IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-41553
_______________
EUGENE KERR and GENEVA KERR,
Plaintiffs-Appellants,
VERSUS
ROLAND SCOTT LYFORD; ET AL,
Defendants,
ROLAND SCOTT LYFORD, ANN GOAR, DEBBIE MINSHEW,
BROOKS FLEIG, and STEVE BAGGS,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
April 14, 1999
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Plaintiffs appeal the dismissal, on grounds of immunity, of
their civil rights claim. We affirm.
I.
A.
Eugene and Geneva Kerr (the “Kerrs”) allege that they were
wrongfully investigated, arrested, and incarcerated for the
kidnaping, rape, and murder of Kelly Wilson. They sued, under
42 U.S.C. § 1983, those persons involved in the investigation and
prosecution that led to their arrest and incarceration: Roland
Lyford, Ann Goar, Debbie Minshew, Brooks Fleig, and Steve Baggs.
Moving for summary judgment, Goar, Minshew, Fleig, and Baggs
claimed qualified immunity; Lyford asserted absolute and qualified
immunity.
B.
Defendants’ involvement in this disturbing and largely
unresolved saga of child abuse, child molestation, and occult-
related rape and murder can be traced to November 1990, when Goar,
an employee of the Texas Department of Human Services (“TDHS”),1
was assigned the case of Loretta and Wendell Kerr and their four
children. Wendell Kerr is the son of plaintiffs Eugene and Geneva
Kerr, so his and Loretta’s children are the grandchildren of the
instant plaintiffs. On account of sexual abuse allegations made
against Wendell Kerr, the Kerrs’ grandchildren (the “Kerr
children”) were living in foster homes, and it was Goar’s
responsibility to meet with them on a monthly basis.
In December 1990, Goar was shown a letter addressed to Wendell
Kerr written by Lucas Geer, the brother of Wanda Geer Hicks, a
1
The Texas Department of Protective and Regulatory Services (“TDPRS”)
eventually assumed TDHS’s child protective services responsibilities. We use "TDHS"
to refer to both TDHS and its successor, TDPRS.
2
woman who, following her divorce from James Hicks, had begun dating
Wendell Kerr (who had recently divorced Loretta Kerr). In this
letter, Lucas Geer appears to apologize to Wendell Kerr for
sexually abusing one of Wanda Geer Hicks’s sons. As a result of
this letter, Goar began to counsel Wanda Geer Hicks and her five
children (hereinafter referred to collectively as the “Hicks
children”) in addition to the Kerr children mentioned above.
In May 1991, Wendell Kerr was indicted on charges that he had
sexually abused one of his daughters. When TDHS discovered that
Wendell Kerr had married Wanda Geer Hicks (hereinafter referred to
as “Wanda Kerr”) and moved in with her and her five children, it
executed an emergency removal of these children, placing them into
three different foster homes. The most troubled of these children
was placed in Barbara Bass’s therapeutic foster home. Minshew was
the TDHS caseworker assigned to supervise the Bass home.
Once in their foster homes, the Kerr and Hicks children began
to tell elaborate tales of sexual abuse. They spoke of sexual
molestation and sodomization at the hands of their parents,
grandparents (Eugene and Geneva Kerr), and strangers. They
reported being coerced into having sex with each other as their
parents, grandparents, and strangers looked on and videotaped them.
They told of blood, the devil, masks, and knives, all in connection
with their sexual abuse. Lastly, they told graphically of the
murder and dismemberment of babies and children at the hands of
their parents and grandparents.
3
The Kerr and Hicks children made the above statements on
numerous occasions and in a variety of settings.2 Some of these
statements were proffered spontaneously and voluntarily, while
others were elicited via vigorous and coercive questioning,
utilizing techniques that have been resoundingly criticized by the
plaintiffs' expert and by Child Protective Services ("CPS").3
Indeed, one of the reasons why the state ultimately dropped its
prosecution of the Kerrs on child abuse charges is that, in its
opinion, Minshew’s and Goar’s mishandling of the child witnesses
made the children’s testimony untrustworthy. The Kerrs’ expert
witness, Dr. Perry, explained how child witnesses are quite
impressionable, and inappropriate forms of questioning can taint
even their very recollection of events. Medical examination of the
children did reveal, however, genital and anal scarring consistent
with their allegations of sexual molestation, and defense experts
disputed the charge that Goar’s and Minshew’s interviewing
techniques were improper.
Around June 1992, Goar’s and Minshew’s supervisor, Loye
Bardwell, asked Baggs to help in investigating the Kerrs. Baggs
was an investigator for the Criminal Law Enforcement Division of
2
A large number of these statements were made / elicited during videotaped
interviews, which have enabled the plaintiffs’ and defendants’ dueling experts
to critique the style of questioning employed by the defendants. See infra.
