PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
No. 95-8107 ELEVENTH CIRCUIT
11/13/98
THOMAS K. KAHN
D.C. Docket No. CV293-88 CLERK
ROBERT D. MASTROIANNI,
Plaintiff-Appellee,
versus
MICHAEL J. BOWERS,
PATRICK D. DEERING, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Georgia
(November 13, 1998)
ON PETITION FOR REHEARING
Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD, Senior
Circuit Judge.
HATCHETT, Chief Judge:
On petition for rehearing, we file this revised opinion.
BACKGROUND
Appellants Michael J. Bowers, former Attorney General of Georgia, Patrick D.
Deering, Assistant Attorney General of Georgia, and Georgia Bureau of Investigation
(GBI) Agents Joe B. Jackson, Jr., Weyland Yeomans, and Lee J. Sweat, Jr. conducted an
investigation into alleged misconduct of Camden County Sheriff William E. Smith and
Deputy Sheriff Robert Mastroianni. Bowers supervised the investigation that lasted from
the spring of 1991 to the summer of 1992. The investigation of Mastroianni stemmed
from allegations that he planted drugs on criminal suspects and then falsely arrested them.
Mastroianni believed, however, that the purpose of the investigation was to damage the
reputation of Sheriff Smith's department.
On July 1, 1992, Deering filed a notice of indictment against Mastroianni, and
grand jury proceedings occurred on July 16 and 17. The grand jury indicted Mastroianni
on one count for planting drugs on and falsely arresting Leo Polumbo. Law enforcement
officials arrested Mastroianni on July 17 and took him to the Glenn County Jail where he
was booked and subsequently released on a $5,000 bond the same day. Mastroianni was
on bond with restricted freedom of movement until April 9, 1993, when Deering and
Bowers formally declared that they would not seek to prosecute Mastroianni.
On June 29, 1993, Mastroianni filed a complaint in the Southern District of
Georgia against Bowers, Deering, Yeomans, Jackson, and Sweat (appellants) for
2
allegedly violating the Civil Rights Act of 1871, 42 U.S.C. § 1983.1 Mastroianni sought
compensatory and punitive damages. In his complaint, Mastroianni alleged (1) that
appellants conspired to violate his constitutional rights to be free from malicious
prosecution; (2) bad-faith prosecution; (3) abuse of process; (4) knowing use of false and
perjured testimony; (5) deprivation of a fair trial; and (6) false arrest. Mastroianni
claimed that the appellants violated his civil rights because he refused to assist them with
an ongoing investigation of Sheriff Smith. Appellants filed a motion to dismiss on
August 2, 1993, and on September 20, 1993. The district court granted appellants' motion
to dismiss with respect to Mastroianni's claims for deprivation of fair trial, use of false
and improperly obtained evidence and use of perjured testimony. The district court
reasoned that Mastroianni could not maintain a fair trial claim in the absence of a trial.
The district court dismissed the claims for use of false and improperly obtained
evidence and perjured testimony because it determined that those claims were
indistinguishable from claims of malicious prosecution, abuse of process and false arrests.
The district court, however, denied the appellants' motion to dismiss with respect to
Mastroianni's constitutional claims in the nature of malicious prosecution, abuse of
process, false arrest, false imprisonment and conspiracy to commit the same. The district
court found that Mastroianni had pleaded sufficient facts to state a claim upon which
relief could be granted.
1
Mastroianni subsequently moved to have Sweat dismissed from this action. The
district court granted Mastroianni's motion on July 20, 1994.
3
In September 1994, appellants filed a motion for summary judgment claiming that
they were entitled to both qualified and absolute immunity. The district court denied
appellants' motion for summary judgment on the claims for false arrest and conspiracy to
commit false arrest, but granted their motion on the claims for false imprisonment, abuse
of process, malicious prosecution and conspiracy to commit the foregoing. The district
court held that Mastroianni's claims of false imprisonment and malicious prosecution
were part of his broader claim of false arrest. The district court also found that the tort of
"abuse of process" was not clearly established law in this circuit at the time of the arrest.
The district court, viewing the facts in the light most favorable to Mastroianni, found that
the appellants were not entitled to qualified immunity for their arrest of Mastroianni
because “clearly established law dictate[d] that [appellants] acted without arguable
probable cause.” This appeal is from the denial of the summary judgment motion based
on absolute and qualified immunity.
