolute certainty on the one hand and
reckless or wanton conduct on the other. In the regular course of
police work, this gray area can cover a wide range of reasonable
conduct. Viewed ex post, it is easy to criticize some of the
officers' actions; however, for purposes of immunity, we must
evaluate their actions given what they knew when they acted. At
the very least, we think that the officers and Starnes did not act
recklessly in this case.
We REVERSE the district court's judgments on absolute immunity
as to Starnes, REVERSE the district court's holdings on qualified
immunity as to all defendants, and REVERSE the district court's
holdings on official immunity as to O'Brien and Montana. We RENDER
summary judgment in favor of O'Brien and Montana on all counts, and
59
in favor of Motley and Starnes on Hart's federal claims.
BENAVIDES, Circuit Judge, concurring in part and dissenting in
part:
I join the portions of the majority's opinion that are not
derived from a finding that the warrant issued for Hart's arrest
and the search of her property was substantively valid. As a
result, I join parts IV and V of the majority's opinion, which
resolve the evidence admissibility and absolute immunity issues
presented in this appeal. Moreover, because Motley was not
involved in the surveillance of Conine's property nor the
preparation of the warrant application, I join the majority's
holding that he is entitled to qualified immunity because of his
reliance on a seemingly facially valid warrant. Further, because
I agree with the majority's finding that Hart failed to show that
the placement of the false federal hold on her criminal complaint
caused her to be detained in violation of the Fourth Amendment and
maliciously prosecuted, I join the discrete portions of its opinion
holding that O'Brien, Montana, and Motley were entitled to summary
judgment on these claims.
I write separately, however, because I cannot agree with the
majority's assertion of jurisdiction over the portions of the
interlocutory appeals of defendants O'Brien, Montana, and Starnes
challenging the district court's determination that Hart's evidence
raised a genuine issue of material fact regarding the validity of
the warrant. This sufficiency of the evidence finding is not
immediately appealable under the collateral order doctrine because
it does not conclusively determine a claim of right that is
60
separable from the Fourth Amendment rights asserted in Hart's
action. See Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S.Ct.
2806, 2814, 86 L.Ed.2d 411 (1985) (quoting Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed.
1528 (1949)). The majority's analysis of the immunity1 claims of
these three defendants, moreover, is entirely predicated on its
initial and extra-jurisdictional finding that O'Brien and Starnes
did not violate Hart's Fourth Amendment rights by knowingly or
recklessly including false statements in the probable cause
affidavit. Because the majority acknowledges that the existence of
immunity for O'Brien, Montana, and Starnes is conditioned on this
finding, I dissent from the portions of its opinion holding that
these three defendants are entitled to immunity as a matter of law.
In her complaint, Hart asserted that O'Brien and Starnes
violated her Fourth Amendment rights, in part because they
intentionally or recklessly included false statements in the
probable cause affidavit submitted in support of the warrant for
her arrest and the search of her residence. After discovery,
O'Brien, Montana, and Starnes moved for summary judgment. They
argued that each of Hart's claims was dependent on a finding that
the warrant was invalid and that she did not produce sufficient
evidence to raise a genuine issue of material fact as to whether
these false statements were intentionally or recklessly included in
1
Because the standards for immunity under federal and Texas
law are quite similar, I will simply use the term "immunity" to
refer to "qualified immunity" under federal law and "official
immunity" under Texas law.
61
the affidavit. In addition, they asserted that they were entitled
to immunity. The district court denied these motions and
explicitly found that "the plaintiff has raised a genuine issue of
material fact as to whether these two false statements were
included knowingly or with reckless disregard for their truth and
veracity."
In its statement of jurisdiction, the majority appears to
recognize that this finding may not be reviewed on interlocutory
appeal, for it correctly notes that when a "district court denies
summary judgment on the grounds that material facts exist which a
party may or may not be able to prove at trial, the official must
await final judgment before appealing." Maj. op. at 12; Behrens
v. Pelletier, --- U.S. ----, ----, 116 S.Ct. 834, 842, 133 L.Ed.2d
773 (1996); Johnson v. Jones, 515 U.S. 304, 305, 115 S.Ct. 2151,
2153, 132 L.Ed.2d 238 (1995). A public official who attacks a
plaintiff's ability to prove her case is not raising a qualified
immunity defense, which is "conceptually distinct from the merits
of the plaintiff's claim.' " Jones, 515 U.S. at 314, 115 S.Ct. at
2157 (quoting Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816).
Instead, that official is arguing that "the evidence [cannot]
support a finding that particular conduct occurred," and this
argument "is not truly "separable' from the plaintiff's claim."
Behrens, --- U.S. at ----, 116 S.Ct. at 842. A court of appeals,
therefore, may not review a sufficiency determination on
interlocutory appeal because "there is no "final decision' under
[the collateral order doctrine as defined by] Cohen and Mitchell."
62
Id.; Jones, 515 U.S. at 314, 115 S.Ct. at 2157.