3
Perry and CPS were particularly critical of Goar and Minshew for obtaining
information from the children via the “holding” technique, whereby a child would be
held against his will until he provided answers to questions. As best we can tell
from the record, this technique was applied by the foster parents to get the
children to repeat, for Goar and Minshew, statements made regarding sexual abuse.
4
the Texas Department of Public Safety who had developed expertise
in investigating ritualistic behavior and occult practices. He
assented and called on Fleig, a Louisiana peace officer, also
experienced in ritually-based crime, to assist him. Baggs’s and
Fleig’s discussions with the children convinced them of the
possibility that the Kerrs had engaged in some sort of ritualistic
abuse.
One of the adults identified by the children as a participant
in their victimization was Lucas Geer, who was currently serving
time for violating the conditions of his parole. Baggs and Fleig
interviewed Geer and heard him confess to making a variety of
sexual assaults on the children and to participating in the
ritualistic murder of babies on the Kerrs’ property. Geer
corroborated many of the allegations made by the Kerr and Hicks
children implicating the other Kerr adults, including Eugene and
Geneva Kerr, in their abuse and torture. Polygraph testing
suggested that Geer was truthful in making these statements.
Statements of the Kerr and Hicks children also led defendants
to "R.S.," a male juvenile who was another alleged victim of sexual
molestation at the hands of the Kerr adults. R.S. provided the
initial link between the child abuse investigation of the Kerrs and
the Kelly Wilson murder: He told investigators that he had wit-
nessed Wilson's abduction, rape, and murder.4 He provided details
4
On an earlier occasion Geer had told Minshew that Geneva Kerr had killed
(continued...)
5
of these events and said that Wilson’s body was kept in a shed in
the Kerrs’ backyard.
Utilizing an infrared system designed to detect heat rays
emitted from human remains buried underground, Baggs flew over the
Kerrs’ property and located two potential sites of such remains.
A cadaver-sensing dog also alerted to three potential sites: (1) a
toolbox containing a blue bag, (2) a red shed, and (3) three
shallow grave-like depressions in the soil. The red shed exhibited
signs of recent heavy washing and repainting and contained a shovel
that had blood residue on it. Additionally, investigation revealed
a circular clearing in the woods behind the Kerrs’ house that
matched the description given by the children as the place where
much of their sexual abuse had occurred.
In May 1993, Upshur County District Attorney Tim Cone
obtained indictments against the KerrsSSalong with four other
members of the Kerr familySSalleging sexual child abuse.
Discovering that he was disqualified from prosecuting the
indictments because of prior representation of the Kerr family,
Cone asked the state district court in Upshur County to appoint
Lyford as special prosecutor pursuant to TEX. CODE CRIM. PROC. ANN.
ART. 2.07 (Vernon 1977). Cone also personally appointed Lyford as
an assistant district attorney ("ADA") pro tem for Upshur County,
4
(...continued)
Wilson, but Minshew thought Geer was just being dramatic and did not follow up on
this statement; theretofore there had been nothing connecting the Kerrs to Wilson.
6
charged with prosecuting the sexual abuse cases and “any criminal
or civil lawsuits arising out of any and all incidents related or
connected” thereto.
Lyford had served two years as the Travis County District
Attorney’s Office Chief Litigator for TDHS. At the time he was
appointed special prosecutor in the instant case, he was practicing
law with a prominent firm in Galveston, Texas.
In December 1993, Lyford reached plea agreements with Wanda
Kerr and Connie Martin, who, pursuant to their agreements,
provided, among other things, further evidence implicating the
Kerrs in Wilson's kidnaping, sexual assault, and murder. They
identified items removed from the blue bag found in a toolbox on
the Kerrs’ property as instrumentalities of restraint and torture.5
Wanda Kerr and Connie Martin passed polygraph tests in connection
with their statements.
Wanda Kerr also described how Danny Kerr (son of Eugene and
Geneva Kerr) had abducted Wilson as an apparent “birthday present”
for Geneva Kerr. Danny Kerr purportedly had picked Wilson up in
his van and took her to the Kerrs’ property, where she was raped
and murdered. Her body was kept in the red shed in their backyard.
Wanda Kerr even retraced the route Danny Kerr had taken during the
5
These items included a shell necklace, an electrical wire with yellow
insulation, a nylon strap tow rope with metal connectors, six rubber tie downs, and
brown macrame rope. Human hairs were found on some of these items. Connie Martin
and the children explained that the necklace was worn during episodes of sexual
abuse, that the electrical wire was attached to a battery and used to shock the
mouths and genitals of the children being abused, and that the robe and tie downs
were used to restrain the victims of abuse, including Wilson.
7
abduction.6
Connie Martin provided further corroboration of the account of
Wilson’s abduction given by Wanda Kerr and R.S. She also
reiterated the children’s stories of ritualistic sex, torture, and
murder and stated that some of the victims were buried in Danny
Kerr’s backyard, in body bags of metal and plastic. A subsequent
search of Danny Kerr’s backyard, conducted by Baggs and Fleig,
revealed bone fragments wrapped in pieces of metal and plastic.
