Wilson v. Stroman

Case: 20-50367 Document: 00516299194 Page: 1 Date Filed: 04/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 28, 2022
No. 20-50367
Lyle W. Cayce
consolidated with Clerk
Nos. 20-50372, 20-50380, 20-50408, 20-50453
John Wilson, et al.,
Plaintiffs—Appellants,
versus
Brent Stroman, Chief of Police for the Waco Police Department, in his
individual capacity; Manuel Chavez, Waco Police Department Detective,
in his individual capacity; Abelino “Abel” Reyna, Elected District
Attorney for McLennan County, Texas, in his individual capacity; City of
Waco, Texas; McLennan County, Texas; Robert
Lanning, in his individual capacity; Jeffrey Rogers, in his individual
capacity; Sergeant Patrick Swanton, in his individual capacity;
Steven Schwartz, in his individual capacity; Christopher
Frost, in his individual capacity,
Defendants—Appellees,
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 1:17-CV-453; 1:17-CV-471; 1:15-CV-1040; 1:15-CV-1041;
1:15-CV-1044; 1:17-CV-479; 1:18-CV-1044; 1:18-CV-1045; 1:18-CV-1046;
1:18-CV-1047; 1:17-CV-448; 1:17-CV474; 1:15-CV-1042; 1:15-CV-1043;
1:15-CV-1045; 1:16-CV-575; 1:17-CV-457; 1:17-CV-480; 1:19-CV-475 and
1:17-CV-465
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c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
Before Richman, Chief Judge, and Clement and Higginson, Circuit
Judges.
Stephen A. Higginson, Circuit Judge:
In this consolidated appeal, Plaintiffs-Appellants challenge the district
court’s application of the independent intermediary doctrine to dismiss their
Fourth Amendment false arrest claims. We REVERSE and REMAND for
further proceedings.
I.
This case concerns the fallout from the deadly shootout that occurred
on May 17, 2015, at the Twin Peaks restaurant in Waco, Texas. This court
recently resolved a related set of appeals concerning the Twin Peaks shootout
in Terwilliger v. Reyna, 4 F.4th 270 (5th Cir. 2021). The individual plaintiffs
here are similar to the plaintiffs in Terwilliger in several respects. All are
motorcyclists who had gathered at the Twin Peaks for a meeting of the Texas
Confederation of Clubs & Independents. See id. at 277. All were eventually
arrested following the shootout for Engaging in Organized Criminal Activity
(“EIOCA”), in violation of Texas Penal Code § 71.02. See Terwilliger, 4
F.4th at 277. And all were arrested pursuant to the same “form warrant
affidavit” that was presented to the magistrate judge as the basis for the arrest
warrants. See id. at 278-79. But for the subject’s name, which was to be
inserted on a blank line, the affidavit was identical in every respect. Id. In
total, 177 individuals were arrested using this identical “fill-in-the-name”
affidavit. Id. at 279. Following their arrests, both the Terwilliger plaintiffs and
the plaintiffs here filed multiple individual § 1983 actions asserting similar
false arrest claims, which are premised on alleged defects in the form affidavit
used to secure the arrest warrants. See id.
Unlike the Terwilliger plaintiffs, however, the individual plaintiffs
here—in addition to being arrested pursuant to the magistrate’s warrant—
were all subsequently indicted by a grand jury for EIOCA. This difference
proved crucial to the district court’s resolution of the § 1983 actions brought
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by each set of plaintiffs. With respect to the Terwilliger plaintiffs, the district
court held that their Franks false arrest claims survived the motion to dismiss
stage, at least with respect to some defendants. Id. at 283-84 (citing Franks v.
Delaware, 438 U.S. 154 (1978)). For the plaintiffs here, by contrast, the
district court granted in full the defendants’ motion to dismiss the false arrest
claims. The district court held that, pursuant to the independent
intermediary doctrine, the grand jury’s indictment served to break the chain
of causation for any false arrest claim pertaining to the form affidavit and the
arrest warrant issued by the magistrate judge. See McLin v. Ard, 866 F.3d 682,
689 (5th Cir. 2017) (citation omitted).
