Jordan v. Town of Waldoboro ( 2019 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 18-2062
    SCOTT JORDAN, JR.,
    Plaintiff, Appellant,
    v.
    TOWN OF WALDOBORO; WILLIAM LABOMBARDE,
    Waldoboro Chief of Police; LAWRENCE W. HESSELTINE, JR.,
    Waldoboro Police Officer; JEFFERY FULLER,
    Waldoboro Police Officer; ANDREW SANTHESON,
    Waldoboro Police Officer,
    Defendants, Appellees,
    WALDOBORO POLICE DEPARTMENT,
    Defendant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. John H. Rich III, U.S. Magistrate Judge]
    Before
    Howard, Chief Judge,
    Kayatta and Barron, Circuit Judges.
    Karen Wolfram, with whom Fairfield & Associates, P.A. was on
    brief, for appellant.
    Kasia S. Park, with whom Edward R. Benjamin, Jr. and Drummond
    Woodsum were on brief, for appellees.
    November 27, 2019
    KAYATTA, Circuit Judge.        Scott M. Jordan ("Senior"), his
    health failing, executed a Power of Attorney (POA) authorizing his
    son, Scott M. Jordan, Jr. ("Jordan"), to take control and dispose
    of Senior's property in any way Senior might do were he able.
    Unhappy     with   Jordan's   subsequent       decisions      concerning    his
    property, Senior revoked the POA and complained to the Waldoboro
    Police Department.       Waldoboro Police Officers obtained a warrant
    to search Jordan's home for Senior's property, and after finding
    Senior's property there, arrested Jordan for theft.              The district
    attorney dismissed the criminal prosecution after Senior died.
    Jordan brought this civil rights action against the Town
    of   Waldoboro,    the   Waldoboro    Police    Department,      and    several
    Waldoboro    Police   Officers.       He     alleged   that    the     affidavit
    accompanying the search warrant contained intentional or reckless
    omissions and misstatements of fact, that an accurate affidavit
    would not have supported probable cause for the search of his home,
    and that there was no probable cause for his arrest.             A magistrate
    judge, sitting as the district court with the consent of the
    parties, granted summary judgment for the defendants, dismissing
    all of Jordan's claims.        Jordan timely appealed to this court.
    For the following reasons, we reverse in part and affirm in part.
    - 3 -
    I.
    In this appeal from the entry of summary judgment, we
    take the facts in the light most favorable to Jordan.    See Staples
    v. Gerry, 
    923 F.3d 7
    , 14 (1st Cir. 2019).
    Jordan was employed in the corrections division of the
    Cumberland County Sheriff's office.      As of May 2014, Senior was
    living independently at his home in Waldoboro, Maine, while Jordan
    and Jordan's daughter lived together in Standish, Maine.      Jordan
    and Senior made plans for Senior to move in with Jordan and his
    daughter.    They agreed that, in anticipation of the move, Jordan
    would help fix up Senior's home and sell some of Senior's property
    so that Senior's home could be rented or sold.
    On May 12, 2014, Senior was taken by ambulance to the
    hospital, where he was admitted for progressive confusion.     After
    improving, Senior was discharged on May 23, 2014, but the next day
    he was "[u]nresponsive" and "not able to provide any answers to
    questions" and returned to the hospital.     Senior was in and out of
    the hospital through July of 2014.
    In accordance with Senior and Junior's plan for Junior
    to sell some of Senior's property, on May 15, 2014, during Senior's
    initial hospitalization, Senior directed his attorney to draft an
    Appointment of Agent Financial Power of Attorney appointing Jordan
    as his agent and attorney-in-fact.     Senior executed the POA before
    a witness and a notary public. The notary public noted that Senior
    - 4 -
    was "alert and oriented."         The POA granted Jordan "full power to
    exercise or perform any act, power, duty, right, or obligation
    whatsoever . . . relating to any person, matter, transaction, or
    property, real or personal, tangible, intangible, or mixed, now
    owned or hereafter acquired by [Senior], as [Senior] might or could
    do if personally present."        It listed "by way of example" several
    "specifically enumerated powers" that did not limit the broad
    authority quoted above.        One of those enumerated powers was to
    "make   gifts   of    any   property . . .    as    [Jordan]    may   consider
    advisable or appropriate, which gifts may be made to or for the
    benefit    of   [Jordan]."      Another     was    to   sell   "any   property
    whatsoever," "or any right or interest thereon, or any part
    thereof, upon such terms as [Jordan] shall think proper."
    Central to this case are Senior's complaints about the
    actions Jordan took pursuant to the POA.           Acting as Senior's agent
    and attorney-in-fact, Jordan either transferred to himself or sold
    much of Senior's personal property, and he also withdrew money
    from Senior's accounts.         Jordan maintained that he took these
    actions in accordance with the plan he and Senior had developed
    and in order to facilitate and fund his efforts to take care of
    his father.      Senior claimed that Jordan acted contrary to his
    wishes.
    On July 27, 2014, while out of the hospital, Senior
    reported   to   the   Waldoboro    Police    Department    that   Jordan   had
    - 5 -
    assaulted him.    Defendant Andrew Santheson, a Waldoboro Police
    Officer, spoke to Jordan over the phone.        Jordan said the dispute
    began with an argument over Jordan's decision to register Senior's
    truck in Jordan's name. Neither party desired criminal prosecution
    of the other, and neither provided a statement, so Santheson
    investigated no further.
    Senior took no steps to revoke the POA until July 31,
    2014, when he sent Jordan a notice of revocation.         That day, and
    in the week or so following, Senior made several demands that
    Jordan explain or undo the actions he took under the POA.            Of
    relevance here, Senior demanded: (1) the return of his truck;
    (2) the return of three firearms; and (3) an accounting of the
    financial    activities   Jordan    undertook    on   Senior's   behalf,
    including "an explanation of the $3,000.00 worth of antiques which
    [Senior] believe[d] were sold."      In a written response to Senior's
    attorney, Jordan explained that he and his father had agreed to
    put the truck in Jordan's name "in case [Senior] never came out of
    the hospital, and they went after his assets."        Jordan refused to
    return the firearms, among other reasons, because he was concerned
    that Senior was suicidal.      He also explained that, in selling
    Senior's property, he was acting as authorized under the POA, and
    that he did so to cover expenses associated with caring for his
    father and improving his father's house.
    - 6 -
    In    the   months      that    followed,    Senior    made    multiple
    complaints to the Waldoboro Police Department about the actions
    Jordan took under the POA prior to its revocation.                     In a written
    statement     dated       October 10,        Senior     stated     that,      while
    hospitalized, "my son came to me about making him my power of
    attorney," and that "I did not read it and don't feel at this time
    I should have signed it."              Senior conceded that he and Jordan
    planned to move in together in Standish, and that he had authorized
    Jordan to sell some of his things and do some work on his house,
    but   complained       that   Jordan    held    the   sale     while    Senior   was
    hospitalized even though Senior wanted to be present.
    On October 17, Senior told defendant Jeffrey Fuller, a
    Waldoboro Police Officer, that he had been hospitalized as a result
    of a liver condition that at times made him feel confused and act
    abnormally.       He    explained      to   Fuller    and     defendant    Lawrence
    Hesseltine, also a Waldoboro Police Officer, that he had executed
    a POA and that, pursuant to it, Jordan had taken his truck,
    transferred      ownership     to   himself,    and     was    refusing    Senior's
    demands to return it.          Senior acknowledged that Jordan left his
    own truck for Senior to use, but said that Jordan's truck was too
    large for him.         Hesseltine confirmed that the title to Senior's
    former truck was in Jordan's name.              Senior also complained that
    Jordan was refusing to return several firearms.                        Fuller asked
    - 7 -
    Senior to provide him a copy of the POA, which Senior delivered to
    the Waldoboro police station the next day.
    Also on October 17, after taking Senior's complaint,
    Fuller spoke to Jordan by telephone.          Jordan told Fuller about
    Senior's plan to move in with him and explained that he had started
    executing the plan before Senior changed his mind about it. Jordan
    said he had spent a large amount of time and money fixing up his
    father's home.     When asked if he intended to return his father's
    firearms, Jordan responded that he did not because his father was
    not mentally stable.      Jordan asked Fuller if the police department
    might take the firearms for safekeeping, but Fuller responded that
    the police would have no legal basis to refuse to return the
    firearms to Senior.
    Hesseltine then took over the investigation from Fuller,
    who left for an extended vacation.          Hesseltine received all the
    documents Senior and Jordan provided to Fuller, including the POA.
    On November 1, Hesseltine met with Senior about the complaint.
