Hart v. O'Brien

Furthermore, un- performance. cient thus cumulative profferred outcome affected not have could phase.

punishment

CONCLUSION reasons, AFFIRM foregoing For petition of Nobles’s denial court’s district corpus. of habeas writ Plaintiff-Appellee, HART,

Peggy Nell Officer, O’BRIEN, DPS B.

Harold Defendants, al., et Officer; Frank O’Brien, DPS B.

Harold Myrick, Officer; Montana, C.T. DPS Motley; Officer; Carl Law Enforcement County Starnes, Lamar Assistant Jeff Defendants-Appellants. Attorney, 96-40151.

No. Appeals, States Court

United

Fifth Circuit. 6, 1997.

Nov. Stuckey, Nacogdoches, TX,

Curtis B. Plaintiff-Appellee. Matlock, Austin, TX,

Karen Denise for Ha- rold B. O’Brien and Frank Montana Defen- dants-Appellants. Davis,

Robert Cooper, Flowers, Scott Davis, Dennyberry, TX, Fraser Tyler, & Myriek, C.T. Motley Carl and Jeff Starnes Defendants-Appellants. BARKSDALE,

Before EMILIO M. BENAVIDES, GARZA and Judges. Circuit GARZA, EMILIO M. Judge: Circuit Various county state and officials searched (“Hart”), the home of Peggy Nell Hart ar- her, charged rested possession her with marijuana. remained jail She more than two weeks. After the state dismissed charges, pursuant Hart filed suit to 42 § U.S.C. 1983 and law against state Red (“the County, River county”) Texas and a number of the officials involved in the case. Starnes, These officials include Jeff an assis- county attorney County; tant in Lamar Ha- Montana, rold Frank O’Brien and both Texas (“DPS”) Department Safety of Public narcot- officers; Motley ics Carl Tommy Myriek, who at were the time Red River County deputies (collectively, sheriffs “the officials”). county The and the officials then summary judgment, moved for with the county arguing it could be vicarious- ly hable for the actions of its officials and the absolute, variously asserting quali- officials fied, immunity. and official The district granted county summary judgment court the Myriek summary part, and in judgment but denied the rest of the motions. The officials interlocutory portion mount appeal an of the dealing the judgment district court’s with law, immunity. Finding a error as matter judgment we reverse the district court’s on residence, Hart one was northeast of immunity; we of the official and amidst some dump, the and one was officials trash in favor of all the judgment render directly the home. behind Hart trees in favor of O’Brien claims and on the federal claims. and the state law Montana engage Hart certain officers saw The activities) (or signs saw of such activities I residing in Co- led them to believe she was the trailer. Hart does not contest that nine’s denial of a reviewing a district court’s following made observations: officers the summary on the judgment motion immunity, view the facts grounds of we must (cid:127) August stayed overnight Hart at On the nonmovant. light most favorable to the Conine’s residence. F,3d Barton, Blackwell (cid:127) August Hart left the and Conine On Cir.1994).1 Hart return property. Upon and Conine’s lived near each and David Conine Hart them day, next the officers observed the County. River a rural area of Red other in unloading vehicle clothes from Conine’s Hart in a in a trailer and resided Conine taking the trailer. and them into shutters; and house with black trim white (cid:127) spent night in the trailer. Hart by pasture separated and their homes were (cid:127) stayed nights other Hart at least two by partly dense woods. Howev- surrounded during trailer the two-week surveil- the er, summary judgment also re- the period. lance Hart, times, spent night the at veals (cid:127) occasionally went out to eat with trailer. Conine’s Conine. county the and August state On (cid:127) animals in and Hart would feed the survey property an aerial conducted Conine’s barn. around surrounding white house the trailer and the (cid:127) Benton, Jerry The officers observed trim, they discovered several with black and marijuana grower, visit the known Conine assigned patches. was marijuana O’Brien was at residence dur- residence. Hart that the mari- investigate. O’Brien believed visit. ing at least some of Benton’s juana growing on owned or con- land (cid:127) in the direction of Conine and drove Conine, by determined that Co- trolled and dump, which located near one the trash growing nine been arrested 1985 for had marijuana patches. Hart exited methamphetamine marijuana operating and open gate dump and truck to O’Brien, laboratory property. on the same stayed dumping there until finished Conine officers, along police Montana and nine with trash.2 some surveillance the Conine resi- conducted August O’Brien and Starnes surrounding property and the Around dence two drafted a search and arrest warrant and about two weeks. O’Brien Montana affidavits, operation. signed both O’Brien. jointly supervised agents supporting marijuana contained information on ultimately determined that six The affidavits warrant, as saw. The patches existed: three were in a tree line activities (one pasture signed by judge, district commands across a from Hart’s home be- state “to ing directly pasture appropriate from law enforcement officers across home), premises dump suspected place de- one was near a trash southwest enter robe, morning wearing accepts Conine make "heat 1. Our recitation of facts Hart’s evidence (i.e., way inferences it as true and and reasonable from car a certain to runs" drive his in expressing any followed) be construed as view should not being with Hart in determine if he was weight credibility as her to the of evidence. alleged disputes these observa- the car. Hart Carpenter, n. Salas v. 980 F.2d we are to view the facts in the tions. Because Cir.1992). Blackwell, Hart, light to most favorable disputed facts in we will not consider deposi- 2. and The also assert affidavits officers had, determining or reason- whether the officers testimony they observed Hart and Co- tion had, they ably cause to believed that embrace, Hart, front nine Conine urinate in of or to arrest her. search Hart's home Benton, Hart make breakfast for and Conine porch out trailer Hart come on the of the in the stay Rather, Affidavit and attached] scribed to did over on several [the occasions. property adjacent for the described there search she lived in the white frame house bring it before me said Affidavit and and Second, with black trim. Hart was not mar- persons in said Affidavit and arrest described Instead, to Stanley ried Hart. a different bring In them and them before me.” the Peggy Hart Stanley was to married Hart. affidavit, “property the to be first searched” The officers claim that the piece first of barn, Conine’s trailer and a vacant included information came from their of surveillance house, single-family, “a white-frame white property. the helped Starnes admits that he with black trim and shut- frame residence prepare gave the affidavit3 and that he the ters,” outbuildings, various and a number of piece second of information to O’Brien for (hereinafter property”). cars “the Hart lived inclusion in the affidavit. in the house with black trim and shut- white O’Brien swore and to affi- subscribed ters, say although affidavit did not so. affidavit, davit. on Based this a state district The affidavit refer to cars “on did two judge signed the and arrest search warrant being property” registered as to Hart. August day, on 24. The next a team of law property The also affidavit noted that (Motley enforcement Myrick and by was controlled Conine and unknown “[a]n them), among by Montana, led and O’Brien female, approx. 5’6” white tall with brown converged property on the to execute the hair and build.” The affidavit medium search and arrest warrant. Starnes accom- “charges and accuses” Conine and un- panied that, them. Starnes concedes after marijuana. possessing known white female Hart, he saw he realized that she was not the The affidavit second contained facts Peggy Hart, Stanley married to and allegedly supporting probable cause. This partially that the affidavit was on based erro- repeats affidavit the information about the neous information. he did not at- house with black trim white and shutters and tempt to halt the execution of the warrant. registered only two cars to Hart. The following: other to Hart is the reference There was some debate about whether During the almost continuous surveillance Hart, arrested, being after should left be property, on affiant Conine’s observed Co- behind to care for Conine’s animals. None- enter property nine and leave the nu- theless, O’Brien and Montana executed merous occasions. On several of those warrant; Myrick instructed to arrest occasions, unknown, an Conine and/or Motley jail. and take The light with white female brown hair who is officers also arrested Conine and took him to home, residing stopped at the mobile has jail. During property, search by the white frame house with trim black items, including officers seized a number shutters, entered the residence and 1,132 marijuana plants.4 live While execut- returned a short time later. The un- warrant, ing the search the officers found known, female been white has seen drugs drug paraphernalia in Conine’s Buiek, driving registered Affiant a blue trailer, including baggies marijuana, two a Peggy Peggy Hart. Hart is married to marijuana bongs, cigarette two of a butt Hart, Stanley according who [Drug ashtray, firearms, ammunition, in an (“DTF”)] files, Task Force is a known addition, $19,000 in cash. officers found County, marihuana cultivator Red River bag cocaine in barn and a of mari- Conine’s Texas. juana adjacent seeds inside shed to his paragraph pieces property. only objects This contains at that have least two seized First, specifically of inaccurate information. Hart did been identified as Hart’s were home, though personal papers storage not reside at the mobile some in a she found (or Hart). simplicity, Apparently, 3. For we will refer to the two "Conine tak affida- Conine vits as "the affidavit.” ing advantage of isolated nature of the area grow neighboring tracts of marihuana arrest, after Several weeks Conine’s and Hart’s Conine, v. land.” United States survey marijuana a of the land revealed that the (5th 1994). Cir. plants growing had not been on land owned rights her under the property her violated property. Conine subse- on Conine’s shed alleged pen- also Fourth Amendment. She and is drug charge to a quently pled guilty against state claims these defendants dent generally United See now incarcerated. Cir.1994). prosecu- imprisonment, malicious Conine, for false 33 F.3d 467 States tion,5 intentional infliction of emotional and a jail, filed Hart to he Motley took After alleges Hart that Starnes and distress. her, her charging complaint against criminal into the inserted false statements O’Brien to marijuana with intent possession of with intentionally or with reckless affidavit either hold” writing the words “federal deliver and theory Hart’s is disregard for the truth. Motley’s de- According to document. the she not officials knew was involved the O’Brien, Starnes, Mon- position testimony, but, cultivation, marijuana or- Conine’s tana, Myrick previously had discussed and providing into pressure to her der hold, Motley and did Hart putting on federal him, her, they charged her against arrested so, Hart instructions. pursuant to O’Brien’s offense, her drug a detained without with magis- hearing a state was before given day, nothing try to to for then did bail and complaint. the charge in judge on the trate during two or so she free her the weeks magistrate supposed hearing, At the was the jailed. remained determine, things, among whether to other point, summarizing At worth the this it is existed for further detention cause in this matter. officials’involvement O’Brien magistrate The de- and the amount of bail. jointly supervised the and Montana surveil- charge from the On the sheet nied bail. property. lance and search of the O’Brien (which signed by magistrate), the hearing “ requested the O’Brien and Mon- warrant. is circled and phrase the *Bail denied” the tana instructed the officers to execute it has written “Federal next to someone taking to by arresting Hart and warrant Hold.” jail. Myrick participate did sur- lodged a federal official had no veillance, he in the search of but was involved against Motley Hart. testi- detainer federal property and Hart’s arrest. After thought that he deposition fied in his search, Motley jail signed Hart and took to Hart hold” was intended detain “federal her, complaint against criminal initial long enough Drug allow Enforce- federal writing signed on it. “federal hold” O’Brien (“DEA”) speak Agency ment complaint against a new Hart criminal give Apparently, her. the officers wanted to day. next advised the officers dur- Starnes opportunity to inter- federal authorities ing investigation, O’Brien in the assisted post in the Hart could bail. vene case before application, and preparation of the warrant day, superseding The next O’Brien filed present during was the execution of the war- Hart, against charging complaint her with rant. possession marijuana in an amount be- Starnes, Motley, Myrick, and Red River fifty pounds. magistrate five tween and County summary judgment on moved for hearing new

judge conducted grounds. particular, Starnes as- various $50,000. setting charge, this time bail at On immunity qualified serted absolute and September days seventeen after Motley and against the federal claims and arrest, posted she someone bail for her and Myrick against claimed subse- released on bond. Prosecutors Also, O’Brien and Mon- the federal claims. against quently charges Hart dismissed profess- summary judgment, tana moved because of insufficient evidence. qualifiedly immune were O’Brien, Starnes, officially claims im- against then Mon- the federal