Because the district court concluded that the independent
intermediary doctrine applied, it did not discuss the merits of the plaintiffs’
false arrest claims. But the nature of the plaintiffs’ false arrest claims is
relevant to our inquiry here because they argue, in essence, that the
independent intermediary doctrine should not apply to the grand jury’s
indictment because the grand jury was misled in the very same way as the
magistrate who issued the arrest warrants. We will thus begin by discussing,
at a high level, the nature of the plaintiffs’ false arrest claims.
II.
The false arrest claims asserted by the plaintiffs here largely mirror
the claims asserted by the Terwilliger plaintiffs. Broadly, both sets of plaintiffs
take aim at the form warrant affidavit and allege that defects in that affidavit
led to them being arrested without particularized probable cause. Terwilliger,
4 F.4th at 279. More specifically, both sets of plaintiffs asserted two
alternative false arrest claims, one premised on Malley v. Briggs, 475 U.S. 335(1986) and the other premised on Franks v. Delaware, 438 U.S. 154 (1978).
See Terwilliger, 4 F.4th at 279.
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In Malley, the Supreme Court described that an officer can be held
liable for a false arrest despite the issuance of an arrest warrant by a
magistrate if the affidavit the officer presented to the magistrate was “so
lacking in indicia of probable cause as to render official belief in its existence
unreasonable.” 475 U.S. at 344-45 (citation omitted). “The Malley wrong is
not the presentment of false evidence, but the obvious failure of accurately
presented evidence to support the probable cause required for the issuance
of a warrant.” Melton v. Phillips, 875 F.3d 256, 264 (5th Cir. 2017) (en banc).
In other words, an officer can avoid liability under Malley if he presents
a warrant affidavit that facially supplies probable cause to arrest the subject
of the warrant. See Blake v. Lambert, 921 F.3d 215, 221-22 (5th Cir. 2019). But
even if a warrant affidavit supplies probable cause on its face, an officer can
still be liable under Franks if the apparent probable cause is the result of
“material misstatements or material omissions.” Terwilliger, 4 F.4th at 281
(citations omitted). Specifically, an officer is liable under Franks if he
“deliberately or recklessly provides false, material information for use in an
affidavit in support of [a warrant]” or “makes knowing and intentional
omissions that result in a warrant being issued without probable cause”
Melton, 875 F.3d at 264 (alteration in original) (emphasis removed) (first
quoting Hart v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997); and then quoting
Michalik v. Hermann, 422 F.3d 252, 258 n.5 (5th Cir. 2005)).
In Terwilliger, this court held that the challenged form warrant
affidavit, on its face, “sufficiently alleged probable cause to arrest those to
whom its facts applied” for the offense of EIOCA. 4 F.4th at 282. More
precisely, the court described that the affidavit supplied probable cause to
conclude that “members or associates of the Bandidos or Cossacks instigated
and were involved in the Twin Peaks shootout, and that their conduct rose to
the level of violating the [offense of] EIOCA.” Id. Correspondingly, the
affidavit—in essence—represented that each individual subject that was
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arrested (the plaintiffs here among them) was a member or associate of the
Bandidos or Cossacks who was involved in the shootout and the unlawful
activity more generally described in the affidavit. See id. at 278-79, 282-83.
Furthermore, this court described that the Terwilliger plaintiffs had
sufficiently alleged that this latter, particularized representation was based on
materially false statements and omissions that were deliberately or recklessly
made by the defendants. See id. at 282-83. For example, the plaintiffs
“den[ied] affiliation with the Bandidos or Cossacks,” denied “any
involvement with or membership in a ‘criminal street gang’” and, in some
instances, denied wearing any signs or symbols that would identify them as
associated with the Bandidos or Cossacks, or any other alleged criminal street
gang. Id. at 282. They further denied engaging in any of the unlawful conduct
generally described in the affidavit. See id. In addition, the plaintiffs alleged
that the defendants had “deliberately excluded relevant information that
would have weighed against individualized probable cause, such as video
evidence, witness interviews, and membership in motorcycle clubs known to
be independent and not affiliated with the Bandidos or Cossacks.” Id. at 283.
Once the affidavit was “corrected” to account for these alleged false
statements and omissions, this court concluded that “the remaining
particularized facts in the affidavit” were insufficient to establish probable
cause to arrest any of the subjects for EIOCA. Id. As a result, the court held
that the Terwilliger plaintiffs had sufficiently alleged a Franks claim at the
pleading stage (but only against some of the named defendants). Id. at 283-
84.
