Michael Melton v. Hunt County

Intеrpretation Legal Law: The (2012) (“If every possible, word Texts 174 given is to be effect every provision

(verba accipienda). sunt None cum effectu needlessly ignored. None should

should be it that causes interpretation given provision or

duplicate another (footnote omitted)). Thus,

consequence.” SCA, provider acts respect

with knowledge of the if it has

“knowingly” (i.e., divulging rec

factual circumstances pertaining to a

ords other entity) that governmental

subscriber to alleged “inten offense and

constitute the acts are not

tionally” if its inadvertent.

See, Freedman, F.Supp.2d at 645- e.g.,

IV. grounds, the above AFFIRM the

On judgment dismissing Alex-

district court’s against Wireless lawsuit Verizon

ander’s

Services, prejudice. L.L.C. MELTON,

Michael David

Plaintiff-Appellee, PHILLIPS,

Kelly D. Defendant-

Appellant.

No. 15-10604 Appeals, Court of

United States

Fifth Circuit.

FILED November Duff,

Jason Jason Law Andrew Office Duff, Greenville, TX, Plaintiff-Appel- for. lee, Davis, Esq., Robert Scott Flowers Davis, P.L.L.C., Herring Igle- David Ryan sias, Firm, P.L.L.C., Iglesias Tyler, Law TX, for Defendant-Appellant. STEWART, Judge, Before Chief and JOLLY, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, GRAVES, HAYNES, SOUTHWICK, COSTA, HIGGINSON, Circuit and Judges. ELROD,

JENNIFER WALKER STEWART, joined by Circuit Judge, Chief SMITH, Judge, JOLLY, JONES, PRADO, OWEN, CLEMENT, SOUTHWICK, HAYNES,* and HIGGINSON, Judges: Circuit alleges that Michael Melton David of the in violation Fourth arrested * only. Judge Haynes judgment concurs in concurs as I II.B to Parts and County an assault committed “Mike Melton.” The Amendment Hunt Attor man same first last ney’s another with the complaint against Office then filed a Deputy Kelly He names. hold seeks “Michael Melton.” The alleged assailant’s original took Phillips, who incident re- first last names are the identify port, liable for arrest under U.S.C. ing information complaint, contained in the Deputy § for sum- Phillips moved accuracy and their is undisputed. Four court, judgment in mary asserting district days complаint filed, after the a Hunt qualified immunity. defense dis- County judge a capias issued warrant cor trict court that fact pre- determined issues rectly identifying the assailant as “Michael summary judgment on cluded one .Mel- years Two judge Melton.”2 is after Deputy ton's Section 1983 claims. Because warrant, Melton was sued arrested summary judgment entitled to charges and assault detained sixteen construing even when all the the facts days being on before released bond. It is Melton, light RE- most favorable undisputed Deputy Phillips’s that involv the district court’s and VERSE!. order e ‘in ment the chain of events that led to summary judgment RENDER on Melton’s Melton’s May arrest and detention remaining against Section 1983 claim Dep- ended with the report incident in June Phillips. uty Phillips, v. Melton 2009. . 2016) I. charges against The assault Melton Deputy Phillips In June inter ultimately for were an dismissed insufficient alleged viewed and victim filled assault evidence. Melton then sued Phil- report Deputy out an identifying incident the al § lips under 42 alleging leged by assailant name U.S.C. that the “Michael Deputy Phillips responsible was David his Deputy Phillips Melton.”1 After and Hart arrеst report, investigator under submitted with the because Deputy began Phillips included investigating the Sheriffs Office the information false later, alleged report.3 Deputy Phillips his incident year A assault. the victim as- provided investigator qualified the with sworn affi serted the affirmative defense identifying immunity alleged provided stating davit assailant and the affidavit briefing argued by parties 1. Melton’s the both assumes a com briefs that incident re- that plaint port’s capias use of to a is the name that leads the middle ‘‘David’’ erro- neously equivalent application pur of a him as identified the assailant. However, Delaware, poses the record does not show way (1978), judge information ever made its L.Ed.2d the Hart warrant, O’Brien, 127 F.3d 424 We the As Melton con- issued ceded, accept assumption purposes does show their of de record report ciding reaching question this case without incident itself was Moreover, briefed, judge. OA because the has not been is no er- issue 41:51-42:11. disputed by parties, report would not roneous information from was in- alter corporatеd pre- complaint into was the outcome here. judge: sented Melton has conceded brought 3. Melton also state-law numerous complaint is OA accurate. 