Melton v. Phillips

JAMES L. DENNIS, Circuit Judge:

The plaintiff, Michael David Melton, spent sixteen days in county jail in connection with an assault he did not commit. The only thing that linked him' to this assault was the fact that he has the same first and last name as the person identified by the victim as the actual assailant. After his release, the plaintiff filed a lawsuit under 42 U.S.C. § 1983 against Kelly Phillips, a sheriffs office deputy, alleging that Phillips intentionally or recklessly misidentified him as the assailant in an offense report that he prepared, thereby leading to the plaintiffs arrest without probable cause in violation of the Fourth Amendment. The district court denied Phillips’s qualified immunity-based motion for summary judgment, and Phillips now appeals, principally arguing that he cannot be liable for a Fourth Amendment violation because he neither prepared nor signed the affidavit in support of an arrest warrant. After carefully considering the parties’ arguments, we affirm the district court’s order in part and dismiss the ^appeal in part.

I

In June 2009, Phillips, then a deputy with the Hunt County Sheriffs Office, interviewed the victim of an assault. The victim identified the attacker as his wife’s boyfriend at the time, a man named Michael Melton, apparently without providing the assailant’s middle name.¹ Phillips then prepared an offense report and submitted it to the Sheriffs Office. The report specifically identified the plaintiff, Michael David Melton, as the suspected assailant.² After he submitted his report, Phillips had no further involvement with the case.

In July 2010, the state prosecutor filed a criminal complaint against the plaintiff, charging him with the assault. The complaint expressly stated that it was based upon Phillips’s offense report and provided no other basis for the information contained therein. Shortly thereafter, a Hunt County judge issued a warrant for the plaintiffs arrest, identifying him by his first and last name and by his address, which was included in Phillips’s report. The plaintiff was arrested in May 2012 and held in county jail for sixteen days before he was released on bond. In August 2012, the charge against the plaintiff was dismissed. The plaintiff filed the instant suit in state court against multiple defendants, asserting, inter alia, Fourth Amendment violations, and the suit was subsequently removed to federal court. As to Phillips, the plaintiff alleged that he intentionally or recklessly misidentified him as the assailant in the offense report, thereby leading to his arrest without probable cause.

In support of his allegations, the plaintiff submitted an affidavit from a former Sheriffs Office employee, Brian Alford, who opined that Phillips likely used a computer database, the “Personal Identification History through net dáta” or “PID,” to identify the plaintiff as the suspected assailant. Specifically, Alford concluded that Phillips likely entered the name “Michael Melton” into the database and conducted no further investigation as to whether the PID-generated result matched the person identified by the victim.

Phillips moved for summary judgment, asserting qualified immunity. Relevant to the instant appeal, the district court denied summary judgment on the plaintiffs Fourth Amendment claims. First, the district court cited Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997), in rejecting Phillips’s argument that he cannot be liable for the claimed Fourth Amendment violations because he neither signed nor drafted the affidavit in support of a warrant. Second, the district court found a genuine dispute of fact regarding whether Phillips was reckless in identifying the plaintiff in his offense report.

On appeal, Phillips contends that the district court should have followed another Fifth Circuit case, Michalik v. Hermann, 422 F.3d 252 (5th Cir. 2005), and subsequent cases that applied Michalik. Pursuant to those cases, Phillips claims, an officer who neither signed nor prepared the affidavit is not liable for Fourth Amendment violations. In the alternative, Phillips argues that the district court erred in finding a genuine issue of fact regarding his alleged recklessness. Finally, he argues that the independent intermediary doctrine forecloses the plaintiffs claims.

II

“The denial of a motion for summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine to the extent that it turns on an issue of law.” Lytle v. Bexar Cnty., 560 F.3d 404, 408 (5th Cir. 2009) (citation and internal quotation marks omitted). “Accordingly, we lack jurisdiction to review the genuineness of a fact issue but have jurisdiction insofar as the interlocutory appeal challenges the materiality of the factual issues.” Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016) (citation and internal quotation marks omitted). We review the district court’s conclusions regarding the materiality of the facts de novo, Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999), “considering] only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment,” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc). “Where factual disputes exist ... we accept the plaintiffs’ version of the facts as true.” Id.