    Senior told Hesseltine that, while the POA was in effect, Jordan
    had sold upwards of $5,000 of Senior's personal property and
    withdrawn   more   than    $2,000   in   Social   Security   and   Veterans
    Administration benefits from Senior's bank account.           Senior gave
    Hesseltine copies of the revocation of the POA and the July and
    August correspondence between Senior's attorney and Jordan.
    - 8 -
    Some time that fall, Hesseltine and defendant William
    Labombarde, Waldoboro Chief of Police, called Senior's sister,
    Raeberta Myers, asking for her "help in clarifying things."   They
    explained that they had spoken to Senior, and that they "understood
    [Junior] had pushed [Senior] into signing a [POA] while he was not
    in his right mind."      Myers told the officers that "this was
    definitely not true."    Myers described a phone call she had with
    Senior before he was hospitalized.      In that phone call, Senior
    explained that he intended to grant Jordan a POA and that he
    planned to have his lawyer draft one.    Myers knew that Senior and
    Jordan had "knocked heads" in the past, but she asked Senior "a
    number of times" if he was sure about this plan, and "each time he
    assured [her that it was] what he wanted to do."    Myers told the
    officers that Senior "knew exactly what he wanted and what he was
    doing" at the time.     Myers "had the feeling that [the officers]
    did not like what [she] had told them about [Senior] and the
    [POA]."
    On November 18, 2014, Senior reported to the Waldoboro
    Police that he had learned that Jordan was planning to sell the
    truck Senior wanted back.    Hesseltine found an online posting in
    which Jordan offered to sell the truck for $7,900.       That day,
    Senior also provided Hesseltine with a copy of a $305 AT&T Wireless
    bill for a cell phone account that had been opened in Senior's
    name but that was associated with Jordan's cell phone number.
    - 9 -
    On November 20, Hesseltine wrote and filed in Maine
    district court an affidavit and request for a warrant to search
    Jordan's residence as well as any vehicles, boats, and outbuildings
    on the premises.          The warrant provided for the seizure of Senior's
    property, specifically listing the truck, the firearms, and any
    financial documentation relating to the disposition of Senior's
    property.          Much   of    this   appeal    concerns   the   content   of   the
    affidavit accompanying the search warrant, which we will discuss
    in detail below.               Before Hesseltine filed the affidavit and
    request, Labombarde and Assistant District Attorney Andrew Wright
    reviewed it.         A Maine district court judge granted the request
    that same day.
    On November 21, Hesseltine, Santheson, and Maine State
    Police officers executed the warrant at Jordan's property.                       As
    expected, they found Senior's truck parked in Jordan's driveway.
    In the glove compartment, officers found the title to the truck as
    well as a bill of sale, signed by Senior, granting the truck to
    Jordan.          Officers also recovered the firearms.               Jordan told
    Hesseltine that he had sold all of the other personal property he
    had taken from Senior's home.
    Hesseltine arrested Jordan without a warrant for Class B
    theft       by   unauthorized     taking    or    transfer.1      Hesseltine     and
    1
    "A person is guilty of theft if . . . [t]he person obtains
    or exercises unauthorized control over the property of another
    - 10 -
    Santheson took Jordan to the local jail, where he was released the
    same day on a $5,000 bond.    Foreseeably, the local press coverage
    latched on to the story of a corrections officer being arrested
    for stealing from his ill father.
    A   Lincoln   County   grand    jury   convened   to   consider
    Jordan's charges.   Hesseltine, Senior, and Jordan all testified
    before the grand jury.    The District Attorney used the POA while
    questioning Hesseltine, but Hesseltine recalls telling the grand
    jury only "that there was [a POA] in effect and then it was
    rescinded."   Jordan explained to the grand jury that Senior's
    attorney drafted the POA.    There is no evidence in the record that
    the grand jury viewed a copy of the POA or learned about its broad
    grant of power to Jordan.        On March 10, 2015, the grand jury
    returned an indictment against Jordan for five counts of Class B
    theft.
    Senior died in early September, 2015. The Lincoln County
    District Attorney's Office dismissed the criminal proceedings
    against Jordan for want of the "victim and key witness."         Because
    of his bail conditions, Jordan was unable to see Senior again
    before his death.
    with intent to deprive the other person of the property."       Me.
    Stat. tit. 17-A, § 353(1)(A). Theft by unauthorized taking is a
    Class B crime if "[t]he value of the property is more than $10,000"
    or "[t]he property stolen is a firearm or an explosive device."
    
    Id. § 353(1)(B)(1)–(2).
    - 11 -
    Jordan brought this civil rights action against the Town
    of Waldoboro, the Waldoboro Police Department, Chief of Police
    Labombarde, and Officers Fuller, Hesseltine, and Santheson.             Under
    the federal civil rights statute, 42 U.S.C. § 1983, he alleged
    Fourth Amendment violations of unlawful search and seizure, false
    arrest, malicious prosecution, and "due process/defamation."               He
    also brought Maine state constitutional claims for false arrest
    and unlawful search and seizure under the Maine Civil Rights Act,
    Me. Rev. Stat. tit. 5, § 4682, as well as Maine tort claims for
    malicious prosecution, false imprisonment, intentional infliction
    of emotional distress, negligent infliction of emotional distress,
    defamation, and false light.             Jordan sought compensatory and
    punitive damages.          Invoking federal question jurisdiction, 28
    U.S.C. §§ 1331, 1367, the defendants removed the case to the United
    States District Court for the District of Maine.                  The parties
    stipulated to the dismissal of the defamation claims against all
    defendants and the false light claim against two of the defendants.
    Adjudicating the case with the consent of the parties, a magistrate
    judge entered summary judgment in favor of the defendants on all
    remaining counts.
    On    appeal,    Jordan     challenges   the   entry   of   summary
    judgment on: (1) the federal and state constitutional claims for
    search   and    seizure;    (2) the    federal   and   state   constitutional
    claims for false arrest; (3) the federal and state constitutional
    - 12 -
    claims for malicious prosecution; (4) the Maine tort claims for
    malicious prosecution and false imprisonment; and (5) the request
    for punitive damages.       We take up each issue in turn.
    II.
    Summary judgment is appropriate "if the movant shows
    that there is no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law."              Fed. R. Civ.
    P. 56(a).    We review de novo the grant of summary judgment, "under
    the identical criteria governing the district court."                 Hegarty v.
    Somerset Cty., 
    53 F.3d 1367
    , 1372 (1st Cir. 1995).
    A.
    We   begin    with   Jordan's     claim   that   the     defendants
    violated    his   rights    under   the     Fourth   Amendment   to    the   U.S.
    Constitution and article 1, section 5 of the Maine Constitution by
    searching and seizing his property.2           The search warrant executed
    by a judicial officer stands as an imposing impediment to this
    claim.      The   Fourth   Amendment      countenances   searches      conducted
    pursuant to warrants issued "upon probable cause, supported by
    Oath or affirmation, and particularly describing the place to be
    searched, and the persons or things to be seized."                  U.S. Const.
    amend. IV.    Jordan seeks to overcome this impediment by contending
    2 The parties agree that relevant Maine law tracks the
    requirements of the Fourth Amendment and 42 U.S.C. § 1983, so we
    will assume that to be so.
    - 13 -
    that the warrant was invalid because the officers procured it by
    deliberately misleading the Maine district court judge who granted
    it.
    The rules for challenging a warrant by attacking the
    affidavit used to procure it trace to the Supreme Court's opinion
    in Franks v. Delaware, 
    438 U.S. 154
    (1978).         Franks addressed the
    showing a defendant must make in order to suppress the fruits of
    a search by proving that a facially valid warrant was invalidly
    obtained.     Franks held that a search warrant must be voided if
    (1) "a   false    statement   knowingly    and   intentionally,    or    with
    reckless disregard for the truth, was included by the affiant in
    the warrant affidavit"; and (2) "the affidavit's remaining content
    is insufficient to establish probable cause."            
    Id. at 155–56;
    see
    also United States v. Owens, 
    917 F.3d 26
    , 38 (1st Cir. 2019).              We
    have since drawn on Franks to observe that "[a]n officer who
    obtain[ed]    a   warrant   through   material   false    statements    which
    result[ed] in an unconstitutional search may be held personally
    liable for his actions under § 1983."            Aponte Matos v. Toledo
    Dávila, 
    135 F.3d 182
    , 187 (1st Cir. 1998).