CONTENTIONS
First, appellants Deering and Bowers contend that they are entitled to absolute
immunity because their conduct fell within the scope of their prosecutorial duties. They
assert that absolute immunity for some of their conduct extends to cover all of their
conduct relating to seeking an indictment against Mastroianni. Similarly, Yeomans
contends that he is entitled to absolute immunity for his testimony before the grand jury.
Second, appellants contend that even if absolute immunity does not protect them, they are
entitled to qualified immunity because they did not violate any clearly established law in
4
arresting Mastroianni. Third, appellants contend that the intervening act of the grand jury
indictment breaks the chain of causation with respect to any alleged illegal conduct and
shields all of them from liability on Mastroianni's false arrest claim. Fourth, appellants
contend that Mastroianni failed to present evidence sufficient to support his conspiracy
claim.
First, Mastroianni contends that even though Deering, Bowers and Yeomans enjoy
absolute immunity for some of their activity, they are not entitled to absolute immunity
for actions that were not intimately associated with the judicial phase of the criminal
process. Second, Mastroianni contends that none of the appellants are entitled to
qualified immunity because no reasonable officer could have believed that his arrest of
Leo Polumbo was illegal and therefore legally sufficient basis existed for Mastroianni's
arrest. Third, Mastroianni contends that since evidence exists showing misdirection of
the grand jury, the grand jury indictment did not break the chain of causation with respect
to the appellants' initial illegal conduct of conspiring to violate his constitutional rights.
Fourth, Mastroianni contends that his conspiracy claim was both legally and factually
sufficient to survive the appellants' summary judgment motion.
ISSUES
We address the following issues:
(1) whether Deering, Bowers and Yeomans's entitlement to absolute immunity for
some of their conduct shields them for all of their actions relating to the arrest of
Mastroianni;
5
(2) whether all of the appellants are entitled to qualified immunity on Mastroianni's
claim for false arrest;
(3) whether the intervening act of the grand jury broke the chain of causation removing
the taint of any earlier misconduct; and
(4) whether Mastroianni alleged and established sufficient facts to withstand
appellants' summary judgment motion on the conspiracy to commit false arrest claim.
DISCUSSION
I. Denial of summary judgment
We review denial of summary judgment motions de novo. Swint v. City of
Wadley, 51 F.3d 988, 994 (11th Cir. 1995).
When a lower court denies a motion for summary judgment based on qualified
immunity, this court has interlocutory appellate jurisdiction. Mitchell v. Forsyth, 472
U.S. 511, 530 (1985). According to Mitchell, this court may properly entertain an
interlocutory appeal from a district court's denial of a defendant's motion for summary
judgment when (1) the defendant is a public official claiming qualified immunity as a
defense, and (2) the issue on appeal is whether the facts, viewed in the light most
favorable to the plaintiff, show a violation of clearly established law. Mitchell, 472 U.S.
at 528. This court also has appellate jurisdiction over denials of summary judgment based
on absolute immunity. Winfrey v. School Bd. of Dade County, 59 F.3d 155, 158 (11th
Cir. 1995). Summary judgment is appropriate when no genuine issues of material fact
6
exist and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c).
II. Absolute immunity
Appellants Bowers and Deering claim they are entitled to absolute immunity
because they are prosecutors, and their conduct in initiating the prosecution and seeking
the indictment against Mastroianni is absolutely immune from suit. Similarly, appellant
Yeomans asserts that his act of testifying before the grand jury is entitled to absolute
immunity. Furthermore, Bowers, Deering and Yeomans argue that the shield of absolute
immunity protects them from any liability for all of their actions leading to the indictment
and arrest of Mastroianni because their conduct fell within the "band of prosecutorial
immunity." We disagree.
Absolute immunity, notwithstanding its connotation, does not protect prosecutors
for all of their actions performed as prosecutors. E.g., Burns v. Reed, 500 U.S. 478, 493
(1991). Rather, the protection of absolute immunity is contingent on the "function" the
prosecutors are performing and not their status as prosecutors. In Burns, the Supreme
Court clarified the scope of absolute immunity's protection when it found that activities
not "intimately associated with the judicial phase of the criminal process" are not entitled
to absolute immunity. Burns, 500 U.S. at 493 (quoting Imbler v. Pachtman, 424 U.S. 409
(1976)); compare Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2616-2617 (1993) (finding
that absolute immunity does not protect prosecutors for fabrication of evidence during the
investigative stage or for making statements to the media).