Hart sued After tana, Motley, County mune state Myrick, and Red River ones. summary response judgment § asserting that her filed her under U.S.C. motions, an “ob- and Montana filed subsequent incarceration had vio- O’Brien arrest Hart submit- rights jection” Fourth Four- to certain evidence that lated her under the particular motion. response that the ted in to their teenth Amendments and search Myrick county prosecution. did not sue malicious (1) Co., granted court then the The district Matsushita Elec. Indus. v. Ltd. Zenith (2) county summary judgment; granted Myr- 574, Corp., 586, Radio 475 U.S. 106 S.Ct. (1986) summary judgment qualified 1348, 1356, (citations based on ick 89 L.Ed.2d 538 omitted). immunity on the as a federal claims and opposing party The must set forth of intentional infliction of specific matter law the showing genuine facts issue for (3) claim; the re- emotional distress denied may upon trial and not rest the mere allega- maining summary judgment; for motions or tions denials of pleadings. its Fed. (4) objection 56(e); to certain of and dismissed R.Civ.P. v. Liberty Anderson Lobby, Inc., 242, 249, Hart’s evidence as 2505, 2511, moot. 477 U.S. 106 S.Ct. (1986). 91 L.Ed.2d 202 interlocutory appeal, In this all the officials in denying assert that the district court erred Ill summary judgment their motions for on the first, We must examine the basis of grounds immunity; of Starnes asserts that jurisdiction. our Mosley v. Cozby, 813 F.2d qualified immunity, he has absolute or and (5th 659, Cir.1987). A appeals of court O’Brien, Montana, Motley, Myrick aver jurisdiction appeals has of from all final dis qualified have official immuni- trict court § decisions. 28 U.S.C. Un addition, ty. In argue O’Brien Montana doctrine, however, der the collateral order in refusing district court erred interlocutory appeals from district court or strike certain evidence Hart submitted denying summary judgment ders on the ba summary opposition judgment to their mo- qualified sis of or immunity may absolute be tion. immediately appealed, assuming these orders disputes these contentions. She also are based an of issue law. Mitchell v. jurisdiction maintains that we do not have Forsyth, 511, 526, 2806, 105 S.Ct. interlocutory appeal. over (1985). 2816, 86 L.Ed.2d 411 Recently, Supreme Court clarified the II Jones, of scope Mitchell. In Johnson v. We review de novo the denial of a 304, 312, 2151, 2156, U.S. 115 S.Ct. summary judgment motion for on the (1995), distinguished L.Ed.2d 238 the Court grounds immunity. or absolute legal wrangles between orders that resolve Livingston v. Dep’t, Nerren Police and those that determine “evidence sufficien- (5th Cir.1996). 469, so, 470 & n. 1 doing In If, cy” disputes. example, the district employ the same criteria as the district summary judgment court denies on the basis court, and all construe facts and inferences in that, facts, given undisputed set light nonmoving most favorable objec- defendant official’s conduct was not Id.; Co., party. LeJeune v. Shell Oil 950 tively light clearly reasonable estab- Cir.1992). 267, Summary judg law, lished the official seek immediate appropriate moving party ment where the appeal. summary If the district court denies genuine establishes that “there is no issue of judgment grounds on the that material facts fact [it] material and that is entitled to party may may exist which a not be able judgment as a matter law.” Fed.R.Civ.P. trial, prove the official await must final 56(e). that, moving party must if show judgment appealing. before Id. evidentiary material of record were -re — Pelletier, -, Behrens U.S. court, duced admissible evidence in it -, 116 S.Ct. 133 L.Ed.2d 773 permit be would insufficient to the nonmov (1996), Supreme interpreted Court its carry ing party proof. its burden of Celo holding emphasized It Johnson. Catrett, 317, tex v. proposition Johnson did not stand (1986). 91 L.Ed.2d 265 party an delay appeal that a must until final party Once the moving judgment summary has carried its if district court based opponent sufficiency judgment burden under Rule “its must on an determi- do nation, i.e., simply than more show that there is some if the court that “ma- determined metaphysical doubt as to material facts.” terial issues of fact remained.” If that were

436 the officials appeal tested facts decide whether trae, a denial party a could never then Rather, a law. enjoyed immunity as matter of the Behrens summary judgment. of Hence, may ruled, argue the officials on interlocu merely held that: Johnson court (as here) that, contrary tory they appeal do sufficiency evidentiary at of determinations judgment, enough un to the court’s district immediately summary are not judgment they that facts exist to determine contested they happen to merely because appealable that, and immune as a matter of law are case; if what qualified-immunity in a arise facts, they of are immune. the basis these sufficiency determination is issue in the — at -, 842; Behrens, 116 S.Ct. at U.S. nothing whether the evidence is more than Dist., Indep. v. Houston Sch. Coleman particular con- finding that support a could Cir.1997). (5th 528, occurred, not question duct the decided claim, plaintiffs from truly “separable” the Mitchell, Accordingly, under John un- no “final decision” hence there is and son, Behrens, jurisdiction over and we have der ... Mitchell. interlocutory appeal of the officials’ the dis — at -, at 842.6 Id. U.S. S.Ct. summary judgment on trict denial of court’s case, court the the district instant In grounds of for Hart’s section the deny summary judgment because did not means that we also have claims. This dispute fact genuine of material is a there jurisdiction appeal over the officials’ of denial responsible search that the officials are for summary judgment grounds on the of of her, home, not tak ing arresting and Hart’s immunity for state Hart’s claims. Cantu The ing any end detention. action to Cir.1996). Rocha, 795, 803-04 disagree the parties did not over whether in conduct. Rath engaged officials had such IV er, summary be judgment court denied the (1) “objec fact” and Montana filed an “disputed issues of material O’Brien cause violated tion” to certain evidence that submitted existed over whether the officials response judgment summary in to their mo clearly established constitutional (1) they person Specifically, allege tion. that state rights which a would of reasonable Delaware, 438 ments in the “federal have Franks v. made connection with known under 667 hold” under Rules 602 and 57 L.Ed.2d are inadmissible (2) Gates, (1978), of 103 802 the Federal Rules Evidence and Illinois v. (1983), by Motley regarding made 5.Ct. L.Ed.2d 527 and similar that statement (2) arresting alleged too the for Hart is underlying and the facts are motivation cases in if the acted inadmissible under Rule 602 and violation unsettled determine officials 56(e) short, In the Federal Rules of Civil objective with of Rule the reasonableness. that court there were Procedure.7 The district court held district determined “[bjecause disposition the of defendant’s mo uncontested facts to establish that sufficient summary judgment in ques in tion for does not turn engaged the conduct tion, any disputed way uncon- on the consideration of but there were insufficient Johnson, dispute The did not his actions. Rath- In defendant officers claimed defendant er, summary contending judgment, plaintiff he moved were did not beat not any plaintiff’s had not violated he present while beat The court others him. district employ- clearly rights regarding his established a triable existed on that determined that issue motion. The ment. The district court denied the point, summary judgment denied in favor of Supreme be Court held that this denial could Supreme Court that this officers. The ruled immediately appealed. appealed judg- could be until final denial not ment. provides witness not “[a] 7. Rule 602 Behrens, supervisory was a the defendant testify unless is introduced to matter evidence agent of the Federal Home Loan Bank Board support finding that the witness sufficient responsible monitoring operations personal knowledge of matter." Rule has thrift, 56(e) suggest- hearsay. thrift. The wrote the defendant Rule inadmissible forbids officer, replace managing plain- personal requires that it its affidavits to be "made knowledge tiff then forth such facts as would [and to] action. thrift asked set evidence____” refused, plaintiff resign; when him. be he it fired admissible evidence, though motion as explicitly to strike denied even it did strike the however, Defendants, moot.” assert that from summary judgment evidence rec- district court nevertheless considered both ord.

pieces denying their motion However, insofar as testimony Hart’s refusing in to allege that the court erred is relevant to our de novo of review defen summary judg the evidence from the strike summary motion, dants’ judgment we decline ment While we review the district record. to consider it. testimony Hart’s concerning summary on judgment court’s denial of what Dodson told her about what third- novo, grounds of de review party said to a bail bondsman is inadmissible evidentiary rulings for manifest error. Allen hearsay double under Fed.R.Evid. 801 and Pennsylvania Engineering Corp., v. 102 F.3d 802 and does not otherwise fall within an (5th Cir.1996). 194, 195 exception hearsay to the rule. A B deposition in her Hart testified her that that, challenge O’Brien and Montana next neighbor day on the had told Hart the first following detention, by statement offered in neighbor at- Hart her of Hart’s had opposition brief in to summary judgment: tempted arrange to to a bail bondsman addition, Deputy Motley “Defendant jail. Former her out In Hart admits bail of testi- thought that he have Shelly Dodson, that Plaintiff Hart fied that a trustee at Red jail get was taken to in an jail, effort to her County River her that to had told someone against fact, testify Mr. In Conine. he jail the bail states had informed bondsman today might he believe that intent was that Hart could be released because motivating force behind the decision to the federal not offer affida- hold. did have Plaintiff Hart arrested carried to deposition testimony vits or from her either jail.” Dodson, response summary In her neighbor, judg- or the bail bondsman motion, following ment Hart cites to opposition summary ex- judgment to defendants’ deposition: from change Motley’s motion. Q: your Is it view that Ms. O’Brien evi- and Montana assert that this jail, you taken to and that were told to Moreover, hearsay.

dence is inadmissible jail, get take her to an effort her that, they though assert even the district testify on Conine? any court disavowed on reliance Hart’s testi- mony, the court nonetheless No. considered A: assertion, support In

evidence. their Q: you anybody Have ever told that? following by cite statement the court: A: No. ... plaintiff “The that her contends bail was Motley falsely ... denied because told fact, Q: your it isn’t view justice peace of the that a ‘federal had hold’ motivating decision to force behind the placed property.” been have Ms. Hart arrested and carried to finding is not this statement the district testify jail get her was to court; merely it is a statement of Hart’s Conine? theory Moreover, claim and case. explicitly district court set forth the A: No. evidence support theory—

it considered of Hart’s undisputed evidence that the words “bail de- Well, Q: you believing don’t remember appear nied hold” federal the criminal that? fact, complaint by signed Motley and the also might today. think that A: I undisputed by parties, no there is Well, Q: Okay. trying to that’s what I’m thing such hold.” as “federal The court find out. challenged hearsay nowhere mentions the testimony. my find that It case. All I did was therefore the dis- A: wasn’t We rely testimony, transport trict court did not on Hart’s her. surrounding cir Motley’s opportunity observe argue that and Montana

