USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-1459
DAVID M. THURSTON,
Plaintiff – Appellee,
v.
KEVIN FRYE, Avery County Sheriff, in his official and individual capacity; LEE BUCHANAN, Captain, in his official and individual capacity,
Defendants – Appellants,
and
AVERY COUNTY SHERIFF’S OFFICE,
Defendant.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:19-cv-00299-MOC-WCM)
Argued: September 19, 2023 Decided: April 29, 2024
Before NIEMEYER, RICHARDSON, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Niemeyer and Judge Rushing joined. USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 2 of 20
ARGUED: Sean Francis Perrin, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina, for Appellants. James Elliott Field, J. ELLIOTT FIELD, JD, PLLC, Charlotte, North Carolina, for Appellee. ON BRIEF: Michael A. Ingersoll, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina, for Appellants.
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RICHARDSON, Circuit Judge:
Kevin Frye and Lee Buchanan appeal the district court’s denial of their motion for
summary judgment. They argue that they are entitled to qualified immunity because their
arrest of David Thurston did not violate his Fourth Amendment rights. And even if it did,
they say, it did not violate clearly established law. We disagree, finding that, when viewing
the facts as the district court has given them to us, Thurston’s arrest was unconstitutional.
We also conclude that the officers have failed to prove that they acted objectively
reasonably in seeking Thurston’s arrest warrant.
I. BACKGROUND
In 1992, Thurston pleaded guilty to two counts of sexually assaulting minors in
Montana. Years later, in 2015, Thurston moved to Avery County, North Carolina, where
Frye served as Sheriff and Buchanan was the Deputy in charge of sex-offender
registrations. Upon Thurston’s arrival, the Sheriff’s Office informed him of North
Carolina’s strict sex-offender-registration requirements. For example, North Carolina
requires an offender to register with the sheriff’s office in his county of residence, N.C.
Gen. Stat. § 14-208.7, and verify his registration every six months after his first year of
registration, § 14-208.9A. To facilitate compliance with these requirements, a verification
form is mailed to each offender on the anniversary, and half-year anniversary, of his first
registration. Among other things, the law requires the offender to indicate on the form
whether he has changed his address since his last verification. § 14-208.9A(a)(3)(a). And
upon receipt of the form, an offender has only three days to execute and return it. § 14-
208.9A(a)(2).
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On August 9, 2016, Thurston informed Sheriff Frye that he had been invited to his
nephew’s wedding, which was scheduled for September 17 in Spokane, Washington. But
Thurston’s biannual verification was due to be sent out around that same time. Mindful of
these obligations, Thurston sought Sheriff Frye’s advice on how to comply with the law
and asked for his permission to attend the wedding. After they exchanged texts, Sheriff
Frye told Thurston on August 11 that he could “[g]o on” because the Sheriff’s Office was
“working on it.” J.A. 721. All Thurston needed to do, Sheriff Frye explained, was email
a copy of Thurston’s Washington visitor-registration form within ten days of his arrival.
Thurston left North Carolina that same day. Yet on his way to Spokane, Sheriff
Frye reached out again, asking Thurston for the address of where he would be staying.
Thurston provided his address and later arrived in Washington on August 21. Once there,
he registered as a visitor and emailed the registration to Sheriff Frye as instructed. In all,
Thurston stayed for over a month, interspersed with excursions to Seattle to visit a friend.
On September 9, while Thurston was away, the Sheriff’s Office mailed his
verification form. Thurston’s sister, who lived with him in North Carolina, told him about
the form, prompting Thurston to contact Sheriff Frye for guidance. But Sheriff Frye never
responded, so Thurston decided to “let it lie,” given their prior interactions. J.A. 723.
The Sheriff’s Office, however, did not “let it lie.” Instead, Deputy Buchanan began
investigating Thurston. Three times after Thurston’s September 12 verification deadline,
Deputy Buchanan stopped by Thurston’s residence. Of course, Thurston was not there.
On October 6, the Spokane County Sheriff’s Office phoned Thurston, informing
him that Deputy Buchanan was looking for him and was considering getting the U.S.
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Marshals involved. Concerned, Thurston contacted Deputy Buchanan, who said that his
prolonged absence was causing problems back home. Deputy Buchanan then erroneously
told Thurston that it was illegal for him to be out of the state for more than thirty days. Yet
in the same breath, he also said that he had spoken with Sheriff Frye and had decided that,
as long as Thurston was back in North Carolina by October 19, “there would be no
problem.” J.A. 723. Thurston met that deadline, returning to North Carolina on October
19.
