Kerr v. Lyford

JONES, Before SMITH and EMILIO GARZA, M. Judges. Circuit SMITH, JERRY E. Circuit Judge: Plaintiffs appeal dismissal, on grounds of immunity, of their civil rights claim. We affirm.

I.

A. (the “Kerrs”) and Geneva Kerr allege that they wrongfully investi- gated, arrested, and incarcerated for the kidnaping, rape, and murder Kelly Wil- sued, They son. § under U.S.C. persons those involved in the investigation mentioned Kerr children to the addition arrest to their led above. Ann Lyford, Roland incarceration: Minshew, Fleig, Brooks Goar, Debbie indicted Wendell Kerr May judg- summary Moving Baggs. sexually abused Steve that he charges on Baggs Minshew, Goar, Fleig, ment, TDHS discov- When daughters. his one of as- immunity; qualified married claimed Kerr had Wan- ered Wendell immunity. (hereinafter qualified to as referred absolute Hicks serted Geer da Kerr”) her and in with and moved

‘Wanda children, emergency an it executed five her B. children, them placing these removal in this disturb- involvement Defendants’ homes. foster three different into child saga of unresolved largely and ing placed was these children of troubled most molestation, and occult-related abuse, child foster home. therapeutic Barbara Bass’s to Novem- be traced can and murder rape as- caseworker the TDHS was Minshew Goar, of employee an 1990, when ber home. the Bass supervise to signed Human Services of Department Texas homes, and the Kerr in their foster Once Lor- of (“TDHS”),1 the case assigned to elaborate tales began tell Hicks children chil- their and four Kerr and Wendell etta spoke of sexual They abuse. of sexual plaintiffs of the son Kerr is Wendell dren. the hands at sodomization and molestation Kerr, Lor- his and so Geneva and (Eugene grandparents parents, of their of grandchildren are the children etta’s Kerr), They strangers. and Geneva and sexual account of On instant plaintiffs. sex having into being coerced reported Wendell against made allegations abuse grandpar- parents, as their other each with (the “Kerr Kerr, grandchildren Kerrs’ video- on and ents, strangers looked and homes, and children”) in foster living were blood, devil, told of They them. taped with to meet responsibility it was Goar’s knives, masks, all in connection and monthly basis. them on told Lastly, they abuse. sexual their murder and dismember- graphically was shown Goar In December hands at the children and of babies ment Kerr written to letter addressed Wendell grandparents. and parents their Geer, of Wanda Geer the brother by Lucas made who, following her divorce Hicks children Kerr Hicks, and a woman on numerous occasions Hicks, dating Wen- begun statements had above from James settings.2 Some Lor- (who variety divorced in a recently and dell Kerr spontane- proffered letter, were Kerr). Geer Lucas statements In this these etta others were voluntarily, while ously Kerr and to Wendell apologize appears question- and coercive vigorous via Geer of Wanda elicited abusing one sexually been that have letter, techniques utilizing ing, of this a result As Hicks’s sons. ex- by plaintiffs’ resoundingly criticized Hicks Wanda Geer to counsel began Goar Services Child Protective (hereinafter by and pert referred five children her and why Indeed, the reasons children”) one of (“CPS”).3 “Hicks collectively as the particularly critical were 3.Perry and CPS Department of Protective 1. The Texas obtaining information ("TDPRS”) eventually as- Goar Minshew Regulatory Services “holding” tech- re- protective via services child the children TDHS's from sumed sponsibilities. refer whereby We "TDHS” to be held use a child would nique, successor, TDPRS. ques- its provided both TDHS answers will he his until record, we can tell As tions. best these statements large 2. A number par- applied by the foster technique was this interviews, videotaped during made/elicited which have Goar repeat, for get children to ents to defen- plaintiffs' and enabled the regarding Minshew, made statements style of critique dueling experts to dants' sexual abuse. defendants. employed questioning infra. ultimately dropped prosecu- state its Statements of the Kerr and Hicks chil-

tion of the Kerrs on child abuse charges “R.S.,” dren also led defendants to a male that, in opinion, its juvenile Minshew’s and Goar’s who was another alleged victim of mishandling of the child witnesses made sexual molestation the hands of the testimony the children’s untrustworthy. provided adults. R.S. the initial link witness, expert The Kerrs’ Dr. Perry, ex- between the investigation child abuse plained how child witnesses are quite im- the Kerrs and the Kelly Wilson murder: pressionable, inappropriate forms He told investigators that he had wit- can taint questioning very even their abduction, recol- nessed Wilson’s rape, and mur- lection of events. Medical examination der.4 provided He details of these events reveal, however, the children did genital and said that body Wilson’s in a kept scarring and anal consistent with their al- backyard. shed the Kerrs’ legations molestation, of sexual and de- Utilizing an system infrared designed to fense experts disputed the charge that detect rays heat emitted from human re- Goar’s interviewing Minshew’s tech- mains buried underground, Baggs flew niques were improper. over the property and located two