O’Brien Pepsi-Cola Metro the other officers’ mo- cumstances. Hansard concerning statement Co., speculative Bottling 1466-67 arresting politan tivation (5th denied, Cir.), Fed.R.Evid. under cert. inadmissible (1989) 129, 107 (allowing lay L.Ed.2d 89 the district court The officers assert testify witness, hesitancy,” to “with some to the pointing this relied on employ concerning plaintiffs motivation by the court: following district statement termination). Hancock ment See also John essentially theory of events “Hart’s Co., 1289, 1294 Mut. Ins. guilty was not she the defendants knew Ufe Cir.1978) (allowing al witness who observed her, filed any illegal activity, but arrested be testify tercation hand to to victim’s first her, and her in charges against held criminal him); lief that his wife would never shoot pressure to her into jail bail in order without (7th 729, Pegelow, 652 732 Bohannon v. F.2d incriminating information about providing Cir.1981) ob (permitting witness who had district court ex- again, Once Conine.” testify that she believed served arrest it plicitly forth the evidence considered set by prejudice). arrest was motivated racial theory: respect to evidence that with Hart’s trouble, you her Montana told “Your ass however, ease, has no In the court this bird,” testimony sing like a Hart’s that better by means which to evaluate the basis days after her arrest Motley told several Motley’s testimony. partici- Motley did not innocent, thought was and Mot- that he she surveillance, pate investigation ley’s deposition testimony that he does not arrest, present day not until the of the making such a statement Hart. The recall in the arrest participate did not decision to challenged court did not mention the district deposition testimony Motley’s Hart. does evidence. is based on reveal whether his current belief at the time gathered observations or around argue that the district court The officers short, In of the itself. have no challenged arrest we on the evidence nonetheless relied Motley personal assurance that has sufficient “making that infer- when it determined all favor, a plaintiffs Motley knowledge ... to draw reliable conclusion in the ences Therefore, about motivations. complaint against Hart the officers’ signed a criminal Motley’s testimony is inadmissi- we find that when he knew had committed no crime.” she 701, will not However, ble Rules 602 and and we supported by this under conclusion is consider our review upon explic- the district the evidence evidence which court summary judgment is, district court’s denial itly rely that it stated would —that testimony Motley as O’Brien and Montana.8 thought that told her he no she was innocent. We find evidence challenged on the

the district court relied Y summary judgment. in denying alleges Starnes that the district Furthermore, mistakenly he did not to con court decided that decline Motley’s testimony immunity matter of law deposition sider concern have absolute as a making In against the motivation of the other officers in our Hart’s federal claims. determination, summary this court found judgment de novo review of the district 602, legal a lay “primary was as evidence. Under Rule witnesses Starnes’ role opinion conducting the investi may testimony offer about advisor to the officers matters of they personal gation executing have Starnes knowledge. which See search.” finding. denial of may disputes 602. This include We review Fed.R.Evid. the moti this v. person, summary judgment intent de Coleman vation or of another if the novo. 528, F.3d Indep. has an Sch. 113 adequate witness basis for his or her Houston Dist. (5th Cir.1997). determining whether opinion, such as personal knowledge or an Hart, Motley’s opinion may and their against be admitted had cause detain him 801(d)(2) pursuant to as Fed.R.Evid. an admis- does not question intent her about Conine However, party opponent. a sion of as we dis- make arrest actionable under section 1983. below, reasonably they cuss believed genuine 274, (“The issue material fact remains on 509 U.S. 113 S.Ct. at 2616 point, question this we do not review whether the ... prosecutors is whether the have support finding partic evidence “could carried their burden of establishing they — Behrens, occurred,” ular conduct U.S. at were functioning as ‘advocates’ when -, 842, “take, may 116 S.Ct. at but we endeavoring as were to determine whether the given, bootprint the facts that the district court as at the scene of the crime had been foot.”). summary by sumed when it denied judgment” petitioner’s made prose- if Even and determine whether those facts state a cutor fails to show absolute for a clearly claim given activity, under established law. Cantu he still show Rocha, Cir.1996). v. immunity. Buckley, 509 U.S. at S.Ct. at 2615-16. normally look We to state law to premises her claims Starnes determine the lawfulness of an arrest First, arguments. four alleges she Michigan state officer for a state offense. knowingly Starnes or recklessly provided the 31, 36, DeFillippo, 443 U.S. S.Ct. false information in the warrant affidavit that (1979); 61 L.Ed.2d 343 v.Ker Califor Hart, Hart was Stanley married to a known nia, 23, 37-38, drug Second, cultivator. she asserts that (1963) (plurality). 10 L.Ed.2d 726 Starnes allowed the search and arrest to action, plaintiff in a section alleging 1983 a continue when he knew that the affidavit by unlawful search and arrest state officers Third, wrong Peggy described the Hart. she deprived asserts that he rights was se avers that participated Starnes in the deci- by cured the federal constitution or federal place sion to Fourth, a federal hold Hart. Therefore, governing statute. state law she claims that Starnes went with O’Brien to searches and arrests does not control. jail visit Hart in to coerce her providing into Houston, 1183, City Fields v. S. 922 F.2d against information for the case Conine. (5th Cir.1991). 1189-90 & n. 7 Supreme adopted Court has a A approach” “functional to question of ab argument pertains Hart’s first immunity, solute one that looks to “the na Starnes’ function providing information for performed, ture of the function not the iden in supporting inclusion an affidavit a warrant. tity performed of the actor who it.” Imbler function, With this Starnes legal acted as a Pachtman, 409, 431, 984, v. 424 U.S. 96 S.Ct. and, adviser to the officers much like the (1976). 995, prosecutor 47 L.Ed.2d A 128 participated surveillance, officers who in the absolutely initiating pursu immune for prosecutor investigator. an A is not abso ing prosecution. Specifically, a criminal a lutely giving legal immune for advice to the prosecutor absolutely immune when he Burns, police, 496, 500 at U.S. 111 S.Ct. at State,” in acts his “role as advocate for the 1945, prosecutor and a who acts the role of Reed, 478, 491, Burns v. 500 U.S. 111 S.Ct. policeman if, policeman a is liable like a in so 1934, 1942, (1991) (internal 114 L.Ed.2d 547 acting, deprives plaintiff he rights under omitted), quotation marks or when con his Joseph Constitution or federal laws. v. “intimately duct is judi associated with the Patterson, 549, Cir.1986), 556 phase cial process.” of the criminal at Id. denied, 1023, 107 1910, cert. 481 U.S. S.Ct. 95 492, (internal 111 at quotation S.Ct. 1942 (1987). Moreover, prosecu L.Ed.2d 516 “[a] omitted). However, prosecutor marks does is, tor neither nor should consider himself to enjoy not immunity absolute for in acts of be, an advocate before he has cause vestigation Buckley or administration. v. anyone Buckley, to have arrested.” 509 U.S. Fitzsimmons, 259, 273, 509 U.S. 113 S.Ct. 274, short, at at In 2616. until 2606, 2615, 125 (1993). L.Ed.2d 209 individual, charges against have been filed an prosecutor prosecutor A absolutely has the burden of is not immune for establishing that an cooperating he was “advocate” for with law enforcement officers in Burns, each function at obtaining per issue. See 500 a search warrant 486, 1939; Buckley, 111 S.Ct. at see also son based on false information. See Guerro 440 (1st jurisdic- by acting a court within its Mulheam, Cir. issued F.2d

v. 1974) reaching have prosecutor Id. at In this conclu- did tion.” (ruling that alleged sion, immunity defendant law where we determined that common absolute cooperated police had with prosecutor immunity such at the provided officials with obtaining a warrant search defendants § in 1871. time 42 U.S.C. enacted Barr testimony); see also perjured based Economou, 478, 508, v. 438 U.S. See Butz (2d Abrams, Cir. 361-62 v. (1978)(hold- 57 L.Ed.2d 1987) prosecutors were absolute (ruling that government if official is determine information filing criminal ly immune for immune, absolutely must court undertake contempt then with charging plaintiff immunity histori- inquiry considered into the arrest warrant on applying for to court cally com- accorded the relevant official at McClellan, 697 F.2d McSurely v. charge); it). law and the interests behind We mon (D.C.Cir.1982) (holding prosecu decision, heavily Supreme on a Court relied by qualified immunity only protected tor was (14 Wall.) Hohnbach, Erskine ar preparing pre-indictment search (1871), which to abso- 20 L.Ed. referred warrants). Therefore, does not rest Starnes immunity acting “ministerial officers lute arising liability from enjoy absolute process, orders issued obedience affi information out inaccurate by them or officers law tribunals invested davit. authority upon pass with and determine facts, particular judgment there- and render B on....” Id. at 616. argument with Hart’s second deals case, magistrate the instant during preventing arrest the “function” of an and warrant ordered the search arrest realizing the execution of a warrant after any out or Peace be carried “the Sheriff supporting in the that information affidavit County, any of Lamar Texas or Peace Officer prosecutor inaccurate. the warrant was “[A] of the Texas.” is not Officer State of Starnes assists, participates who or otherwise directs peace County a sheriff or officer of Lamar or with, police obtaining prior in to Texas, of and is not otherwise the State functioning undoubtedly an indictment is in See Penal mentioned the warrant. Tex. investigative capacity more in than his his 1.07(a)(36) “peace §Ann. offi (defining Code capacities deciding which quasi-judicial of cer”); 2.12 Tex.Code Proc. Ann. art. Crim. bring conducting to and ... them suits (same); court,” Pro. Ann. art. 15.01 only Tex.Code Crim. qualified thus to and is entitled Hialeah, (“A immunity. a order City Marrero v. ‘warrant of arrest’ is written of (5th (citation Cir.1980) and F.2d a magistrate peace to officer from directed denied, quotations omitted), internal cert. named, person specially other com or some 67 L.Ed.2d 337 manding body person him of to take the (1981); 274, 113 Buckley, at see also offense____”); accused of an Deltenre (noting not prosecutor is State, (Tex.Crim.App.1991) 808 S.W.2d 97 absolutely execut planning immune for statutes). was (discussing While Starnes cache). suspected weapons raid on a during property of present the search Hart’s arrest, acting was not in obedi- he However, may enjoy Starnes absolute also in the magistrate’s ence to commands Sudderth, immunity Mays v. under warrant; was search and arrest warrant (5th Cir.1996), prevent for his refusal to Thus, him. since not addressed to even the search of Hart’s and her arrest home “complyfing]” war- with the Starnes during of In the execution the warrant. rant, ... with the “clothe[d] he not be Mays, acting we that “an official within held judicial immunity enjoyed by the absolute scope authority absolutely im- of his is Mays, issuing 97 F.3d at judge the order.” damages mune from a suit for to the extent participated He in the search and sei- that the of action arises from his com- cause peril receiving pliance facially judicial only qualified order at the with a valid zure of immunity.9 only statements about in- accused would be