Ill

A

Phillips argues that, under our precedent, an officer like him, who neither signed nor prepared the affidavit in support of a warrant, is not liable for Fourth Amendment violations. Because this claim turns on an issue of law, we have jurisdiction to consider it. See Lytle, 560 F.3d at 408.

In Franks v. Delaware, the Supreme Court considered whether criminal defendants ever have a right to challenge the veracity of factual statements made in an affidavit supporting a search warrant. 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Answering affirmatively, the Court held that the exclusionary rule mandates the exclusion of evidence that was seized pursuant to a search warrant if the defendant establishes that the affiant, “knowingly and intentionally, or with reckless disregard for the truth,” included a false statement in the warrant affidavit that was necessary to the finding of probable cause. Id. at 155-56, 98 S.Ct. 2674. While Franks dealt with the suppression of evidence in criminal proceedings, we have read it to establish, in the context of § 1983 claims asserting Fourth Amendment violations, “that an officer is liable for swearing to false information in an affidavit in support of a search warrant, provided that: (1) the affiant knew the information was false or [acted with] reckless disregard for the truth; and (2) the warrant would not establish probable cause without the false information.” Hart v. O’Brien, 127 F.3d 424, 442 (5th Cir. 1997) (citing Franks, 438 U.S. at 171, 98 S.Ct. 2674 (1978)). Taken at face value, Franks would suggest that only officers who sign a warrant affidavit or otherwise request a warrant under oath may be liar ble for Fourth Amendment violations due to their deliberate or reckless misrepresentations. Hart, 127 F.3d at 448 (citing Franks, 438 U.S. at 171, 98 S.Ct. 2674).

However, in Hart v. O’Brien, we held that Franks liability may extend to government officials who are not the affiants. Hart, 127 F.3d at 448-49. Relevant to the instant appeal, Hart sued an assistant county attorney, Starnes, for Fourth Amendment violations under § 1983. Id. at 434. Starnes, along with a state officer, drafted an affidavit in support of a search and arrest warrant relating to Hart. Id. at 432. Hart alleged that Starnes' inserted false statements into the affidavit, either intentionally or with reckless disregard for the truth. Id. Rejecting any contention that Starnes could not be liable for Fourth Amendment violations because he did not sign the affidavit, we explained that Franks “left open the possibility that a search or arrest violates the Fourth Amendment where' the affiant relies in good faith on deliberate or reckless misstatements by another government official.” Id. at 448 (citing Franks, 438 U.S. at 164 n.6, 98 S.Ct. 2674). After considering several sister circuits’ holdings that deliberate or reckless misrepresentations by non-affiant government officials may form the basis for Franks claims, we concluded:

We agree with the reasoning of these circuit courts.... The Fourth Amendment places restrictions and qualifications on the actions of the government generally, not merely on affiants. A governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.

Id. at 449.

While Hart involved a government official who actually participated in drafting the affidavit, see 127 F.3d at 432,- its holding was not so confined. Rather than say that an officer violates the Fourth Amendment when he recklessly drafts or signs an affidavit that includes false information, we held that a “governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in [the] affidavit.” Hart, 127 F.3d at 448; accord United States v. Brown, 298 F.3d 392, 408 & n.9 (5th Cir. 2002) (Dennis, J., concurring) (“[A] defendant is entitled to a Franks hearing upon making a ... showing that á governmental official deliberately or recklessly caused facts that preclude a finding of probable cause to be omitted from a warrant affidavit.”). Indeed, we expressly relied upon the Supreme Court’s statement in Franks that police cannot “ ‘insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.’ ” Hart, 127 F.3d at 448 (quoting Franks, 438 U.S. at 164 n.6, 98 S.Ct. 2674). It would therefore have made very little sense for us to sanction the insulation of officer misstatements merely by having another officer draft an affidavit that includes those misstatements.

Moreover, our holding in Hart relied on several cases in which our sister circuits applied Franks to government officials who neither signed nor drafted thé affidavits. See Hart, 127 F.3d at 448 (citing United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (Franks applies to actions of investigator who neither signed nor drafted the affidavit); United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995) (deliberate or reckless omission by informant-government agent can serve as grounds for Franks suppression); United States v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (same); United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir. 1984) (.Franks applies to “government agent [who] deliberately or recklessly misrepresents information to a second agent, who then innocently includes the misrepresentations in an affidavit”)). Notably, we also cited Hale v. Fish, in which this court applied the Franks test to an officer “who did not sign or draft, the affidavit but whose presence at [the] time of [the] warrant tended to influence [the] judge issuing [the] warrant.” Hart, 127 F.3d at 448 (citing Hale v. Fish, 899 F.2d 390, 401 (5th Cir. 1990)). In this light, it is clear that, under Hart, the fact that a government official did not sign, or draft the affidavit in support of a warrant does not preclude his or her liability for Franks violations.