These fragments initially were identified by forensic analysis to
be subadult human.7 Baggs and Fleig also uncovered two devil
masks, two knives, a bayonet, a blood-stained mattress cover, and
a long machete belonging to Danny Kerr. Connie Martin stated that
the machete was used by Danny Kerr to dismember his victims, and
several of the children included masks and knives in their
descriptions of torture and abuse. One of the masksSSthat of a
devilSSprecisely fit the description given by the children as one
worn during their sexual abuse.
Wendell Kerr, a key figure in R.S.’s, Wanda Kerr’s, and Connie
Martin’s accounts of the Wilson murder, provided an alibi that
appeared legitimate. Wendell Kerr worked for a trucking company
and had bills of lading and other receipts that appeared to show
6
A subsequent attempt to get R.S. to retrace this route was a failure, as the
child appeared extremely anxious and began to offer a version of the abduction that
differed “wildly” from his and Wanda Kerr's previous versions.
7
Upon additional examination, it was concluded that the bone fragments were
probably animal, not human.
8
that he was not in Texas at the time of the events in question.
Lyford surmised that someone had substituted for Wendell Kerr and
had gathered the aforementioned documentation to enable Wendell
Kerr to establish an alibi.
Additional statements were obtained from three adult witnesses
not personally involved in the alleged child abuse. Two of these
witnesses were adult children of the Kerrs. They revealed to
Lyford that they too had been sexually abused by Gene and Geneva
Kerr while growing up. Their accounts of sexual abuse in many ways
mirrored those of the Kerr grandchildren, and they signed
statements to that effect.8 A third adultSSa neighbor of Martin's
SStold defendants that Martin had revealed to her that Danny Kerr,
her husband, was sexually abusing their children. On several
occasions, one of Martin’s sons gave the neighbor detailed accounts
of the revealed sexual abuse.
In January 1994, the Kerrs were indicted for the kidnaping,
rape, and murder of Kelly Wilson; later they were arrested and
imprisoned. The lurid details surrounding these charges led to
much media attention, and the Kerrs were widely portrayed as Satan-
worshiping murderers.
In March 1994, the Texas Attorney General’s office took over
the prosecution of the Kerrs. By 1995, all the charges against
8
That is, they too alleged that they were sodomized by their parents and
were forced to have sexual relations with their brothers and sisters in front of
their parents. They did not, however, witness the Kerrs commit murder.
9
them had been dropped, and the Attorney General declared that the
investigators’ botched handling of this matter made it impossible
to proceed with the prosecution.
II.
The sole issue is whether the defendants are immune from suit,
by virtue of either qualified or absolute immunity. We review
de novo the summary judgment determination of immunity. Wallace v.
Texas Tech Univ., 80 F.3d 1042, 1046 (5th Cir. 1996). In so doing,
we follow FED. R. CIV. P. 56(c) in the same manner as did the
district court. Id.
Rule 56(c) provides for the granting of summary judgment if
“the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Rule 56(c). Therefore, we affirm unless the Kerrs can demonstrate
either a genuine issue of material fact, or legal error. See
Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994). In our search
for a genuine, material factual dispute, we review the evidence and
all reasonable inferences therefrom in the light most favorable to
the Kerrs. See id.
III.
10
Prosecutors enjoy absolute immunity for those activities
“intimately associated with the judicial phase of the criminal
process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). For this
reason, the district court held that Lyford was absolutely immune
for his efforts in initiating criminal prosecution against the
Kerrs for Wilson's kidnaping, sexual assault, and murder.
The Kerrs challenge Lyford’s claim to absolute immunity,
asserting that he did not have authority to act as a prosecutor in
Texas with regard to the aforementioned crimes. The Kerrs note
that Lyford was appointed an “attorney pro tem” for the limited
purpose of “prosecuting any criminal or civil lawsuits . . .
related to or connected with certain indictments returned by the
Grand Jury of Upshur County on May 24, 1993 [regarding child
abuse].” See TEX. CODE CRIM. PROC. ANN. art. 2.07 (Vernon 1977)
(authorizing appointment). Because the prosecution of the Kerrs
for the kidnaping, sexual assault, and murder of Wilson was
unrelated to the child abuse indictments returned against the Kerrs
on May 24, 1993, the Kerrs maintain that this prosecution was
outside of Lyford’s authority. They provide us with examples of
prosecutors who acted outside their authority.9
Lyford claims prosecutorial immunity for all actions except
those performed in “a clear absence of all jurisdiction.” Stump v.