40:55- against Deputy Phillips variety claims and a 41:51. against of state-law and Section 1983 claims any County, County Hunt the Hunt Sheriff’s De The record does not contain document probable partment, County and the Hunt Sheriff. How labeled as warrant ever, appears cause to have claim at issue in this interlocu affidavit. The warrant tory immunity complaint appeal qualified issued based on filed an Assis based on a However, County claim Attorney. tant Hunt Melton’s Section 1983 based Franks. all, system P.I.D. he used the information whether identifying broadly that system P.I.D. his use report “would been and whether incident I solely [the on what was told The district reasoned improper. based affidavit, Phillips also questions his were material reck- that these victim].” report, averred, in the incident lessness, liability as is stated which an element victim the assailant’s Accordingly, the district Franks. under name, name, ethnicity, gender, last first Phillips’s motion for Deputy court denied of birth. and date immunity qualified judgment on summary Franks-based respect to Melton’s Dep- responded by alleging that Melton claim.4 Section 1983 any identifying not obtain uty Phillips did than from victim other appealed the dis Deputy Phillips first last names. Melton assailant’s summary judgment. trict court’s denial of Hunt by former on an affidavit relied Interlocutory appeal appropriate Alford for Lieutenant Brian County Patrol Deputy Phillips this case because had ob- Deputy of how explanation immunity, defense of raised the incident re- the information tained from affidavit, immunity suit that must is an According to vic- which port. Alford’s stage possible exact considered at the earliest provide cannot generally tims Callahan, 555 U.S. litigation. number of of Pearson v. of birth or driver’s license date 808, 223, family 232, relation. L.Ed.2d 565 who is not a an offender S.Ct. Therefore, (2009). Deputy that of af panel Alford averred A this court divided informa- the Phillips part must have obtained in dis the district court and firmed a P.I.D. used tion from a called jurisdiction database appeal lack missed Al- County Hunt Shеriffs Office. by the challenged genuineness it the extent and the stated that Melton ford further Mel dispute over recklessness. the factual identifying charac- have no true assailant ton, majority panel at 510. The first in common other than their that, teristics sponte although Jen further sua held in- Accordingly, Alford (5th last names. Patton, and v. Cir. nings F.3d 297 have ob- Deputy Phillips that must ferred 2011), County Hampton v. Oktibbeha and information in the incident re- (5th tained F.3d 358 Department, 480 Sheriff 2007), asking port from the P.I.D. without immunity “grant[ed] qualified than verify any information other victim to signed who neither government officials affi- Finally, first last names. Alford’s applications,” these nor drafted officer that reasonable davit averred because, value precedential lacked opinions veri- rely on the P.I.D. without would view, they contra panel majority’s in the first beyond information fying additional in Hart. this court’s earlier decision dicted names. and last Melton, Accordingly, the F.3d at 509. sponte overruled Jen majority sua panel Al- that The district determined panel majority Hampton. The nings and genuine issue affidavit created ford’s rejected Phillips’s alternative Deputy also Deputy regarding fact whether material to qualified argument that he entitled identifying obtained information independent interme victim, immunity under whether he cross-checked from the results, diary doctrine. against the P.I.D. information that Amendment, claims are not at Phillips's and those granted Deputy Fifth 4. The district court summary judgment on Melton's here. motion issue on Section 1983 claims that were based plaintiff satisfy dissenting opinion two-prong would held must test. Swanson, Morgan participation requirement (en banc). First, plain for a warrant preparing tiff must show “that the is official violated consistent Id. statutory right.” or constitutional Hart’s requirement information Sec ond, must plaintiff right support “for show use an affidavit “the (Elrod, J., Id. ‘clearly established’ at of the dis the time of a warrant.” at 513 Id. challenged conduct.” To senting). Because avoid sum there was evidence mary judgment qualified immunity, Deputy Phillips provided plaintiff present need not purpose having it obtain “the absolute for the used warrant, proof, must offer more but than mere alle dissеnting opinion would gations.” King, 821 F.3d at 654. Because Deputy Phillips was entitled have held Hamp plaintiff non-moving party, summary judgment under ton, Jennings. Id. at 511-13. all facts Deputy construe and inferences in bane, en Mulle Phillips petitioned rehearing light plaintiff. most favorable — Luna, nix v. U.S. —, granted petition. and we Tolan (2015); v. Cot 193 L.Ed.2d II. — ton, —, . (2014) 188 L.Ed.2d for sum “The denial of a motion immuni judgment qualified based on mary below, explained ‍‌‌‌‌​‌​‌​​‌​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‍As Melton’s claim fails immediately ty appealable under the of the prongs both immuni- under order extent that collateral doctrine because, ty even analysis, assuming his ver- City law.” Flores it turns on issue disputed construing sion of facts and Palacios, favor, all facts and inferences “Accordingly, jurisdiction we lack Deputy Phillips’s con- connection between genuineness of a issue but review the fact arrest is too duct and Melton’s attenuated jurisdiction interlocu have insofar as the deputy to rule hold the liable under the materiality tory appeal challenges the of today any that or under law we reaffirm Cisneros, factual issues.” Allen v. 815 [the] clearly that was established at the time (5th 239, 2016). Cir. We review Deputy that filled out the incident novo. Lem fact issues de materiality the report. Ctr., Inc., oine New Horizons Ranch & (5th 1999). 629, Where A. a factual the court has district identified argument Deputy that Melton’s dispute, we ask whether the officer enti Phillips his Fourth Amendment violated summary judgment assuming to