In sum, Terwilliger sets the lay of the land for analyzing the false arrest
claims in this case. It does so in two ways. First, it construes the challenged
form warrant affidavit as (1) generally alleging that members of the Bandidos
and Cossacks engaged in violent activity at the Twin Peaks that amounted to
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EIOCA, and (2) linking each specific subject of the warrant to that general
set of probable cause-establishing facts, thus creating particularized probable
cause to arrest each subject. See id. at 282-83. Second, Terwilliger describes
that the plaintiffs in that case successfully pleaded Franks claims by plausibly
alleging in their complaints that (1) they were not associated with the
Bandidos or Cossacks and that they had nothing to do with the violent activity
that is described in the affidavit and (2) certain defendants recklessly or
knowingly caused it to be stated otherwise in the affidavit (i.e., a material
misstatement) and/or excluded from the affidavit information in their
possession that would have materially undermined the aforementioned
particularized probable cause (i.e., a material omission). See id.
III.
As discussed above, the district court pretermitted any discussion of
whether the plaintiffs here had adequately alleged a Franks claim with respect
to the form affidavit and their ensuing arrests pursuant to the magistrate-
issued warrant. It did so because it concluded that any such claim must
necessarily fail as a result of the plaintiffs’ subsequent indictment by the
grand jury and the application of the independent intermediary doctrine.
We review de novo the district court’s grant of the defendants’
motion to dismiss and its application of the independent intermediary
doctrine. McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2017). We hold that the
district court erred in its application of the independent intermediary
doctrine and take this opportunity to clarify how the doctrine operates with
respect to Franks (and Malley) claims, especially when two separate
intermediaries are involved.
A.
“It is well settled that if facts supporting an arrest are placed before an
independent intermediary such as a magistrate or grand jury, the
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intermediary’s decision breaks the chain of causation for false arrest,
insulating the initiating party.” McLin, 866 F.3d at 689 (quoting Deville v.
Marcantel, 567 F.3d 156, 170 (5th Cir. 2009)). Thus, a properly secured arrest
warrant or grand jury indictment will shield a defendant who has committed
or initiated a false arrest. Buehler v. City of Austin/Austin Police Dep’t, 824
F.3d 548, 553-54 (5th Cir. 2016). This is true even if the independent
intermediary’s action occurred after the arrest or if the arrestee was never
convicted of a crime. Id. at 554.
But the intermediary must be truly independent. Thus, “the initiating
party may be liable for false arrest if the plaintiff shows that ‘the deliberations
of that intermediary were in some way tainted by the actions of the
defendant.’” Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009)
(emphasis added) (quoting Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir.
1988)). This court has sometimes referred to this principle as the “taint
exception.” See, e.g., McLin, 866 F.3d at 689.
Regardless of label, this court has recognized Franks and Malley as
functional exceptions to the independent intermediary doctrine. See Mayfield
v. Currie, 976 F.3d 482, 487 (5th Cir. 2020) (describing Franks and Malley as
“two ways to overcome the [independent intermediary] doctrine”);
Terwilliger, 4 F.4th at 281 (“Functionally, the holding of Franks is an
exception to the independent intermediary doctrine.”); Anokwuru v. City of
Houston, 990 F.3d 956, 963-64 (5th Cir. 2021) (discussing Franks as an
exception to the independent intermediary doctrine); Arizmendi v. Gabbert,
919 F.3d 891, 897 (5th Cir. 2019) (same); see also Blake v. Lambert, 921 F.3d
215, 220 (5th Cir. 2019) (describing that a warrant affidavit suffering a Malley
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defect “does not provide any supporting facts from which a magistrate could
independently determine probable cause”).
Of course, it could not be otherwise. It would defy Supreme Court
precedent to hold that, for example, a plaintiff had successfully pleaded a
Malley claim by alleging that an officer had presented a facially deficient
warrant affidavit to a magistrate but that the officer was nonetheless insulated
from liability because the magistrate proceeded to issue a warrant based on
that affidavit. See Malley, 475 U.S. at 345-46 (holding that an officer is liable
for submitting a deficient warrant application even if a magistrate approves
it). Thus, if a plaintiff adequately pleads that an officer has obtained an arrest
warrant from a magistrate in violation of Malley or Franks, then nothing more
is required to show that the independent intermediary doctrine does not
apply with respect to that intermediary’s decision. See Mayfield, 976 F.3d at
487.