Around June Goar’s and potential Min- sites of such remains. A cadav- supervisor, Bardwell, shew’s Loye asked er-sensing dog also alerted to three poten- Baggs help (1) to in investigating the tial Kerrs. sites: a toolbox containing a blue Baggs (2) was an investigator (3) for the bag, shed, a Criminal red and three shallow Law Enforcement Division of grave-like depressions Texas in the soil. The red Department of Safety Public who had de- shed signs exhibited heavy of recent wash- veloped expertise in investigating ing ritualis- and repainting and contained a shovel tic behavior and practices. occult He as- that had blood residue on it. Additionally, sented and called Fleig, on a Louisiana investigation revealed a circular in clearing officer, peace also in experienced ritually- the woods behind the Kerrs’ house that crime, based Baggs’s assist him. and matched the description given by the chil- Fleig’s discussions with the children con- dren as the place where much of their vinced them possibility of the that sexual abuse had occurred. engaged Kerrs had in some sort of ritualis- In May Upshur County District

tic abuse. Attorney Tim Cone obtained indictments One of the adults by identified the chil- against the along with four other Kerrs — dren as a in participant their victimization members of the Kerr family alleging sex- — Geer, was Lucas was currently who serv- ual child abuse. Discovering that he was ing violating time for the conditions of disqualified his prosecuting from the indict- parole. Baggs Fleig and interviewed Geer ments prior because representation and heard him to making confess a variety Kerr family, Cone asked the state of sexual assaults on the children and to district Upshur court in County to appoint in participating the ritualistic murder Lyford as special prosecutor pursuant babies on the Kerrs’ property. Geer cor- (Vernon 2.07 Tex.Code Art. CrimProcAnn. many roborated allegations 1977). by made Cone personally also appointed Ly- the Kerr and Hicks children ford as implicating an assistant district attorney adults, the other Kerr (“ADA”) including Eugene pro tern Upshur County, Kerr, and Geneva in their abuse and tor- charged with prosecuting the sexual abuse Polygraph ture. testing suggested that cases and “any criminal or civil lawsuits Geer was truthful in making these state- arising out of and all any incidents related ments. or connected” thereto.

4. On an earlier occasion Geer had told statement; Min- ic and up did not follow on this Wilson, shew that Geneva had killed Kerr but theretofore nothing there had been connect- thought Minshew just being was ing Geer dramat- the Kerrs to Wilson. fragments bone Fleig, revealed and Baggs years two had served plastic. of metal and pieces in wrapped Office Attorney’s District County Travis identified initially were fragments time he These At the TDHS. Litigator for Chief human.7 analysis be subadult in forensic by prosecutor special appointed devil uncovered two Fleig a also Baggs law with and case, practicing he instant knives, a blood- masks, bayonet, Galveston, a Texas. two firm in prominent cover, long machete mattress stained plea Lyford reached December Martin Danny Kerr. Connie belonging to Connie Kerr and with Wanda agreements Dan- by was used the machete that stated agree- who, to their Martin, pursuant victims, and his dismember Kerr to ny fur- things, other ments, among provided, included masks of the children several implicating evidence ther descriptions of torture in their knives assault, and kidnaping, sexual Wilson’s a dev- of the masks—that One abuse. removed items They identified murder. description given fit the precisely on il— in a toolbox bag found the blue their sex- during worn children as one as instrumentalities property Kerrs’ abuse. ual Kerr Wanda and torture.5 restraint tests polygraph R.S.’s, passed Kerr, Martin key figure Connie Wendell statements. with them Kerr’s, ac- connection Connie Martin’s Wanda murder, an provided of Wilson counts Danny how also described Kerr Wanda legitimate. Wendell appeared alibi Kerr) (son and Geneva Kerr company trucking for a worked Kerr apparent as an abducted Wilson had receipts and other lading had bills Dan- Kerr. “birthday present” Geneva in Texas he was show appeared up Wilson picked ny purportedly Ly- in question. events the time of the took her to van and in his had substitut- that someone surmised ford mur- raped and she was where property, had gathered and Wendell Kerr ed in red shed kept body was Her dered. enable documentation aforementioned even re- Kerr backyard. Wanda them in an to establish alibi. Kerr Wendell taken Danny Kerr the route traced during the abduction.6 obtained statements Additional personally not three witnesses adult from corrobo- further provided Martin Connie alleged child abuse. Two in the involved abduction of Wilson’s of the account ration of adult children witnesses were these of also She Kerr and R.S. by Wanda given that Lyford revealed to They the Kerrs. ritualis- of stories children’s reiterated by sexually Gene abused too had been they torture, stated sex, murder and and tic up. Their growing Kerr while and Geneva buried victims were some of the that ways many abuse in sexual accounts body bags backyard, in Danny Kerr’s grandchildren, those of mirrored search subsequent A plastic. and metal effect.8 statements that they signed conducted backyard, Kerr’s Danny necklace, get to retrace subsequent attempt to R.S. an 6. A a shell items included 5.These failure, appeared as the child insulation, was a this route nylon yellow wire with electrical began to offer a ver- extremely connectors, anxious six rope metal strap with tow "wildly" differed that of the abduction sion downs, rope. brown macrame rubber tie previous versions. Kerr's his and Wanda these found on some hairs were Human ex- and the children Martin items. Connie examination, was con- it Upon additional during worn was plained that necklace probably fragments were that the bone cluded animal, abuse, electrical that the episodes of sexual human. not used to battery and to a wire was attached genitals the children the mouths shock is, they were alleged they abused, too tie downs 8. That the robe and being abuse, forced parents and were by their sodomized victims were used to restrain brothers with their to have sexual relations including Wilson. (5th Cir.1994). neighbor A third adult —a of Martin’s— Gregg, 36 F.3d In that Martin told defendants had revealed genuine, our search for a material factual Kerr, husband, Danny to her that her was dispute, we review the evidence and all sexually abusing their children. On sever- reasonable inferences therefrom occasions, gave al one of Martin’s sons light most favorable to the Kerrs. See id. neighbor detailed accounts of the revealed