    To apply Franks in this case, we find it helpful to break
    the two-prong test into its three elements:              The affidavit need
    contain a falsehood; the falsehood must be such that its deletion
    would eliminate probable cause; and the falsehood must have been
    - 14 -
    made deliberately, or at least with reckless disregard for the
    truth.       We address each element in turn.
    1.
    In   examining       the     affidavit       for     the      presence     of
    falsehoods, we look not only for affirmative misrepresentations,
    but also for material omissions.                  United States v. Tanguay, 
    787 F.3d 44
    , 49 (1st Cir. 2015) ("Material omissions from a warrant
    affidavit also may furnish the basis for a successful Franks
    challenge."). We conclude that the record in this case would allow
    a     jury    to    find     that   there       was    at   least      one     affirmative
    misrepresentation and two material omissions.
    First,      the   affidavit      plainly     suggested         that    Jordan
    prepared the POA and foisted it on his ill father.                           The affidavit
    stated that Jordan "presented [Senior] with paperwork requesting
    he appoint himself as his father's [f]inancial [POA]."                               But, as
    Myers explained, even before his hospitalization Senior intended
    to give Jordan a POA, and Senior's own attorney eventually prepared
    the POA at Senior's behest.
    Second, Hesseltine's affidavit failed to disclose that
    the    POA    (which       Hesseltine     did    not   attach     to    the    affidavit)
    expressly provided for the type of self-dealing in which Jordan
    engaged, and which Jordan claimed was his father's basic purpose
    in granting the POA.
    - 15 -
    Third,    although   the   affidavit   acknowledged   Jordan's
    claim that he took his father's firearms because he feared that
    his father might harm himself, it omitted the highly corroborating
    fact that Jordan offered to turn over the firearms to the police
    for safekeeping.
    The defendants argue -- and the magistrate judge in this
    federal case agreed -- that the foregoing omissions are not
    relevant to the Franks analysis because "probable cause does not
    require officers to rule out a suspect's innocent explanation for
    suspicious facts."     Jordan v. Town of Waldoboro, No. 2:17-CV-
    00025-JHR, 
    2018 WL 4688724
    , at *9 (D. Me. Sept. 28, 2018) (quoting
    District of Columbia v. Wesby, 
    138 S. Ct. 577
    , 588 (2018)).         But
    Jordan is not arguing that the police had to rule out his innocent
    explanations.      Rather, he argues that his offer to give the
    firearms to the police as well as the provenance and terms of the
    POA were undisputed facts that were material to the assessment of
    the conduct described in the affidavit.          And as we have said,
    material omissions can be the basis of a Fourth Amendment violation
    if all three elements of Franks's two-part test are satisfied.
    See United States v. Hadfield, 
    918 F.2d 987
    , 992 (1st Cir. 1990).
    2.
    We turn now to the question of whether a more complete
    and accurate affidavit would have nevertheless supported a finding
    of probable cause for the search and seizure.        In answering this
    - 16 -
    question, we "take into account the cumulative effect of the
    multiple omissions" and misstatements in the affidavit.            United
    States v. Vigeant, 
    176 F.3d 565
    , 572 n.8 (1st Cir. 1999).
    Though   only   a   jury   can   resolve   reasonably   disputed
    issues of fact, whether a given set of facts constitutes probable
    cause is a legal question.     See Ornelas v. United States, 
    517 U.S. 690
    , 699 (1996); Dir. Gen. of R.R.s v. Kastenbaum, 
    263 U.S. 25
    , 28
    (1923) ("Probable cause is a mixed question of law and fact.          The
    court submits the evidence of it to the jury, with instructions as
    to what facts will amount to probable cause if proved."); Bolton
    v. Taylor, 
    367 F.3d 5
    , 8 (1st Cir. 2004) ("[N]o deference should
    be given to the fact-finder as to probable cause or reasonable
    suspicion where the raw facts are undisputed or settled and the
    only issue is one of law application.").
    In assessing whether probable cause exists, we consider
    "the whole picture."      
    Wesby, 138 S. Ct. at 588
    (quoting United
    States v. Cortez, 
    449 U.S. 411
    , 417 (1981)).         Probable cause does
    not require proof of guilt beyond a reasonable doubt, but "only an
    objectively reasonable basis for believing 'that evidence of [the
    crime] can likely be found at the described locus at the time of
    the search.'"   United States v. Flores, 
    888 F.3d 537
    , 548 (1st
    Cir. 2018) (alteration in original) (quoting United States v.
    Floyd, 
    740 F.3d 22
    , 32 (1st Cir. 2014)).
    - 17 -
    The probable cause question here turns on the underlying
    Maine law. As noted above, "[a] person is guilty of theft if . . .
    [t]he person obtains or exercises unauthorized control over the
    property of another with intent to deprive the other person of the
    property."   Me. Rev. Stat. tit. 17-A, § 353(a).     The critical
    question is whether the affidavit, had it not contained the above-
    noted deficiencies, would still have established probable cause to
    believe that Jordan's exercise of control over Senior's property
    was unauthorized.
    The origin and terms of the POA weigh heavily in favor
    of a "no" answer to this question because it expressly granted
    Jordan the authority to take control of Senior's property.    The
    affidavit sought to diminish the exculpatory weight of the POA by
    giving the impression that Jordan prepared the POA and foisted it
    on his befuddled parent.     In other words, it tacitly suggested
    that the POA was not validly executed and therefore that it could
    not authorize the seizure.   But once one learns that the POA was
    the product of pre-hospitalization discussions, that Senior's
    lawyer prepared the POA, and that Senior authorized Jordan to
    transfer property to himself, all of Jordan's behavior is cast in
    a very different, markedly benign light.
    The defendants try another tack, arguing that the POA,
    although legitimately executed, did not actually grant Jordan
    authority to transfer Senior's property to himself because any
    - 18 -
    such grant of power would be invalid under Maine law.                     They point
    out that the Maine Uniform Power of Attorney Act, Me. Rev. Stat.
    tit. 18-A, § 5-914, incorporates section 802 of the Maine Uniform
    Trust   Code,   which     in     turn   provides     that    "[a]    trustee   shall
    administer the trust solely in the interests of the beneficiaries."
    Me. Rev. Stat. tit. 18–B, § 802(1).              But under that section of the
    Trust Code, a trustee has no such duty if "[t]he transaction was
    authorized by the terms of the trust."               
    Id. § 802(2)(A).
          Leaving
    no doubt on this point, the Maine Uniform Power of Attorney Act
    provides that the agent shall "[a]ct loyally for the principal's
    benefit,"     "[e]xcept     as    otherwise       provided    in    the    power    of
    attorney."      Me. Rev. Stat. tit. 18-A, § 5-914(b)(1) (emphasis
    added).      Therefore,        since    the    POA   expressly      authorized     the
    challenged self-dealing, Jordan was not obligated to act solely in
    Senior's interests.
    Jordan still had the basic obligation under Maine law to
    "[a]ct in accordance with the principal's reasonable expectations
    to the extent actually known by the agent."                    
    Id. § 5-914(a)(1)
    (emphasis added).       The defendants argue that Jordan violated this
    duty    by   declining    to     follow       Senior's    directives      about    the
    disposition of Senior property.               But the POA authorized Junior to
    "make   gifts    of   any      property . . . as         [Jordan]    may    consider
    advisable or appropriate, which gifts may be made to or for the
    benefit of [Jordan]."            This express authorization to sell any
    - 19 -
    property seriously undercuts any argument that Senior reasonably
    expected    Jordan    to    keep    Senior's     property    in    Senior's     name.
    Moreover, Jordan maintains that he took all the disputed actions
    in furtherance of a plan he and Senior agreed to before Senior
    executed the POA.          There is no evidence that Senior ever denied
    the existence of the pre-hospitalization plan to move assets out
    of his name by having his lawyer prepare a POA that granted Jordan
    discretion to decide what property to sell.                 And Myers confirmed
    the    existence     of    the     pre-hospitalization       plan.         Moreover,
    everything Jordan did is consistent with that plan.                    Conversely,
    Senior's     belated,      post-hospitalization          critique     of    Jordan's
    actions seemed inconsistent with his reason for granting the POA
    in    the   first    place.        Under    these      circumstances,      it   seems
    implausible     that        Jordan     "actually         kn[ew]"     that       Senior
    "reasonabl[y] expect[ed]" Jordan to cease implementing their pre-
    hospitalization agreement.           Id.3
    Seriously      weakened        by   the     facts     concerning      the
    provenance and breadth of the POA, the affidavit's remaining
    3
    Maine law also makes it an affirmative defense to theft
    "that the defendant acted in good faith under a claim of right to
    property." Me. Rev. Stat. tit. 17-A, § 361. We do not address,
    however, whether the officers violated the Fourth Amendment by
    failing to include known facts that established an affirmative
    defense, because Jordan has made no such claim. See Sparkle Hill,
    Inc. v. Interstate Mat Corp., 
    788 F.3d 25
    , 29 (1st Cir. 2015) ("Our
    precedent is clear: we do not consider arguments for reversing a
    decision of a district court when the argument is not raised in a
    party's opening brief.").