That being the case, however, does not necessarily prevent a second
intermediary’s decision—such as a grand jury’s subsequent indictment—
from triggering the independent intermediary doctrine to ultimately insulate
the officer from liability. See Winfrey v. Rogers, 901 F.3d 483, 489-90, 496-97
(5th Cir. 2018) (acknowledging that a grand jury’s subsequent indictment,
via the independent intermediary doctrine, could insulate an officer from a
Franks violation committed before a magistrate). And that is the very
situation that the district court held, and the defendants continue to argue, is
presented here.
B.
The district court’s holding—that the grand jury’s indictment
triggered the independent intermediary doctrine and that the plaintiffs failed
to plead facts establishing an exception—turned on both the purported
factual inadequacy of the plaintiffs’ pleadings and legal conclusions about the
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nature of the independent intermediary doctrine and its exceptions. We
address these legal conclusions first. To do so, we will temporarily make two
assumptions related to the plaintiffs’ pleadings. 1 First, we will assume that
the plaintiffs have adequately alleged a Franks claim with respect to the
magistrate’s warrant in a manner identical to the plaintiffs in Terwilliger.
Second, we will assume—as the plaintiffs argue—that they have adequately
alleged that the grand jury was misled in the same way that the magistrate
was misled. That is, that the original Franks violation was repeated before the
grand jury. If so, the question is whether that suffices to render the
independent intermediary doctrine inapplicable to the grand jury’s
indictment.
As a legal matter, the district court held that in order to show that the
grand jury’s deliberations were tainted, the plaintiffs had to adequately allege
that (1) each defendant (2) maliciously omitted evidence or misled the jury.
Because the defendants continue to press those purported requirements
here, we address each in turn.
1.
We begin first with the argument that “each” defendant must have
tainted the grand jury. There is no such requirement. Fundamentally, the
argument confuses the scope of liability for a false arrest with what is
necessary to show that an intervening intermediary’s actions were not truly
independent. Consider the present circumstances. To be sure, the plaintiffs
here must adequately plead (and ultimately prove) that each defendant falls
within the scope of liability for the Franks violation allegedly committed in
securing the arrest warrant from the magistrate. See Terwilliger, 4 F.4th at
1
We return to the factual adequacy of the plaintiffs’ pleadings below. See infra
Section III.C.
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283-84; Melton, 875 F.3d at 263 (holding that “an officer must have assisted
in the preparation of, or otherwise presented or signed a warrant application
in order to be subject to liability under Franks”). That is because the Franks
violation with respect to the magistrate’s warrant is the plaintiffs’ cause of
action. See Hart v. O’Brien, 127 F.3d 424, 442 (5th Cir. 1997) (describing that
a Franks violation “states a valid cause of action under the Fourth
Amendment”), abrogated on other grounds as recognized in Anokwuru, 990 F.3d
at 964; see also Blake, 921 F.3d at 217-18 (discussing the plaintiff’s Malley and
Franks “claims” and making no mention of the independent intermediary
doctrine).
By contrast, despite its conceptual overlap with Franks, the “taint
exception” to the independent intermediary doctrine is not a cause of
action—it is an exception to a doctrine that insulates an official who would
otherwise be liable for a false arrest. See McLin, 866 F.3d at 689. In other
words, no defendant is being held liable for “tainting” the intermediary as
that concept is deployed within the independent intermediary doctrine. As a
practical matter, in cases involving only one intermediary, the allegations that
prove a Franks claim will do double duty as the allegations that also establish
the taint exception. That is why, in addition to being an independent cause of
action, this court also describes Franks as a functional exception to the
independent intermediary doctrine, as discussed above. Terwilliger, 4 F.4th
at 281. But in a Franks case where a second intermediary is involved, a
plaintiff need only show that the deliberations of the intermediary were
tainted such that the second intermediary, like the first, did not have “all the
facts” before it necessary to render an independent determination of
probable cause. Winfrey, 901 F.3d at 497 (quoting Cuadra v. Hous. Indep. Sch.