sexual abuse. III. January the Kerrs were indict- Prosecutors enjoy absolute immu kidnaping, ed for the rape, and murder of nity for those activities “intimately associ Wilson; Kelly later they were arrested judicial phase ated with the of the criminal The lurid imprisoned. details sur- process.” Pachtman, Imbler v. 424 U.S. rounding charges these led to much media 409, 430, 96 S.Ct. 47 L.Ed.2d 128 attention, and widely por- the Kerrs were (1976). reason, For this the district court trayed Satan-worshiping murderers. Lyford held that absolutely immune In March Attorney the Texas Gen- for his efforts in initiating criminal prose eral’s office took over the cution the Kerrs for kid Wilson’s By the Kerrs. all charges naping, assault, sexual and murder. against them had been dropped, and the Attorney General declared the investi- The Kerrs challenge Lyford’s claim gators’ handling botched of this matter immunity, absolute asserting that he did impossible made it proceed authority have to act prosecutor as a prosecution. Texas-with regard to the aforementioned crimes. The Kerrs note that

II. appointed an “attorney pro tem” for the The sole issue is whether the de purpose limited of “prosecuting any crimi suit, by fendants are immune from virtue nal or civil ... lawsuits related to or con qualified of either immunity. or absolute nected with certain indictments returned summary We review de novo the judgment by the Grand Jury Upshur County on determination of immunity. May Wallace v. 1993 [regarding child abuse].” Univ., Texas Tech See Tex.Code Crm.Proc.Ann. art. 2.07 Cir.1996). (Vernon 1977) In so doing, we follow Fed. (authorizing appointment). 56(c) in R.CivP. the same prosecution manner as did Because the of the Kerrs for the district court. Id. assault, the kidnaping, sexual and murder of Wilson was unrelated to the child abuse 56(c) provides Rule for grant against indictments returned the Kerrs on ing of summary judgment if plead “the 24, 1993, May the Kerrs maintain that this ings, depositions, answers to interrogato Lyford’s was outside of au file, ries and together admissions on thority. They provide us with examples of affidavits, any, if that show there is no prosecutors who acted outside their aut genuine any issue as to material fact and hority.9 that moving party is entitled to a 56(c). judgment aas matter of law.” Rule Lyford prosecutorial claims immunity Therefore, we affirm unless the Kerrs can for all except actions performed those in “a demonstrate genuine either a issue of ma clear absence jurisdiction.” of all Stump fact, terial legal or Taylor error. See v. Sparkman, 349, 357, v. 435 U.S. 98 S.Ct. (2d parents. They Cir.1996), denied, 1115, sisters in front of their did cert. 520 U.S. 117 not, however, 1244, witness the Kerrs commit (1997); mur- S.Ct. 137 L.Ed.2d 326 Kulwicki der. Dawson, 1454, (3d v. 969 F.2d 1467 Cir. 1992); Shuman, 1213, Jennings v. F.2d 567 I.e., Mattox, 894, (7th (3d 9. 1977); Heisel, Peña v. 84 F.3d 896 1222 Cir. Bauers v. 361 Cir.1996); 581, (3d Doe Phillips, 1966). v. 1209 F.2d 590-91 Cir. pursue jurisdiction all of (1978). “clear absence contends He 55 L.Ed.2d explicit authorization light of the latter immuni- of absolute that, shield behind are as Those links the former. pursue faith” “good room even there is ty, follows: Mayo, 827 v. McCarthy mistakes. Cir.1987). in- led investigation He 1. child abuse The F.2d 1314-15 to Geer as someone who vestigators cited the cases distinguishes rightly in said a witness participant in no involving actions both a largely Kerrs as abuse; matter. present to those way similar seem- regard- the Kerrs that information he disclosed