    - 20 -
    inculpatory    force      would   further    dissipate   if   the   affidavit
    correctly described Jordan's offer to give the firearms to the
    police. A reader of the affidavit might think that Jordan's stated
    reason for taking the firearms was pretextual.            Indeed, the fact
    that the warrant authorized the officers to search for the very
    same firearms that Jordan had offered to the police suggests that
    the Maine district court judge believed that Jordan took the guns
    for his own benefit.        Once one includes in the picture Jordan's
    undisputed proffer, such a belief becomes implausible.
    Collectively, correction of the misrepresentation and
    the two omissions would have painted a fundamentally different
    picture of Jordan's actions in trying to assist an episodically
    confused and often hostile parent.          It is not a reasonable picture
    of a thief in action and, thus, would fall short of establishing
    probable cause for a search warrant.
    3.
    That leaves the matter of state of mind.           Officers can
    easily forget information or fail to perceive its significance in
    seeking warrants, so the law provides no evidentiary exclusion or
    legal liability for such errors, even when made negligently.
    
    Franks, 438 U.S. at 171
    ("Allegations of negligence or innocent
    mistake are insufficient."); 
    Tanguay, 787 F.3d at 49
    ("Negligent
    omissions     --   even    negligent    omissions   of   highly     probative
    information -- do not satisfy [the Franks] standard."). For Jordan
    - 21 -
    to   prevail,   there    must   be   evidence   upon        which   a   jury   could
    reasonably find that the defects in the affidavit were made
    "knowingly and intentionally, or with reckless disregard for the
    truth."    
    Franks, 438 U.S. at 155
    (1978).                  And in the case of
    omissions, there is an additional element:                 "Because there is no
    requirement that every shred of known information be included in
    a warrant affidavit," an omission satisfies the Franks test "only
    if it is 'designed to mislead or . . . made in reckless disregard
    of whether [it] would mislead, the magistrate' in his appraisal of
    the affidavit."    
    Tanguay, 787 F.3d at 49
    (alterations in original)
    (quoting United States v. Colkley, 
    899 F.2d 297
    , 300-01 (4th Cir.
    1990)).
    Determining an actor's mental state is traditionally a
    role for the jury.       See Stepanischen v. Merchs. Despatch Transp.
    Corp., 
    722 F.2d 922
    , 928 (1st Cir. 1983) (noting that "where, as
    here, the state of mind of one of the parties is crucial to the
    outcome of the case," "courts are particularly cautious about
    granting summary judgment").
    An intent to deceive, and certainly recklessness, need
    not be proven by direct evidence.               "In the case of allegedly
    material   omissions,     'recklessness       may     be    inferred    where   the
    omitted    information      was      critical    to        the   probable      cause
    determination.'"        Burke v. Town of Walpole, 
    405 F.3d 66
    , 81–82
    (1st Cir. 2005) (quoting Golino v. New Haven, 
    950 F.2d 864
    , 871
    - 22 -
    (2d Cir. 1991)); see also United States v. Gifford, 
    727 F.3d 92
    ,
    101 (1st Cir. 2013) (inferring recklessness from the omission of
    critical information).
    Viewing the record as a whole, we find that there is
    enough   evidence   that   a   jury   could    reasonably   conclude   that
    Hesseltine had such a mental state.        As for the misrepresentation,
    the jury could decide -- based on Myers's testimony -- that
    Hesseltine, at best, recklessly disregarded the true origins of
    the POA, and that the exculpatory force of the correct information
    would have been obvious to him.               As for the omissions, the
    defendants conceded that Fuller disclosed to Hesseltine all the
    information he received from Senior and Junior, which would include
    the terms of the POA and the fact that Junior offered to turn the
    firearms over to the Waldoboro Police Department.           And if jurors
    concluded that the misrepresentation was the result of an intent
    to deceive the judicial officer to serve a warrant, it would
    require no unreasonable leap to find that the two omissions were
    part of the same effort.
    We conclude, therefore, that the record viewed favorably
    to Jordan would support findings satisfying all three elements of
    the Franks test:     The affidavit contained a false statement and
    two   omissions;    correction        of   those    three   deficiencies,
    collectively, would eliminate probable cause; and those three
    deficiencies were designed to mislead or made in reckless disregard
    - 23 -
    of whether they would mislead the magistrate in considering whether
    to issue a warrant.       The magistrate judge therefore erred by
    granting summary judgment on the claims under the federal and state
    civil rights acts that the officers unlawfully searched Jordan's
    property.    Instead, a factfinder will need to determine that the
    POA was Senior's idea and the handiwork of his lawyer, that it
    contained a clause allowing transfers to Jordan, and that Jordan
    offered the firearms to the police.      The factfinder would further
    need to find that a defendant4 knew (or recklessly disregarded)
    all three facts, and that through the combined use of falsehoods
    and omissions the defendant prepared an affidavit designed to
    mislead (or made in reckless disregard of whether it would mislead)
    the judicial officer in his appraisal of the affidavit.
    B.
    We turn now to Jordan's argument that the magistrate
    judge erroneously granted summary judgment on Jordan's federal and
    state civil rights claims for false arrest.      Again, both parties
    assume that the disposition of the federal claim controls the
    disposition of the parallel state constitutional claim, so we
    assume as much as well.
    To make a claim for false arrest, Jordan must show that
    an arresting officer lacked probable cause to believe that Jordan
    4   See infra Part II.E.
    - 24 -
    had committed theft.     See Morelli v. Webster, 
    552 F.3d 12
    , 19 (1st
    Cir. 2009).   The only fact that distinguishes this probable cause
    analysis from the preceding one is that the officers, while
    conducting the search, found a title to the truck in Jordan's name,
    signed by Senior -- further indication that Senior consented to
    swapping trucks.      This additional piece of evidence shrunk the
    already insufficient probability that the transfer of ownership of
    the truck was unauthorized.        We therefore conclude, a fortiori,
    that a reasonable juror could find that anyone aware of the
    deficiencies in the warrant application would know (or recklessly
    disregard the fact that) there was no probable cause to arrest
    Jordan.
    C.
    Next,     Jordan   argues    that    the   magistrate   erred    in
    granting   summary    judgment   for    the    defendants   on   his   federal
    constitutional claims for malicious prosecution.                 The parties
    agree that to make out a claim for malicious prosecution, Jordan
    must show that "the defendant (1) caused (2) a seizure of the
    plaintiff pursuant to legal process unsupported by probable cause,
    and (3) criminal proceedings terminated in plaintiff's favor."
    Hernandez-Cuevas v. Taylor, 
    723 F.3d 91
    , 101 (1st Cir. 2013)
    (quoting Evans v. Chalmers, 
    703 F.3d 636
    , 647 (4th Cir. 2012)).
    The district court held that -- even assuming Jordan could meet
    the first two requirements -- he could not show that the criminal
    - 25 -
    proceedings terminated in his favor, and it therefore concluded
    that summary judgment was appropriate.
    It was recently a live question in our circuit whether
    post-Hernandez-Cuevas          Supreme      Court     precedent     rendered    the
    favorable      termination      element     "an   anachronism."       See   Pagán-
    
    González, 919 F.3d at 609
    (Barron, J., concurring) (citing Manuel
    v. City of Joliet, Ill., 
    137 S. Ct. 911
    , 925–26 (2017) (Alito, J.,
    dissenting)).         But    the    Supreme   Court     arguably    resolved   this
    question when it reiterated that a plaintiff cannot bring a
    section 1983 fabricated-evidence claim that is analogous to the
    common-law     tort   of     malicious     prosecution     "prior    to   favorable
    termination of [the] prosecution."            McDonough v. Smith, 
    139 S. Ct. 2149
    , 2156 (2019).          And in any event, Jordan's brief to this court
    accepts the Hernandez-Cuevas elements, and Jordan has therefore
    waived   any    argument      that    he   need   not   satisfy     the   favorable
    termination element of a malicious prosecution claim.                 See Sparkle
    Hill, Inc. v. Interstate Mat Corp., 
    788 F.3d 25
    , 29 (1st Cir.
    2015).
    So, we face the question of whether the state criminal
    proceedings      against       Jordan      terminated     in   Jordan's      favor.