Even so, Deputy Buchanan discussed potential criminal liability with an assistant
district attorney, who recommended that Deputy Buchanan pursue charges against
Thurston. And on October 19—knowing that he and Sheriff Frye had given Thurston until
that day to return to the state—Deputy Buchanan obtained a warrant from a local magistrate
alleging three different criminal violations committed from September 19 to October 18:
(1) “being out of state for thirty (30) + days,” (2) willfully failing to return his verification,
and (3) willfully failing to report in person to the Sheriff’s Office. J.A. 724.
On October 21—without prompting—Thurston went to the Avery County Sheriff’s
Office to deliver his now-completed verification form. He was greeted with an arrest. He
posted bail that same day, and the charges against him were eventually dropped as a
“misunderstanding with regard to how to comply with technical requirements.” J.A. 725.
One year later, Thurston sued the Avery County Sheriff’s Office, Sheriff Frye, and
Deputy Buchanan alleging, among other things, violations of Thurston’s Fourth
Amendment rights. The officers asserted defenses of qualified immunity and moved for
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summary judgment. The district court disagreed and denied their motion. This appeal
followed.
II. DISCUSSION
Sheriff Frye and Deputy Buchanan maintain on appeal that they are entitled to
qualified immunity. They first argue that they did not violate Thurston’s Fourth
Amendment rights because they had probable cause to seek his arrest. Further, they argue
that, even if the arrest lacked probable cause, it did not violate clearly established law
because it was supported by a warrant. We find, however, that Thurston’s arrest violated
his Fourth Amendment rights. And, under the circumstances of this case, we also conclude
that Thurston’s right to be free from unlawful arrest was clearly established.
Before reaching the merits, however, we first must consider our jurisdiction.
Selective Ins. Co. of Am. v. Westfield Ins. Co., 73 F.4th 239, 242 (4th Cir. 2023).
A. Jurisdiction
Outside of certain statutory exceptions, our appellate jurisdiction is limited to “final
decisions” of the district courts. 28 U.S.C. § 1291. Since the denial of summary judgment
is not a final decision, we generally lack jurisdiction to hear an immediate appeal of such
an order. Hensley v. Horne, 297 F.3d 344, 347 (4th Cir. 2002). That said, under the
Supreme Court’s collateral order doctrine, some decisions that do not constitute final
judgments are treated as sufficiently “final” to trigger appellate jurisdiction under § 1291.
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). To fall within this
doctrine, an order must “(1) ‘conclusively determine the disputed question,’ (2) ‘resolve
an important issue completely separate from the merits of the action,’ and (3) ‘be
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effectively unreviewable on appeal from a final judgment.’” Midland Asphalt Corp. v.
United States, 489 U.S. 794, 799 (1989) (quoting Coopers Lybrand v. Livesay, 437 U.S.
463, 468 (1978)).
A district court’s denial of a qualified-immunity defense falls within the collateral
order doctrine—but only if it turns on an issue of law. Mitchell v. Forsyth, 472 U.S. 511,
530 (1985). We lack jurisdiction if the district court denied summary judgment because it
found that the plaintiff sufficiently disputed material facts by providing adequate evidence
to support his version of events. Winfield v. Bass, 106 F.3d 525, 529–30 (4th Cir. 1997)
(en banc).
Thurston argues that the district court’s qualified-immunity denial turned on facts,
not law. We disagree. On appeal, the officers challenge the district court’s legal
determination that, viewing the evidence in the light most favorable to Thurston, a
constitutional violation was alleged under clearly established law. This is a legal inquiry.
Whether particular conduct violates a constitutional right and whether that right is clearly
established are legal questions. Iko v. Shreve, 535 F.3d 225, 235 (4th Cir. 2008); Scott v.
Harris, 550 U.S. 372, 381 n.8 (2007) (applying this to a Fourth Amendment claim). And
we may review such questions on interlocutory appeal because we don’t find the facts
underlying the claim but rather accept them “as the district court gives them to us—that is,
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in the light most favorable to the plaintiff.” Hicks v. Ferreya, 965 F.3d 302, 309 (4th Cir.
2020); Mitchell, 472 U.S. at 530. 1
B. Qualified Immunity
Qualified immunity protects government officials from claims of statutory or
constitutional violations when they reasonably mistook the legality of their actions. See
Merchant v. Bauer, 677 F.3d 656, 661 (4th Cir. 2012). To determine whether Sheriff Fry
and Deputy Buchanan are entitled to qualified immunity, we must answer two questions,
with a split burden of proof. See Stanton v. Elliot, 25 F.4th 227, 233 (4th Cir. 2022). First,
has Thurston established that, when viewing the evidence most favorably to him, the
officers violated his constitutional rights? Id. If so, then have the officers shown that the
asserted rights were not clearly established by law at the time of the interaction? Id. Put
another way, have the officers established that it was not “clear to a reasonable officer that
the conduct in which [they] allegedly engaged was unlawful in the situation [they]
confronted”? Merchant, 677 F.3d at 662 (quoting Figg v. Schroeder, 312 F.3d 625, 635
(4th Cir. 2002)). Because we answer the first in the affirmative and the second in the
negative, we affirm the district court’s denial of summary judgment.