Dist., 626 F.3d 808, 813 (5th Cir. 2010)).
To conclude otherwise would allow for scenarios that would render
the independent intermediary doctrine meaningless. For example, assume
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that a police officer would be liable for a Franks violation for patently lying in
a warrant affidavit submitted to a magistrate in order to arrest an individual
innocent of a crime. And assume that after the individual is arrested, a
prosecutor secures a separate witness to repeat identical lies in order to
obtain a grand jury’s indictment. In such a scenario, no one could describe
that the grand jury acted independently to determine probable cause or that
its deliberations were not tainted, even though the defendant police officer
was not presented as a witness to lie to the grand jury himself. See Winfrey,
901 F.3d at 497 (holding that the grand jury did not act as an independent
intermediary because the “material information” that was omitted from the
arrest warrant affidavit was not shown to have been submitted to the grand
jury). 2
In sum, while each defendant must fall within the scope of liability for
the Franks violation alleged here (centering on the arrest warrant obtained
2
The cases cited by the defendants and the district court below do not hold
otherwise. In Shaw and McLin, for example, it was true that the defendants who allegedly
committed the false arrest also allegedly tainted the intermediary’s decision, but neither
case holds that the same actors must have tainted the intermediary. See Shaw, 918 F.3d at
417-18; McLin, 866 F.3d at 689-90. Likewise, in Hand v. Gary, this court simply did not
confront the situation where a separate actor taints the intermediary—rather, in that case
the grand jury had not been tainted at all. 838 F.2d 1420, 1428 (5th Cir. 1988).
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from the magistrate), 3 there is no requirement to show that each and every
defendant also tainted the secret grand jury deliberations. 4
2.
“At common law, in cases where probable cause to arrest was lacking,
[an officer’s] immunity turned on the issue of malice, which was a jury
question.” Malley, 475 U.S. at 341. Although that is no longer the case, 5 this
court’s jurisprudence on the independent intermediary doctrine developed
when an officer’s malice was still the central inquiry for immunity. See
Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977) (en banc); Smith v.
Gonzales, 670 F.2d 522, 526 (5th Cir. 1982). Thus, in describing the doctrine,
this court emphasized that an independent intermediary’s decision would
insulate an officer who had acted with malice in making an arrest without
probable cause—i.e., an officer who would otherwise be liable for false arrest.
See Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984) (citing Smith, 670 F.2d
at 526)). But recognizing that an officer’s malice could lead him to undermine
the intermediary’s independence, this court clarified that “the chain of
causation is broken only where all the facts are presented to the grand jury,
or other independent intermediary, where the malicious motive of the law
3
For example, this court in Terwilliger held that the plaintiffs there did not
adequately allege that Chief Stroman or Assistant Chief Lanning, who are also defendants
in this case, fell within the scope of the alleged Franks violation and thus affirmed the
district court’s decision to dismiss them from the case. Terwilliger, 4 F. 4th at 284 (citing
Melton, 875 F.3d at 263). As explained below, we do not decide if that is also true here and
instead leave that determination to the district court, in the first instance, on remand.
4
This is, of course, also true for claims premised on Malley violations, as Malley
violations are similarly a functional exception to the independent intermediary doctrine.
See Mayfield, 976 F.3d at 487.
5
See Malley, 475 U.S. at 341 (“Under the Harlow standard, on the other hand, an
allegation of malice is not sufficient to defeat immunity if the defendant acted in an
objectively reasonable manner.” (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982))).
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enforcement officials does not lead them to withhold any relevant
information from the independent intermediary.” Hand, 838 F.2d 1427-28
(emphasis added). 6 In short, our cases establishing the independent
intermediary doctrine and the taint exception were concerned about the
typical false arrest scenario of the era—an officer who maliciously sought to
arrest someone without probable cause.