tled even on rights Supreme the Court’s is based accuracy of plaintiffs version Franks and our subsequent decision Weaver, Kinney v. the facts. Franks in Hart. application of The defen (en banc). was convicted of dant sexual to good-faith quali imprisonment “A assault life assertion and sentenced immunity court denied his motion summary alters the usual after the district fied that shifting it to to evidence seized judgment proof, suppress burden had been Franks, pursuant a search warrant. plaintiff to show that not to defense King Handorf, at 98 S.Ct. 2674. The warrant available.” 821 F.3d case this burden in that stated that the affiant satisfy To affidavit immunity, spoken with two qualified personally overcome had individuals and erroneously he place recklessly at when told an worked act defendant’s who filling appli who that was a employment, both told him officer who out warrant had person to be clothing often' that the arrested cation the defendant wore drug offenses the wife of a suspected the description matched offered cultivator). Hampton, marijuana Id. At known at victim. 2674. Hart does that the holding clarified re we hearing, suppression the defendant pre not to -officers extend who neither right to individuals call these quested presented nor the warrant affidavit. per pared they testify spoken never had Hampton, (holding F.3d at they if sonally with and that the affiant prepare, present, two officers who did officer, any spoken police had another a warrant were entitled to sign affidavit they provided information would have qualified officer immunity whereas third been would about the defendant prepared the warrant affidavit who could recit “somewhat different” from what was falsely accusing plaintiff liable be 2674. Id. ed the affidavit. at 98 S.Ct. arrest). resisting another individual’s We testimo The district refused to hear Jennings, рrinciple reaffirmed this hold point on this the defendant’s ny denied again enjoys qualified an officer Id. suppress. 98 S.Ct. motion f immunity present, if he does not prepare, af Supreme The Court Delaware 2674. . Jennings, sign application warrant irmed, may holding that a defendant nev (holding judge at 300-01 who challenge affi veracity of a warrant er charges allegedly, corruption fabricated Id. davit. immunity was entitled because Supreme of the States The Court United prepared he there evidence that reversed, determining that Fourth to a hear- Amendment entitles a defendant independent intermediary shield doctrine veracity if ing on the of warrant affidavit liability grounds). from him other ed can show- preliminary sufficient make ing that officer panel opinion affiant obtained treated including recklessly material with Hart. conflict Id. Melton, application; we, in a warrant However, falsehoods 509. like 171-72, Particularly case, relevant prec in this parties interpret our here, analysis Supreme to our Thus, Court in one be officer edents accord. in a officer also footnote that observed for the pur permitted should “insulate” being of its in a warrant pose “merely by relay- Hart deliberate misstatement application has in pre under assisted through an ing it officer-affiant personally the' application pur warrant paring n.6, Id. at 168 ignorant of Hampton falsity.” its Jennings of poses may' and and 2674, liable, S.Ct. but an officer has not pro be who purpose of vided information its in Hart princi decision applied Our being application in a warrant ple against an to allow Section 1983 claims may or signed present be liable if he “deliberately recklessly pro officer who application. ed false, vides material for use in information in support an affidavit of have to over parties [a warrant].” not asked us Franks, in (citing at 448-49 rule of a and favor n.6, 2674) (holding and Franks liability, at 163 of rule 438 U.S. broader coun attorney a county against Supreme entitled sels such course. The assistant Franks qualified immunity expressly to because did Court stated that lenges and that its of veracity rule is а narrow one narrow applica warrant Franks, six concerns. unduly ness reflects tions could burden the sys First, 167, at a broad by tem and be abused defendants as a Amendment rule could Fourth interfere Sixth, Id. discovery. of source a broad rule costly with criminal and be to convictions would be tension with the fact that “[a]n society. Id. at 165-66, 98 S.Ct. 2674. Sec may properly affidavit be based on hear ond, a broad rule would have minimal ben say, fleeting observations, on tips and “existing light penalties against efit from received unnamed informants whose perjury, including prosecutions, criminal identity properly protected often will be misconduct, departmental discipline for revelation,” from so accuracy that “the court, actions.” Id. civil contempt and beyond an affidavit in large part 166, Third, magistrates 98 S.Ct. 2674. the affiant.” Id. control of Accordingly, ability inquire to into the accuracy light Supreme of the guidance, Court’s we issues, a an affidavit before both warrant to a adopt decline new broad rule officer affiant questioning the summon sponte.5 sua liability tеstify at a proceed others warrant precedents Because interpret we our Fourth, final, ing. Id. less less “[t]he consistent be not choose to an- do to, paid magistrate’s deference deter nounce a of liability, broad rule new veracity, mination less initiative will an apply requirement officer task,” must despite in that fact he use of, preparation have assisted magistrate’s scrutiny is “the last bul signed otherwise preventing any particular warrant wark invasion Id. subject it order privacy before liabili- happens.” Fifth, proliferation ty undisputed of chal under It S.Ct. 2674. Franks.6 same-day 5. We observe that none of our sister circuits views.and based affidavit on those interviews); Calisto, applied in which v. 838 F.2d Franks to circumstances United States (3d 1988) plaintiff’s (applying an connection to the 712-13 Cir. Franks officer’s arrest See, provided e.g., where infor as in non-affiant informants is as attenuated this case. KRL 2004) Moore, regarding drug investigation mation Cir. warrant); that, police (holding officer then obtained a “because he had no role in the who warrant,'.’ Pritchard, preparation of ... United States v. officer F.2d. 1984) (applying every stage 1118-19 who was of an investi involved where gation qualified immunity non-affiant to af- was entitled to information (cid:127) noting applies fiant and "when application); omissions in a Franlcs material Brown, agent government deliberately or one reck see also United States 2011) (3d lessly misrepresents (applying second 640-42 where agent, innocently includes the mis helped prepare then non-affiant affida affidavit”). Moreover, vit); representations Walpole, Burke v. Town of (1st fully panel's addresses the concern that (applying Franks where Hart centrally an officer to insulate misstate might officer Who "was involved in the seek through "merely by relaying ment it an offi of evidence to be used to secure an collection personally ignorant falsity” of its cer-affiant arrest warrant’’ withheld evidence from the applies pro affiant); Wapnick, because it to officers who States v. United Franlcs 948, 950, (2d 1995) applica information for use in a (applying vide 955-56 warrant Hаrt, Franks, (citing "knowingly See 127 F.3d at 448 where or reck tion. Franks non-affiant n.6, 2674). 