vestigatory prosecutor function if lacked probable cause to arrest accused and results C of interview to finding contributed his of deals Hart’s third contention with cause). probable recommending function of the denial of sum, In we find that Starnes is not abso- is intimately bail. This function associated lutely immune for allegedly providing inaccu- judicial pro of phase with the the criminal rate affidavit, information for the warrant cess, pursuit and deals with the initiation and allowing nor for the search and arrest out, prosecution. carrying it criminal continue when he knew the affidavit advocate, prosecutor acting is as an rather Hart; however, described a different Peggy administrator, investigator than an as absolutely find that he is from immune enjoys immunity against any absolute claims that he participated claims in the decision out of arising this function. See Lerwill v. place Hart on federal hold he and that Cir.1983) Joslin, 712 tried to coerce Hart into providing informa- (stating prosecutor’s advocacy that “a of a tion about Conine. As to Hart’s first two given amount bail” entitled absolute arguments, argues Starnes im- he is immunity). mune from qualified suit because of immuni- ty. We consider this in our claim discussion D immunity police claims of the the next section. Finally, suggests that Starnes he is absolutely regard immune with to Hart’s VI pressure jail claim that he her in visited provide officials, her to information Conine. All including that, dispute Starnes, there is no at the aver the district court erred visit, ample granting summary time of the cause exist not them judgment on the Therefore, grounds qualified immunity ed to arrest and detain Conine. against Hart’s assuming Hart’s characterization the visit federal claims. Generally speaking, qualified correct, simply attempting protects government per Starnes was officials gather prosecu forming information relevant to his discretionary lia functions from civil Accordingly, bility tion of Conine. Starnes was under federal law unless their conduct absolutely an acting “clearly as advocate and is im violates a established- [federal] statu tory mune from Hart’s claim here. Hill v. or right[ ] See constitutional of which a rea (2d York, 653, City New 45 person F.3d 662-63 sonable would have known.” Harlow of Cir.1995) 800, (noting prosecutor’s 818, v. Fitzgerald, that interview 457 U.S. 102 S.Ct. (1982). 2727, 2738, of who allegedly inculpatory witness made 73 plain- L.Ed.2d 396 A raid); only qualified immunity participating 9. This conclusion not accords with our ear for Ja in Marrero, Rose, 515, (9th Cir.1978) lier decision in but also with those of cobson v. 592 F.2d 524 have the other circuits which addressed issue. (holding prosecutors helped implement that who 647, Sirope, See v. 25 F.3d 653 & Hummel-Jones immune), absolutely wiretap not were de cert. Cir.1993) (8th (analyzing prosecutor’s n. 10 lia nied, 930, 2861, 442 U.S. 99 S.Ct. 61 L.Ed.2d bility participation in for unreasonable search of (1979); Hampton City Chicago, 298 484 v. of birthing qualified immunity); Day clinic under v. 602, (7th 1973) (holding prose F.2d 609 Cir. that 75, Cir.1990) (2d (rul Morgenthau, 78 909 F.2d cutor, allegedly participated planning who in the allegations suggesting prosecutor that that purportedly illegal and of a execution raid participated executing in arrest have were apartment, immunity did not absolute warrant immunity); not covered absolute Mullinax v. any police allegedly acting more than the officers 711, 1987) McElhenney, 817 F.2d Cir. direction), denied, 917, under his cert. 415 U.S. (holding prosecutors only qualifiedly that were 1413, (1974); 94 S.Ct. 39 L.Ed.2d 471 Pa cf. jail immune for their cell); involvement in raid on 723, chaly City Lynchburg, v. 897 F.2d of Joseph, (holding at 556 that "we (4th Cir.1990) (finding prosecutor abso was prosecutor’s participation have no doubt” that in allegedly lutely participating immune for in an police with search of defendant's store that went illegal post-indictment prosecutor search the beyond scope subject of was warrant not to abso necessary immunity);McSurely, asserted was to obtain evidence lute at 319-20 indictment). (holding prosecutor only prosecute was entitled to warrant, support affidavit in of search “when defendant in an tiff must show (1) that: the affiant the infor- acted, provided knew the contours the law established official was or would have known it was clearly that reasonable mation false right so except unlaw- affiant’s disre- his acts were false for the reckless have understood would (2) 635, truth; Creighton, 483 U.S. for the the warrant gard ful.” Anderson v. 3034, 3039, 97 L.Ed.2d 523 probable 107 S.Ct. not establish cause without would (1987). immunity evaluating an defense false at information. claim, first negligence the court must Allegations to a constitutional at 2684. plaintiff alleged has There- whether innocent mistake are insufficient. Id. determine at all. right constitutional at least the violation of a Hart’s claim that O’Brien was fore Gilley, in Siegert including the inaccurate state- reckless (1991). now We 114 L.Ed.2d states a cause of action under ments valid Montana, O’Brien, in examine turn whether Amendment. Fourth enjoy qualified immuni- Motley, and Starnes Next,

ty- will whether consider sworn that Hart lived O’Brien’s statement A knowingly or reck trailer was false Conine’s that, argues on the sur less. O’Brien her based argues that O’Brien violated Hart observations, police offi veillance reasonable rights in four different Fourth Amendment agree cers would with conclusion ways, and that he is entitled Indeed, the residing was in the trailer. First, any of them. he submit- spent a great saw that Hart deal inaccurate with two ted affidavit during pe time with Conine surveillance magistrate requested statements to the second, undisputed facts that she cause; riod. The establish probable the warrant without trip Hart; on a town went out of with Conine original made the decision to detain he hold;” upon carrying observed her return cloth third, placed he Hart on “federal trailer; ing from the car into the she was fourth, jail permitted he Hart to remain part during the trailer least the time though that there had not been even he knew marijuana grower; the visit of she known probable arrest her. cause to in and performed certain domestic chores trailer; stayed overnight and she around in the trailer at least four times. O’Brien contends that O’Brien violated probable in the cause that stated affidavit rights by submitting Fourth an Amendment property under almost continu had been magistrate affidavit without during the ous surveillance two weeks qualified immunity cause. Subsumed in the it is to as question; therefore reasonable questions involving the inquiry are two other during spent nights that Hart the other sume reasonableness, any, if of O’Brien’suse of the away two-week from the surveillance inves- inaccurate statements without further trailer. tigation. first whether We will consider including is immune for the inaccu- O’Brien house Hart said that she lived the white probable rate statements in the affidavit of However, during trim this with black time. Then cause. we will consider whether he house, Hart the even a since did not own immune from claim that he swore investigation property into rec- reasonable an affidavit a and conducted search without Hart would not have established that ords sufficient facts to show cause. that she did lived there. Hart later testified surrounding Siegert, title house or Under we must consider not hold to the alleges property; living at the whether a she there herself threshold Hart even was permission impor- owner. regard Fourth Amendment violation with to with of the More tantly, suggesting false that a the information claims. 500 U.S. at there is evidence may thought police 111 S.Ct. at have Supreme 1793. Court reasonable officer Franks v. Delaware that an offi that Hart had second residence established established swearing v. cer is liable for to false information in Conine’s trailer. See United States (8th Cir.1996) Risse, (reject- investigation. instance, For F.3d O’Brien had dis.- argument offi- couple defendant’s that because covered that a of the cars on the residence, knew had other property registered cers defendant were Peggy to a Hart. reasonably could not have believed de- Perhaps he have been able to ascertain searched; premises fendant “[w]e lived public from records that Peggy the Hart who authority person have found no ... lived near person Conine was a different only have one can residence Fourth than Peggy Hart who was married to Washington purposes.”); Amendment v. Stanley However, Hart. summary judg- (8th Cir.1986) Simpson, ment genuine evidence adduces no issue that suspect house, (finding that at the “resided” investigation additional would have revealed purposes entering premises to execute addition, this mistake. the information warrant, stayed arrest when she there two to that Hart Stanley was married to Hart was week, nights per kept personal four certain somewhat in tension with other informa- there, belongings gave that address as tion in the affidavit that Hart resided with by police). residence when booked Conine; perhaps this information should prompted have investigation. additional reasonably compe- We are that a confident again, Once summary judgment record position tent officer in would con- O’Brien’s speculate leaves us to such whether addition- clude that Hart resided at tráiler. al investigation would been have fruitful. knowingly O’Brien’s conclusion was not inac- We have curate, summary reviewed the judgment although it was not ineluctable record observed, thoroughly, and conclude that from what he there is its inclusion genuine no that a Therefore, issue more extensive inves- quali- affidavit was not reckless. tigation protect would have fied from established that will O’Brien suit there Peggy were two Harts. inaccuracy on basis of this in the affida- Franks, vit. 438 U.S. at 98 S.Ct. at Moreover, it uncontested O’Brien obtained the information being about Hart Stanley married to Hart from Starnes after

Second, we consider whether O’Brien investigation had concluded his reasonably O’Brien relied on Starnes’s state as he was preparing his affidavit. O’Brien plaintiff ment Hart was married to that, reason, testified for this he did not drug Stanley known Hart. cultivator As an independently investigate accuracy initial matter note that the statement that reasonably competent information. A Hart, officer “Peggy Stanley Hart is married to who might rely investigation without files, informa- according to DTF is a known marihua tion from trustworthy such source as a County, na cultivator in Red River Texas” is prosecutor, especially if prosecutor indi- technically Peggy A “true.” Hart was mar cates that the information from comes law ried to Stanley Hart. it would be summary judg- enforcement records. The absurd wrest this out of sentence ment record contains no indication that interpret context of the affidavit. must We O’Brien had reason to believe there affidavits for arrest or search warrants were two Harts Peggy county, within the commonsense and realistic manner. United Ventresca, Peggy Hart that 102, 108, Starnes knew about States (who marijuana was to a known (1965). linked culti- L.Ed.2d Obvi vator) Peggy from the ously, “Peggy [being] this reference to different property who owned ears seen Stanley married to Hart” was intended to (who was also linked to a known different to “Peggy refer Hart” in car whose cultivator). marijuana “unknown driving. white female” was seen (who Peggy And that was also the circumstances, Under the find that a we female”) plaintiff, “unknown white reasonably competent police officer would Peggy Nell Hart. thought have that the statement had suffi- theoretically possible It reliability is that O’Brien cient internal indicia of to be in- may have been able to that in determine cluded the affidavit without further inves- tigation statement was inaccurate through (though additional would have attributed 444 Starnes). magistrate’s findings probable of on the of O’Brien’s use issue