Lastly, observes 2. Geer children, ground second his murder have overlooked ritualistic ingly ing the of, Wilson, as appointment authority: presence including prosecutorial of, Kerrs; property on the Ann. pursuant ADA Tex.Loc.Gov.Code 1988). argues (Vernon § 41.102 chil- of the victimized at least one 3. only can be appointment that this second involvement described the dren authority initial torture, of his abduction, expansion rape, as an read in Wilson’s § 2.07. per as prosecutor murder; special co-defendants, of the Kerrs’ two the effect need not consider We Martin, impli- Connie Wanda un because appointment, subsequent crimes Kerrs in the cated the standard, Lyford was applicable der the Wilson. immunity. A prosecutorial entitled do by the Kerrs cases cited spate The immunity will be absolute prosecutor’s Lyford crossed not demonstrate that “was action stripped because all concern they authority, his limits of in ex maliciously, or was error, was done actions prosecutor’s of a rather, impropriety will be he authority; of his cess contrast, matter, by ;11 the instant per se has acted only when he liability subject to ” actions appropriate otherwise concerns jurisdiction.’ absence all in the ‘clear alleg- they because 356-57, inappropriate rendered 435 U.S. Stump Sparkman, v. jurisdictional (cita Lyford’s (1978) edly exceeded 55 L.Ed.2d 98 S.Ct. charge. omitted).10 tions decision the only appellate The the initial links between multiple point is remotely on even cite is and the Wilson investigation abuse child (3d Heisel, Cir. v. a Bauers there the notion

murder belie Dawson, 969 F.2d prosecuting. Kulwicki judicial immu- Although Stump addressed 1992), prosecutor (3d upon based Cir. concerned “immunity prosecutor nity, af that underlie evidence months allegedly fabricated the same considerations who judges....” Butz case. See immunities common-law had been recused ter he Economou, 98 S.Ct. U.S. Kulwicki, at 1467. (1978). L.Ed.2d 895 57 Jennings v. Shu Lastly, Kerrs the note Cir.1996), Cir.1977), Mattox, man, (3d concerned 84 F.3d 894 1213 v. F.2d 11. Peña questionable who, prosecutor appointed whose as was Lyford, concerned a person like a prosecutorial in nature. even actions not the were case. But a special prosecutor in murder Peña, Lyford’s While at 896. 84 F.3d See there, spe Jennings, the similarity for in ends scope of beyond may have been actions appointment as lever prosecutor used cial his they authority, plainly prosecutorial his by prosecuting age extortion scheme in an Similarly, in Doe prosecutorial in nature. bribery. to commit for solicitation coroner Cir.1996), (2d an ADA Phillips, 81 F.3d bribery at That Jennings, 1222. See innocence plaintiff to her required swear prose outside the to be prosecution was held drop- as a condition church on a Bible in statutorily-de authority, his because cutor's See rape charges her. felony ping only “preparation authority extended rived Doe, case distin- at 1209. This or for homicide any indictment and trial actions would ADA’s guishable See commonwealth.” behalf of on murder authority, scope of his beyond the been have regardless added). (emphasis id. charged was the matters he 1966), simply which states the qualified rule claiming immunity, plaintiff a immunity prosecutor of a ... “[t]he is not must demonstrate the existence and viola- without limitation.... [It] does not ex tion clearly of a established constitutional to acts which are clearly right; tend outside their may the defendant then show that Bauers, jurisdiction.” 361 F.2d at 591. he was a performing function discretionary merely “clearly This reiterates the absent” and that his actions would not have been standard set forth Stump, U.S. deemed unconstitutional by a reasonable 356-57, 98 S.Ct. 1099. official in position his at the time of the event. Id.