7
In determining whether prosecutors are entitled to absolute immunity, it is
important to distinguish between prosecutors' role as an "advocate" for the state versus
their role as an administrator or investigative officer. When prosecutors are engaged in
activities intimately associated with the judicial phase of the criminal process such as
initiating a prosecution or presenting the state's case, then they are acting as advocates of
the state and are entitled to absolute immunity for that conduct. Buckley, 113 S. Ct. at
2616; Burns, 500 U.S. at 493. Prosecutors are not entitled to absolute immunity,
however, for activities not intimately associated with the judicial process such as giving
advice to police during the preliminary investigative stage, Burns, 500 U.S. at 493, or
fabricating evidence during the preliminary investigative stage to present to a grand jury
or making comments to the press, Buckley, 113 S. Ct. at 2616-2617. Therefore, our
determination of whether prosecutors are entitled to absolute immunity hinges on the
function they are performing.2
Likewise, we note that witnesses testifying in judicial proceedings are also
protected for their conduct. When persons testify before a grand jury, they are entitled to
absolute immunity for testimony provided during the grand jury proceedings. Strength v.
Hubert, 854 F.2d 421, 424-25 (11th Cir. 1988).
A. Deering and Bowers
2
The Burns decision aptly recognized the anomaly inherent in suggesting that courts
should extend absolute immunity to all actions of prosecutors such as giving legal advice
to police while only providing qualified immunity to the police officers for following that
same advice. Burns, 500 U.S. at 495.
8
The district court granted appellant Deering absolute immunity for his action in
filing a notice of indictment against Mastroianni.3 The district court also extended
absolute immunity to Deering for his grand jury testimony on July 16 and 17, 1992. The
district court decided, however, that none of the appellants' other acts as alleged in
Mastroianni's complaint was entitled to absolute immunity. Mastroianni claimed that
both Deering and Bowers provided legal advice to Jackson and Yeomans during the
preliminary investigation of Mastroianni and provided advice to them prior to presenting
their case to the grand jury. Mastroianni asserted that during the preliminary investigative
stage Bowers, Deering, Jackson, and Yeomans conspired (1) to coerce Mastroianni into
testifying against his superior, Sheriff Smith; (2) to fabricate evidence against
Mastroianni; and (3) to present fabricated evidence to secure Mastroianni's arrest in the
event Mastroianni refused to cooperate with them.4
As previously discussed, prosecutorial functions not intimately associated with the
judicial phase of the criminal process are not entitled to absolute immunity. Buckley, 113
S. Ct. at 2616; Burns, 500 U.S. at 493. Therefore, the absolute immunity protection that
Deering and Bowers received for initiating the prosecution and presenting the state's case
3
The district court did not explain its disposition of Bowers's claim for absolute
immunity. Therefore, to the extent that Bowers was involved in filing the notice of
indictment or presenting evidence against Mastroianni, we find that Bowers was entitled
to absolute immunity for that conduct. Burns, 500 U.S. at 493.
4
The record shows that Deering and Bowers provided legal advice to the GBI agents
investigating Mastroianni prior to the initiation of grand jury proceedings. Moreover,
Bowers personally supervised the investigation.
9
against Mastroianni does not relate backwards to shield their preliminary activity of
giving advice to Jackson and Yeomans or for allegedly conspiring to
bring about Mastroianni's arrest unless he cooperated with them. Buckley, 113 S. Ct. at
2616; Burns, 500 U.S. at 478. This circuit has recognized that providing absolute
immunity to officials for one aspect of a claim against them does not necessarily extend
the protection of absolute immunity to other claims against them. Strength, 854 F.2d at
425 (finding that providing absolute immunity to a witness for grand jury testimony does
not necessarily protect the witness for alleged pretestimonial acts in furtherance of a
conspiracy).
The appellants urge this court to find that since they have absolute immunity for
some of their actions, then their entitlement to absolute immunity should shield them from
any liability for their alleged conspiracy to violate Mastroianni's rights. We hold that
neither Deering nor Bowers is entitled to absolute immunity for alleged involvement in
conspiring with Jackson and Yeomans to bring about Mastroianni's arrest because of his
refusal to assist in their investigation of Sheriff Smith. We find that genuine issues of
material fact exist surrounding Deering and Bowers's alleged conduct prior to the judicial
phase of the criminal process. Therefore, the district court properly denied summary
judgment based on absolute immunity.