the statement to may great have are to Id. may or cause entitled deference. statement Starnes’s not reckless negligent, but O’Brien was been “Probable cause exists when the he it affidavit. Therefore including in the available at the time of arrest facts would this from suit based on immune qualifiedly is person’s support a belief an reasonable Franks, U.S. at in the 438 error affidavit. been, being, has and offense or committed 171, at 98 S.Ct. 2684. par guilty arrested individual Blackwell, ty.” broader issue: whether F.3d at Probable turn to the We though belief that Hart resided even have reasonable cause exist O’Brien’s a known un activity trailer was married to observed no unlawful and are at the and cultivator, coupled marijuana identity with the other aware of of defendant. United Pentodo, evidence, 355, to that he v. is sufficient establish 463 F.2d States Cir.), denied, probable 1079, reasonably that there was cert. 409 U.S. 93 S.Ct. thought (1972) denied, 698, her. Hart’s home and arrest cert. cause to search L.Ed.2d 668 and 909, 963, 410 U.S. 93 S.Ct. 35 L.Ed.2d 271 (1973). activity “The of observation unusual objective of Har The standard legitimate, logical expla for which there is no to of unlawful and applies claims search low this, can for probable nation be the basis cause.” plaintiff as in which the arrest such Alexander, 1339, who the United States v. 559 F.2d alleges requested the officer (5th Cir.1977), denied, cert. 434 U.S. intentionally recklessly sought an warrant (1978). 1078, 1271, 98 S.Ct. probable “Only L.Ed.2d 785 affidavit without cause. application lacking where warrant is so person’s pro “a mere probable cause as render official indicia suspected pinquity independently to others unreasonable, in its will the belief existence not, more, activity give criminal does without Malley immunity be lost.” v. shield of probable person.” rise cause search that 344-45, 335, 1092, Briggs, 475 106 S.Ct. U.S. Illinois, Ybarra v. 444 U.S. 100 S.Ct. (1986) (citation 1098, omit 89 L.Ed.2d 271 342, (1979) (citing 62 L.Ed.2d 238 Sibron Anderson, 644-45, ted); also see U.S. at York, 40, 62-63, v. New Malley (applying 107 S.Ct. at 3041-42 (1968)). 1889, 1902, 20 L.Ed.2d 917 “Where searches). unconstitutional The crucial issue cause, probable the standard is a search or reasonably “is whether well-trained officer supported by a person seizure of must be position have [the defendant’s] would probable particularized respect cause with known that the affidavit to establish failed person.” Id. probable cause and that he not have should applied Malley, warrant.” in the affidavit includes the (1) 345, 106 following: S.Ct. at 1098. The officer “will the “unknown Conine “and/or” if, basis, objective physical not be immune on an it is female” Hart’s character- white with reasonably that no competent obvious officer istics have frame house entered “white (i.e., have that a would concluded warrant should with black trim and shutters” (2) issue; house), if compe couple but officers of of Hart’s are on reasonable cars (3) issue, searched, disagree immunity tence could on this property to be the “unknown should be Id. at recognized.” driving 106 S.Ct. white female” was seen one of Hart’s (4) words, cars, In at 1096. other must not there Conine and “unknown white “arguably” charge even be cause for the are “in female” and controlled” the addition, de- property. search arrest to be lost. because we have (1st Fenton, Santiago v. 891 F.2d cided that O’Brien’s inclusion of inaccurate Cir.1989). Franks, require cause Probable does not statements was not reckless under beyond doubt, proof only a reasonable must also belief that but consider O’Brien’s showing probability criminal activi Hart lived the trailer with Conine Brown, ty. drug cultiva- United States Hart was married to a known (5th denied, Cir.), tor, determining 1302 cert. in whether reason- O’Brien (1991). ably probable S.Ct. 116 L.Ed.2d A believed cause existed. issue, very competence disagree could on this im- statements are not of these Some example, munity recognized.” Malley, For should be probable cause. probative- of case, and cars are on U.S. at In this that Hart’s house 1096. the fact close, suspicious, probable very not the call on property to be searched is cause was happened say to be and we cannot that no fact that her house reasonable officer given the thought probable have trailer and she would would have he had cause to near Conine’s park by her cars near her arrest Hart. Our conclusion expected to is bolstered been magis- Hart often visited the the fact that the neutral The fact that and detached home. trate, facts, overnight, stayed or faced with the same and sometimes determined trailer go probable she would sometimes cause This the fact that existed. tends bam, support not that she was the reasonableness of the do establish officers’ Conine’s request is no marijuana with Conine. There for the warrant based on their obser- growing the mar- undisputed that she visited vations. be

ijuana patches property on the negligent The officers have been in Finally, the officials neither saw searched. investigation, wrong their to conclude drug any drugs evidence of nor found However, probable had cause. prop- in Hart’s home or on her paraphernalia negligence liability is insufficient to create only indisputably under her erty, the areas police Malley. for officers under Therefore control. protected by qualified we find that O’Brien is immunity point. on this However, perspective from the officers, smack-dab lived 1,132 plants, marijuana 188 of middle of directly her located behind alleges which were O’Brien violated fair of time with spent a amount rights by instructing house. She her constitutional Mot trailer, appeared and she his ley police Conine to take in to the station without (and suspected cause, a in the trailer with probable though to reside even Montana made convicted) marijuana cultivator. previously custody. the actual decision to take her into pursuing the officers appeared also allegations against She O’Brien do claim, to another mari warrant to be married a because state constitutional O’Brien present when juana cultivator. She had been by and the other officers were directed Conine, and drug a known cultivator visited probable cause warrant to arrest Hart. Hart gate to the of the she had driven with Conine not contend that the warrant for her does crops. adjacent invalid, illicit dump facially trash to Conine’s arrest was nor that" the offi any way the warrant in other .cers executed presence from It was clear in this case by judge. We have prescribed than that marijuana crops a was crime acting pursuant to police officers stated committed; nevertheless, being the evidence judicial enjoy quali warrant facially valid It is connecting Hart to the crime was thin. immunity executing the warrant. fied law or Texas law to not a crime under federal Wright, Hamill v. 870 F.2d relationship drug maintain a social with a Cir.1989). strictly complying O’Brien immuni- question qualified cultivator. The order, judicial by facially with a valid issued however, ty, not whether the officers actu- jurisdiction, he acting court within its cause, ally rather whether had but immunity is therefore entitled to recklessly swearing they acted a warrant this claim.10 they possessed. on the information based immunity only if it officers lose their reasonably competent offi- “obvious that no Motley that O’Brien instructed that a warrant testified cer would have concluded issue; put him Hart on federal hold to ensure if of reasonable should but addition, officers moved for at 108. none of the O'Brien and the other officers summary judgment grounds im- would have been entitled to absolute of absolute facially executing warrant valid issued munity. Mays, competent jurisdiction. court of 446 42 complains. Hart See liberty DEA of which until federal jail stayed

that she official (providing § that a state magistrate U.S.C. 1983 The speak to her. could “subjects, only where he or causes not “re- liable that he does in an affidavit claims any person deprivation of any subjected” a discus- be being a federal hold or there call” by hold, privileges, or immunities secured rights, and states sions about a federal laws). magistrate de- The affected the Constitution not have any hold would such day the first of her deten- magistrate nied Hart bail on stay jail. length of Hart’s however, Hart, post only; was unable a tion have denied bail for he would avers that after her initial con- a over two weeks there was feder- bail for of whether day regardless then, assume, reasonably can finement. We “investigation scene al hold because day However, posted bail one that she could not have the sheriff at the ongoing.” still set, it been her initial confinement had testified that after Hart herself have time and no effect thus that the federal hold had bail magistrate denied each believed that Therefore, length of her detention.11 of federal hold. because liberty caused any Hart not suffer loss of did hold remained The federal Accordingly, Hart has by actions. O’Brien’s alleges that O’Brien place day. for one against to state a constitutional claim failed by causing her to be process violated due bail; Siegert based on denial of O’Brien mag falsely suggesting to the by bail denied therefore dictates that Motley) that there was a (through istrate 232, claim as well. 500 U.S. at 111 bars this on her. If a state detainee detainer federal at 1793. S.Ct. outstanding has federal warrant or has an charges, federal a federal been indicted on 4 detainee, a on the may place detainer official alleges that is re O’Brien him au to hold for federal asking the state sponsible damages stemming from her General, Attorney 425 Davis v. thorities. two-week detention because he did not dis (5th Cir.1970). 238, Presented with F.2d 239 “patently exculpatory to the close evidence” detainer, may deny the the state federal knowledge prosecutor, namely alleged his bail, custody pursuant hold him detainee probable cause for her there was no law, to the to state and then turn him over detainer, even of innocent arrest. Police one prosecution. Reno v. government federal war any wrongdoing, pursuant to a valid 2021, Koray, n. 515 U.S. give rant does not rise to a constitutional (1995); 5., 2028 n. 132 L.Ed.2d United McCollan, Baker v. claim. (5th v. Dovalina, States F.2d 143-44, 61 L.Ed.2d 433 Cir.1983). (1979) (holding police detainer of mis case, In this no federal detainer ex days, pursuant to suspect identified for three Moreover, isted. there was no basis for such warrant, not state a claim under a valid does government had a detainer since federal 1983). However, plaintiff states a section anything. Motley’s charged not Hart with police claim officer section 1983 explanation for “federal hold”—that who, “patently exculpatory learning after wanted to assure that Hart would be O’Brien evidence,” deliberately it to fails disclose available to be interviewed federal English, prosecutor. Sanders agents justify detention without Cir.1992). 1152, 1162 —does deliber Such (interstate U.S.C.App. agree bail. See for an concealment can be the basis ate detainers); ment on Tex.Code Crim. Pro. police officer mali inference that a defendant (same). Ann. art. 51.14 prosecu ciously maintained a initiated and Id. at 1163. tion. an causation is element claim; Sanders, police arrested a of a lieutenant section 1983 O’Brien’s actions him. actually robbery suspect victim deprivation have caused the after a identified must day magistrate recognizance her detention on the first 11. Given that later set bail $50,000, reasonably alleged Hart cannot claim that the O'Brien’s misconduct. absent magistrate have her own would released