The majority, however, begins its qualified immunity analysis
by "consider[ing] whether O'Brien's sworn statement that Hart lived
in Conine's trailer was knowingly false or reckless," and "whether
Starnes exhibited a reckless disregard for the truth in providing
the [false] information" regarding Hart's marital status. Maj. op.
at 570, 578. Further, after thoroughly reviewing the record below,
the majority disagrees with the district court's view of the
conflicting evidence and concludes that O'Brien and Starnes did not
intentionally or recklessly include the false statements in the
probable cause affidavit. There can be no question that the
majority's finding that the summary judgment evidence fails to
create a genuine issue of material fact is improper and
extra-jurisdictional under the Court's decisions in Johnson and
Behrens.
In order to review immediately the appeals of O'Brien,
Montana, and Starnes insofar as they challenge the district court's
finding of a genuine issue of material fact, the majority appears
to create a new principle of interlocutory jurisdiction. Under
this principle, a court of appeals may exercise interlocutory
jurisdiction over a district court's finding of a genuine issue of
material fact if any of the evidence relating to that finding is
undisputed. Maj. op. at 563 (stating that "enough uncontested
facts exist to determine that [these three defendants] are immune
as a matter of law"), 569-72 (minimizing Hart's favorable evidence
and independently reviewing the "undisputed facts" relating to the
63
district court's determination that a genuine issue of material
fact existed regarding O'Brien's mens rea when he included the
false statements in the affidavit), 577-78 (understating Hart's
favorable evidence and independently reviewing the evidence
relating to Starnes' state of mind when he provided O'Brien with
the information about Hart). The majority's indiscriminate
reliance on the existence of undisputed evidence to justify its
exercise of interlocutory jurisdiction, however, violates the
collateral order doctrine.
Under the collateral order doctrine, a defendant may argue on
interlocutory appeal that even if the disputed facts are viewed in
the plaintiff's favor, the remaining undisputed facts demonstrate
that the plaintiff's constitutional rights were not violated or
that the defendant's conduct was objectively reasonable in light of
clearly established law. Behrens, --- U.S. at ----, 116 S.Ct. at
842; Naylor v. Louisiana, 123 F.3d 855, 856 (5th Cir.1997);
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th
Cir.1997).2 This is because the question for interlocutory
2
In this case, however, there was no evidence in the probable
cause affidavit, aside from the false statements, linking Hart to
any crime. Thus, O'Brien, Montana, and Starnes cannot argue on
interlocutory appeal that the undisputed facts show that Hart's
Fourth Amendment rights were not violated because the affidavit's
remaining content revealed the existence of probable cause. See
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978). Further, the absence of such additional evidence explains
why the majority must find that these false statements were
properly included in the warrant application in order to find that
the conduct of these three defendants was objectively reasonable.
Of course, had the district court been presented with an affidavit
containing both the false statements as well as other undisputed
evidence allegedly providing probable cause, a finding that the
undisputed facts did not establish probable cause nor justify a
64
review—the existence of immunity—is a purely legal question that is
separable from the merits of a plaintiff's claim. Jones, 515 U.S.
at 314, 115 S.Ct. at 2157. The majority, however, relies on the
presence of undisputed facts to justify its interlocutory review of
Hart's compliance with her burden of production, an issue that the
Supreme Court has found to be inextricably intertwined with, rather
than separate from, the merits of her claims. Id. Thus, the
existence of undisputed evidence pertaining to the district court's
finding of a genuine issue of material fact does not transform that
determination into one that is immediately appealable under the
collateral order doctrine.
The majority, moreover, necessarily relies on its
extra-jurisdictional conclusion that the false statements were
properly included in the probable cause affidavit in order to award
O'Brien, Montana, and Starnes immunity on the remainder of Hart's
claims. To begin with, the majority finds that these statements
provided probable cause for the arrest of Hart and the search of
her residence. The presence of probable cause, moreover, disposes
of several of Hart's Fourth Amendment and state law claims.
Further, by including these statements within the probable cause
affidavit, the majority transforms a warrant of questionable
validity into a "facially valid" warrant, maj. op. at 576, 579-80,
that can be relied on by the very people who may have intentionally
or recklessly provided the issuing magistrate with false
reasonable belief in its existence would have been reviewable on
interlocutory appeal.
65
information. This then eliminates Hart's remaining Fourth
Amendment and state law claims.3 Thus, solely by virtue of its
improper exercise of jurisdiction, the majority is able to immunize
O'Brien, Montana, and Starnes with respect to each of Hart's claims
before us on appeal.
For the foregoing reasons, I respectfully DISSENT from the
portions of the majority's opinion holding that O'Brien, Montana,
and Starnes are entitled to qualified immunity as a matter of law.
I would instead dismiss for lack of jurisdiction the portions of
the appeals of these three defendants challenging the district
court's finding that Hart met her burden of production regarding
the validity of the warrant under Franks v. Delaware, 438 U.S. 154,
98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
3
This principle of immunity, however, cannot dispose of the
claims against Montana. Montana, like O'Brien, participated in the
surveillance of Conine and Hart that provided the factual basis for
a finding of probable cause. Thus, because there is a factual
dispute as to whether O'Brien, given his knowledge, intentionally
or recklessly included false statements in the probable cause
affidavit, it is an open question whether Montana, who possessed
the same knowledge, could reasonably have relied on the warrant
issued on the basis of this affidavit.
66
Hart v. O'Brien
Court: Court of Appeals for the Fifth Circuit
Date filed: 1997-11-06
Citations: 127 F.3d 424
Copy CitationsCombined Opinion