Phillips points' to other cases in which, he claims, we have held that officers are not liable for Fourth Amendment violations under Franks if they neither sign nor draft the affidavit in support of a warrant. First and foremost, he relies on Michalik v. Hermann, 422 F.3d 252 (5th Cir. 2005). In Michalik, we reversed a district court’s denial of qualified immunity as to two officers who were involved in procuring a warrant but did not sign or prepare the affidavit in support thereof. Id. at 261. The plaintiffs there brought claims under Mal-ley v. Briggs, which concerns warrant applications that on their face, “fail[ ] to establish probable cause.” 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see Michalik, 422 F.3d at 258. Notably,, we expressly stated that those plaintiffs did not have a claim under Franks because they had not alleged any false statement in the warrant application attributable to the defendants. Michalik, 422 F.3d at 258. Accordingly, while noting the Franks/Hart rule that an officer may be liable for making false statements resulting in the issuance of a warrant without probable cause “regardless of whether he signed the application or was present before the judge,” see id. at 258 n.5, we moved on to analyze whether Malley liability also extends to non-affiant officers. See id. at 258-61. In reversing the district court’s denial of qualified immunity, we held that liability under, Malley is limited to “the affiant and person who actually prepared, or was fully responsible for the preparation of, the warrant application,” Michalik, 422 F.3d at 262, explaining that an officer who “actually prepares the warrant application with knowledge that a warrant would be based solely on the document prepared ... is in a position to see the whole picture ... and thus fully to assess probable cause questions.” Id. at 261.

Michalik is plainly inapplicable here; it did not involve Franks claims, and its own distinction between Franks and Malley and its separate analysis for the scope of Malley liability establish that its holding does not encompass Franks claims. See Michalik, 422 F.3d at 258-61 & n.5. Moreover, the reasoning supporting Michalik’s holding as to Malley liability does not apply to Franks claims. A government official who merely provides information that leads police to seek a warrant is not-necessarily in a position to “fully assess probable cause questions” and therefore he or she does not bear liability under Malley. See Michalik, 422 F.3d at 261. In contrast, an officer who deliberately or recklessly provides false or misleading information for -use in an affidavit in support of a warrant is certainly in a position to fully assess his own conduct, which forms the entire basis for the Franks claim.

Conceding that Michalik’s holding .did not encompass Franks claims, Phillips points to Hampton v. Oktibbeha County Sheriff Department, 480 F.3d 358, 365 (5th Cir. 2007) and Jennings v. Patton, 644 F.3d 297, 298-99 (5th Cir. 2011). He contends that these cases have extended Mi-chalik’s, holding to Franks claims. Indeed, those two cases involved Franks-type misrepresentation claims and applied Micha-lik in granting qualified immunity to government officials who neither signed nor drafted warrant applications.³ See Hampton, 480 F.3d at 365; Jennings, 644 F.3d at 298-99.

While .we agree with Phillips’s construction of.Hampton and Jennings, these cases’ additional limitation of the scope of Franks liability conflicts with Hart’s clear holding that officers may be liable for Fourth Amendment violations if they “provide false information for use in [the] affidavit.” Hart, 127 F.3d at 448. Neither Hampton nor Jennings even mentions Franks or Hart let alone attempts to distinguish Hart or construe its holding narrowly. See Hampton, 480 F.3d at 364-65; Jennings, 644 F.3d at 298-99. Where, as here, our prior decisions conflict, we must follow the earlier opinion. See EEOC v. LHC Grp., Inc., 773 F.3d 688, 695 (5th Cir. 2014). Because Hart predates both Hampton and Jennings, Hart’s holding applies: a- government official who intentionally or recklessly provides false, material information for use in an affidavit in support.of a warrant may be liable under Franks. See Hart, 127 F.3d at 448. Accordingly, we affirm the district court’s ruling that, under these circumstances, Phillips may be liable for Fourth Amendment violations under Franks even though he neither signed nor drafted.the affidavit in support of the warrant for the plaintiffs arrest.