447 days immediately der question at 1156. In the follow- Harlow test to im- Id. arrest, people brought munity); excul- ing Causey, several United v. States (5th Cir.1987) banc) (en patory lieutenant’s attention: evidence to the (holding that officer, example, pretextual for that people told the arrest not did violate Fourth arrestee) (the were relat- victim and Sanders Amendment objectively where arrest was ed, inability cause). calling question into the victim’s supported by probable days several identify to Sanders until after addition, In presents this ease facts almost lineup; eyewit- crime in an an informal opposite of Sanders. O’Brien and the other helped police compose ness who had artists point officers at this knew that Hart had told the suspect sketch of the officer that spent trailer, much time in Conine’s and person; wrong was the other Sanders victims drugs, trailer was drug par- littered with identify to of the same assailant were unable aphernalia, they and After cash. arrested assailant; days Sanders as their and a few her, they certainly had some evidence that arrest, after the the lieutenant learned that Hart knew about Conine’s illicit activities. supported by Sanders had a alibi credible This inculpatory, evidence exculpatory, is three Faced with all of witnesses. Id. this supports and further the officers’ decision to showing evidence that Sanders was not the keep jail. We therefore find that robber, police “deliberately lieutenant O’Brien was from illegal immune suit for way looked the other in the face of exonera- detention as well. indicating tive evidence he had arrested ” sum, In enjoys qualified O’Brien wrong man.... intentionally from recklessly suit for in- exculpatory There is no similar evi cluding affidavit, incorrect statements alleges dence in the instant case. for his instruction to other officers to arrest O’Brien knew there was no cause to Hart, warrant, for pursuing illegal for her, notify prosecutors arrest but to refused detention, recommending and for that Hart depo of this fact. O’Brien’s later Hart cites pursuant be held to a hold. federal target sition in which he that “the testified investigation was Mr. Conine. And Mr. B property.... going We wasn’t [sic] Conine’s Motley Hart claims that Montana and vio- try down there to to arrest and send [Hart] rights—Mon- lated her Fourth Amendment penitentiary. her to the We was after [sic] by Motley instructing tana to take her into Conine, weed, property, Mr. and his his custody, Motley taking jail. by her to marijuana.” addition, to believed be his She also are liable claims that both for their jail O’Brien he visited Hart in admitted that participation in the discussion decision provide encourage her information hold, impose deliberately and for federal against Conine. of this None constitutes withholding information exculpatory from the evidence,” however, “patently exculpatory prosecutor. because it to show does not tend that Hart guilty.

was not above, suggested Montana and As primary Motley qualifiedly

Even if was the tar are immune for the deci Conine jail, get taking sion to arrest her to investigation Hart’s arrest Hart and acting pursuant merely pretextual, they were because to a fa lawfulness of were depend cially Hart’s arrest on the actual valid warrant issued a court of does not Hamill, arresting competent jurisdiction. motivations of the officers. Whren — that, States, -, -, shortly proof v. 1036. There is some after United (1996) (hold arrest, 1769, 1774, something S.Ct. L.Ed.2d 89 Montana told the effect is a world of proper that the focus of Fourth Amend that her “ass conduct, “sing like inquiry objective ment trouble” and she needed a bird” is and not intent, officer); Conine, subjective against suggesting that Montana police Anderson 635, 641, only kept to elicit Creighton, Hart detained 523(1987) is also some evidence (noting Conine. There L.Ed.2d malignant Motley heard these statements. motive of officers irrelevant un- affidavit, provided affiant knew an that the the officers had of whether question have the information was false or would keep Hart incarcerated

probable cause to except it false for his reckless question of whether known was from the different disregard Nonethe- the truth. 438 U.S. at to arrest her. probable cause had less, of Hart’s claims Starnes is not the just in the context S.Ct. at 2684. as and, value, O’Brien, case, not we find that does in taken at face against affiant this illegal only sign Montana who a applies claim for detention. to officers state a Franks exculpatory request evidence from a war- withheld no warrant affidavit or otherwise falsity belief prosecutor, he had a reasonable or “[t]he rant under oath: deliberate her, probable impeachment cause to detain is disregard that there was reckless whose affiant, facially warrant. There- pursuant permitted only to a valid that of the not of fore, question wanted to any nongovernmental'informant.” the fact that he Id. not, itself, un- in actionable about Conine is However, only not take Franks at we need Furthermore, suggest- as der section open possibili face value. The Court left above, construing the facts in the even ed violates the Fourth ty that a search or arrest Hart, Montana’s and light most favorable good in where the affiant relies Amendment imposing in a Motley’s participation “federal faith on deliberate or reckless misstatements not amount to a constitutional hold” does in by governmental another official establish any not suffer loss of violation. Hart did 6, id. at 164 n. 98 cause. See liberty by their actions. caused (“[Pjolice at 2680 not insulate one [can] S.Ct. Therefore, Motley Montana and are enti- merely by misstatements officer’s deliberate qualified immunity on all of Hart’s tled to relaying through person it an officer-affiant allegations against them. ally falsity.”). ignorant of its Several circuits have held that a deliberate or reckless mis C by governmental statement or omission qualified immunity is on Starnes’s claim to who is not the affiant neverthe official slightly footing because he is not a different less form the basis of a Franks claim. Unit V, police officer. section we held that (2d 948, Wapnick, ed v. 60 F.3d 956 States — absolutely immune from Hart’s Starnes was denied, -, Cir.1995), cert. participated in the decision to claims he (1996); 1672, L.Edüd 776 S.Ct. United place her on “federal hold” and that he tried (9th DeLeon, 761, v. 979 F.2d States persuade provide her to information about Calisto, Cir.1992); v. 838 F.2d United States Conine. We now consider whether Starnes (3d Cir.1988); 711, v. United States qualifiedly immune from claims Hart’s (7th Pritchard, 1112, 1118 Cir.1984); 745 F.2d provided stemming from the fact that he Fish, 390, Hale v. 899 F.2d cf. inaccurate information for the warrant affida- Cir.1990) (applying test to officer Franks (i.e., being vit the statement about Hart mar- sign or affidavit but whose who did draft Hart, Stanley marijuana a known ried at time warrant tended to influ presence cultivator) that, and from the fact even after warrant). judge issuing ence incorrect, realizing that this information was stop he refused to Hart’s arrest. agree reasoning with the We that a or reck these circuit courts deliberate may form the basis for a less misstatement government official Siegert, we must consider at the Franks claim Under alleges a who is not the affiant. “The Fourth Amend threshold whether even places qualifications regard Fourth Amendment violation with to ment restrictions and government generally, not the false information claim. 500 U.S. at the actions of the DeLeon, 979 at Supreme merely in on affiants.” 1793. The Court violates the governmental v. that a 764. A official Franks Delaware established search deliberately when he or violates the Fourth Amendment if it was Fourth Amendment false, informa pursuant by recklessly provides material conducted to a warrant issued support of a magistrate for use in an affidavit who was misled information tion warrant, denied, regardless of whether he cert. search signs (1985) the affidavit. 84 L.Ed.2d 377 (adopting First Amendment standard for recklessness Although sign Starnes did not the affidavit context); Tomblin, Franks United States present requested and was not when O’Brien 1369, 1388(5th Cir.1995) (citing reck magistrate, the warrant from the Starnes lessness standard in approv Williams with helped to draft the admits affidavit and he al). There is some the record was the exclusive source of the inaccurate Hart, Starnes knew Peggy the other Peggy information about marital sta- who worked at the Lamar County alleges provided tus. Hart court Starnes house. there intentionally recklessly. false information is no evidence that Therefore, any Starnes had Hart has reason to stated claim for viola- believe that there might Peggy be two rights tion of her Fourth Amendment under Harts within this rural community Siegert. so as to raise serious doubts as to accuracy of his statements to O’Brien. issue, then, The becomes whether Perhaps there steps Starnes can are might demonstrate that he did not Starnes any verify have taken to clearly violate of Hart’s pro- established information he vided, however, rights. summary Fourth Amendment Hart’s arrest judgment rec- would violate the Fourth if ord be, does not disclose what might Amendment these intentionally recklessly they Starnes included nor that actually would show the infor- in false information the affidavit and this mation to be inaccurate. Starnes is entitled necessary probable information was on Hart’s first claim. provided cause. Starnes the inaccurate in in being formation the affidavit about Hart Hart, Stanley married to he realized that Hart also claims that Starnes violated her information day this was incorrect the rights by constitutional failing to act at the However, raid. there is no evidence that arrest scene once he had seen her and real- Starnes knew the information was inaccurate ized that some of the supporting information giving before it to O’Brien to in include the warrant was inaccurate. Starnes has Therefore, genuine affidavit.12 there is no shortly admitted that he knew before Hart intentionally provided issue that he false in was arrested that the in statement the affida- formation for inclusion in the affidavit. being vit about Hart married to a known question remains whether marijuana incorrect, cultivator was but that disregard Starnes exhibited a reckless he did not so inform the officers. Hart the truth in providing the information. alleges duty that Starnes had a to inform the

Franks, 171, 438 U.S. at 2684. To police officers that the arrest warrant was prove truth, disregard reckless for the Hart duty based on inaccurate information and a present must evidence that Starnes “in fact stop execution of the warrant. entertained serious doubts as to the truth” of exists, assuming duty the statement Even such a Peggy she was the Hart however, Stanley any married to Starnes Hart. St. Amant v. did violate 727, 731, Thompson, 1323, clearly established Fourth 88 S.Ct. Amend (1968) (setting rights L.Ed.2d 262 ment at the time of forth her arrest. Law disregard standard for reckless in duty of truth enforcement officers have a cases); libel see upon discovery also United States v. discontinue an arrest Williams, Cir.1984), information in a contained warrant is ineor- Stanley 12. Starnes later growing marijuana testified that Hart impugn told does not the truthful- prior him sometime to the raid that he had been Stanley ness of his statement that Hart is some- marijuana stopped. cultivator but had since marijuana, one known to have cultivated nor that, prior Starnes also testified raid, sometime to the would it have established doubt in Starnes’s Peggy Stanley Hart married to Peggy Stanley mind that the married Stanley drug informed him that had become a Peggy Hart was not Hart who owned the counselor. the fact that Starnes had parked property. vehicles on or near Conine’s Stanley stopped reason to believe that Hart had however, difference, im- is that official Maryland tant v. if it is material. rect Cf. incorporate requirement munity does not Garrison, (1987) (once plaintiff show the violation of L.Ed.2d Rather, im- official they clearly right. established apartment notice of risk were on the official’sactivi- munity hinges on whether erroneously included searching was were faith,” is, “good in warrant, undertaken required were ties were within terms of search); objectively reasonable. they were United whether withdraw and discontinue 889, 894 Id. at 656-67. Marin-Buitrago, 734 F.2d States (when (2d Cir.1984) material definite and offi- determined that the The district court underlying in facts change has occurred scope of their acting were within cers cause, magistrate’s determination as to authority, that fact issues remained but correcting in report new officers must exercising they were their duties whether acting magistrate before formation to apparent- court also good faith. The district warrant). However, can find no control ly the officers were all exercis- assumed that a constitutional law that establishes ling case duties, discretionary and Hart does not tagging along on a prosecutor duty on appeal. consider argue otherwise this We enforcement officers of to inform law search causes of action each of Hart’s state-law should be execut that the warrant his doubts turn, good officers’ faith examining the Harlow, Therefore, under as written. ed each. against immune qualifiedly Starnes allegation. failure-to-inform A law, that, under Texas Hart maintains