438 U.S. at 163 98 S.Ct lessly made false statements to [the affiant] preparation connection with [the affiant’s] DeLeon, affidavit”); above, requested United 979 6: As not States noted Melton has v.. 1992) (applying 'only Deputy F.2d 762-63 broad rule asSerts that new but during present existing Phillips Franlcs where the affiant was is liable under our circuit's investigator’s telephone the non-affiant inter case law. cause re- support probable to sign dence Phillips present did not Deputy capias for the issuance of a warrant. quired on the basis which complaint Thus, situation, Phillips rightly recognized can Deputy this issued. warrant liability only helped only if to the “affi- subject liability to should attach be that by actually infor- complaint providing person prepared, who prepare the ant and Jennings, See in it. fully responsible preparation for use for the mation was Michalik, 300-01; Hampton, of, 365. application.” F.3d at warrant That is an officer at 261. because F.3d that To the extent information only provides portion could be read immunize way in the affidavit has in prepar for use provision of information picture” knowing whether “whole not read application, we do warrant proba- establishes the evidence painted above, broadly. explained As them that above, Id. As discussed Franks ble cause. Franks not those liability can reach liability—our concern here—addresses the preparing a warrant fully responsible ‍‌‌‌‌​‌​‌​​‌​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‍in a war- issue of false information distinct also those who “deliberate application, but application. rant false, recklessly provide[] material ly or Hart, Here, fact issue that the district in an for use affidavit.” information Likewise, Deputy was whether Phil- court identified “an officer who at 448. omissions improper way P.I.D. lips used the knowing makes and intentional report. the incident The being preparing in a issued with while result warrant that this fact is- is also liable under district court determined probable out cause” Hermann, Michalik v. and that Franks. sue was material recklessness Hart, (citing depended on Deputy Phillips’s immunity 258 n.5 because, reckless as he was whether it, applies understood district court liability from a Separate “any government official who makes a context, for a an officer held liable could However, misstatement.” even as- reckless by a warrant when authorized search suming arguendo Deputy magistrate presented affidavit completing report,7 reckless incident lacking probable “so in indicia of cause summary judgment he is still entitled official belief its existence render of fact as to question is a unless there Malley v. Briggs, 475 U.S. unreasonable.” preparation assisted in the whether he 335, 344, 106 L.Ed.2d on the basis of which the complaint Leon, (1986) United States (citing Jennings, issued. See capias 897, 923, 82 L.Ed.2d 300-01; Hampton, 480 F.3d at 365. (1984)). Malley wrong is not the evidence, to create a fact issue as Melton seeks presentment of false but ob Phillips helped prepare Deputy whether accurately vious failure evi- alternative, any having verify identifying the victim out In the the fact issues identified to reck- the district are not material other than first and last names purposes as defined in Hart. For lessness would not have reasonable officer Franks, liability Hart defined reckless- obtained, under this would on information so relied require that an officer "in fact enter- ness to requirement Deputy Phil- satisfy tained doubts as to the truth” of the serious lips serious as to the truth entertained doubts in the applica- information included report. Melton has of the information assuming F.3d at 449. Even tion. require- any pointed to evidence correctly arguendo Alford surmised that ment. system Deputy Phillips used the P.I.D. with- by providing information complaint Deputy Phillips on his claim that .exists it, asserting “[a]ny investigator that use recklessly out report, filled the incident report know” an be would incident will Melton demonstrating bears the burden of However, a to obtain warrant. there used Deputy Phillips that clearly violated his policy prac- is no evidence a record of rights.8 Morgan, established See County tice at the Hunt Office Sheriffs at general 371. “Abstract or of statements to Deputy Phillips that would have allowed legal principle analogous untethered to that the anticipate report incident would neаr-analogous facts are not sufficient to be used to obtain a warrant. See atOA right ‘clearly’ a given establish con- Nor, conceded, 38:25-40:40. as Melton has text; rather, inquiry must focus on is that suggesting there record evidence right clearly whether a is established as to specific Deputy report knew specific facts the case.” Vincent v. to obtain a would used warrant. OA at City Sulphur, 805 F.3d Moreover, boxes at 38:11-38:23. unchecked 2015); also Kinney, see 367 F.3d at report the end the incident show that “Although 350. directly point a case on is Deputy Phillips report chose not to file the not necessary, adequate there must be au- justice peace, county attor- thority sufficiently high at a speci- level of ney, attorney. or a district Because the ficity put official on reasonable notice does not contain evidence that the record that his definitively conduct is pro- information in the unlawful.” report incident Vincent, 547; purpose for the of use in the com- at Kinney, vided F.3d see also plaint, Deputy Phillips not participatе Thus, did clearly 367 F.3d at 350.9 “[a] estab- preparing complaint. See right sufficiently lished is one that is clear Accordingly, at 448-49. because he every that reasonable official would have preparing, present, sign did assist doing understood that what he is violates complaint, Deputy Phillips cannot be Luna, right.” 136 S.Ct. at 308. Jennings, held liable under Franks. See attempting Rather than to demonstrate 300-01; Hampton, at rights clearly that his were established Accordingly, Deputy Phillips 365. is enti- addressing analogous cases or near-analo summary judgment on this claim. tled facts, gous repeatedly empha Melton has B. unique. sized that the of his case are facts See, 20; e.g., Red Brief at OA at 28:38— assuming arguendo Even 29:09; 36:09-37:33; Melton could demonstrate that a fact issue OA OA 56:54- prejudice. important 8. "This follows the unfair It is consider circuit rule that alterna- holdings binding precedent tive are and not stage possible the defense at earliest Potts, obiter dictum.” United States litigation qualified immunity because is 237 n.3 effectively immunity from that "is lost if a suit go erroneously,permitted is case trial.” Although Deputy neither Melton Phil- nor 808; Pеarson, see 555 U.S. at 129 S.Ct. lips prong qualified has briefed this of the — -, Pauly, also White v. immunity analysis, Deputy Phillips's good- 548, 551, (2017) (noting 196 L.Ed.2d 463 qualified immunity faith assertion qualified immunity "important society placed burden on Melton to demonstrate Pelletier, whole”); Behrens v. 516 U.S. prong applies. that neither of the defense (1996) L.Ed.2d Moreover, King, parties 821 F.3d at 653. both immunity impor- (noting "too understanding have briefed their of the law interlocutory to be denied review” tant Deputy Phillips pre- at the time existed appeal). pared report, reaching prong the incident qualified immunity two does not result in Moreover, at oral III. Melton conceded 57:24. identify not a sin