B. Yeomans
The district court ruled that Yeomans was entitled to absolute immunity for his
testimony before the grand jury on July 16 and 17, 1992. Although Yeomans received
10
absolute immunity for his grand jury testimony, that immunity does not reach back to
protect him for any activities he allegedly engaged in prior to taking the witness stand for
his grand jury testimony. See Strength v. Hubert, 854 F.2d at 425. In Strength, the court
stated that the determination that a witness has absolute immunity from civil liability
based on the witness's grand jury testimony does not end the court's inquiry. Strength,
854 F.2d at 425. The court went on to state that pretestimonial acts in the furtherance of
an alleged conspiracy may form the basis for a cause of action under section 1983 for
deprivation of constitutional rights. Strength, 854 F.2d at 425. Therefore, even though
Yeomans is entitled to absolute immunity for his testimony before the grand jury, that
immunity cannot extend backwards to protect him for his alleged involvement in
conspiring to violate Mastroianni's constitutional rights. Strength, 854 F.2d at 425;
Dennis v. Sparks, 449 U.S. 24, 29 (1980).
Mastroianni alleged that in October 1991, Jackson and Yeomans met with him at
the GBI office and threatened to indict him if he did not give them "something" on Sheriff
Smith. Moreover, Mastroianni claimed that Yeomans possessed information indicating
that Mastroianni properly conducted the reverse sting operation that formed the basis for
his grand jury indictment. Therefore, Yeomans's false testimony before the grand jury
contradicting exculpatory evidence contained in his own file suggests that he may have
agreed to facilitate an illegal arrest of Mastroianni.5 According to Mastroianni, Yeomans
5
The appellants contend that given Yeoman’s absolute immunity as a grand jury
witness, any use of that testimony as evidence of unimmunized pretestimonial acts is
11
conspired with the other appellants to fabricate evidence to aid in his prosecution.6 Those
alleged actions would not be protected under absolute immunity. Since genuine issues of
material fact exist regarding Yeomans's alleged actions falling outside of the protection of
forbidden. That is not and should not be so. The defendants are not being charged with
liability for their participation in the grand jury proceedings, but for pretestimonial
conduct. The grand jury testimony simply provides evidence of inconsistencies in the
defendants’ actions which bolster the conclusion that they were conspiring. A recent
Ninth Circuit case examined this very issue. Harris v. Roderick, 126 F.2d 1189 (9th Cir.
1997), recognized that perjured grand jury testimony was immune, but that
the subsequent official testimony was simply a part of the implementation
of that conspiracy, a step in the overall plan. We do not believe that the
general policy that immunizes false official testimony requires that we
preclude [plaintiff] from showing the full range of occasions on which
[defendants’] falsehoods were uttered, simply because some of them
occurred before a grand or petit jury.
Harris, 126 F.2d at 1189.
Additionally, while the Supreme Court in Dennis v. Sparks, 449 U.S. 24, 30 (1980), did
hold that a judge was immune from suit based on conspiracy, the Court found that private
parties who had conspired with the judge were not. The Court even anticipated that the
judge might possibly have to testify about his actions--actions for which he was immune--
in order to establish the conspiracy. As in the situation at hand, the grand jury testimony
is immunized, but can be used as evidence of a conspiracy.
Moreover, a body of law has been established that, in the criminal context, creates an
exception to testimonial immunity where the immunized witness lies under oath. See
United States v. Veal, 153 F.3d 1233 (11th Cir. 1998) (cases collected therein). However,
the Supreme Court in Briscoe v. Lattue, 460 U.S. 325, 339-41 (1983), while limiting its
holding to perjury during trial, makes a distinction in dicta between civil and criminal
penalties for perjury in all judicial proceedings. The dissent posits that “[t]o assume that
Congress, which had enacted a criminal sanction against state officials, intended sub
silentio to exempt those same officials from the civil counterpart approaches the
incredible.” Briscoe, 460 U.S. at 362.
6
Yeomans was the GBI agent in charge of Mastroianni's investigation and in that
capacity he gathered evidence to be used against Mastroianni.
12
absolute immunity, the district court properly denied Yeomans's motion for summary
judgment based on absolute immunity.
III. Qualified immunity
A. False arrest
Qualified immunity protects government officials from liability for civil damages
arising out of the government officials performing their discretionary functions as long as
their conduct does not violate clearly established statutory or constitutional rights that a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
Rogers v. Miller, 57 F.3d 986, 988 (11th Cir. 1995). Since the parties here do not dispute
that the appellants were acting within the scope of their discretionary authority, we limit
our discussion to determining whether the appellants' alleged actions violated clearly
established constitutional law. Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir. 1988).
Therefore, under this analysis we review the record taken in the light most favorable to
Mastroianni to determine whether a violation of clearly established law has occurred.