    
    Hernandez-Cuevas, 723 F.3d at 101
    .                  Jordan concedes that, to
    satisfy the favorable termination element, a plaintiff must show
    that the prosecution was terminated in such a way as to imply the
    plaintiff's innocence.             See Restatement (Second) of Torts § 660
    - 26 -
    cmt. a (1977) ("Proceedings are 'terminated in favor of the
    accused' . . . only when their final disposition is such as to
    indicate the innocence of the accused."); cf. Jones v. City of
    Boston, 
    135 F. App'x 439
    , 440 (1st Cir. 2005) (unpublished opinion)
    (affirming the dismissal of a constitutional malicious prosecution
    claim because the plaintiff did "not allege facts that would permit
    an inference that the charges were dismissed because of his
    innocence or the Commonwealth's lack of reasonable grounds for the
    prosecution").
    The district attorney dismissed the criminal proceedings
    against Jordan because "[t]he victim and key witness in the case
    for the State, Scott Jordan[,] Sr[.], ha[d] died." Jordan contends
    that this dismissal was "indicative of innocence."       To support
    this claim, Jordan cites section 660 of the Restatement (Second)
    of Torts, which lists examples of terminations insufficient to
    state a malicious prosecution claim.5
    5   Section 660 provides:
    A termination of criminal proceedings in favor
    of the accused other than by acquittal is not
    a   sufficient   termination   to   meet   the
    requirements of a cause of action for
    malicious prosecution if
    (a) the charge is withdrawn or the prosecution
    abandoned   pursuant   to  an   agreement   of
    compromise with the accused; or
    (b) the charge is withdrawn or the prosecution
    abandoned because of misconduct on the part of
    - 27 -
    Jordan argues that, since none of the enumerated circumstances
    describes the reason for the dismissal of his criminal case, we
    should conclude that the dismissal was a favorable termination.
    However, the Restatement itself makes clear that section 660's
    list of insufficiently favorable reasons for termination is not
    exhaustive; section 661 states that "[t]he formal abandonment of
    proceedings by a public prosecutor is not a sufficient termination
    in   favor   of   the   accused   if   the   abandonment     is    due   to   the
    impossibility     or    impracticability     of   bringing   the   accused    to
    trial."   Jordan's criminal case was dismissed because the death of
    the key witness made the prosecution impracticable.                 Therefore,
    the dismissal was not sufficiently favorable to the accused, and
    Jordan cannot satisfy the favorable termination element under
    
    Hernandez-Cuevas, 723 F.3d at 101
    .6
    the accused or in his behalf for the purpose
    of preventing proper trial; or
    (c) the charge is withdrawn or the proceeding
    abandoned out of mercy requested or accepted
    by the accused; or
    (d) new proceedings for the same offense have
    been properly instituted and have not been
    terminated in favor of the accused.
    6Oddly, and possibly for no good reason as Judge Barron's
    concurring opinion explains, a malicious prosecution claim appears
    to require favorable termination, 
    McDonough, 139 S. Ct. at 2156
    ,
    while a claim for false arrest does not, see Wallace v. Kato, 
    549 U.S. 384
    , 388–92 (2007).
    - 28 -
    D.
    Jordan also challenges the district court's entry of
    summary judgment on the Maine tort claims for malicious prosecution
    and false imprisonment.           For each of these claims, his brief to
    this court relies entirely on his arguments regarding the analogous
    constitutional claims of malicious prosecution and false arrest.
    Therefore,     the    malicious    prosecution     claim    fails   in   view    of
    Jordan's failure to satisfy the favorable termination element, as
    discussed above in subpart D.           And the false imprisonment claim
    fails because Jordan provides no analysis as to how the Maine
    common-law tort would apply to the facts here, even assuming a
    false arrest.        See United States v. Zannino, 
    895 F.2d 1
    , 17 (1st
    Cir.   1990)    ("[I]ssues     adverted      to   in   a   perfunctory   manner,
    unaccompanied    by     some   effort   at    developed     argumentation,      are
    deemed waived.").         We therefore affirm the entry of summary
    judgment as to the state-law tort claims.
    E.
    Next, we address the defendants' argument that -- should
    we disagree with the district court's decision to enter summary
    judgment on all claims -- we should nevertheless affirm the entry
    of summary judgment for the federal claims against Santheson,
    Fuller, Labombarde, and the Town of Waldoboro on the alternative
    basis that they had too minimal a role in the conduct giving rise
    to Jordan's claims.
    - 29 -
    Jordan has alleged sufficient facts that a jury might
    reasonably find Chief of Police Labombarde liable on the Fourth
    Amendment claims.      Recall that, according to Myers, Labombarde
    participated in the phone call in which Myers refuted the theory
    conveyed by the affidavit.         In his affidavit in this litigation,
    Labombarde stated that he received regular updates about the status
    of the investigation and conceded that he reviewed the affidavit
    and    the   application    for    a    search    warrant   before    Hesseltine
    submitted them to the Maine district court judge.                And Hesseltine
    stated, in his deposition, that Labombarde "was well aware of all
    the evidence that [Hesseltine] had" because Hesseltine "bounced
    everything off" Labombarde.        These facts, taken together, convince
    us that -- should the jury find for Jordan -- it could reasonably
    find Labombarde partially responsible.
    We agree, though, that Jordan has failed to allege facts
    upon which a jury could reasonably find Officers Fuller and
    Santheson culpable.        Though Fuller interviewed Senior and Jordan,
    and heard Jordan offer to turn the firearms over for safekeeping,
    he had no role in applying for the search warrant, searching
    Jordan's home, or arresting Jordan.               And though Jordan alleges
    that    "Santheson    was     also      an   active    participant       in     the
    investigation," he has marshalled no facts supporting an inference
    that    Santheson    had     any       material    involvement       aside     from
    participating in the execution of the search warrant.                        Jordan
    - 30 -
    raises   the   specter    of    conspiracy   and   intervenor    theories      of
    liability,     but   he   neither   presents   facts   tending    to    show    a
    conspiracy or intervenor liability nor develops any argumentation
    supporting these theories.          These points are therefore waived.
    See 
    Zannino, 895 F.2d at 17
    .
    We also agree with the defendants that summary judgment
    is warranted for the claims against the Town of Waldoboro.                 "[A]
    municipality can be found liable under § 1983 only where the
    municipality itself causes the constitutional violation at issue."
    City of Canton v. Harris, 
    489 U.S. 378
    , 385 (1989) (citing Monell
    v. Dep't of Soc. Servs. of N.Y., 
    436 U.S. 658
    , 694–95 (1978)).
    "Thus, a plaintiff must show that a policy or custom of the city
    led to the constitutional deprivation alleged."                  Santiago v.
    Fenton, 
    891 F.2d 373
    , 381 (1st Cir. 1989).          Jordan posits that the
    "unwritten     policies,       customs   and/or    practices    of     officers
    destroying notes of their investigations, not documenting witness
    interviews and exculpatory evidence in investigations, and not
    writing timely police reports was the cause" of the alleged
    constitutional deprivations.        But Jordan's case theory is not that
    exculpatory information slipped through the cracks.                  Rather, he
    necessarily contends that officers recklessly or intentionally
    drew up a misleading affidavit in order to secure a warrant.                   We
    fail to see, on the record before us, how this misbehavior can be
    attributed to a custom or policy of the Town of Waldoboro.                     We
    - 31 -
    therefore affirm the entry of summary judgment for the claims
    against the municipality.
    F.
    Having concluded that a jury could find that Officer
    Hesseltine and Chief Labombarde violated Jordan's constitutional
    rights to be free from unreasonable search and seizure and false
    arrest, we turn to these two defendants' contention that we should
    affirm on the alternative grounds that they are entitled to
    qualified    immunity.     "[O]fficers     are    entitled    to       qualified
    immunity under § 1983 unless (1) they violated a federal statutory
    or constitutional right, and (2) the unlawfulness of their conduct
    was 'clearly established at the time.'"          
    Wesby, 138 S. Ct. at 589
    (quoting Reichle v. Howards, 
    566 U.S. 658
    , 664 (2012)).                 We have
    already     concluded    that   the    officers    violated        a     federal
    constitutional    right,   so   the    sole   question   is    whether       the
    unlawfulness of their conduct was "clearly established at the
    time."    
    Id. at 589.