argument that he could above, explained we For the reasons applying Franks to a situation in gle case the district order and REVERSE court’s complaint error in the which there judgment for summary Deputy RENDER way on of Phillips liability statement that made its Melton’s claim ‍‌‌‌‌​‌​‌​​‌​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‍under and no false Franks. In at into the OA 55:26-56:05. warrant. Franks deed, requires a false expressly COSTA, Judge, Circuit GREGG applica in hood concurring in the judgment: for be a Fourth tion there to Amendment many so of There are strands now Franks, 155-56,

violation. 438 U.S. that it is sur- Fourth Amendment law not light in of Franks’s Particularly S.Ct. 2674. tangled. As prising they get sometimes why its rule must be discussion detailed is explains, Dennis’s Judge dissent construed, say cannot narrowly ad- happened to our caselaw what unconstitutionality clearly established dressing in which two different situations Phillips’s conduct. See id. Deputy can liable for an unlawful an officer be held . 165-67, 2674 98 S.Ct. search even when a warrant was obtained. the claim The first—and the one is Moreover, if attempted even had Melton alleged against Phillips—is when officer satisfy conceding his burden rather .than magis- information false provides unique that his case-is that no case issuing the warrant. See Franks trate circumstances, applies in similar Delaware, U.S. Deputy shown that Melton could (1978). L.Ed,2d wrongful Because the clearly Phillips .violated his established misleading magistrate, origi- our act is assisting preparing, pre rights without rightly on area focused nal view e Hart signing complaint. or th senting, “deliberately or whether the officer reck- Hampton been decided had false, lessly provides material information Deputy time the incident prepared use in an support affidavit above, report. As discussed held warrant, he regardless search whether qualified im that an officer is entitled to O’Brien, Hart v. signs the affidavit.” munity prepare, present, if he does (emphasis 448-49 application. Hampton, sign a warrant added). long As the officer knows at 365. Hart held that an officer information, in an at- false will be used immunity if qualified he not entitled tempt magistrate, that officer mislead a false, “deliberately recklessly provides Franks. See under should be liable use in cm n.6, information (explaining material at 164 affida support [a warrant].” 127 that should able'to “insulate vit officers not be in, one misstatements added). officer’s deliberate at 448-49 Because (emphasis through an officer- merely by relaying it Deputy Phillips cannot Melton show personally ignorant falsity”). affiant its presented, signed, prepared, complaint, he for a An officer can also be held liable .use Deputy Phillips show that violated when the cannot search authorized a warrant magistrate was law.10 affidavit clearly established immunity Because we decide case ment entitled above, grounds explained intermediary independent we do not reach under the doctrine. argu- Deputy Phillips’s additional alternative lacking probable “so indicia cause as case jeopardy.”). serious That official belief in its render existence requirement preclude liability would in the Malley Briggs, entirely v. unreasonable.” of case provides officer who to a war 344, 335, 1092, U.S. 106 475 89 rant affiant a doctor’s inculpatory opinion (1986) (citing United States v. about bite mark L.Ed.2d 271 failing evidence while Leon, 897, 923, 468 104 U.S. 82 exculpatory disclose DNA results. Burke v. (1984)). Malley wrong L.Ed.2d 677 The is Walpole, Town (1st 87 Cir. of evidence, presentment not the of false but 2005) (denying qualified immunity on those accurately the obvious failure of presented facts). It would also defeat a brought claim to' support probable evidence the cause against conveyed an officer who to an affi- required for issuance of a warrant. In ant inculpatory infor comments one situation, rightly recognized we have mant but not contradictory account liability only should attach to the “affi- DeLeon, another. United States v. person actually prepared, ant and dr 1992). (?th F.2d 762-63 Cir. both of fully responsible preparation was for the scenarios, Hart these ’s in an “for affi use of, Michalik application.” warrant davit” liability. standard would support Hermann, is only That because an officer who majority opinion tries harmonize provides portion of the information in (and Hart Hampton Jennings Pat with way cluded no know affidavit ton, 2011), 644 F.3d 297 which ing picture” painted by whether the “whole Hampton case) Franks followed in a probable the evidence cause. establishes saying that provided “an officer who has Id. - information for purpose being of its for “no Michalik’s sensible standard application a warrant 'under probable cross-pollinated cause” with cases Hart has assisted in preparing the warrant Hamp Franks line of falsity cases in application purposes Cty. ton v. Dep’t, Oktibbeha Sheriff Hampton Maj. Op. may be liable.” Leon, (2007). F.3d 358 See 914- 262. But Hart ’s “for if use a warrant” (recognizing 104 S.Ct. these as sufficient, requirement why overlay it doctrines). Hampton separate falsity was a requirements with the that “an additional case, yet it readily dismissed claims prepara officer must have assisted against two allegedly officers who of, or presented signed tion otherwise or presented later false that was subject order magistrate signed to the because neither under Franks”? Id. at 263. liability or prepared ap affidavit the warrant problematic merged More than the test plication. Importing 480 F.3d at 365. Hart cumbersome, being standard Michalik into Franks limitation cases and Franks liability is irreconcilable with Hart ignoring prin was error. There is Hampton’s require endorsement of the cipled why reason liability should “prepared ment that the officer must have person “fully be limited affiant or or [have been] responsible” ap for preparing the warrant responsible fully preparation for its Calisto, See United States v. plication. Hampton, presentation.” 480 F.3d at (“If (3d we held .,. Michalik, 261) (em (quoting F.3d at that the affiant[ ] conduct Jennings, see added); also phasis purpose relevant for the conduct Franks, (reciting That requirement). at 300 same applying teachings place privacy rights language wrongly imported would from the protected in conclud majority opinion join I and is So cause” caselaw probable “no from this suit.1 is immune circuit in Franks cases. by any other used process banc But I would the en use attempt to reconcile banc court’s The en provenance of the recognize the dubious Hart caselaw, our rather than correct requirement in our “sign prepare” being subpart of the apparently now Hart alone should provide Franks case. standard, to result will continue for appropriate standard especially confusion is in confusion. That in” requirement “for use claims. claim in which individu- problematic Its. the straightforward, consistent with more immunity qualified a defense can assert als circuits, fully captures and law in other clarity provides in the law a lack of as misrep- an officer’s Franks’s concern that case, an offi- Franks In a future defense. not be a court should resentations “for provided false cer who interfering privacy with citizens’ basis argue he will no doubt in” an affidavit use failure to liberty interests. Our and responsible” for “fully of Fourth straighten out the strands is immune under application and thus got tangled law Amendment that we and decisions Hampton means that the next time one today. reaffirm along, perhaps with a cases comes these sup conflict the caselaw will Such one, liability than this stronger case for immunity easy qualified port an defense Amendment con- important Fourth Although the this case as demonstrates. that Franks might not be protects cerns clearly stan established law” “violation vindicated. increasingly being questioned, see dard is — U.S. —, Abbasi, Ziglar v. 137 S.Ct. DENNIS, Judge, L. Circuit JAMES (2017) 1843, 1870-72, 198 L.Ed.2d GRAVES, Judge, joined by Circuit Baude, Is (Thomas, J., concurring) (citing dissenting: Immunity Unlawful?, 106 Cal. Qualified 2018)), nonmovant and (forthcoming hard to The evidence it is L. Rev. in his favor justifiable inferences drawn any immunity threshold imagine may not sec- higher court—which law enforcement to a district hold should stage—es- interlocutory at this ond-guess it judges than comes standard when as to whether thought genuine dispute judges If tablish interpreting the law. (and think) with reckless disre- the Mi- Phillips Officer acted apparently still falsely identifying to truth in gard chalik standard should extend in his official cases, plaintiff perpetrator as the Phillips an officer then like who assault, resulting report nor of a violent legal training of judges neither the probable without cause. parsing plaintiffs caselaw arrest we can devote to time reversing majority opinion errs liability for that error. The should not face civil theory legitimate that the inaccurate identification about ton’s 1. The raises concerns dissent "clearly es Phillips’s raised the enforcement whether defendant use of a law came from qualified immunity aspect as a database, tablished” indicating that there is no evidence summary ground judgment. But even Phillips serious doubts as to the "entertained getting "clearly established” without on which law en of that information truth” question, a consti Melton has established frequently 127 F.3d at relies. forcement proper under the violation tutional Thompson, 390 (quoting St. Amant v. inquiry. That is because he cannot show that 727, 731, 20 L.Ed.2d 88 S.Ct. knowingly recklessly presented (1968)). Assuming of Mel information. the truth false immunity plaintiff district court’s denial falsely identified the as the assail- summary judgment to Phillips and report ant his offense by entering injustice plaintiff, causes to the who should name “Michael Melton” into a comput- claim, proceed be allowed with his database, er the “Personal Identification plaintiffs civil to future and criminal defen- History through “PID,” net data” with- dants, deprived legal who will be of a conducting any out investigation as to remedy for similar violations of con- their whether PID-generated result rights. stitutional What makes case person matched the identified the vic- significant legal even more are tim. procedural maneuvers this court is em- Phillips forwarded his report ploying order to offi- shield reckless Investigation Criminal Division of the cer, bending over backwards revive bad County Hunt Sheriffs Office. In April decisions violated our rule of orderli- 2010, another officer obtained a sworn affi- raising arguments ness and and defenses victim, davit from again identified appellant respect- not raise. I did Melton,” his assailant “Mike