Now that the Supreme Court has subsequently made clear that there
are false arrest claims for which an officer can be liable that do not turn on
the officer’s malice—e.g., Malley and Franks claims—it is unclear why an
actor’s “malice” in tainting the intermediary is relevant in such cases. But
regardless of its provenance, this court has continued to quote the “malicious
motive” language in modern cases when describing the independent
intermediary doctrine and the taint exception. See, e.g., McLin, 866 F.3d at
689; Buehler, 824 F.3d at 554; Cuadra, 626 F.3d at 813. And although our
independent intermediary cases rarely turn on the mens rea requirements of
the taint exception, in cases where mens rea has been relevant, this court has
held that “[t]o satisfy the taint exception, omissions of exculpatory
information must be ‘knowing[].’” Buehler, 824 F.3d at 555 (second
alteration in original) (quoting Cuadra, 626 F.3d at 813-14).
6
This court often credits Hand as the foundational case setting forth the
independent intermediary doctrine and the taint exception. See Murray v. Earle, 405 F.3d
278, 292 (5th Cir. 2005) (“The rule of Hand v. Gary has since prevailed in this circuit for
almost two decades.”). Hand does not cite the Supreme Court’s decision in Malley (or any
other modern qualified immunity caselaw) despite being issued over two years after Malley.
This is notable because Malley appeared to cast doubt on the “break the causal chain”
theory later enshrined in Hand. See Malley, 475 U.S. at 345 n.7 (describing that the “break
the causal chain” theory “is inconsistent with [the Supreme Court’s] interpretation of
§ 1983”). However, this court has since described Malley’s critique of the “break the causal
chain” theory as dictum. See Murray, 405 F.3d at 290-92.
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However, no case has applied this “knowing” requirement when the
underlying claim is premised on Malley or Franks. See generally Buehler, 824
F.3d 548 (making no mention of Malley or Franks); Cuadra, 626 F.3d 808(same). As we have explained above, the reason why should be obvious: to do
so would conflict with Supreme Court precedent. Again, the Supreme Court
held in Malley that an officer who is objectively unreasonable in presenting a
warrant application that facially lacks probable cause can be held liable for
false arrest even if a magistrate approves it. 475 U.S. at 345-46. Nowhere does
the Court describe that the officer must also “knowingly” misdirect the
magistrate. Similarly, an officer can be liable under Franks for “deliberately
or recklessly” including a material false statement or omission in a warrant
application submitted to a magistrate. Melton, 875 F.3d at 264 (emphasis
added). To superimpose a stricter threshold of liability would supplant
Supreme Court law.
And although the grand jury here acts as a second intermediary,
following the magistrate, nothing in this court’s precedent suggests that the
mens rea requirement with respect to the taint exception increases when a
second intermediary is involved, or that magistrates and grand juries are
treated differently. See Hand, 838 F.2d at 1427 (describing that an official will
not be liable “if the facts supporting the warrant or indictment are put before
an impartial intermediary such as a magistrate or a grand jury” (emphasis
removed) (quoting Sams, 734 F.3d at 191)). Thus, just as an adequately pled
Malley or Franks claim will also suffice to functionally apply the taint
exception to the magistrate’s decision, ante at 7-8, if a plaintiff adequately
pleads that a second intermediary, such as a grand jury, has been misled in
similar fashion, then the taint exception will apply to that intermediary’s
decision as well.
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C.
Having clarified what the plaintiffs here must allege in order to satisfy
the taint exception with respect to both the magistrate and the grand jury, the
question remains whether their complaints have adequately done so.
This court has squarely addressed a plaintiff’s burden at the pleading
stage with respect to the taint exception. At the pleading stage, “‘mere
allegations of “taint”’ . . . may be adequate to survive a motion to dismiss
where the complaint alleges other facts supporting the inference.” McLin,
866 F.3d at 690 (quoting Cuadra, 626 F.3d at 813). As always, the court must
accept all factual allegations as true, evaluating whether the complaint states
a plausible claim. Id.; Shaw v. Villanueva, 918 F.3d 414, 418 (5th Cir. 2019).