Bennett v. Parker, 898 F.2d 1530, 1532, 1535 (11th Cir. 1990) (Tjoflat, C.J., concurring)
(when evaluating the qualified immunity defense in the context of a motion for summary
judgment, the court must consider all facts fairly inferable from the record in favor of the
plaintiff even if in dispute and decide whether under those facts the defendant's conduct
violated law clearly established at the time), cert. denied, 498 U.S. 1103 (1991). In
determining whether the law was clearly established so that qualified immunity would not
apply, "the law must have earlier been developed in such a concrete and factually defined
13
context to make it obvious to all reasonable government actors, in the defendant's place,
that 'what he is doing' violates federal law." Lassiter v. Alabama A&M University, 28
F.3d 1146, 1149 (11th Cir. 1994) (en banc) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). This does not mean that a court must have found the "very action in
question unlawful." Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994). Rather, the
court must find that "in light of preexisting law the unlawfulness must be apparent."
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The district court determined that the
appellants were not entitled to qualified immunity for their arrest of Mastroianni because
viewing the facts in the light most favorable to Mastroianni demonstrates they violated
clearly established law in arresting Mastroianni without having arguable probable cause.
Mastroianni was arrested for violating O.C.G.A. § 16-5-42 for allegedly planting
drugs on and falsely arresting Leo Polumbo. The statute reads in part:
When the arrest, confinement, or detention of a person by warrant, mandate,
or process is manifestly illegal and shows malice and oppression, an officer
issuing or knowingly and maliciously executing the same shall, upon
conviction thereof, be removed from office and punished by imprisonment
for not less than one nor more than five years.
O.C.G.A. § 16-5-42 (Michie 1988) (emphasis added). Mastroianni claims that his arrest
was without arguable probable cause because he was arrested for conducting a legitimate
reverse sting operation. He argues that since his reverse sting operation was legitimate
his conduct could not have been "manifestly illegal" under O.C.G.A. § 16-5-42. Under
Mastroianni's version of the facts, the following occurred. Preston Kirkland was arrested
for possession of marijuana on March 5, 1991. Following Kirkland's arrest, Mastroianni
14
enlisted Kirkland's assistance in helping to arrest a suspected drug dealer, Leo Polumbo.
Kirkland was released from jail on March 5, 1991, at approximately 3:00 p.m. Kirkland
visited Polumbo's residence and saw marijuana in Polumbo's home. During this visit,
Kirkland agreed to deliver two ounces of marijuana to Polumbo with the understanding
that Polumbo would sell the marijuana for Kirkland. Kirkland then reported to
Mastroianni that he observed drugs at Polumbo's residence and that Polumbo agreed to
receive two ounces of marijuana.
After meeting with Kirkland, Mastroianni sought and obtained a search warrant for
Polumbo's home. In furtherance of this reverse sting operation, Mastroianni picked up
two ounces of marijuana from a crime laboratory in Savannah, Georgia. Mastroianni
released the two plastic bags containing marijuana to Kirkland and told him to proceed
with his plans to deliver the marijuana to Polumbo. Kirkland took the marijuana to
Polumbo's residence, but Polumbo was not home. Kirkland left the marijuana with
Polumbo's wife and informed Mastroianni that he had made the delivery. Based on this
information, Mastroianni executed his search warrant upon Polumbo's home, but
Polumbo was not present. Polumbo's wife was present, and during the search the officers
discovered other drugs in addition to the marijuana Kirkland delivered. Mastroianni
found Polumbo at another location and arrested him for possession.
Based upon the foregoing facts, we must determine whether Mastroianni's conduct
provided the appellants with arguable probable cause to bring about his arrest. Swint v.
City of Wadley, Alabama, 51 F.3d 988, 995-96 (11th Cir. 1995). It is well established in
15
this circuit that law enforcement officials may conduct reverse sting operations. United
States v. Walther, 867 F.2d 1334, 1339 (11th Cir. 1989); Owen v. Wainwright, 806 F.2d
1519, 1522 (11th Cir. 1986); United States v. Savage, 701 F.2d 867, 869-70 (11th Cir.