fully dissent. estranged boyfriend. July wife’s In prosecutor the state filed a criminal com- I plaint against plaintiff, the charging him defendant, In Kelly June the Phil- with the complaint expressly assault. The lips, deputy County, then a with the Hunt stated that it upon was “based the obser- Texas, Office, dispatched Sheriffs was to a officer, Phillips, peace vations of K. a ob- Greenville, Texas, hospital to interview by reviewing tained report,” said officer’s victim of the an assault. victim The told provided and it no other basis for the Phillips that the assailant was a man he Shortly information contained therein. knew named “Michael Melton.” There is thereafter, County a Hunt judge issued a dispute that the assailant was not the for the plaintiffs arrest. The plaintiff, Melton, Michael David but dif- plaintiff May was arrested in 2012 and man, Melton, ferent Michael Glenn who county jail days held in for sixteen before apparently romantically involvеd with August he was released on bond. estranged the victim’s wife at the time of charge against plaintiff was dis- Phillips shortly the assault. pre- thereafter missed. pared report specif- offense which he ically plaintiff, plaintiff Phillips identified the The sued for Michael David violation Melton, assailant, rights, alleging as his his Amendment Fourth name, color, age, height, middle hair Phillips intentionally or with reckless eye noted, color. As disregard the district court Phil- for truth him misidentified lips did not explain report, how he as the assailant in his came identi- offense fy plaintiff, opposed thereby leading prob- the true to his arrest without assailant, perpetrator summary as the for report.1 Phillips his able cause. moved According witness, to the plaintiffs expert judgment, asserting qualified immunity. only possible way summary judg- Phillips could district court denied that, Phillips’ only scription, 1. affidavit asserts or that the victim even knew the "[a]s practice,” identity suspect plaintiff, explain why standard of the let alone how or report given Phillips plaintiff's in his "would have been" based on victim would have victim, what he was told of the but he does information instead the information assailant, actually gave contend that the victim him actual who was vic- known plaintiffs physical middle name or tim. de- Mal liability for government agent’s Amendment plaintiffs on the Fourth ment context, that, in that ley ol‘ fact claims, claims. held genuine dispute We finding person actually was reckless in who “affiant and regarding whether responsible or fully for prepared, re- identifying plaintiff in offense of, application” the warrant preparation port. for-seeking may be liable a warrant with Michalik, probable cause. out II A gov- make sense. A These different rules recognized merely provides two different official in- This court ernment against government agents in a war- of claims formation that later kinds violations, position not in a to “see alleged Fourth Amendment rant fully arrest war “as- picture” and thus whole search connection Delaware, (1) questions” probable rant: claims under relevant to sess Cause Malléy facially 98 S.Ct. L.Ed.2d 667 insufficient war- 438 U.S. claims Michalik, See (1978), agent may if be liable rant applications. which knowingly contrast, By statement officer who “delib- a false at 261. “makes intentionally, false, lucklessly with reckless disre mate- erately provides gard for truth results rial use an affidavit” is .without, cause,” Mi probable fully being, certainly position issued in a assess his Hermann, conduct, 258 n.5 chalik own forms the entire basis which Franks, for Franks claims material (discussing misrepresen- Hart, 2674); (2) 155-56, See applications. 98 and at tations in U.S. warrant Malley Briggs, v. in At issue this claims under 475 127 F.3d 448-49. at case (1986), a Franks claim alleging 271 a Fourth 89 L.Ed.2d Amend- agent. if. may resulting be liable for which the from material mis- ment violation affidavit; warrant representations for arrest in a “fil[es] thus, easily and “a probable cause”' reasonable reader prudent without as will this claim is controlled Hart ... recognize, officer would have known well-trained /Franks, Michalik/Mailey prob failed establish and the [the] affidavit rule Michalik, cause,” at 259-60 F.3d able inapplicable.