         "[T]he relevant, dispositive inquiry in
    determining whether a right is clearly established is whether it
    would be clear to a reasonable [officer] that his conduct was
    unlawful in the situation he confronted."          Rocket Learning, Inc.
    v. Rivera-Sanchez, 
    715 F.3d 1
    , 9 (1st Cir. 2013) (emphasis omitted)
    (quoting Maldonado v. Fontanes, 
    568 F.3d 263
    , 269 (1st Cir. 2009)).
    As the defendants correctly conceded at oral argument,
    the law clearly prohibited officers from "us[ing] deliberately
    - 32 -
    falsified allegations to demonstrate probable cause."               
    Franks, 438 U.S. at 168
    ; see also Martínez-Rodríguez v. Guevara, 
    597 F.3d 414
    ,
    420 (1st Cir. 2010) ("It is . . . beyond peradventure that arrests
    procured on the basis of material false statements or testimony
    given in reckless disregard for the truth violate the Fourth
    Amendment."); Miller v. Prince George's Cty., 
    475 F.3d 621
    , 630
    (4th Cir. 2007) ("[T]he Supreme Court has made . . . clear that
    police officers cannot intentionally lie in warrant affidavits, or
    recklessly    include    or   exclude      material   information     known    to
    them."); Aponte 
    Matos, 135 F.3d at 185
    ("It has long been well
    established    that . . .     a   material     fabrication    [in    a    warrant
    application]     violates     the     Warrant    Clause      of     the    Fourth
    Amendment.").
    Despite this concession, the defendants' brief could be
    read to argue that -- even assuming Hesseltine and Labombarde
    deliberately included falsehoods in the warrant affidavit -- they
    are entitled to qualified immunity unless Jordan can show that any
    reasonable     officer   would      have    understood    that,     absent    the
    falsehoods, probable cause would not have existed.                        We must
    disagree.     See Aponte 
    Matos, 135 F.3d at 187
    (1st Cir. 1998)
    (holding that "[a]n officer who obtains a warrant through material
    false statements which result in an unconstitutional search may be
    held personally liable for his actions under § 1983.")
    - 33 -
    The aim of the doctrine of qualified immunity "is to
    avoid the chilling effect of second-guessing where the officers,
    acting in the heat of events, made a defensible (albeit imperfect)
    judgment."      Statchen v. Palmer, 
    623 F.3d 15
    , 18 (1st Cir. 2010).
    There is no good reason to provide such protection to an officer
    who deliberately paints a misleading picture of the facts in order
    to procure a warrant.        Whether or not it would have been clear to
    a reasonable officer that the false picture was necessary to
    establish probable cause, it certainly would be clear to any law
    enforcement officer that trying to mislead the judicial officer in
    seeking a warrant is highly improper.          See Aponte 
    Matos, 135 F.3d at 185
    (noting that, because there was "no doubt that officers
    reasonably understand that they may not lie in order to establish
    probable cause in a warrant application," defendants would not be
    protected by qualified immunity if plaintiffs satisfied the Franks
    test).
    Leon itself makes clear that among the "circumstances
    [in which an] officer will have no reasonable grounds for believing
    that the warrant was properly issued" is when "the magistrate or
    judge    in   issuing   a   warrant   was   misled   by   information   in   an
    affidavit that the affiant knew was false or would have known was
    false except for his reckless disregard of the truth."             
    Leon, 468 U.S. at 922
    –23 (citing 
    Franks, 438 U.S. at 171
    ); see also 
    Vigeant, 176 F.3d at 572
    (observing that the Leon good-faith exception would
    - 34 -
    be difficult to invoke "where the shortcomings in probable cause
    were attributable to 'the inspectors' omissions in the warrant-
    application process.'"          (quoting United States v. Ricciardelli,
    
    998 F.2d 8
    , 16 (1st Cir. 1993))).
    As the Seventh Circuit explained when confronting this
    question, "[q]ualified immunity depends on whether it would have
    been 'clear to a reasonable officer that his conduct was unlawful
    in the situation he confronted.'"           Rainsberger v. Benner, 
    913 F.3d 640
    , 652 (7th Cir. 2019) (emphasis omitted) (quoting 
    Wesby, 138 S. Ct. at 590
    ).        An officer "d[oes] not face a choice about whether
    the   facts    in   the   hypothetical      affidavit    established      probable
    cause," but rather "a choice about whether to make false or
    misleading statements in the affidavit."                
    Id. And, needless
    to
    say, "a competent officer would not even entertain the question
    whether   it    was    lawful   for   him    to   lie   in    a    probable   cause
    affidavit."      
    Id. The Seventh
    Circuit does distinguish between omissions
    and affirmative misstatements in warrant affidavits, holding that
    qualified      immunity    protects    an   officer     who   omitted     material
    information from a warrant affidavit unless "it would have been
    clear to a reasonable officer that the omitted fact was material
    to the probable-cause determination."             
    Id. at 654
    (quoting Leaver
    v. Shortess, 
    844 F.3d 665
    , 669 (7th Cir. 2016)).                      The Seventh
    Circuit based its distinction between omissions and affirmative
    - 35 -
    misstatements on the need to protect "an officer acting in good
    faith [who] make[s] a reasonable mistake about his disclosure
    obligation."     
    Id. But the
    question of qualified immunity arises
    only if we first presume a constitutional violation.         And under
    Franks, such a violation in the case of an omitted fact requires,
    among other things, a finding that the omission was "'designed to
    mislead, or . . . made in reckless disregard of whether [it] would
    mislead, the magistrate' in his appraisal of the affidavit."
    
    Tanguay, 787 F.3d at 49
    (alterations in original) (quoting 
    Colkley, 899 F.2d at 301
    ).      So we are not so sure that there is any reason
    to treat omissions differently than misrepresentations in the
    qualified immunity analysis.         In any event, on this record we
    consider the cumulative impact of what jurors might find to be a
    deliberate attempt to convey a knowingly false picture by combining
    a falsehood and two omissions in an effort to secure a warrant.
    So we are confident that the requirements for establishing a
    constitutional     violation    in   this   case   provide   sufficient
    protection for the officers so as to render any further qualified
    immunity analysis unnecessary.
    We therefore decline to affirm the judgment on qualified
    immunity grounds.7
    7 Nothing in this opinion should be read as saying that either
    Hesseltine or Labombarde actually did anything improper. Rather,
    we hold only that if the facts are viewed favorably to Jordan,
    rational jurors could reasonably so conclude.
    - 36 -
    G.
    Finally, we confront Jordan's argument that the district
    court erred in its conclusion that punitive damages are not
    available in this case.            The sole basis of the district court's
    decision regarding punitive damages was "plaintiff's failure to
    generate triable issues as to his substantive federal and state-
    law claims."          Jordan, 
    2018 WL 4688724
    , at *26.              Since we have
    concluded      that    summary     judgment      was   not   appropriate    on   the
    constitutional false arrest and search and seizure claims, we
    vacate   the    district        court's   decision     forbidding       Jordan   from
    seeking punitive damages.           In so doing, we take no position on the
    availability of punitive damages.
    III.
    For the foregoing reasons, we affirm in part and reverse
    in part the entry of summary judgment against Chief of Police
    Labombarde and Officer Hesseltine.               We affirm the entry of summary
    judgment    against       the    other    defendants,        and   we   remand    for
    proceedings consistent with this opinion.                The parties shall bear
    their own costs.
    –Concurring Opinion Follows–
    - 37 -
    BARRON, Circuit Judge, concurring.                  Scott Jordan, Jr.
    brings a pair of claims under 42 U.S.C. § 1983 for damages that
    target the pretrial criminal detention that he allegedly endured
    in violation of the Fourth Amendment of the federal Constitution.
    He styles his first such § 1983 claim, which targets the pretrial
    detention that followed his initial warrantless arrest, as one for
    "false arrest."       He styles his second such § 1983 claim, which
    targets    the    pretrial   detention       that,   it   appears,     followed   a
    criminal     complaint       and     summons,     as      one    for   "malicious
    prosecution."       Without assessing the relative strength of the
    underlying alleged Fourth Amendment violations, we hold that this
    "false arrest" § 1983 claim may proceed but that this "malicious
    prosecution" § 1983 claim may not.            The question that prompts this
    concurrence thus arises:           how can our different treatment of these
    two § 1983 claims be justified?
    Our    answer    relies     on     Jordan's     concession    that    a
    "favorable termination" requirement applies to this "malicious
    prosecution" § 1983 claim but not to this "false arrest" § 1983
    claim.     Maj. Op. at 26.         Because the criminal proceedings ended
    upon the alleged victim's death before the criminal trial and not
    after, say, an acquittal, Jordan cannot satisfy that requirement.
    
    Id. I thus
    join our opinion in full.