9
I.e., Peña v. Mattox, 84 F.3d 894, 896 (7th Cir. 1996); Doe v. Phillips,
81 F.3d 1204, 1209 (2d Cir. 1996), cert. denied, 520 U.S. 1115 (1997); Kulwicki
v. Dawson, 969 F.2d 1454, 1467 (3d Cir. 1992); Jennings v. Shuman, 567 F.2d 1213,
1222 (3d Cir. 1977); Bauers v. Heisel, 361 F.2d 581, 590-91 (3d Cir. 1966).
11
Sparkman, 435 U.S. 349, 357 (1978). He contends that, behind the
shield of absolute immunity, there is even room for “good faith”
mistakes. See McCarthy v. Mayo, 827 F.2d 1310, 1314-15 (9th Cir.
1987). He rightly distinguishes the cases cited by the Kerrs as
largely involving actions in no way similar to those of the present
matter. Lastly, he observes that the Kerrs seemingly have
overlooked his second ground of prosecutorial authority:
appointment as ADA pursuant to TEX. LOC. GOV. CODE ANN. § 41.102
(Vernon 1988). Lyford argues that this second appointment can only
be read as an expansion of his initial authority as special
prosecutor as per § 2.07.
We need not consider the effect of the subsequent appointment,
because under the applicable standard, Lyford was entitled to
prosecutorial immunity. A prosecutor’s absolute immunity will not
be stripped because of action that “was in error, was done
maliciously, or was in excess of his authority; rather, he will be
subject to liability only when he has acted in the 'clear absence
of all jurisdiction.'” Stump v. Sparkman, 435 U.S. 349, 356-57
(1978) (citations omitted).10
The multiple links between the initial child abuse
investigation and the Wilson murder belie the notion that there was
a “clear absence of all jurisdiction” to pursue the latter in light
10
Although Stump addressed judicial immunity, “immunity of a prosecutor is
based upon the same considerations that underlie the common-law immunities of judges
. . . .” Butz v. Economou, 438 U.S. 478, 510 (1978).
12
of explicit authorization to pursue the former. Those links are as
follows:
1. The child abuse investigation led investigators to
Geer as someone who was both a participant and a witness
in said abuse;
2. Geer disclosed information regarding the ritualistic
murder of children, including Wilson, in the presence of,
and on the property of, the Kerrs;
3. at least one of the victimized children described the
Kerrs’ involvement in Wilson's abduction, rape, torture,
and murder; and
4. two of the Kerrs’ co-defendants, Wanda Kerr and
Connie Martin, implicated the Kerrs in the crimes against
Wilson.
The spate of cases cited by the Kerrs do not demonstrate that
Lyford crossed the limits of his authority, for they all concern
the impropriety of a prosecutor’s actions per se;11 the instant
matter, by contrast, concerns otherwise appropriate actions
11
Peña v. Mattox, 84 F.3d 894 (7th Cir. 1996), concerned a prosecutor whose
questionable actions were not even prosecutorial in nature. See Peña, 84 F.3d at
896. While Lyford’s actions may have been beyond the scope of his prosecutorial
authority, they were plainly prosecutorial in nature. Similarly, in Doe v.
Phillips, 81 F.3d 1204 (2d Cir. 1996), an ADA required the plaintiff to swear her
innocence on a Bible in church as a condition of dropping felony rape charges
against her. See Doe, 81 F.3d at 1209. This case is distinguishable in that the
ADA’s actions would have been beyond the scope of his authority, regardless of the
matters he was charged with prosecuting. Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir.
1992), concerned a prosecutor who allegedly fabricated evidence months after he had
been recused from the case. See Kulwicki, 969 F.2d at 1467.
Lastly, the Kerrs note that Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977),
concerned a person who, like Lyford, was appointed as special prosecutor in a murder
case. But the similarity ends there, for in Jennings, the special prosecutor used
his appointment as leverage in an extortion scheme by prosecuting the coroner for
solicitation to commit bribery. See Jennings, 567 F.2d at 1222. That bribery
prosecution was held to be outside the prosecutor’s authority, because his
statutorily-derived authority extended only to “preparation and trial of any
indictment for homicide or murder on behalf of the commonwealth.” See id. (emphasis
added).
13
rendered inappropriate because they allegedly exceeded Lyford’s
jurisdictional charge.
The only appellate decision the Kerrs cite that is even
remotely on point is Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966),
which simply states the rule that “[t]he immunity of a prosecutor
. . . is not without limitation . . . . [It] does not extend to
acts which are clearly outside their jurisdiction.” Bauers,
361 F.2d at 591. This merely reiterates the “clearly absent”
standard set forth in Stump, 435 U.S. at 356-57.