1 That the district court noted the existence of genuine disputes of material fact does not convert this into an unreviewable factual question. “Denial of summary judgment often includes a determination that there are controverted issues of material fact.” Behrens v. Pelletier, 516 U.S. 299, 312 (1996). While we may not review whether there were genuine issues of material fact on appeal, we may address the portions of an order denying summary judgment that “resolve a dispute concerning an abstract issue of law relating to qualified immunity—typically, the issue whether the federal right allegedly infringed was clearly established.” Id. at 313 (cleaned up). That is what the officers ask us to do here. 8 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 9 of 20
1. Thurston established that the officers violated his Fourth Amendment right against unreasonable seizure.
On the first question, Thurston alleges that his warrant-backed arrest violated the
Fourth Amendment because it amounted to an unreasonable seizure. 2 When a person seeks
to challenge a warrant-backed arrest under the Fourth Amendment as lacking probable
cause, that challenge “at most . . . can be pursued through a cause of action for malicious
prosecution.” Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998); Smith v. Munday, 848
F.3d 248, 252 (4th Cir. 2017). 3 In order to establish malicious prosecution, a plaintiff must
show that (1) the defendant seized him pursuant to legal process but without probable cause
and (2) the criminal proceedings terminated in the plaintiff’s favor. Massey v. Ojaniit, 759
F.3d 343, 356 (4th Cir. 2014). The parties do not contest the favorable-termination prong.
Thus, Thurston carries his burden on the first question if he shows that there was no
probable cause to arrest him. Id. at 357; Smith, 848 F.3d at 253.
“Probable cause has long been understood to encompass circumstances that, while
less than a preponderance, ‘warrant suspicion.’” United States v. Gondres-Medrano, 3
F.4th 708, 714 (4th Cir. 2021) (quoting Locke v. United States, 11 U.S. (7 Cranch) 339,
348 (1813)). Whether circumstances “warrant suspicion” turns on the combination of two
2 The Fourth Amendment protects “[t]he right of the people to be secure . . . against unreasonable searches and seizures” and guarantees that “no warrants shall issue, but 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. 3 A false-arrest claim applies only to the reasonableness of a warrantless arrest and cannot be maintained when the official “arrests a defendant pursuant to a facially valid warrant.” Porterfield, 156 F.3d at 568; Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996). 9 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 10 of 20
factors: the suspect’s conduct as known to the officer and the nature of the offense. 4
Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016). So to determine whether an arrest
was backed by probable cause, we ask whether the facts known to the officer could make
a prudent officer believe that the suspect’s conduct satisfies the elements of a criminal
violation. Hupp v. Cook, 931 F.3d 307, 318 (4th Cir. 2019). And in so doing, we remain
mindful of the Supreme Court’s admonition that “in a doubtful or marginal case a [seizure]
under a warrant may be sustainable where without one it would fall.” United States v.
Leon, 468 U.S. 897, 914 (1984) (quoting United States v. Ventresca, 380 U.S. 102, 106
(1965)).
Thurston’s arrest warrant identified three crimes: (1) failing to register that he would
be out of state for thirty days, purportedly in violation of N.C. Gen. Stat. § 14-208.11; (2)
willfully and feloniously failing to return the form verifying his address to the Sheriff’s
Office in the time allotted, in violation of § 14-208.11(a)(3); and (3) willfully and
feloniously failing to report in person to the Sheriff’s Office, in violation of § 14-
208.11(a)(7). 5
4 Probable cause need not be tailored to the offense the arresting official suspected at the time of arrest. Rather, probable cause exists when “the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking.” District of Columbia v. Wesby, 583 U.S. 48, 54 n.2 (2018) (emphasis added). Thus, we assess probable cause in relation to any crime identified by the parties in the case, even one identified only during litigation. See id.; see also Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
As the parties discuss only these potential offenses, we do the same. See Wesby, 5
583 U.S. at 55 n.2.
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The parties agree that the officers lacked probable cause for the first, nonexistent
offense. 6 But they contest probable cause for the other two offenses. Thurston argues that
these crimes carry a mens rea element of willfulness. See N.C. Gen. Stat. § 14-208.11(a).