    I write separately, however, to register my doubt that
    the "favorable termination" requirement applies to a § 1983 claim
    - 38 -
    that targets a pretrial criminal seizure simply because it is made
    pursuant to an arrest warrant, as some of the precedent that Jordan
    cites in support of his concession appears to indicate.8           Even an
    arrest pursuant to a warrant violates the Fourth Amendment if law
    enforcement secures it by tricking the magistrate into finding
    probable cause.    See Franks v. Delaware, 
    438 U.S. 154
    , 168-172
    (1978).    I am thus not convinced that a plaintiff must show that
    any follow-on criminal proceedings ended in his favor when he seeks
    damages under § 1983 for a seizure pursuant to an arrest warrant.
    Or, at least, I am not convinced that a plaintiff should have to
    make that showing even when the challenged seizure occurs so early
    in the criminal case that it precedes a grand jury handing up an
    indictment or a prosecutor filing a criminal information.9            For,
    as   our   treatment   of   Jordan's   "false   arrest"   § 1983    claim
    demonstrates, a plaintiff need not make that showing when he seeks
    damages for the harm caused by a similarly early-stage warrantless
    8 See Hernandez-Cuevas v. Taylor, 
    723 F.3d 91
    , 101 (1st Cir.
    2013) (stating that a Fourth Amendment-based § 1983 "malicious
    prosecution" claim challenging a pre-indictment, warrant-based
    seizure is subject to a favorable termination requirement,
    seemingly no matter how early on in the case the warrant-based
    arrest occurs); cf. McDonough v. Smith, 
    139 S. Ct. 2149
    , 2156
    (2019) (applying that requirement to a § 1983 malicious
    prosecution claim seeking damages, in part, for restraints on
    liberty resulting from pretrial detention).
    9 In referencing these types of charging events, here and
    throughout this concurrence, I do not mean to exclude any
    comparable ones that may be permitted in a particular state under
    that state's law.
    - 39 -
    seizure.    See Manuel v. City of Joliet, 
    137 S. Ct. 911
    , 925-26
    (2017)    (Alito,   J.,   dissenting)   ("The   Fourth   Amendment   . . .
    prohibits all unreasonable seizures -- regardless of whether a
    prosecution is ever brought or how a prosecution ends."); see also
    Pagán-González v. Moreno, 
    919 F.3d 582
    , 609 (1st Cir. 2019)
    (Barron, J., concurring) (describing the "favorable termination"
    requirement as applied to such a claim as an "anachronism").10
    10I focus in this concurrence on whether, just because a
    seizure is made pursuant to an arrest warrant, the "favorable
    termination" requirement applies to a Fourth Amendment-based
    § 1983 claim for damages from that seizure. Jordan's "malicious
    prosecution" § 1983 claim does not, however, involve a seizure
    made pursuant to an arrest warrant. Rather, according to the
    stipulated facts, following his warrantless arrest on November 21,
    2014, law enforcement personnel served Jordan with a Uniform
    Summons and Complaint that same day for a violation of Me. Stat.
    tit. 17-A, § 353.1A.2 by unauthorized taking/transfer.          Law
    enforcement then transported Jordan to Two Bridges Jail, from which
    Jordan was released that same day on bail with conditions of
    release pursuant to a bail bond. It thus appears that this Fourth
    Amendment-based § 1983 claim -- unlike his Fourth Amendment-based
    "false arrest" § 1983 claim -- seeks damages for a period of
    detention that followed some legal process, in which that legal
    process took the form of the issuance of a mere criminal complaint
    and summons, which, under Maine law, may occur even without the
    involvement of a prosecutor and simply upon the action of a law
    enforcement officer. See Me. Stat. tit. 17-A, § 15-A. I do not
    address whether detention that follows that kind of relatively
    informal legal process -- unlike detention that follows legal
    process that takes the form of an indictment, a criminal
    information filed by a prosecutor, or some comparable charging
    event -- justifies subjecting a Fourth Amendment-based § 1983
    claim to a "favorable termination" requirement to ensure that its
    pursuit will not interfere with any state criminal prosecution
    that may ensue. See infra. I also do not address whether the
    seizure that grounds this claim ended upon Jordan’s release on
    bail or instead only upon the termination of certain bail
    conditions that restricted his liberty.
    - 40 -
    I.
    Jordan's    "false      arrest"     § 1983    claim    borrows        its
    elements from the common-law tort of false arrest, which permits
    recovery for an unlawful seizure without legal process and which
    does not impose the "favorable termination" requirement.                          See
    Wallace v. Kato, 
    549 U.S. 384
    , 389 (2007) (describing the elements
    for such a § 1983 claim as:             (1) causing "unlawful detention,"
    i.e., detention without probable cause, and (2) "without legal
    process").    The accrual rule for this type of § 1983 claim is also
    borrowed from the claim for the common-law tort of false arrest,
    which accrues when the "alleged false imprisonment end[s]."                       
    Id. (internal quotation
    marks omitted).              Because both the § 1983 and
    common-law types of "false arrest" claims target seizures that
    precede any criminal process, moreover, it makes sense that no
    "favorable     termination"       requirement      applies.         Neither        the
    seizure's lawfulness nor the harm that it inflicts turns on how
    any follow-on criminal proceedings end.
    There      is,    however,         another     type        of    Fourth
    Amendment-based § 1983 claim that also takes aim at a seizure that
    occurs early in a criminal case and thus before even, say, a grand
    jury has handed up an indictment or a prosecutor has filed a
    criminal information.         See, e.g., Hernandez-Cuevas v. Taylor, 
    723 F.3d 91
    ,   93-94   (1st     Cir.   2013).       But,    this   type    of   Fourth
    Amendment-based      § 1983    claim    targets    a     seizure   that      is   made
    - 41 -
    pursuant to at least some legal process, as it targets a seizure
    that is made pursuant to an arrest warrant.                Thus, in accord with
    how plaintiffs often style such § 1983 claims, the common-law tort
    of   malicious    prosecution,       which   is     subject   to    a   "favorable
    termination" requirement, is often thought to supply the proper
    common-law analog for this type of § 1983 claim, as our precedent
    has also indicated.       See 
    id. at 97-98.11
            But, although this type
    of   § 1983    claim,   like   the   claim    for    the   common-law     tort   of
    malicious prosecution, seeks recovery for a seizure pursuant to
    legal process, the two types of claims differ in important ways.
    A claim for the common-law tort of malicious prosecution
    focuses on whether "criminal proceeding[s]" have been initiated or
    continued with malice and without probable cause.                  Manuel, 137 S.
    Ct. at 925 (Alito, J., dissenting).               For that reason, "[a]lmost
    any kind of criminal proceeding" can ground such a claim, 3 Dan B.
    Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 587
    (2d ed. 2011), including not only a magistrate's issuance of an
    arrest warrant but also a grand jury indictment, a summons for the
    criminal defendant to appear at a hearing in his criminal case, a
    magistrate's determination in a criminal case at a probable-cause
    11
    Insofar as the common-law abuse-of-process tort is a good
    analog, it appears not to have a "favorable termination"
    requirement. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton
    & David G. Owen, Prosser and Keeton on The Law of Torts § 121 (5th
    ed. 1984).
    - 42 -
    hearing     that       the   criminal     defendant   should   be    held,   or    the
    prosecutor's        filing     of   a     criminal    information,     Restatement
    (Second) of Torts § 654 & cmt. (c)-(e) (Am. Law Inst. 1977); W.
    Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen,
    Prosser and Keeton on The Law of Torts § 119 (5th ed. 1984).
    After all, the initiation of the criminal process -- and
    the stigma inherent in its initiation -- is the source of the
    injury for the common-law tort of malicious prosecution.                       Thus,
    such a claim for that tort "always involves defamation" while
    "detention or confinement is no part of the issue," 3 Dobbs, Hayden
    & Bublick, supra, § 586, and "any damages recoverable" must be
    based     "on    the    wrongful    use    of   judicial   process    rather      than
    detention itself," Keeton, Dobbs, Keeton & Owen, supra, § 119.
    The source of the injury for a Fourth Amendment-based
    § 1983 claim that seeks recompense for a seizure pursuant to legal
    process, however, is the detention itself, not the legal process
    used to effect it.12          Thus, per Congress's instruction in 42 U.S.C.
    § 1988, we likely must look beyond the common-law tort of malicious
    prosecution to determine this type of § 1983 claim's requirements.
    12I do not address the question of "whether injury from the
    issuance of a warrant without arrest" "may itself deprive a person
    of his liberty in violation of the Fourth Amendment."       Ord v.