Moreover, the facts of Bauers affirmatively hurt the Kerrs’
case, as they demonstrate how difficult it is to find that a
prosecutor has acted “clearly outside” of his authority. In
Bauers, a prosecutor was sued in connection with his prosecution of
an individual who was under the age of eighteen when he committed
his offense. Bauers, 361 F.2d at 591. By statute, the prosecutor
did not have authority to prosecute such persons. Id. The court
held:
The mere fact that the New Jersey Legislature had
excised from his responsibility the prosecution of
individuals who were under the age of eighteen when
they committed acts which would otherwise be
punishable offenses does not indicate that [the
prosecutor] was acting clearly outside his
jurisdiction. On the contrary, it would be
difficult to envision a case which was as close to
his jurisdiction, but, yet, in excess of it.
Id. Because Lyford’s prosecution of the Wilson murder was not done
“in the clear absence of all jurisdiction,” the district court
14
properly afforded him prosecutorial immunity for his prosecutorial
activities.
IV.
Each of the defendants, including Lyford, asserts qualified
immunity, the standard for which was explained in Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1981): “[G]overnment officials
performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Thus, to proceed
against a defendant claiming qualified immunity, a plaintiff must
demonstrate the existence and violation of a clearly established
constitutional right; the defendant may then show that he was
performing a discretionary function and that his actions would not
have been deemed unconstitutional by a reasonable official in his
position at the time of the event. Id.
A.
Absolute, prosecutorial immunity extends only to those
activities “intimately associated with the judicial phase of the
criminal process.” Burns v. Reed, 500 U.S. 478, 492 (1991)
(emphasis added). Therefore, Lyford does not enjoy absolute
immunity for his investigatory activities, but only qualified
immunity, if any. See Harlow, 457 U.S. at 818.
15
The Kerrs identify the following of Lyford’s activities as
investigatory actions beyond the purview of absolute, prosecutorial
immunity:
1. the arrest and imprisonment of the Kerrs
through Lyford’s unauthorized procurement of
indictments for sexual assault, kidnaping and
murder;
2. the presentment of false, coerced and
fabricated testimony to the grand jury;
3. the seizure and destruction of the Kerrs'
property; and
4. the disclosure to the media of bizarre theories
of the Kerrs’ satanic cult.
The first two of these implicate absolute prosecutorial immunity,
not qualified immunity; they are “advocatory” and “central to the
prosecutor’s task of initiating a prosecution.” Moore v. Valder,
65 F.3d 189, 194 (D.C. Cir. 1995) (citing Imbler v. Pachtman,
424 U.S. 409, 431 (1976)). Thus, Lyford enjoys absolute protection
for these activities. The third of these allegations was not
presented to the district court as a federal claim and therefore
cannot be raised for the first time as such on appeal. See Stults
v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996).
The fourth allegation makes out a claim for defamation, which
is not a constitutional tort. See Paul v. Davis, 424 U.S. 693, 712
(1976). Because the threshold immunity question is whether the
Kerrs have alleged a clear constitutional harm, see Harlow,
457 U.S. at 818, failure to do so results in dismissal of the
16
claim. In sum, none of the Kerrs’ claims against Lyford may
proceed.
B.
As we have said, Goar and Minshew were TDHS case workers
involved in the initial investigation of the Kerr children. As the
Lyford team expanded its probe of the Kerrs to Wilson's
disappearance, Goar and Minshew continued to assist in evidence
gathering, via the interviewing of child and adult witnesses. The
Kerrs complain that Goar and Minshew violated their civil rights by
engaging in malicious prosecution, civil conspiracy, false arrest,
seizure, and imprisonment. The Kerrs levy these same charges
against Baggs and Fleig, criminal investigators employed by the
TDHS because of their experience in investigating occult-related
crimes. Baggs’s and Fleig’s responsibilities entailed primarily
searching the Kerr properties and interviewing the adult witnesses.
As a threshold matter, we must determine whether (1) the Kerrs
allege a constitutional violation; (2) the law regarding the
alleged violation was clearly established at the time of the
operative events; and (3) the record shows that the violation
occurred, or at least gives rise to “a genuine issue of material
fact as to whether the defendant actually engaged in conduct that
violated the clearly-established law.” See Rich v. Dollar,
841 F.2d 1558, 1563 (11th Cir. 1988). Only thereafter must we
17
visit the questions of whether Goar and Minshew acted within the
scope of their authority and with the degree of reasonableness
expected of a government official in their situation. We proceed,
on all counts, de novo. Id.
The district court was correct in noting, as a preliminary
matter, that the Kerrs have two viable causes of action against
Goar and Minshew: malicious prosecution and civil conspiracy. As
a matter of law, Lyford’s intervening, independent actions sever
Goar’s, Minshew’s, Baggs’s, and Fleig’s responsibility for the
Kerrs’ alleged unreasonable seizure, false arrest, and false
imprisonment. See Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir.
1988).
The district court also was correct in holding that the Kerrs’
malicious prosecution claim implicated a clearly established right
at the time of the events in question. See Eugene v. Alief Indep.