Given that “a general rule of secrecy shrouds the proceedings of grand
juries,” Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004), it is
understandably difficult for a plaintiff to know what was said—or wasn’t
said—to the grand jury absent any form of discovery. While that reality
doesn’t excuse pleading requirements, it does mean that allegations about
what was presented or omitted in the grand jury room will in some sense be
speculative, which is why plaintiffs like the ones here will need to allege
“other facts supporting the inference” of what they allege to have occurred
in the grand jury room. See McLin, 866 F.3d at 690. 7
7
The district court appeared to hold that the plaintiffs could not use a grand jury
witness’s testimony as evidence (or as the basis of an allegation) that the grand jury’s
deliberations had been tainted, citing Rehberg v. Paulk, 566 U.S. 356, 369-70 (2012). That
conclusion is erroneous. Rehberg held only that grand jury witnesses, like witnesses at trial,
enjoy absolute immunity for their testimony to the grand jury. Id. at 369. Here, none of the
plaintiffs asserts any cause of action that seeks to hold a defendant liable for his testimony
to the grand jury. Rather, their claims seek to hold the defendants liable for their actions in
securing an arrest warrant from a magistrate. As already explained, the taint exception is
not a cause of action, ante at 10; relying on a grand jury witness’s testimony to prove that
15
Case: 20-50367 Document: 00516299194 Page: 16 Date Filed: 04/28/2022
No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
Here, the plaintiffs allege that some of the same officials alleged to
have participated in preparing the challenged warrant affidavit testified
before the grand jury. They further allege that these officials made similar
representations and omissions to the grand jury as they made to the
magistrate. To further support such an inference, they allege that these same
officials testified during public “examining trials” related to the Twin Peaks
arrests and allege that this testimony also resembled the representations
made to the magistrate. The plaintiffs also claim that video evidence which
materially undermined probable cause was withheld from the grand jury,
similar to how the defendants allegedly withheld exculpatory video evidence
from the magistrate. See Terwilliger, 4 F.4th at 283. Finally, the plaintiffs
allege that they have attempted to gain lawful access to records of the grand
jury proceedings but were told that no transcript of the proceedings exists,
nor any other recording from which a transcript could be made.
In sum, plaintiffs allege that specific representations and omissions
that were made to the magistrate were also made to the grand jury and they
allege “other facts” that support that inference. The only remaining question
is whether those representations were false and whether the omitted
information was material to probable cause with respect to these plaintiffs. That
question, as explained above, overlaps with whether plaintiffs have
adequately alleged a Franks violation with respect to the warrant application
presented to the magistrate. 8
the grand jury deliberations were tainted is not the same as bringing a claim against a
witness for such testimony.
8
It is not necessarily the case that the representations made to the magistrate that
were false with respect to the Terwilliger plaintiffs are false with respect to the plaintiffs
here. For example, notably absent from many of the plaintiffs’ complaints are any specific
statements denying affiliation with the Bandidos or Cossacks or denying that they were
wearing the “signs and symbols” of either group (and that the defendants recklessly or
16
Case: 20-50367 Document: 00516299194 Page: 17 Date Filed: 04/28/2022
No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
We decline to decide whether the plaintiffs here have adequately
pleaded a Franks violation with respect to any of the named defendants. This
consolidated case comprises five separate appeals that in turn encompass
close to twenty separate district court cause numbers and nearly 100
individual plaintiffs. While it may be the case that the plaintiffs’ theories are
similar, individual pleadings may make the difference. More fundamentally,
the district court did not reach the question below, instead resting its holding
on a legally erroneous application of the independent intermediary doctrine.
With the benefit of this court’s decision in Terwilliger and the present
decision clarifying our law with respect to the independent intermediary
doctrine, the district court is best suited to decide in the first instance
whether each plaintiff here has adequately alleged a Franks violation with
respect to the arrest warrant, and, if so, whether each plaintiff has also
adequately alleged that the taint exception should apply to the grand jury’s
subsequent indictment. See Montano v. Texas, 867 F.3d 540, 546 (5th Cir.
2017) (“[A] court of appeals sits as a court of review, not of first view.”
(citation omitted)).
* * *
We REVERSE and REMAND for further proceedings consistent
with this opinion.
deliberately misrepresented otherwise). See ante at 5. Moreover, it does not get the
plaintiffs very far to generally deny membership in a “criminal street gang.” Indeed, it does
not seem far-fetched that many members of the Bandidos or Cossacks would also deny
being members of a criminal street gang, as that term is understood within the meaning of
the offense of EIOCA. If the plaintiffs wish to establish a Franks violation, or, similarly,
wish to establish the taint exception to the independent intermediary doctrine, they must
point to omitted or misrepresented facts, not legal conclusions. See Terwilliger, 4 F.4th at
281-82.
17