VII falsely Montana are liable for O’Brien and Next, argue and Montana alleges O’Brien imprisoning her. She .O’Brien determining her, court erred that the district coordinated Myrick to arrest instructed immunity they hold, did not have official nothing prevent the federal and did Starnes, state-law claims. against Hart’s further avers her two-week detention. She Motley, Myrick did not assert official making final Montana is liable for claims; immunity law defenses to Hart’s state discussing to arrest her and decision only the defenses as to therefore we consider federal hold with the others. Montana. The state-law claims O’Brien and imprisonment, To establish false prose imprisonment, false malicious

include O’Brien, prove that and Montana Hart must cution, and intentional infliction of emotional willfully without her consent detained her court distress.13 We review district determi authority of law. James v. and without Regina nations of state law de novo. Salve (Tex.1982). Brown, 914, As a 637 918 S.W.2d Russell, 225, 231, College v. 499 U.S. 111 matter, anyone liability general extends (1991). 1217, 1221, 190 S.Ct. 113 L.Ed.2d or participates in the unlawful detention who Cro Supreme requests who directs or detention. The Texas Court has stat (Tex.Civ. Nix, 651, 653 government employees are entitled to nen v. 611 S.W.2d ed that denied, n.r.e.), 454 per App.1980, writ refd cert. arising from suit from official (1) 132, 112 70 L.Ed.2d discretionary formance of their duties (3) (1981). (2) an arrest or detention good long they acting “[i]f faith as as are process legally City under which is scope authority. within the of their is executed Chambers, duly by a court in form and issued Lancaster v. 883 S.W.2d 653 sufficient (Tex.1994). competent jurisdiction, an action for false immunity in Texas is Official There is no qualified immunity imprisonment will not lie.” Id. substantially the same as facially valid impor- dispute at the warrant under federal law. Id. 656. One issues, arguments not entertain these 13. district court also denied the officials ihe summary judgment ground interlocutory appeal. that triable Johnson in the instant 2151, 2156, regarding Jones, issues of fact remained certain ele- Although the officials chal- ments of the torts. (1995). 132 L.Ed.2d lenge that decision and both sides have briefed by competent prosecution and was issued court with of a criminal plaintiff; (2) Therefore, (initiation jurisdiction. charge Hart cannot causation procurement) (3) the officers who executed the defendant; the action termination warrant-with imprisonment. false See Emerson v. Bor- prosecution (4) plaintiffs favor; land, (Tex.App.1996, (5) S.W.2d plaintiffs innocence; the absence of denied) (plaintiff pursuant writ arrested probable (6) cause for proceedings; mal- facially imprisoned warrant (7) valid five ice in filing the charge; and damage to days allege imprisonment false could on the plaintiff. Richey v. Grocery Brookshire probable Co., basis cause did not exist to (Tex.1997). 952 S.W.2d warrant). issue The district court denied O’Brien and short, acting because the officers were summary judgment Montana on official im- pursuant facially warrant, to a valid munity, that, holding because issues of fact reasonably good could entertain a faith belief contested, remained it could not decide the that their execution of the warrant was con- issue on summary judgment. Just inas Cantu, rights. sistent with Hart’s See 77 context imprisonment, of false if Hart fails to (when allegations at F.3d fail to state a state a claim prosecution, for malicious law, claim as a matter of state officer is O’Brien and necessarily Montana are entitled immunity). entitled to Therefore the officers law, immunity under Texas official because enjoy immunity against allega- official this the officers reasonably could believe that tion. their actions were consistent with Hart’s Cantu, rights.

B The inclusion of inaccurate state contrast, By the issuance of a ments in a warrant for cause and valid warrant will not shield the officers from produce failure to exculpatory evidence liability prosecution; for malicious indeed it do not state a prosecution claim for malicious conformity process separates to valid under state law. As we in qualified held the two causes of action. As the Texas Su immunity analysis, O’Brien did not include preme long ago, Court established arrests the inaccurate intentionally statements or authority may by without be remedied recklessly, law, and therefore as a matter of imprisonment, any claim alleged for false but required. cannot malice as show Fur wrongs by pursuant committed officers -to thermore, analysis, consistent with this process lawful must be vindicated under a acting faith, find that in good O’Brien was theory prosecution. of malicious Hubbard v. affording immunity. Moreover, him official Lord, (Tex.1883) (“Where 384, 59 Tex. 386 as we also in qualified discussed immuni ..., the arrest is without authority, [the ty opinion, section of this the officers reason may proceed upon court] here as the same ably they probable believed had cause to allegations against parties and the same as at Hart, detain and her assertions that the offi common law in action imprison of false they cers should have informed Starnes ment. Where the arrest is made under law probable did not have cause do not constitute process, proceed ful we must alone exculpatory information. out, party who allege sued it and must cause.”). probable malice and want of similarly O’Brien and Montana are Hart asserts that O’Brien is liable for mali- officially immune for the decision to arrest prosecution including cious for the two inac- Hart, because Hart has not shown the ab curate probable statements the affidavit of probable probable- sence cause. “The the, cause, and that both officers are liable for cause determination asks whether a reason her, decision to arrest instigating for person able would believe that a crime had hold,” pro- for “federal and their failure to given been committed the facts as the com exculpatory

vide information to Starnes. plainant honestly reasonably and believed prove To prosecution, malicious them proceedings to be before the criminal (1) plaintiff 516; must show: Richey, commencement were 952 instituted.” S.W.2d 452 917, Dahl, liability outrageous find conduct 661 S.W.2d should also Akin v.

see denied, 938, (Tex.1983) (same), been so outra “only where the conduct has cert. (1984). character, degree, geous We and so extreme 80 L.Ed.2d beyond possible analysis go the officers’ as to all bounds of decen in our have held atrocious, immunity cy, regarded officers and to be as federal utterly community.” reasonably had cause intolerable a civilized believed Twyman, proceed against Twyman Hart. Therefore Hart can 855 S.W.2d (Tex.1993) (citation prosecution quotation and internal not assert a claim for malicious omitted). “Liability to arrest her. marks does not extend against them for their decision insults, threats, annoy indignities, to mere assertion, further that the Hart’s ances, petty oppressions.” Ugalde v. W.A. prosecu are liable under a malicious Co., Asphalt McKenzie hold, theory placing her on federal tion Cir.1993) law) (internal (applying quo Texas bail, denying similarly and therefore her omitted). Moreover, tation marks to recover security unavailing. simply given Bail is tort, damages for this the emotional distress by appear an accused to ensure she will inflicts must be unreasonable defendant brought in court answer the accusation under the circumstances and “so severe Ann. Art. 17.01. against her. Tex.Crim. Pro. expected man be to en no reasonable could Recommending the denial of bail not does Potts, dure it.” Motsenbocker v. 863 S.W.2d judicial proceedings; pro “continue” such writ). 126, 132 (Tex.App.1993,no ceedings persist regardless of whether the grants or denies a defendant bail. allegations court that O’Brien Furthermore, magistrate we note that inten and Montana’s decisions arrest her l $50,000 day tionally set bail at after the federal inflicted emotiona distress do not hold, post this amount for could the warrant state claim because command Thus, two weeks. the federal hold about ed them to arrest her. that is re Conduct prolonged cannot even be said to have quired by or authorized law cannot be ex Londow, detention. On this claim she both has failed outrageous. treme or Reck v. or continuation (Tex.App.1995), judgm’t to show commencement of S.W.2d actions, proceedings caused the officers’ part grounds, rev’d in on other 923 S.W.2d (Tex.1996). damages. and has failed to show Therefore Hart fails Therefore to state count, O’Brien and Montana are entitled to official a claim on this and the officers are prosecution officially deciding for malicious as a mat immune from suit for Cantu, ter of law. arrest Hart. F.3d at 810. Moreover, Hart fails to state a claim C regard O’Brien and Montana with to only alleges that O’Brien and the federal hold. The hold lasted one intentionally day, Montana inflicted emotional dis and Hart remained detention for two law, tress on her.14 Under Texas intentional after the she weeks hold lifted because bail, infliction of emotional distress has four not meet which set at ele could had been (1) $50,000. Thus, most, any intentionally ments: the defendant acted distress caused (2) (as recklessly; by opposed or the conduct was extreme the hold to her arrest or (3) detention) outrageous; pretrial and from defendant’s actions would have stemmed plaintiff distress; day opportunity post caused the emotional to bail a and her loss of (4) or, alternatively, possible the emotional distress suffered earlier from the (as state) Reck, plaintiff opposed was severe. Mattix-Hill involvement of federal (Tex.1996). determine, 923 S.W.2d A court officials in her case. We as a claim, granted Myrick summary 14. The district court the district court did not tional infliction judgment on the the three raises merits for Hart’s intentional rule on the motion none of claim, Motley, Myrick, ruling appeal appeal. infliction and that is not on the defense on Although Motley, Myrick, immunity here. and Starnes al- did not assert official defenses Starnes claims, immunity luded to a defense of official in their to either of the other state law either summary judgment appeal. motion for inten- district court or on Hart's before the law, matter of that alleged such distress is have held that O’Brien and Montana are Thus, not severe. O’Brien and Montana en- entitled to official immunity for all three joy official from Hart’s claim re- claims. garding the federal hold. Therefore, Hart has live causes of action Finally, we hold that Hart only, state law asserting imprisonment false state a claim for intentional infliction of emo against Motley, Myrick, Starnes; assert- allegations tional based on distress prosecution malicious against Motley and arranged O’Brien and Montana for her arrest (Hart Starnes did Myrick not sue on this