Sch. Dist., 65 F.3d 1299, 1303, 1305 (5th Cir. 1995). Although in
Albright v. Oliver, 510 U.S. 266, 275 (1994), the Court held that
no such right exists under the Fourteenth Amendment, it did not
reach the question of whether it exists under the Fourth Amendment.
See Albright, 510 U.S. at 275. Albright, therefore, left
undisturbed our circuit’s longstanding recognition of a Fourth
Amendment right to be free from malicious prosecution. See Eugene,
65 F.3d at 1303.
Moreover, Albright was decided in 1994, whereas the events
18
relevant to the Kerrs’ malicious prosecution claim occurred from
1990 to 1993. Thus, at the time of the events in question, the
Albright decision could not have undermined the certainty of our
circuit’s clearly established right to be free from malicious
prosecution. This gives the Kerrs the basis they need to pursue
their civil conspiracy claim, in that a § 1983 civil conspiracy
claim must be based on the breach of a constitutional right.
This brings us to the third and final threshold question:
“whether the showings made by the parties create a genuine issue of
material fact as to whether the defendant actually engaged in
conduct that violated the clearly-established law.” Rich, 841 F.2d
at 1563 (citing Mitchell v. Forsyth, 472 U.S. 511 (1985)). That
is, have the Kerrs satisfied the prima facie elements of their
claims? See Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998).
Because this case is before us on appeal from summary judgment, the
Kerrs need only demonstrate the existence of a genuine dispute of
material fact regarding defendants’ conduct.
The elements of a claim for malicious prosecution are:
1. criminal action commenced against the
plaintiffs;
2. that the prosecution was caused by the
defendants or with their aid;
3. that the action terminated in the plaintiffs' favor;
4. that the plaintiff was innocent;
5. that the defendants acted without probable cause;
19
6. that the defendant acted with malice; and
7. that the criminal proceeding damaged the plaintiff.
See Hayter v. City of Mount Vernon, 154 F.3d 269, 275 (5th Cir.
1998). The elements of civil conspiracy are (1) an actual
violation of a right protected under § 1983 and (2) actions taken
in concert by the defendants with the specific intent to violate
the aforementioned right. Cinel v. Connick, 15 F.3d 1338, 1343
(5th Cir. 1994). The Kerrs’ civil conspiracy claim is contingent
on the success of their malicious prosecution claim, which is the
only tenable § 1983 violation here.
The district court found that the Kerrs had made out their
prima facie cases of malicious prosecution and civil conspiracy.
The court erred, however, by failing to examine whether the record
supported the Kerrs’ allegations. See Sorenson, 134 F.3d at 328.
Although most of the elements of the malicious prosecution claim
are undisputably satisfied, at least one of them lacks
substantiation: The record does not establish that the prosecution
was wanting in probable cause, nor does it establish a genuine,
material factual dispute regarding this element.
For purposes of malicious prosecution, probable cause means
"the existence of such facts and circumstances as would excite the
belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of
20
the crime for which he was prosecuted."12 To the extent that the
facts undergirding the probable cause determination are undisputed,
we may resolve the issue as a matter of law. Blackwell v. Barton,
34 F.3d 298, 305 (5th Cir. 1994). To prevail, the Kerrs must
demonstrate that either (1) the record affirmatively establishes
that probable cause was lacking or (2) enough genuine, material
factual disputes exist regarding the elements of probable cause
that the ultimate finding of probable cause is the subject of a
genuine, material factual dispute.13 They have demonstrated
neither.
Defendants put forth the following evidence in support of a
finding of probable cause: statements of the child witnesses
implicating the Kerrs in their own sexual abuse and in Wilson's
abduction, rape and murder; medical examinations of the children
that revealed scarring consistent with their tales of sexual
molestation; confessions and statements supplied by adult witnesses
Geer, Martin, and Wanda Kerr, verified by polygraph, consistent
with those of the children in implicating the Kerrs in the
kidnaping, rape, and murder of Wilson; corroborative physical
12
Moore v. McDonald, 30 F.3d 616, 620 n.2 (5th Cir. 1994) (quoting Pendleton
v. Burkhalter, 432 S.W.2d 724, 727 (Tex. Civ. App.SSHouston [1st Dist.] 1968, writ
ref’d n.r.e.)).
13
To sustain a summary judgment, we must find that the undisputed facts
support a finding of probable cause, a mixed question of fact and law. Blackwell,
34 F.3d at 305. A genuine, material factual dispute as to some of the elements of
the probable cause calculus does not preclude an affirmance, however, for probable
cause still could be found based upon the totality of the undisputed elements.
21
evidence such as masks, knives, and other instrumentalities of
restraint and torture that were referred to by the children.