Moreover, the facts of affirma- Bauers case, tively hurt they the Kerrs’ demon-

strate how difficult it is to find that a A. prosecutor “clearly has acted outside” of Absolute, prosecutorial immunity Bauers, authority. his prosecutor a only extends to those activities “intimately prosecu- was sued in connection with his judicial associated with the phase of the tion of an individual who was under the Reed, criminal process.” Burns v. age of eighteen when he committed his 478, 492, U.S. 111 S.Ct. 114 L.Ed.2d Bauers, offense. By 361 F.2d at 591. (1991) added). (emphasis Therefore, statute, prosecutor did not have au- enjoy does not absolute immunity thority to prosecute such persons. Id. activities, for his investigatory only but The court held: qualified Harlow, immunity, any. if The mere fact that the Jersey Leg- New 818, 102 457 U.S. at S.Ct. 2727. islature excised from his responsibil-

ity of individuals who The Kerrs identify the following age were under the of eighteen Lyford’s when activities as investigatory ac they committed acts which would other- absolute, tions beyond purview pros punishable wise be offenses not does immunity: ecutorial prosecutor] indicate that acting [the 1. the arrest imprisonment clearly jurisdiction. outside his On the through Lyford’s unauthorized contrary, it would be difficult to envision procurement of indictments for sexual which jurisdic- case was as close to his assault, kidnaping murder; tion, but, yet, in excess of it. 2. presentment false, coerced Id. Lyford’s Because prosecution of the testimony fabricated grand Wilson murder not done “in the clear jury; jurisdiction,” absence of all the district the seizure and destruction court properly afforded him prosecutorial property; immunity for prosecutorial his activities. the disclosure to the media of bi-

IV. zarre theories of the Kerrs’ satanic cult. defendants, Each of the including The first two implicate of these absolute Lyford, qualified immunity, asserts prosecutorial immunity, qualified im standard for explained which was munity; Har they are “advocatory” “cen low Fitzgerald, 800, 818, 457 U.S. 102 tral prosecutor’s to the task of initiating (1981): S.Ct. 73 L.Ed.2d 396 prosecution.” Valder, “[Gov Moore v. ernment performing 189, (D.C.Cir.1995) officials discretionary 194 (citing Imbler v. functions generally Pachtman, are 409, shielded from lia 431, 424 984, U.S. 96 S.Ct. bility civil insofar damages (1976)). as their 47 Thus, L.Ed.2d 128 Lyford en conduct does not clearly violate joys established protection absolute for these activi statutory or constitutional of which rights ties. The third of allegations these a reasonable person would have presented known.” not to the district as a court Thus, to proceed against a defendant federal claim and therefore cannot be

339 degree thority and the reasonable- appeal. time as such on for the first raised Inc., 651, Conoco, in expected government 76 657 of a official v. F.3d ness See Stults (5th Cir.1996). counts, proceed, on all their situation. We novo. Id. de a makes out allegation

The fourth defamation, is which not a consti claim for in The district court was correct Davis, v. 424 U.S. Paul tutional tort. See matter, the noting, preliminary as a 1155, 47 L.Ed.2d 405 96 S.Ct. have viable causes of action Kerrs two (1976). immunity- threshold Because the and Minshew: malicious against Goar alleged the Kerrs have question whether a conspiracy. and civil As Harlow, harm, see a constitutional clear law, Lyford’s intervening, inde matter at 102 S.Ct. failure 457 U.S. Goar’s, Minshew’s, pendent actions sever the in claim. do so results dismissal and for the Baggs’s, Fleig’s responsibility sum, claims none the Kerrs’ seizure, false alleged Kerrs’ unreasonable Lyford may proceed. arrest, Hand imprisonment. and false See (5th Cir.1988). 1420, 1427 Gary, v.

B. said, we have Goar Minshew As also correct The district court in the were TDHS case workers involved holding prose in the Kerrs’ malicious investigation initial children. a implicated clearly cution claim estab expanded As its probe team in right at the time of the events lished disappearance, the Kerrs Wilson’s Goar Indep. See Sch. question. Alief in evi- and Minshew continued assist (5th Dist., 1299, 1303, 1305 Cir. interviewing of gathering, via the dence 1995). Oliver, Although Albright v. in The com- and adult witnesses. Kerrs child 266, 275, 807, 127 L.Ed.2d 114 S.Ct. U.S. their plain that and Minshew violated Goar (1994), the no such Court held that in by engaging prose- civil malicious rights Amend exists under the Fourteenth right arrest, cution, false sei- civil conspiracy, ment, question it did not reach zure, levy imprisonment. Kerrs it Fourth whether exists under charges against Baggs same these Albright, Amendment. 510 U.S. See investigators employed criminal Fleig, therefore, Albright, 114 S.Ct. 807. in experience of their the TDHS because longstanding circuit’s left undisturbed our crimes. investigating occult-related right of a Fourth Amendment recognition responsibilities en- Baggs’s Fleig’s prosecution. from malicious to be free searching prop- the Kerr primarily tailed Eugene, F.3d at interviewing the adult wit- erties and Moreover, Albright was decided nesses. relevant to the whereas events matter, we deter- As a threshold must prosecution claim occurred malicious (1) a consti- allege mine whether Thus, at the time of the to 1993. (2) violation; law regarding tutional question, Albright decision events estab- alleged clearly violation was certainty of not have undermined the could events; operative lished at the time of the to be clearly right circuit’s established our (3) that the violation the record shows This prosecution. free from malicious occurred, gives genu- or at rise to “a least need to they the basis gives the Kerrs of material fact as whether ine issue claim, in that conspiracy their civil pursue actually engaged defendant conduct must be § civil claim conspiracy law.” See clearly-established violated the constitutional based on breach Dollar, Rich right. Cir.1988). visit Only thereafter must we to the third brings Min- This us Goar and questions whether “whether question: au- threshold scope of their final shew acted within the 340 by parties the create a The district court found that the Kerrs