    District of Columbia, 
    587 F.3d 1136
    , 1146 (D.C. Cir. 2009).
    - 43 -
    See Carey v. Piphus, 
    435 U.S. 247
    , 258 n.13 (1978) (discussing 42
    U.S.C. § 1988).
    Manuel       also   supports     our   doing    so.      The   plaintiff
    contended there that his pretrial detention violated the Fourth
    Amendment      because    the   magistrate's       finding    of    probable     cause
    relied    on     evidence       that   law     enforcement         authorities     had
    fabricated.       
    See 137 S. Ct. at 915-16
    .                Manuel permitted that
    Fourth Amendment-based § 1983 claim, even though the plaintiff had
    styled it as one for "malicious prosecution," to proceed, without
    referring to the § 1983 claim at issue as one for "malicious
    prosecution." 
    Id. at 918,
    921 (explaining that "pretrial detention
    can violate the Fourth Amendment not only when it precedes, but
    also when it follows, the start of legal process in a criminal
    case").     In fact, although Manuel explained that judges should
    "look first to the common law of torts" to identify the Fourth
    Amendment-based § 1983 claim's requirements, 
    id. at 920,
    the Court
    also warned that judges should keep in mind that "[c]ommon-law
    principles are meant to guide rather than to control the definition
    of § 1983 claims, serving more as a source of inspired examples
    than of prefabricated components," 
    id. at 921
    (internal quotation
    marks omitted).           Thus, the Court cautioned in Manuel, "[i]n
    applying, selecting among, or adjusting common-law approaches,
    courts must closely attend to the values and purposes of the
    constitutional right at issue."              
    Id. - 44
    -
    Manuel    ultimately           left     open   whether     a     "favorable
    termination" requirement applied to the claim there at issue, 
    id. at 922,
    and, prior to Manuel, we did state that the "favorable
    termination" requirement applied to such a claim, see Hernandez-
    
    Cuevas, 723 F.3d at 99
    n.8. But, Hernandez-Cuevas declined to
    borrow    the    requirements           of    the    common-law   tort     of    malicious
    prosecution wholesale in defining the requirements for that Fourth
    Amendment-based § 1983 claim, even though it involved a seizure
    made pursuant to an arrest warrant.                   
    Id. at 99-105
    (discussing the
    omission of the common-law malice element from a Fourth Amendment-
    based challenge, per Franks, to a pre-indictment, warrant-based
    arrest and impliedly adjusting the probable-cause element).                           And,
    after Manuel, we suggested that the "favorable termination" might
    not    apply     to     such   a    Fourth          Amendment-based       § 1983     claim,
    notwithstanding         that   it       seeks    recompense     for   a    seizure    made
    pursuant to legal process.                   See 
    Pagán-González, 919 F.3d at 602
    ;
    
    id. at 605-11
    (Barron, J., concurring) (discussing the possible
    need     for    adjustment         of     the       probable-cause      and     favorable-
    termination elements).
    But, while all these signs point away from applying the
    "favorable       termination"           requirement      to   this    type      of   Fourth
    Amendment-based § 1983 claim for damages from a seizure pursuant
    to an arrest warrant, there is one important sign that arguably
    does not.       In McDonough, the Supreme Court recently held that the
    - 45 -
    "favorable termination" requirement did apply to the "malicious
    prosecution" § 1983 claim at issue there, even though the plaintiff
    sought damages, in part, for restraints on his liberty that he
    attributed to his pretrial 
    seizure. 139 S. Ct. at 2156
    .        Thus, I
    must address whether McDonough calls for a different analysis than
    the one that, in Pagán-González, I suggested would be proper.
    I do not think that McDonough does.          The Court described
    the § 1983 claim in that case as one that targeted "the integrity
    of criminal prosecutions undertaken 'pursuant to legal process'"
    rather than only the plaintiff's initial seizure pursuant to an
    arrest warrant.      
    Id. (emphasis added)
    (citing Heck v. Humphrey,
    
    512 U.S. 477
    , 484 (1994)).        Nor did McDonough indicate that --
    like the claims in Manuel and Pagán-González, and like the claim
    that Jordan brings -- the § 1983 claim there was based on the
    Fourth   Amendment    as   opposed   to,   for    example,      the   federal
    constitutional right to procedural due process.           Moreover, while
    McDonough did identify practical reasons for applying a "favorable
    termination" requirement to the § 1983 claim before it, I am not
    convinced that these practical reasons apply equally to all purely
    Fourth Amendment-based § 1983 claims that seek damages for the
    harm caused by a warrant-based seizure.
    McDonough     invoked   the   need     to   prevent    a    "ticking
    limitations clock on criminal defendants as soon as they become
    aware that fabricated evidence has been used against them," given
    - 46 -
    "practical problems in jurisdictions where prosecutions regularly
    last nearly as long as -- or even longer than -- the relevant civil
    limitations period" and thus where "criminal defendants could face
    an untenable choice between (1) letting their claims expire and
    (2) filing a civil suit against the very person who is in the midst
    of prosecuting them."       
    Id. at 2158.
          But, that concern would not
    necessitate     the      imposition     of     a   "favorable    termination"
    requirement if such a Fourth Amendment-based § 1983 claim would
    not accrue until the assertedly unlawful detention terminates.
    Such termination could occur upon either the plaintiff's release
    from detention (including bail conditions) or the emergence of a
    separate legal basis for the detention -- whether that separate
    legal basis takes the form of a subsequent lawful arrest warrant,
    the handing up of an indictment by a grand jury, or a prosecutor's
    filing of a criminal information -- and thus would have nothing to
    do with the way that any follow-on criminal proceedings end.
    McDonough     also       explained     that   the     "favorable
    termination" requirement "avoid[s] parallel criminal and civil
    litigation over the same subject matter and the related possibility
    of conflicting civil and criminal judgments."              
    Id. at 2156–57.
    But,   the    Fourth   Amendment's      warrant    requirement   stems   from
    concerns about trusting law enforcement to assess probable cause
    for itself.      See Mincey v. Arizona, 
    437 U.S. 385
    , 394 (1978).
    Thus, a Fourth Amendment-based § 1983 claim for damages from a
    - 47 -
    warrant-based arrest -- at least when that seizure precedes a grand
    jury's    indictment   or   a   prosecutor's   filing   of   a   criminal
    information -- poses no greater inherent risk of interfering with
    follow-on state criminal proceedings than does a § 1983 claim that
    targets an equally early-stage warrantless arrest. Yet, "in accord
    with [the] common practice," a federal court that faces a § 1983
    claim of that latter, warrantless-seizure-based sort may simply
    "stay the civil action until the criminal case or the likelihood
    of a criminal case is ended."      
    Wallace, 549 U.S. at 393
    –94.
    McDonough did also emphasize that "clear accrual rules
    are 
    valuable." 139 S. Ct. at 2160
    .      A termination requirement
    such as I have described, however, would not appear to be unduly
    hard to administer.     That is especially so, given how uncertain
    even the "favorable termination" requirement itself can be.13
    II.
    The time that a criminal defendant may spend in pretrial
    detention after a warrant-based arrest but before a prosecutor
    files a criminal information or a grand jury hands up an indictment
    may be brief.     But then, so too is the time that a criminal
    13I note that, as long as the Franks violation is clear, it
    is not evident to me that, to overcome a qualified immunity
    defense, a plaintiff who brings a Fourth Amendment-based § 1983
    claim of this sort needs also to demonstrate that it is clearly
    established that the claim is not subject to the "favorable
    termination" requirement.   See 
    Pagán-González, 919 F.3d at 616
    (Barron, J., concurring).
    - 48 -
    defendant    may   spend    in   such   early-stage    detention   after   a
    warrantless arrest.       The brevity of that detention has never been
    thought to justify conditioning a plaintiff's right to recover
    damages under § 1983 for that detention on his capacity to show
    that any criminal proceedings that may thereafter ensue ended in
    his favor.    That is why we permit Jordan's "false arrest" § 1983
    claim to proceed.        But, for that very reason, I am not convinced
    that a plaintiff should have to make that "favorable termination"
    showing to obtain such recompense under § 1983 when he seeks
    damages     for    the    harm   caused   by   an     equally   early-stage
    unconstitutional seizure just because it is made pursuant to an
    arrest warrant.      For, brief though the detention caused by that
    seizure may have been, there are few protections more basic than
    the right to be free from unjustified imprisonment, and thus there
    are few that are more in need of the kind of fulsome remedy that
    Congress supplied in § 1983 -- even if the common law itself does
    not supply one, too.
    - 49 -