Additionally, an infrared scanning device and a cadaver-sensing dog
suggested the presence of human remains on the Kerr’s property, and
bones (albeit not conclusively human) were unearthed. Lastly, the
shed in the Kerrs’ backyardSSwhich had been identified by some of
the children and the adults as the place where Wilson’s body had
been keptSSwas also alerted to by the dog and, suspiciously, showed
signs of recent washing and repainting.
The Kerrs counter with evidence suggesting a lack of probable
cause. They are persuasive in averring that the statements of the
children are unreliable in light of the manner in which they were
obtained. The testimony of their expert, Dr. Perry, and evidence
of the criticisms leveled against Goar and Minshew by TDHS create
a genuine issue of material fact as to whether the children’s
statements could give rise to, or even contribute to, a finding of
probable cause.
The record does reveal several instances in which the children
made such statements spontaneously and voluntarilySSnot in response
to the “holding technique” or any other form of coercive
questioning. Furthermore, the defense’s expert witness, Dr. Heger,
found the defendants’ handling of the children “sensitive,”
“appropriate,” and “reasonable.” Nonetheless, construing all
reasonable inferences in favor of the nonmovant, we are compelled
to conclude that the mishandling of the children by the
22
investigators so tainted their recollections as to render their
statements nugatory, thereby removing this factor from the probable
cause calculation.
The Kerrs also point to Wendell Kerr’s alibi. R.S., Wanda
Kerr, and Martin identified Wendell Kerr as a participant in the
Wilson murder, and thus his substantiated alibi casts doubt on
their credibility. This evidence raises a genuine material
dispute, however, only with regard to Wendell Kerr’s participation
in Wilson's disappearance, not in regard to Eugene and Geneva
Kerr's involvement. At best, this alibi evidence can be viewed as
negating the positive inference we otherwise would have read from
the successful polygraph testing of these witnesses, for it has
raised a genuine issue of material fact as to their credibility.
Finally, the Kerrs’ claim that Martin and Wanda Kerr recanted
their original statements and that those statements were elicited
via coercion and manipulation. We find no support for such claims
in the record, however.14 Indeed, the Kerrs cite largely to their
third amended complaint, but not to any affidavit or other piece of
substantive evidence, in support of these most serious claims.15
In summary, the totality of the medical examinations of the
14
Lyford’s personal notes of the investigation reveal reservations he had
about the truthfulness of some of the statements given to him by his witnesses,
especially with regard to some of the details. The notes also evince, however,
a strong and reasonable belief in the overall truth of these statements and in
the Kerrs' ultimate guilt in connection with the Wilson abduction and murder.
15
See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (noting
that pleadings do not constitute substantive evidence for summary judgment
purposes).
23
children, the physical evidence recovered from the Kerr properties,
and the statements of the adult witnesses provided defendants with
probable cause to proceed with the prosecution of the Kerrs,
Wendell Kerr’s alibi notwithstanding.16 For this reason, we reject
the malicious prosecution claim and, a fortiori, the civil
conspiracy claim as well. We need not, and therefore do not, reach
the issues of whether Goar, Minshew, Baggs and Fleig acted within
the scope of their authority, and whether a reasonable official in
their position would have viewed their actions as unconstitutional.
AFFIRMED.
16
The caselaw confirms our conclusion. The best case of which we are aware
in support of the Kerrs’ position that qualified immunity should not attach had
facts significantly more compelling than those before us today. In Sanders v.
English, 950 F.2d 1152, 1154 (5th Cir. 1992), the malicious prosecution plaintiff
not only was initially arrested under suspicious circumstances but also had an alibi
that was corroborated by three credible witnesses. Additionally, a fourth
witnessSSwho had seen the robbery for which plaintiff was arrestedSStold police that
someone else had committed it. Conversely, United States v. Wadley, 59 F.3d 510,
512-13 (5th Cir. 1995), exemplifies how low the threshold for a finding of probable
cause is: There, we held that probable cause existed to arrest a suspect who merely
had fled from police in a high crime area and “reached into his pocket” while doing
so.
24
EDITH H. JONES, Circuit Judge, with whom EMILIO M. GARZA, Circuit
Judge, joins, specially concurring:
I concur in the good opinion in this case, but I write to
express my continuing dissatisfaction with this circuit’s handling
of a constitutional tort for malicious prosecution. In 1991, I
questioned whether such a constitutional tort was authorized under
the rubric of “substantive due process.”17 In 1994, the U.S.
Supreme Court agreed that if a constitutional tort of malicious
prosecution exists at all, it would have to be based on the Fourth
Amendment rather than Fourteenth Amendment substantive due
process.18 But the Albright plurality, rather than endorsing a
Fourth Amendment tort of malicious prosecution, declined to address
the issue.19 Two of the justices, Kennedy and Thomas, refused to
recognize any constitutional tort for malicious prosecution,
inasmuch as such a claim would merely duplicate adequate state law
remedies.20 Only Justice Ginsburg, in an individual concurrence,
attempted to articulate a Fourth Amendment theory of malicious
prosecution.21
17
Brummett v. Camble, 946 F.2d 1178, 1180 n.2 (5th Cir. 1991).