1983). In conducting reverse sting operations, law enforcement officials' actions may not
constitute entrapment, Sorrells v. United States, 287 U.S. 435, 444 (1932), or be carried
out in an outrageous manner, United States v. Russell, 411 U.S. 423, 431 (1973). Law
enforcement officials may provide an opportunity and even facilitate the commission of a
crime through artifice and stratagem in order to arrest persons engaged in criminal
enterprises. Sorrells, 287 U.S. at 441. Law enforcement officials may not entrap those
persons, however, but this court determines whether entrapment has occurred through
looking to see whether a trap has been set for an unwary innocent or whether the trap was
set for an unwary criminal. Sherman v. United States, 356 U.S. 369, 372 (1958).
In this case, under Mastroianni's version of the facts, we cannot find that
Mastroianni entrapped Polumbo or set a trap for an unwary innocent. Prior to
Mastroianni making his arrest of Polumbo, Mastroianni's informant, Kirkland, had
observed drugs at Polumbo's home and had participated in prior drug transactions with
Polumbo. Mastroianni merely provided an unwary criminal--Polumbo--an opportunity to
continue to engage in criminal activity. We believe that in viewing the facts in the light
most favorable to Mastroianni he legitimately conducted a reverse sting operation.
Therefore, the appellants were aware or reasonable officers in their position would have
been aware that Mastroianni's conduct was not "manifestly illegal."
16
The appellants argue, however, that Mastroianni's conduct was illegal because he
lied in order to procure a search warrant for Leo Polumbo's residence and planted
evidence.7 The record suggests otherwise. For example, the appellants told the grand
jury that Mastroianni lied to obtain the search warrant for Polumbo's residence because
Mastroianni's informant could not have possibly observed drugs at Polumbo's residence
within twenty-four hours of Polumbo's arrest because the informant was in jail. The
record, however, reveals that Kirkland was out of jail the day before he noticed drugs at
Polumbo's residence. Moreover, the record indicates that Mastroianni discovered other
drugs and drug paraphernalia at Polumbo's home during his reverse sting operation.
Perhaps a more telling blow to appellants' contention that Mastroianni lied in order to
obtain his search warrant was the grand jury's refusal to indict him on Count II of the
indictment for allegedly committing perjury to obtain the search warrant for Polumbo.
Therefore, in viewing the facts most favorable to Mastroianni, his reverse sting operation
was simply not illegal and the appellants effected his arrest knowing that his conduct was
proper. This violates Mastroianni's right to be free from arrest without arguable probable
cause. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1558 (11th Cir. 1993).8
7
It is important to note that in Count II of the indictment against Mastroianni, the
appellants alleged that Mastroianni committed perjury to obtain a search warrant for
Polumbo's residence, but the grand jury did not indict Mastroianni on this count.
8
This finding does not mean that the appellants actually violated Mastroianni's
constitutional right. The appellants will have an opportunity at trial to produce evidence
negating Mastroianni's claims in order to prevent him from recovering. Our task at this
stage is to determine whether, in taking the facts in the light most favorable to
17
Consequently, the district court properly denied appellants' motion for summary judgment
based on qualified immunity.
B. Misdirection of the grand jury
The appellants claim that the grand jury indictment against Mastroianni breaks the
chain of causation and protects them from liability for false arrest. Moreover, the
appellants claim that it was not clearly established at the time of Mastroianni's arrest that
an arrest pursuant to a grand jury indictment may violate the Fourth Amendment.
Mastroianni claims, however, that the appellants made misrepresentations to the grand
jury, and therefore, the grand jury indictment did not establish prima facie evidence of
probable cause to arrest him and did not break the chain of causation with respect to the
appellants' liability.
Generally, an intervening act of a prosecutor, judge or grand jury will break the
chain of causation with respect to alleged illegal conduct of a police officer. Barts v.
Joyner, 865 F.2d 1187, 1195 (11th Cir. 1989). In Barts, the court held that:
The intervening acts of the prosecutor, grand jury, judge and jury--assuming
that these court officials acted without malice that caused them to abuse
their powers--each break the chain of causation unless plaintiff can show
that these intervening acts were the result of deception or undue pressure by
the defendant policemen.
Barts, 865 F.2d at 1195 (emphasis added). According to the reasoning in Barts, a grand
jury indictment does not always break the chain of causation with respect to alleged
Mastroianni, the appellants violated a clearly established law in arresting Mastroianni.
18
illegal acts taking place prior to securing the indictment. Therefore, if the grand jury was
misdirected, then the grand jury indictment cannot break the chain of causation relating
back to the initial conspiracy and fabrication of evidence against Mastroianni. Barts, 865
F.2d at 1195. We believe that chain of causation was not broken with respect to the
appellants' alleged acts of conspiring to violate Mastroianni's rights.