showings made prima of material fact as to wheth had made out their cases of genuine issue facie actually in con engaged prosecution conspiracy. er the defendant malicious and civil erred, however, clearly-established the by failing duct that violated The court Rich, (citing supported 841 F.2d at 1563 examine whether the record the law.” 511, 105 Sorenson, 472 Forsyth, allegations. Mitchell v. U.S. S.Ct. Kerrs’ See 134 (1985)). 2806, is, Although L.Ed.2d 411 That F.3d at of the 86 328. most ele- prima have the Kerrs satisfied the of the claim prosecution ments malicious facie satisfied, elements of their claims? See Sorenson v. undisputably are least one of (5th Cir.1998). Ferric, F.3d 134 328 them lacks substantiation: The record appeal prosecution Because this case is before us on does not establish that the was cause, summary judgment, wanting probable the Kerrs need nor does it only genu the existence of a genuine, demonstrate establish a material factual dis- dispute regarding ine of material fact de pute regarding this element.

fendants’ conduct. purposes For of malicious prosecution, probable cause means “the ex

The elements of a claim for istence of such prosecution malicious are: facts circumstances as belief, in would excite the a reasonable 1. criminal action commenced mind, the acting on facts within the knowl plaintiffs; the edge of the that prosecutor, person the 2. by that the was caused charged guilty crime for which aid; the defendants or with their he was prosecuted.”12 To the extent that that 3. the action terminated undergirding probable facts cause favor; plaintiffs’ determination are undisputed, may we re innocent; plaintiff 4. that the solve the issue as matter of law. Black 5. the defendants acted without (5th Barton, well v. 34 F.3d Cir. cause; probable 1994). To prevail, the Kerrs must demon 6. that the defendant acted mal- with (1) strate that either the record affirma ice; and tively probable establishes that cause was (2) lacking enough genuine, or material the criminal proceeding dam- disputes regarding factual exist the ele aged plaintiff. probable ments of cause that the ultimate Vernon, Hayter City Mount finding probable subject cause (5th Cir.1998). The ele- genuine, material factual dispute.13 (1) conspiracy ments of civil are an actual They have demonstrated neither. right protected § violation of a under (2) actions taken in concert put following Defendants forth the evi- specific defendants with the intent to vio- dence in support finding probable of a right. late the aforementioned Cinel v. cause: statements of the child witnesses Connick, (5th Cir.1994). implicating their own sexual abduction, conspiracy Kerrs’ civil claim is contin- abuse and in rape Wilson’s murder; gent on the success of their pros- malicious medical examinations of the chil- claim, ecution only which is the dren that revealed scarring tenable consistent § molestation; 1983violation here. their tales of sexual confes- McDonald, Blackwell, Moore 620 n. fact law. 34 F.3d at 305. A Cir.1994) (quoting Pendleton v. Burkhal genuine, dispute factual material to some ter, (Tex.Civ.App.— 432 S.W.2d probable elements of cause calculus n.r.e.)). [1st Dist.] Houston writ refd however, affirmance, preclude does not an probable cause still could be found based summary judgment, 13. To sustain a we must totality upon undisputed elements. undisputed support find facts a find- cause, ing probable question a mixed in of the favor inferences all reasonable ing by adult supplied statements and sions conclude nonmovant, compelled to Kerr, arewe Martin, Geer, and Wanda witnesses by the the children mishandling of the with consistent polygraph, by verified their recollections so tainted investigators the implicating children in the of those nugatory, statements to render their as and murder rape, kidnaping, in the Kerrs the removing this factor thereby evidence Wilson; physical corroborative of cause calculation. probable knives, instru- masks, and other as such and torture restraint of mentalities Kerr’s to Wendell point The Kerrs also Addi- children. by the referred Kerr, were iden- R.S., and Martin Wanda alibi. and a scanning device infrared tionally, an in the participant as a Kerr tified Wendell pres- the dog suggested cadaver-sensing murder, his substantiated and thus Wilson prop- on the Kerr’s remains human credibility. ence of This on their casts doubt alibi (albeit conclusively not and bones erty, dispute, material genuine raises a evidence the shed human) Lastly, were unearthed. to Wendell however, regard with only had been backyard disappear- in the in Wilson’s participation Keir’s —which and the the children by some and ance, Geneva regard identified in body best, Wilson’s where alibi evi- place as the At this adults involvement. Kerr’s by the posi- also alerted kept negating as had been viewed can be dence —was of re- signs have showed would and, suspiciously, otherwise dog we inference tive testing repainting. washing polygraph and from the successful cent read a witnesses, it raised has of these sug- with evidence The Kerrs counter to their fact as of material issue genuine They probable cause. lack of a gesting credibility. state- that the averring in persuasive are Martin are unreliable Kerrs’ claim that Finally, the children ments original they were recanted their in which the manner and Wanda light of expert, those statements of their and that testimony statements The obtained. We manipulation. criticisms via coercion elicited Perry, and evidence Dr. in the for such claims support no and Minshew find Goar leveled Indeed, cite record, of material however.14 issue genuine a create TDHS complaint, third amended state- to their largely the children’s