18
See Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807 (1994).
19
See id. at 275, 114 S. Ct. at 812.
20
See id. at 281, 114 S. Ct. at 816.
21
See id. at 279, 114 S. Ct. at 814.
Albright has spawned controversy and confusion in the lower
courts22 -- but not in this court. After initially appearing
tentative on the subject,23 this court unblushingly cited one of our
earlier Fourteenth Amendment malicious prosecution cases and held
that the right under the Fourth Amendment to be free from malicious
prosecution was “clearly established” in this circuit.24 Subsequent
cases have elaborated on Eugene, specifying that the circuit’s
malicious prosecution tort has the same elements as the relevant
state law torts.25
The problem with the Fifth Circuit jurisprudence, as I see
it, is two-fold. First, this court fails to recognize that
Albright did not endorse a constitutional malicious prosecution
tort at all. Second, even if Albright left room for such a claim
under the Fourth Amendment, there is a significant difference
22
See, for example, the thoughtful discussions in Taylor v.
Meacham, 82 F.3d 1556, 1560-61 (10th Cir. 1996), and Reed v. City
of Chicago, 77 F.3d 1049, 1052-54 (7th Cir. 1996). See generally
1A Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation §
3.20, at 315-30 (3d ed. 1997) (discussing Albright and post-
Albright conflicting circuit court rulings); Pinaud v. County of
Suffolk, 52 F.3d 1139, 1154 (2d Cir. 1995) (“the Supreme Court’s
splintered decision in [Albright] . . . make[s] the status and
validity of § 1983 malicious prosecution claims . . . uncertain to
say the least.”) (Calabresi, J.).
23
See Johnson v. Louisiana Dept. of Agric., 18 F.3d 318, 320
(5th Cir. 1994).
24
Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th
Cir. 1995).
25
See, e.g., Evans v. Ball, 168 F.3d 856, 862-63 (5th Cir.
1999).
26
between predicating the cause of action on the Fourth Amendment and
the Fourteenth. On the most superficial level, if the grounds for
the claim under the Fourth and Fourteenth Amendments were
equivalent, there would have been no need to distinguish between
those amendments in Albright.
Moreover, the tort of malicious prosecution fits uneasily
within the Fourth Amendment. That amendment proscribes
unreasonable searches and seizures and has been held to prohibit
arbitrary law-enforcement actions up until the time of arraignment.
To justify a Fourth Amendment malicious prosecution claim, then,
one has to extend the period of “seizure” past arraignment. Only
Justice Ginsburg was willing to make this leap in Albright, and the
circuit courts are divided both on the application of the Fourth
Amendment post-arraignment and on whether mere requirements of the
posting of bond and appearance at pretrial hearings, without more,
constitute a “seizure.”26 This court recently lined up on the side
of Justice Ginsburg’s concurrence without acknowledging the basis
26
Compare Gallo v. City of Philadelphia, 161 F.3d 217, 222-25
(3d Cir. 1998) (indictment, bond, and travel restrictions
constitute continuing seizure), and Murphy v. Lynn, 118 F.3d 938,
945 (2d Cir. 1997) (same, over a dissent by Judge Jacobs); with
Riley v. Dorton, 115 F.3d 1159, 1162-63 (4th Cir. 1997) (en banc)
(rejecting continuing seizure theory for claim alleging post-arrest
excessive force), and Reed, 77 F.3d at 1052-54 (questioning
continuing seizure rationale). This court has held that the Fourth
Amendment does not apply for purposes of excessive force claims
after arrest and during pretrial detention. See Brothers v.
Klevenhagen, 28 F.3d 452, 456 (5th Cir. 1994).
27
for debate.27 The identity of the proper defendant in a malicious
prosecution claim founded on the Fourth Amendment is also a
difficult question, as Justice Ginsburg and other courts have
realized.28
As constitutional issues go, the status of a constitutional
tort of malicious prosecution may seem like small potatoes. But I
wish that our court had paid more attention to the ramifications of
Albright. It is far from clear to me that, if Albright is
harmonized with other applicable precedents concerning the Fourth
Amendment, the constitutional “tort” of malicious prosecution will
survive in the form we have created.
With this admonition, I concur.
27
See Evans, 168 F.3d at 861.
28
A malicious prosecution claim against police officers is
“anomalous,” as Justice Ginsburg noted. Albright, 510 U.S. at 279
n.5, 114 S. Ct. at 816 n.5. For one thing, prosecutors will enjoy
absolute immunity. See id. The Justice added that “Albright’s
theory raises serious questions about whether the police officer
would be entitled to share in the prosecutor’s immunity.” See id.;
see also Taylor, 82 F.3d at 1563; Reed, 77 F.3d at 1053.
28