In this case, Mastroianni has presented sufficient evidence to raise a genuine issue
of material fact regarding appellants' alleged misconduct in misdirecting the grand jury.
For example, it appears that Deering and Yeomans misrepresented information to the
grand jury involving whether Polumbo agreed to accept drugs from Kirkland,
Mastroianni's confidential informant. During Yeomans's testimony elicited from Deering,
the following exchange occurred:
Q: All right. Based on your investigation, was it determined at anytime
that Mr. Kirkland had an agreement to deliver that marijuana to Mr.
Polumbo's house?
A: No, sir.
The record, on the other hand, reveals that an interview summary contained in Yeomans's
personal files included the following statement:
At approximately 1:25 on Wednesday, May 29, 1991, ASAC W.J.
Yeomans and Special Agent G.C. Harrell of the Georgia Bureau of
Investigations interviewed Mr. Leo Charles Polumbo. Mr. Polumbo stated
on March 5 or 6, 1991, at approximately 11 a.m. Preston Kirkland came to
his residence and asked Mr. Polumbo if he could get rid of some weed
(meaning marijuana) for him. Mr. Polumbo stated he did not have any
money, and Kirkland stated he would front the marijuana for him. Mr.
Polumbo stated okay and Mr. Kirkland told Mr. Polumbo he would bring
19
approximately two ounces of marijuana at approximately 1:30 to 2 p.m. on
the same evening, this being either March 5 or March 6, 1991.
Additionally, during Yeomans's testimony he testified that Kirkland stated that he
received orders from Mastroianni to plant drugs in Polumbo's residence. Kirkland
submitted an affidavit, however, refuting Yeomans's testimony regarding that statement.
Our review of the record leads us to conclude that the grand jury indictment did not break
the causal chain with respect to appellants' alleged conspiracy to arrest Mastroianni for
his refusal to testify against Sheriff Smith. Barts, 865 F.2d at 1195; see Kelly v. Curtis,
21 F.3d 1544, 1557 (11th Cir. 1994); Hand v. Gary, 838 F.2d 1420, 1426-28 (5th Cir.
1988) (finding that any misdirection of the magistrate or grand jury perpetuates the taint
of the original official behavior).
We also believe that clearly established law dictates that an arrest pursuant to a
grand jury indictment may violate the Fourth Amendment if the grand jury was misled or
experienced undue pressure. Barts, 865 F.2d at 1195. We believe it is clear from both
Supreme Court precedent and this circuit's case law that an arrest pursuant to an arrest
warrant or search warrant may offend the Constitution under certain circumstances.9
9
Although the district court relied on Hand v. Gary, 838 F.2d 1420 (5th Cir. 1988) for
the proposition that any misdirection of a magistrate or a grand jury perpetuates the taint
of the original impermissible conduct, we cannot rely on case law from another circuit to
determine whether the law was clearly established in this circuit. This circuit decided
Barts prior to the conduct giving rise to this litigation and established the same
proposition that the Fifth Circuit established in Hand. Barts v. Joyner, 865 F.2d 1187
(11th Cir. 1989). Therefore, it was clearly established in the Eleventh Circuit at the time
of the appellants' alleged conduct that officials who engage in impermissible conduct
prior to securing a grand jury indictment cannot rely on the grand jury indictment to break
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Malley v. Briggs, 475 U.S. 335 (1986). In Malley, the Supreme Court held that police
officers may be held liable for damages resulting from an arrest or search under the
authority of a warrant when no reasonable officer could have believed that the affidavits
established probable cause, and that the judge's issuance of the warrant does not break the
chain of causation. Malley, 475 U.S. at 344 n.7. Similarly, this circuit has held that the
intervening act of a grand jury indictment breaks the chain of causation "unless the
plaintiff can show that these intervening acts were the result of deception or undue
pressure." Barts, 865 F.2d at 1195 (Edmondson, J.); compare Franks v. Delaware, 438
U.S. 154, 156, 165-71 (1978) (finding that the constitution prohibits an officer from
making perjurious or recklessly false statements in support of a warrant). Therefore, we
believe that the district court properly found that the chain of causation was not broken
and that the appellants were not entitled to qualified immunity because genuine issues of
material fact exist regarding the appellants' alleged agreement to violate Mastroianni's
constitutional rights through fabricating evidence and misleading the grand jury.10
the chain of causation with respect to their original misconduct. As matter of policy, it
makes little sense to allow police officers or prosecutors to engage in fraudulent and
deceitful conspiracies in order to secure a grand jury indictment and then use the
indictment to shield them from any possible causes of action for their tainted behavior.