B

In denying Phillips’s motion for summary judgment, the district court found that there was a genuine dispute of fact as to whether Phillips was reckless in identifying the plaintiff as the suspected assailant. On appeal, Phillips argues that the plaintiff provided no evidence that he acted with reckless disregard for the truth.

“To prove reckless disregard for the truth, [a plaintiff] must present evidence that [the defendant] ‘in fact entertained serious doubts as to the truth’ of the [relevant] statement.” Hart, 127 F.3d at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). Whether a defendant in fact entertained serious doubts as to the truth is necessarily a fact question. Cf. Smith v. Brenoettsy, 158 F.3d 908, 913 (5th Cir. 1998) (whether a prison official actually drew the ■ inference that there was a substantial- risk of serious harm to the plaintiff is “a factual question that a court of appeals lacks jurisdiction to hear on interlocutory appeal”).

As discussed above, in reviewing an interlocutory appeal from the denial of a motion for summary judgment qualified immunity, we lack jurisdiction to review the genuineness of a fact issue. Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016). Accordingly, we lack jurisdiction to review the district court’s finding of a genuine fact dispute as to Phillips’s recklessness. See id.

C

Finally, Phillips argues that the independent intermediary doctrine precludes his liability in this case. Under the independent intermediary doctrine, “even an officer who acted with malice in procuring the warrant ... will not be liable if the facts supporting the warrant ... are put before an impartial intermediary such as a magistrate or a grand jury, for that intermediary’s ‘independent’ decision ‘breaks the causal chain’ and insulates the initiating party.” Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984) (citing Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982)). However, this doctrine applies only when all of the facts are presented and the intermediary’s decision is truly independent of the wrongfulness of the defendant’s conduct: “Any misdirection of the magistrate or the grand jury'by omission or commission perpetuates the taint of the original official behavior.” Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988).

Phillips claims that the Hunt County judge’s decision to issue a warrant for the plaintiffs arrest breaks the chain of causation between Phillips’s actions and the alleged constitutional violation. He also asserts that a negligent act is not sufficient to taint the deliberations of the intermediary. Phillips’s arguments ignore the plaintiffs contention that Phillips misrepresented the facts, intentionally or recklessly, by falsely identifying the plaintiff as the suspected assailant and thus tainted the county judge’s decision. Indeed, the district court found a genuine fact dispute regarding this factual contention. Assuming the plaintiffs factual assertions are true — and we must so assume, see Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc) — the independent intermediary doctrine does not apply to shield Phillips from liability, see Hand, 838 F.2d at 1428.

IV

For the forgoing reasons, we dismiss Phillips’s appeal to the extent he challenges the district court’s finding of genuine disputes of fact. We affirm in all other respects.

1 . According to the plaintiff, the assailant's full name is Michael Glenn Melton.

2 . Besides his full name, Phillips’s report identified the plaintiff by his address, driver’s license number, age, height, and other characteristics.

3 . In Hampton, a plaintiff sued four officers for Fourth Amendment violations under § 1983, claiming that the officers conspired to submit false information to obtain a warrant for his arrest. 480 F.3d at 362. The Hampton court denied qualified immunity to the single officer who actually prepared the affidavit in support of a warrant and presented it to the judge. Id. at 364. However, citing Michalik, the court granted qualified immunity to the other officers because they neither signed the affidavit nor prepared the warrant application. Hampton, 480 F.3d at 365 (citing Michalik, 422 F.3d at 261).

In Jennings, a county judge contacted the district attorney's office to report what he considered was a bribery attempt by the plaintiff. 644 F.3d at 298-99. Criminal charges were subsequently brought against the plaintiff but were ultimately dismissed. Id. at 299. The plaintiff sued the judge under § 1983, claiming that the judge violated his Fourth Amendment rights by intentionally misrepresenting his conduct, thus amounting to the initiation of criminal charges without probable cause. Id. Similar to Hampton, the Jennings court applied Michalik to conclude that the judge was entitled to qualified immunity because he neither signed the affidavit in support of an arrest warrant nor testified before the grand jury. Jennings, 644 F,3d at 301.