(citations quotation marks internal and omitted). B County ‍‌‌‌‌​‌​‌​​‌​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‍Hampton Sher kinds claims In Oktibbeha apparent,

As is these two (5th theories, and, Department, legal very involve different iff’s Patton, 2007), Jennings and controlling properly our reflects Cir. caselaw 2011), this court understanding In F.3d our differences. of those above, O’Brien, (5th. 424, 448-49 Hart v. confused the two theories described 127 F.3d and, holding in 1997), scope our court considered conflict with earlier Hart, Michalik erroneously agent’s liability applied government of a Franks involving /Mailey held, governmental “A rule cases claims and it. so And did- misrepresentation Fourth Amendment claims. official .violates the Hart, mentioning or pro deliberately recklessly or without ever when he orderliness, when such false, in Under our rule information use material vides warrant,” occurs, precedent con of a ... conflict support an affidavit earlier Michalik, subsequent, scope trols and we considered the cases And inconsistent See, e.g., United States v. disregarded. Although are may issues fact exist as to Puckett, 505 F.3d roles that played [defendants] in the and in (“A cases, investigation, providing some of handful this court’s unfortu affiant], [the nately, prec are inconsistent” with earlier these infоrmation issues of fact are not edent, material they and are therefore “not control for causing [claim a warrant to be issued ling”). The en banc now cements our probable without cause] because none of Hampton confusion and Jen and error suggests the evidence that [defendants] nings into law. prepared Hampton attempt portray In an fully responsible were for its preparation Hart, Jennings as consistent with the ma presentation. jority opinion misrepresents those cases Jennings, 644 F.3d at (emphasis Hampton holdings. and their Under added) (alteration in original) (quoting Mi Jennings, government official who delib chalik, The false, erately provides material information Hampton court went on to cite and de use an affidavit does not violate the “granting scribe it immunity to Fourth Amendment if she is not the affiant neither the affiant who were' defendants actually and does not prepare the warrant. actually prepared nor the person Hampton, 365; Jennings, See 480 F.3d at warrant application.” Jennings, This is plainly rulе incon added) Hampton, (emphasis (citing in Hart. holding sistent with our earlier 364-65). too, This, 480 F.3d at is plainly Hart. inconsistent with Hampton, “accepted the court way explain There is how the facts, plaintiffs version of namely language of two cases their these reli ‘conspired officers submit false and Michalik ance on be consistent could incomplete order to secure ” majority opinion So the does not a warrant of [Hampton].’ for the arrest quote discuss their language or otherwise (alteration at 364 in original); mention and does not their even reliance Nevertheless, court held majority opinion’s on Michalik. at that these officials could not be held liable and Jen argue tempt plaintiff allege because the did not .that nings Hart with can be harmonized either them “was the affiant or officer square amounts to an endeavor actually prepare[d] ‘officer who circle. knowledge warrant that a solely warrant be would based the doc- C ” prepared.’ ument at (quot- 480 F.3d 365 holding majority opinion’s The an Michalik, 422 ing at F.3d or a officer who makes deliberate reckless same prepa- offers the “actual misrepresentation only be if can held liable requirement. of, ration” In granting qualified preparation in or oth- he “assisted immunity government to the signed ap- relevant offi- erwise there, quoted and, cial following court plication” unsurprisingly, is unsound See, language from any Michalik: is not law in other circuit.2 Moore, majority opinion investigation KRL every stage 2. The cites v. involved was (9th 2004), immunity Cir. as "hold entitled to material prepa application.” Maj. Op. that 'because he had no role in the omissions in a warrant n,5. warrant,' ... misrepresents ration of the an officer who was This Moore’s hold ed, omitted, by agents, ulti Kennedy, v. all four States 131 F.3d e.g., United 1997) (Fourth (10th concluding any mately misrepresenta Cir. by false statements tion was not material. See 838 F.2d Amendment violated 714- [by] by affiant but also “made 15 & n.2. government made other em statements Davis, v. In United States insofar as such statements ployees ... (8th 2006), Cir. an officer who conduct- making affiant upon

were relied swеep relayed false infor- protective ed DeLeon, affidavit”); United States v. participated mation to another officer who 1992) (“[W]e 761, 764 sweep, relayed ‘in and the latter officer and Seventh Circuits join Third Nothing the affiant. that misstatements omissions holding suggests court’s facts or the discussion incorporat are government officials which misrepresenting officer was “in- that the for a search warrant are ed in an affidavit preparation” of the volved Unit hearing.”). grounds for a Cf. affidavit, and the concluded his Leon, n.24, v. ed States 468 U.S. misrepresentation was reckless. Id. at 946. (ad (1984) 82 L.Ed.2d 677 stated, fact The court “The that the affiant applying good-faith that in monishing falsity] does not [of ... was aware necessary to consider the exception “[i]t Franks, change the under nor does result ... of the objective reasonableness officers of infor- affiant’s] the fact that source [the obtained originally [the warrant] who ... also mation was unaware the truth. who information material recklessly misrepresenting officer’s] [The determination”). probablе-cause from statement cannot insulated following cases further illustrate the The it challenge simply because was opinion’s departure from the majority relayed through two officers who were United circuits. In holdings of our sister of the truth.” Id. at 947 n.6. both unaware Calisto, (3d States Lakoskey, In United States 1988), relayed information to a an officer 2006), the court considered agency. first officer at a second The second misrepresentations by an Arizona- alleged relaying informa “reason for officer’s Hirose, inspector, postal an email based ... officer] tion to second [the inspector, to a Minnesota-based Nichols. in his officer] that it would aid [that belief Nichols that a Minne- The email informed added). investigation.” Id. (emphasis The apparently sota involved resident requested not to be revealed first officer drug trafficking operation using the mails. information. Id. as the source Id. at 970. Only after this email was re- relayed officer then the information second ceived, investigation, Nichols launched agency, to a third officer at third sniffs, and, multiple dog which information to a fourth relayed then officer later, for and ob- applied over two weeks agency, fourth who then drafted and at a part on tained a search based on signed a warrant based Franks, relayed in the email. Id. the information applying In information. Third Nothing in the facts or provid the information 970-71. Circuit considered Moore, misleading plaintiffs challenged sponsibility for the omission of ing. In any See information from the affidavit. id. at information that was known to omission of contrast, 1108-09, By signed 1118. in the instant who drafted and the affidavit. those case, Thus, dispute ques is no that was the the official in there 384 F.3d at tion, pro misrepresentations investigator source of the material who was not involved in an affidavit, re vided to the affiant. preparation of the bore no suggests ing that court’s discussion Hirose the Fourth Amendment will limit preparation” in the was “involved criminal ability defendants’ to challenge or intended for infor- warrant affidavit search warrants premised that are on mation to be used an affidavit. misreprеsentations. Nonethe- fraudulent Say, for ex- less, recognized misrepre- court that ample, patrol that a intentionally officer give Hirose could to a sentations rise alters an assault victim’s statement in his claim, 978, though police see id. at it report with the intent to lead detec- that ultimately misrepresen- concluded tives to an individual the officer believes material, tations not were id. say committed the crime. that And this misrepresentation is later in a Our sister circuits’ caselaw reflects warrant, search leading recovery understanding: common-sense an of when that this possessed evidence individual ficer, acting disregard with reckless small of marijuana amounts in his home. truth, false, includes material information majority opinion’s holding, Under the use, in an official report further official challenge individual would able leading an unlawful search or arrest of search warrant in ensuing prosecu- his his person, justification an innocent there is no possession tion for of a controlled sub- him from A liability. to insulate reasonable simрly culprit stance because the officer certainly officer can foresee that such ac “participate” preparation did tions to an unlawful could lead search affidavit, notwithstanding the warrant arrest, relayed as information in law en misrepresentation. intentional Such a rule agents’ reports routinely up forcement end is untenable. support applications for warrant even if reports expressly designed are not ex Ill See, Calisto, clusively e.g., for that use. 712; Davis, 942; F.2d at 471 F.3d at Lakos In establishing imprudent addition key, 462 F.3d at 970-71. Nor does the law, and unfounded rule of the court