10
In reaching this conclusion, we note the ostensible anomaly of providing absolute
immunity for initiating the prosecution, presenting evidence, and testifying before a grand
jury, while denying any immunity for the alleged fabrication of evidence prior to the
judicial phase of the criminal process. The "function test" surrounding absolute immunity
compels this result, however. Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2616 (1993).
We must be careful not "to conflate the question of whether a Section 1983 plaintiff has
stated a cause of action with the question whether the defendant is entitled to absolute
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C. Conspiracy
Appellants claim that Mastroianni failed to establish a conspiracy among them to
violate his right. They claim that the evidence revealed a good-faith effort on their part to
carry out their official duties. First, we must determine whether it was clearly established
in the Eleventh Circuit that conspiracy to violate someone's constitutional right is
actionable. We find that at the time of the alleged activity against Mastroianni it was
clearly established in the Eleventh Circuit that conspiring to violate the constitutional
rights of another is actionable under section 1983. Dennis, 449 U.S. at 29; Strength, 854
F.2d at 425. In Strength, an investigator from the Office of the Attorney General for the
State of Alabama received a tip from W.L. Hubert that Hubert's former business partner,
William Strength, was engaged in fraudulent activity relating to use of corporate checks.
After receiving information from Hubert, Carroll began an investigation and after
completing his investigation presented a report to the district attorney asking for an
indictment. Carroll was the sole witness before the grand jury that eventually returned a
multiple-count forgery indictment against William Strength and his wife. Following the
indictment, a district attorney replacing the initial district attorney moved to dismiss the
indictment. In a sworn affidavit explaining her reasons for dismissing the indictment
against Strength, the district attorney stated:
immunity for his actions." Buckley, 113 S. Ct. at 2612 n.5. The misdirection of the
grand jury removes the protection that any pre-grand jury misconduct would have
enjoyed after an indictment was issued absent any misdirection of the grand jury.
22
When I reviewed ATI's business record . . . I was "floored." After
reviewing these records it was apparent that the endorsements were not
criminally made. To the extent that the records were produced, they
completely exonerated the Strengths. None of the records produced
indicated any criminal activity, but completely accounted for the money to
which they related. I felt at the time and still feel that our office had been
used and that we had been duped into indicting the Strengths.
Strength, 854 F.2d at 423. In finding that the Strengths could state a claim for conspiracy
to violate their constitutional rights, this circuit recognized that persons have a right to be
free from capricious prosecution, i.e., those prosecutions procured through false and
misleading information that would cause a prosecutor to believe probable cause existed.
Strength, 854 F.2d at 425. Therefore, we conclude that it was clearly established in the
Eleventh Circuit that a conspiracy to violate the constitutional rights of another such as
using false and misleading information to cause a malicious prosecution is actionable
under section 1983. Strength v. Hubert, 854 F.2d 421 (11th Cir. l988).
In order for a section 1983 conspiracy claim to survive a summary judgment
motion, the plaintiff must show specific facts indicating the existence or execution of the
alleged conspiracy. Granville v. Hunt, 411 F.2d 9, 11 (5th Cir 1969).11 The record
reveals that sufficient evidence exists to conclude that, in viewing the facts in the light
most favorable to Mastroianni, appellants reached an understanding to violate
Mastroianni's constitutional rights. See Bailey v. Board of County Comm'rs of Alachua
11
The Eleventh Circuit adopts as binding precedent all decisions of the former Fifth
Circuit decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981).
23
County, 956 F.2d 1112, 1122 (11th Cir. 1992). Mastroianni alleged that during initial
meetings with Jackson and Yeomans they made it clear that he had to cooperate in
helping them prosecute his superior, Sheriff Smith, or face prosecution himself. The
record reveals discrepancies between the contents of the GBI investigative file on
Mastroianni and Yeomans's testimony before the grand jury. Moreover, the record
reveals that Yeomans received legal advice from Deering and that all appellants
communicated regarding this case. Bowers admitted to personally supervising the case
and spending approximately two hours per week on the case during its duration. Deering
advised Jackson and Yeomans during the investigation. We believe that these facts, taken
in the light most favorable to Mastroianni, raise a genuine issue of material fact regarding
his conspiracy claim. The district court properly denied appellants' motion for summary
judgment on this claim.
CONCLUSION
For the foregoing reasons, we affirm the district court's denial of summary
judgment in this case.
AFFIRMED.
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