without probable cause. To state a claim for theory); and asserting intentional infliction distress, intentional infliction of emotional against Motley and Starnes. plaintiff must show that the defendant intentionally acted or recklessly. As we have IX established, genuine there is sug no issue gesting reasonably officers did not difference, This case illustrates the as a they probable believe had cause to seek law, simple matter between negligence and magistrate warrant from the judge, or that recklessness. The officials this ease cer they unreasonably acted in executing the tainly mistakes, made but we conclude that Therefore, warrant. Hart fails to state a there is no issue of material fact demonstrat intentionally the officers claim inflicted ing they intentionally acted or reckless distress, emotional and the officers are offi ly. Malley, 341, 106 See 475 U.S. at S.Ct. at cially immune this score as well. also See (Qualified immunity “provides ample Sherman, Tex., City Halbert v. protection plainly all but the incompetent Cir.1994) (holding that even law.”). who knowingly those violate the falsely informing police using that someone is Hart, Starnes did not slander provided but drugs is not sufficiently outrageous conduct seemingly (although rehable ultimately erro recovery damages warrant for inten neous) information from Drug Task Force distress). tional infliction of emotional though files. Even connecting thin, crime was the officers rea Therefore we find that are sonably could have they believed that had officially immune from any theory suit under enough probable to establish cause. addi of intentional.infliction of emotional distress. tion, they did exactly they sup what were posed VIII to do with they the information: took magistrate their evidence judge, who complex, This is a multiple-defendant, mul- they held had cause for arrest. tiple-theory briefly ease. We summarize the The officers conducted searches and arrests state of the claims for the clarity. sake of only where had valid warrant. Hart sued the defendants under five theo- ries: federal two that the claims arrest and Qualified and official immunities search were a violation of her constitutional protect police officers in the “gray area” rights, and three state claims for im- false certainty between absolute on the hand one prisonment, prosecution, malicious and inten- and reckless or wanton conduct on the other. tional First, infliction of emotional distress. In regular police work, the course of this as to Hart’s federal section 1983 claims: the gray area can cover range a wide of reason granted district summary court judgment to able post, easy conduct. ex Viewed it to Myrick County and Red River on both feder- actions; criticize some of the officers’ howev al claims. We have dismissed all the remain- er, purposes immunity, of we must evalu claims, defendants, federal all on given ate actions they their what when knew (and grounds qualified of immunity absolute they least, very acted. At the that think actions). immunity for some of Starnes’s the officers and Starnes did not act reckless Next, claims, as to her state the court district ly in this case. granted summary judgment to Red River County claims, all Myrick on and to the We judg- on REVERSE district the court’s addition, intentional infliction In immunity Starnes, count. we ments on absolute as to (1985) Indus. Cohen holdings (quoting on court’s district the REVERSE Beneficial defendants, Corp., 337 U.S. Loan and immunity to all as (1949)). majority’s L.Ed. 1528 on holdings court’s district the REVERSE immunity1 of these claims analysis of the and Montana. immunity as O’Brien official moreover, entirely predi- defendants, three favor summary judgment RENDER We extra-jurisdictional counts, its initial and in cated on and on Montana all and of O’Brien not Starnes did O’Brien and finding that feder- on Hart’s Motley and Starnes of favor rights by Fourth Amendment violate Hart’s al claims. recklessly including false state- or knowingly Be- probable cause affidavit. in the ments concurring BENAVIDES, Judge, Circuit acknowledges that the majority the cause part: dissenting in part and Montana, O’Brien, immunity for of existence majority’s opinion portions of the join I the finding, I on this is conditioned and Starnes finding a that from not derived that are opinion hold- portions of its from dissent arrest and for Hart’s issued warrant are entitled defendants ing that these three substantively val- property of her search immunity matter of law. as a result, of the join parts I IV and V id. As a complaint, Hart asserted In her the evi- opinion, which resolve majority’s Fourth and violated her O’Brien Starnes admissibility and absolute dence they in- part Moreover, rights, because Amendment appeal. in this presented issues false state- tentionally recklessly included or in the sur- Motley was not involved because submit- probable cause affidavit in the prepa- ments property nor the veillance of Conine’s her arrest support the warrant for ted in of join application, I warrant ration of the After dis- of her residence. and the search quali- is entitled to majority’s holding that he Montana, O’Brien, Starnes covery, of his reliance on immunity because fied They argued summary judgment. Further, moved for facially seemingly valid warrant. dependent on claims was that each of Hart’s finding majority’s agree I with the because was invalid and finding that warrant placement show that Hart failed to produce sufficient evidence did not that she her criminal federal hold false fact as to genuine issue of material to raise a in viola- complaint be detained caused inten- these false were whether mali- Fourth Amendment and tion of statements recklessly affidavit.. tionally included por- ciously prosecuted, join I discrete addition, they were O’Brien, asserted In opinion holding tions of its court de- immunity. The district entitled Montana, Motley to sum- were entitled explicitly found that these motions nied mary judgment on these claims. genuine issue plaintiff raised “the has however, I can separately, I because write two false to whether these material fact as majority’s assertion of agree with the not knowingly or with included statements were portions of the interlocu jurisdiction over the truth and veraci- disregard for their reckless Montana, O’Brien, tory appeals defendants ty.” court’s challenging district and Starnes majori jurisdiction, raised a its statement that Hart’s determination finding may this recognize ty appears regarding material genuine issue of fact interlocutory appeal, for sufficiency of not be reviewed validity the warrant. This court correctly that when a “district immediately ap trial, prove able to at may not be separable from the or right of that is claim ap judgment before final official must await rights in Hart’s Fourth asserted Amendment Pelletier, 435; v. Behrens Maj. op. at Forsyth, pealing.” 472 Mitchell v. U.S. action. See 834, 842, -, 435, 116 S.Ct. 2806, 2814, U.S. 511, 524, 105 411 86 L.Ed.2d S.Ct. - immunity" law and "official under federal immunity fied under fed- 1. Because the standards for similar, quite immunity” are I will sim- eral and law Texas law. Texas under "immunity” "quali- ply refer to term to use the

455 Jones, (1996); they challenge finding the district court’s of a Johnson v. L.Ed.2d 2151, 2153, fact, 132 genuine majority 115 S.Ct. issue of material 515 U.S. (1995). who public A official appears principle a L.Ed.2d create new of interloc- ability prove her case plaintiffs attacks a utory jurisdiction. principle, Under this a defense, immunity raising qualified a is appeals may interlocutory court of exercise “conceptually from the mer is distinct which jurisdiction finding over a district court’s of a ” Jones, 515 U.S. plaintiffs of the claim.’ its genuine any issue of material fact if Mitchell, 314, (quoting at 2157 at relating finding undisput- evidence to that is 2816). 527, Instead, at 472 U.S. at S.Ct. Maj. op. (stating “enough ed. at 436 that arguing that “the evidence that official is uncontested facts exist determine particular support finding a [cannot] [these defendants] three are immune as a occurred,” argument “is not and this conduct law”), (minimizing matter of 442-44 truly ‘separable’ plaintiffs from the claim.” independently favorable evidence and review- — Behrens, -,at 116 S.Ct. at 842. U.S. “undisputed relating facts” therefore, may appeals, A not review court of genuine district court’s determination that a interlocutory sufficiency determination on regarding issue of material fact existed ‘final appeal “there is no decision’ because O’Brien’s mens rea when he included the as de collateral order doctrine [the under (un- affidavit), false statements 448-49 Id,.; Jones, by] fined Cohen and Mitchell.” derstating Hart’s favorable in- evidence and 314, 115 at 2157. 515 U.S. at S.Ct. dependently reviewing relating the evidence however, majority, begins its The provided of to Starnes’ state mind when he immunity analysis by “considering] whether Hart). with information O’Brien about that Hart lived sworn statement O’Brien’s majority’s indiscriminate reliance on the knowingly false or reck Conine’s trailer was undisputed justify existence evidence to its less,” “whether exhibited a reck Starnes jurisdiction, interlocutory howev- exercise providing truth in disregard less for the er, violates the collateral order doctrine. regarding Hart’s marital information” [false] 442, Further, Maj. op. doctrine, status. 448-49. Under the collateral order a de below, thoroughly reviewing the record after may argue interlocutory appeal on fendant majority disagrees with the district disputed that even if the facts are viewed in conflicting evidence and court’s view of the favor, plaintiffs remaining undisput did not concludes that O’Brien Starnes plaintiffs that the con ed facts demonstrate intentionally recklessly include the false or that rights stitutional were not violated probable in the cause affidavit. statements objectively conduct was rea the defendant’s majority’s question can be no that the There clearly law. light sonable in established finding summary judgment that the evidence — Behrens, at -, 842; 116 S.Ct. at genuine fails to issue of material fact create (5th Louisiana, Naylor extra-jurisdictional improper under is Cir.1997); Indep. Coleman v. Houston Sch. in Johnson and Beh the Court’s decisions Cir.1997).2 Dist., This rens. interlocutory question because the re purely view—the existence of immediately appeals In order to review —is O’Brien, Montana, separable from the legal question insofar as and Starnes case, however, applica- properly were included in the warrant there was no evidence in In this affidavit, probable the false the statements, cause aside from that the of these tion in order to find conduct Thus, any linking crime. objectively reasonable. Of three defendants was O’Brien, Montana, argue and Starnes cannot course, presented the district court been had interlocutory appeal undisputed facts containing both the false state- with an affidavit rights were show that Hart’s Fourth Amendment not violated because the affidavit’s undisputed alleg- as other ments as well remaining cause, probable finding edly providing probable revealed the existence of cause. content undisputed establish cause facts did not Delaware, See Franks v. justify in its existence a reasonable belief nor Further, (1978). the ab- 57 L.Ed.2d 667 interlocutory ap- reviewahle would have been explains why sence of such additional evidence peal. majority false statements must find these Jones, finding that Hart lenging the district court’s 515 U.S. plaintiffs claim. merits of a majority, production regarding of The met her burden at 2157. at 115 S.Ct. v. Dela however, presence undisput- validity of of the warrant under Franks on the relies ware, interlocutory of 57 L.Ed.2d its review justify ed facts (1978). produc- of compliance her burden Hart’s with tion, Supreme has Court an issue with, inextricably intertwined found to be from, merits of her separate

rather than Thus, undisputed of

claims. the existence Id. to the court’s pertaining district material

finding genuine of a issue of fact that determination into not transform

does immediately appealable under

one that is VELASQUEZ-TABIR, Petitioner, Israel order doctrine. collateral moreover, necessarily majority, relies The extra-jurisdictional conclusion that the on its IMMIGRATION AND properly were included false statements SERVICE, NATURALIZATION probable cause affidavit order Respondent. O’Brien, Montana, immu- and Starnes award nity of Hart’s claims. To on the remainder No. 97-60247 with, majority Summary finds that these begin Calendar. probable for the provided statements cause Appeals, of United States Court the search of her resi- arrest of Hart and Fifth Circuit. cause, presence probable of dence. moreover, disposes of several of Hart’s Nov. 1997. Amendment and state law claims. Fourth Further, by including these statements with- affidavit, majority probable

in the cause questionable validity of

transforms a warrant warrant, maj. “facially op.

into valid” very that can be relied on

people intentionally or who have reck-

lessly provided issuing magistrate with

false information. This then eliminates remaining Fourth Amendment Thus, solely by of

state law claims.3 virtue jurisdiction, ma- improper

its exercise of O’Brien, Montana,

jority is to immunize able respect

and Starnes with to each of Hart’s appeal.

claims before us on reasons, foregoing respectfully

For the I portions majori-

DISSENT from the O’Brien, Montana,

ty’s opinion holding that immuni-

and Starnes are entitled

ty as a matter of law. I would instead jurisdiction portions for lack of

dismiss appeals of these three defendants chal- O’Brien, however, intentionally immunity, given knowledge, principle his This cannot proba- recklessly dispose in the of the claims Montana. Mon- included false statements affidavit, tana, O’Brien, open participated question whether cause it is an like in the surveil- ble Montana, knowledge, provided possessed the same lance of Conine and Hart that the factu- who Thus, finding reasonably have relied on the warrant is- al basis for cause. could dispute affidavit. because there is a factual as to whether sued on the basis this it notes finding is not the evidence grounds judgment on the summary denies order doctrine pealable under collateral party exist which that material facts conclusively determine a it because does

Case Details

Case Name: Hart v. O'Brien

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 6, 1997

Citation: 127 F.3d 424

Docket Number: 96-40151

Court Abbreviation: 5th Cir.