to whether fact piece or other any affidavit to, not to contrib- but or even give rise could ments evidence, these support substantive to, cause. finding probable ute serious claims.15 most instances several reveal The record does the medical totality of summary, the In state- made such the children in which children, physical examinations voluntarily spontaneously ments —not proper- from the Kerr recovered or evidence technique” “holding to the response adult wit- of the ties, statements of coercive questioning. form any other probable defendants witness, provided nesses Furthermore, expert defense’s with, proceed handling cause the defendants’ Heger, found Dr. notwith- Kerrs, alibi Kerr’s Wendell “sensitive,” “appropriate,” children reason, reject this we standing.16 For Nonetheless, constru- “reasonable.” Univ., 80 F.3d Tech v. Texas See Wallace investigation personal notes of the 14.Lyford's Cir.1996) (noting plead- (5th the truthful- had about he reservations reveal evidence substantive ings do not constitute to him given of the statements of some ness purposes). summary judgment witnesses, regard to especially with by his evince, notes also The of the details. some The our confirms conclusion. caselaw however, belief in reasonable strong support of we are aware in case of which best in the of these statements truth overall immunity qualified position that the Kerrs' with the guilt in connection ultimate Kerrs' significantly more had facts not attach should and murder. abduction Wilson today. us those before compelling than English, 950 F.2d Sanders and, claim prosecution fortiori, malicious cious prosecution, inasmuch as such a conspiracy the civil claim as well. We claim would merely duplicate adequate not, not, need and therefore do reach the state law Only remedies.4 Justice Gins- Goar, Minshew, Baggs issues whether concurrence, in burg, an individual at- Fleig scope acted within the of their tempted to articulate a Fourth Amend- authority, and whether a offi- reasonable theory ment prosecution.5 malicious position cial their would have viewed Albright spawned has controversy and their actions as unconstitutional. confusion in the lower courts6 —but not in AFFIRMED. initially this court. After appearing tenta- subject,7 tive on the this unblushing- court JONES, H. Judge, EDITH Circuit ly cited one of our earlier Fourteenth specially concurring: prosecution Amendment malicious cases case, good opinion I concur in the in this and held right that the under the Fourth but I express my continuing write to dis- Amendment to be free from malicious satisfaction with handling this circuit’s of a prosecution “clearly established” in prosecu- constitutional tort for malicious this circuit.8 Subsequent cases have elabo- 1991,1 questioned tion. In whether such a Eugene, rated on specifying that the cir- constitutional tort was authorized under cuit’s prosecution malicious tort has the the rubric of process.”1 “substantive due same elements as the relevant state law 1994, Supreme agreed U.S. Court torts.9 if a constitutional tort of malicious problem with the Fifth juris- Circuit all, prosecution it exists at would have to it, prudence, as I First, see is two-fold. be based on the Fourth Amendment rath- this court fails to recognize that Albright er than Fourteenth Amendment substan- did not endorse a constitutional tive malicious process.2 Albright due But the plural- prosecution ity, Second, tort at rather all. endorsing than a Fourth even if Albright Amendment tort left room for prosecution, of malicious such a claim under Amendment, declined to the Fourth address the issue.3 Two of the there is a signifi- justices, Thomas, Kennedy and refused cant difference between predicating the recognize any constitutional tort for mali- cause of action on the Fourth Amendment Cir.1992), See, prosecution plaintiff the malicious example, thoughtful discussions only initially suspi- arrested under Meacham, 1556, Taylor v. 82 F.3d 1560-61 cious circumstances but also had an alibi that (10th Cir.1996), City and Reed v. Chicago, was corroborated three credible witnesses. 1049, (7th Cir.1996). 77 F.3d 1052-54 See Additionally, a fourth witness—who had seen generally 1A Martin A. Schwartz & John E. robbery plaintiff for which was arrested— Kirklin, 3.20, Litigation § Section 1983 at police told that someone else had committed (3d ed.1997) 315-30 (discussing Albright and Conversely, it. Wadley, United States v. post-Albright conflicting rulings); circuit court 510, (5th Cir.1995), exemplifies 512-13 1139, County Suffolk, Pinaud v. 52 F.3d how finding proba- low the threshold for a (2d Cir.1995) ("the Supreme Court's There, ble cause probable is: we held that splintered [Albright decision in ... ] make[s] suspect cause existed to arrest merely who validity § the status and 1983 malicious police high fled from in a crime area and say claims ... uncertain to pocket” "reached doing into his while so. least.”) (Calabresi, J.). Cambie, 1178, 1. Brummett v. 946 F.2d 1180 n. (5th Cir.1991). 7. See Dept. Johnson v. Agricul Louisiana ture, 318, (5th Cir.1994). 18 F.3d Oliver, Albright 2. 510 U.S. (1994). S.Ct. 127 L.Ed.2d 114 Dist., Indep. Sch. Alief (5th Cir.1995). 3. See id. at 114 S.Ct. at 812. 4. See id. at 114 S.Ct. at 816. Ball, e.g., 9. See Evans v. 862-63 (5th Cir.1999). 5. See id. 114 S.Ct. at 814. applicable prece- with other harmonized superfi- the most On the Fourteenth. Amendment, Fourth concerning the dents for the claim level, grounds if the cial prose- of malicious the constitutional “tort” Amend- and Fourteenth the Fourth under in the form we have will survive cution there would have equivalent, ments created. between those distinguish no need been Albright.