passage report of time between the false procedural missteps. ap- makes serious On application justify ignor and the peal from the denial of a motion for sum- ing that officer’s conduct. Whether the mary judgment immuni- based false information used within a week or ty, jurisdiction this review “lack[s] year misrepresenting is not within the genuineness of a fact issue.” Allen v. majority opinion officer’s control—the of Cisneros, proposition no basis for the that the fers jurisdiction only We have to review existence a constitutional violation de materiality the factual issues. See id. pends passage on the of time between the case, the district court found that the misrepresentation reckless and the result plaintiff “has suggest- introduced evidence ing justi unlawful arrest. There is thus no Phillips’s of [the identification fication for the anomalous shield that this plaintiff] report in his incident was reck- court has now created. majority opinion acknowledges less.” The fact, important emphasize question It is a recklessness but breath, majority opinion’s holding it erroneous the same concludes that the actually in facts participates officer who identified the district court are not preparing Maj. Op. the warrant affidavit can violate “material” to recklessness. at 264 In through actuality, majority opinion the Fourth Amendment his reck- n.7. the sim- misrepresentations ply less or intentional is overrules the district court’s determi- cases; genuine dispute not to civil that nation that is a to limited narrow read- there as of appeal on that his false identification “in fact entertained seri- el Phillips whether in his plaintiff report as the assailant to of the informa- the as the truth doubts ous wrongful plaintiffs not in the application,” result did tion included the 449, falsely doing complaint arrest or that'the did not so suspected identify plaintiff as the as- jurisdiction.3 this court’s exceeds report. Phillips on sailant his has based to Phil majority proceeds absolve The arguments that therefore forfeited these that, if basis even he lips on the additional to majority opinion attempts raise constitutional plaintiffs violate the did See, e.g., Cmty. him. Health Care Jefferson “clearly not es rights those were rights, Gov’t, Ctrs., 849 F.3d Inc. v. Par. Jefferson made such an never Phillips tablished.” 615, (5th 2017) (citing Paige, Cir. In re court, the district argument—not before (5th 2010)) (“[T]his Cir. 610 F.3d appeal, and not his not in his brief on argu- does consider generally court not majority The en banc brief. supplemental ap- time on ments the first raised for. Phillips’s of that assertion opinion states Brace, v. 145 F.3d peal.”); States United “placed thé immúnity below bur (5th 1998) (en banc) (holding Cir. that on to neither Melton demonstrate den that the banc court cannot address en Maj. Op. prong applies.” of defense to panel that was issue n,9. to appellant’s But it is the burden stating, on “It appeal, repeat- bears that court erred.- See show the district ing—indeed, overemphasized— cannot be Williams, v. Santillana no,t address present- that do not issues (5th 1979) (“The appellant of Cir. burden us.”). toed appeal persuade appellate is to on litigants judge trial committed an could dream court Pro se law.”); Frosch, judicial help that the en banc receiving error Vetter (5th 1979) (“The aby appellant giving represented has court is an officer See, e.g., attorney. appellate highly competent burden persuading erred.”); Mapes Bishop, court court district Mur Co., are pro v. St. Fire se phy (“Although Paul Marine Ins. briefs & 1963) (“It construction, se pro even afforded liberal to elementary litigants arguments on that the burden is must brief order instead error.”). (citation omitted)). appellants It is not This show them.” preserve appropriate attempt for the to protect- court court’s officers from zeal chilling liability justify this Phillips’s shoulder ‍‌‌‌‌​‌​‌​​‌​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‍on behalf. cannot prospect burden abandoning our and reversing rules majority proceeds The opinion assert judgment on court’s the basis district Phillips’s complaint that the con- behalf arguments appellant information, Maj. Op. false tained made. 265-66, though Phillips argued even never before the district before pan- ^[*] Phillips to the 3. The conclusion was also cor- doubts as truth district court’s entertained discussed, Phillips plaintiffs expert report. previously witness his As rect. averred report Phillips simply reasonably expect his to- name "Mi- could false entered computer support application, chael Melton" into a database and used report identify plaintiff’s used the fact led result of search his false arrest, view, my making any plaintiff report, wrongful in his sufficient without genuine dispute attempt right to whether to corroborate establish a plaintiffs' juror constitutional Melton.” A certain- "Michael reasonable violated the ly rights, could on these conclude based facts that majority Because I opin- believe in reversing

ion errs district court’s I qualified immunity, respectfully

denial

dissent. BRUNSON,

Derrick D.L.

Plaintiff-Appellan

t NICHOLS; Lewis; White; Captain

K. M.

Valle; Davis; Carder; Lieutenant

UBanks; America, United States

Defendants-Appellees

No. 14-31350 of Appeals,

United States Court

Fifth Circuit.

FILED November

Case Details

Case Name: Michael Melton v. Hunt County

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 13, 2017

Citation: 875 F.3d 256

Docket Number: 15-10604

Court Abbreviation: 5th Cir.