amendments admonition, I concur. With this Moreover, prosecu- malicious the tort of Fourth uneasily within the fits

tion proscribes That amendment

Amendment. and seizures searches

unreasonable arbitrary law- prohibit held to

has been until the time up actions

enforcement a Fourth Amend- justify To arraignment. CORPORATION, BLAINE CONSTRUCTION then, claim, prosecution malicious ment ff-Appellant Plainti of “seizure” period extend the one has to /Cross-Appellee, Ginsburg Only Justice past arraignment. Albright, leap make this willing to both on courts are divided and the circuit COMPANY OF NORTH INSURANCE Amendment the Fourth application Defendant-Appel AMERICA, mere re- and on whether post-arraignment lee/Cross-Appellant. of bond posting quirements 97-5579, 97-5636. Nos. hearings, without pretrial at appearance more, This court a “seizure.”10 constitute Appeals, Court United States on the side of Justice recently up lined Sixth Circuit. acknowl- without Ginsburg’s concurrence July Argued identity for debate.11 The edging the basis in a malicious defendant proper 8, 1999. Decided March on the Fourth claim founded Rehearing Suggestion for Rehearing question, a difficult is also Amendment April 1999.* En Banc Denied other courts have Ginsburg and Justice realized.12 go, issues the status constitutional

As prosecu- of malicious tort constitutional IBut may potatoes. like small

tion seem more atten- paid that our court

wish Albright. It is the ramifications of

tion to that, Albright if clear to me

far from Evans, F.3d at 861. City Philadelphia, 11. See 168 10.Compare Gallo v. (3d Cir.1998) (indictment, 222-25 F.3d bond, con travel restrictions constitute against po- prosecution claim 12. A malicious seizure), Lynn, Murphy v. tinuing “anomalous,” as Justice Gins- lice officers is (2d Cir.1997) (same, over a F.3d noted, Albright, U.S. at 279 n. burg Jacobs); Riley Judge v. Dor dissent ton, thing, prosecutors 5. For one S.Ct. at 816 n. Cir.1997) (4th 1162-63 115 F.3d immunity. id. The See enjoy absolute will (en banc) theory continuing (rejecting seizure “Albright's theory raises Justice added force), alleging post-arrest excessive for claim and police questions about whether serious Reed, (question n. 6 1052-54 rationale). prose- in the be entitled to share continuing This court would ing seizure officer id.; Taylor, Amendment does held that the Fourth see also immunity.” has cutor’s purposes excessive force claims apply Reed, 1563; at 1053. 82 F.3d at during pretrial detention. arrest and after * rehearing grant Judge Boggs would Klevenhagen, See Brothers dissent. 1994). stated in his reasons Cir.

Case Details

Case Name: Kerr v. Lyford

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 14, 1999

Citation: 171 F.3d 330

Docket Number: 97-41553

Court Abbreviation: 5th Cir.