And, according to him, at the time they sought the warrant, the officers lacked probable
cause to believe he was acting “willfully.”
North Carolina defines “willful” as (1) “the commission of an act purposely and
deliberately in violation of law,” or (2) “the wrongful doing of an act without justification
or excuse.” State v. Ramos, 678 S.E.2d 224, 226 (N.C. 2009) (quoting State v. Arnold, 141
S.E.2d 473, 474 (N.C. 1965)). Thus, willfulness can be established in two ways. First, a
person acts willfully when she specifically intends to break the law. But that means that
conduct stemming from a mistake of law, State v. Chavis, 263 S.E.2d 356, 359 (N.C. Ct.
App. 1980), or a defendant’s belief that “she ha[s] the right” to do what might otherwise
be criminal conduct, State v. Humphreys, 853 S.E.2d 789, 799–800 (N.C. Ct. App. 2020),
is not generally considered “willful.” Second, a person acts willfully when she wrongfully
acts without justification or excuse, even if she lacks specific criminal intent. Ramos, 678
S.E.2d at 226; State v. Chamberlain, 753 S.E.2d 725, 730 (N.C. Ct. App. 2014). To
determine whether a person so acts, we ask whether she acts “wrongful[ly],” Arnold, 141
S.E.2d at 474, with a “bad purpose,” State v. Clifton, 67 S.E. 751, 752 (N.C. 1910), or
6 We note that “the protection of qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). But the officers do not press on appeal that their mistake of law here was reasonable, and so we do not address it. 11 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 12 of 20
“without just cause, excuse, or justification,” State v. Dickens, 1 S.E.2d 837, 839 (N.C.
1939) (quoting State v. Yelverton, 144 S.E. 534, 535 (N.C. 1928)). 7 Put more succinctly,
we ask whether she was animated by some improper motive. 8
Deputy Buchanan and Sheriff Frye therefore needed some reason to believe that
Thurston either purposefully violated the law or acted with some other improper purpose.
Ramos, 678 S.E.2d at 226; Clifton, 67 S.E. at 752; cf. Wesby, 583 U.S. at 57–62. But the
district court’s order forecloses any argument that they believed this. Viewing the evidence
in the light most favorable to Thurston, the district court accepted that both defendants
“definitely knew that . . . Thurston was eager to comply with the law.” Thurston v. Avery
Cnty. Sheriff’s Off., No. 1:19-CV-299, 2021 WL 1093097, at *8 (W.D.N.C. Mar. 22, 2021).
And the district court accepted that the officers knew that Sheriff Frye gave Thurston
permission to travel and that Thurston followed every instruction the Sheriff’s Office gave
him. Id. In so concluding, the district court not only accepted the facts alleged about
Thurston’s actions but also accepted that the officers had concluded, based on those
actions, that Thurston was eager to comply with the law throughout his sojourn.
7 To illustrate this notion of willfulness, consider State v. Davis, 356 S.E.2d 607 (N.C. Ct. App. 1987). A jury there convicted the defendant of willful and wanton injury to real property by intentionally clogging a toilet in a museum, which led to extensive water damage. Id. at 609. The court sustained the conviction, noting that it was “not necessary for a person to know that he is breaking the law for an act to be ‘willful’” and that the jury could reasonably “infer that defendant put the paper towels in the toilet intending to create a serious water problem,” which sufficed to show willfulness. Id. at 610. 8 With this understanding, we can see the first category (intent to break the law) as an outgrowth of this second category. If you intend for your conduct to break the law, then you have acted with some improper purpose. 12 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 13 of 20
In this interlocutory appeal, we must accept “the facts as the district court gives them
to us.” Hicks, 965 F.3d at 309. 9 Doing so requires us to conclude that the officers lacked
probable cause to believe that Thurston acted willfully. 10 The district court accepted the
inference that Thurston, by asking Sheriff Frye for advice and obtaining his permission to
leave, believed that he was following the law and remained motivated by a desire to follow
the law. Even if Thurston’s beliefs were mistaken, “a mistake of law” is a defense to an
offense that requires willfulness. Chavis, 263 S.E.2d at 359. And since the district court
has accepted that the officers knew Thurston’s beliefs and motives, it was unreasonable for
the officers to believe that Thurston acted with “a bad purpose” or “with knowledge that
his conduct was unlawful.” Ramos, 678 S.E.2d at 226; Clifton, 67 S.E. at 752. Therefore,
a prudent officer could not reasonably conclude that Thurston was acting “willfully”; so
9 That is, we must accept how the district court understood the facts in the light most favorable to the plaintiff. Hicks, 965 F.3d at 309. But that doesn’t mean “we are strictly confined to the four corners of the district court’s order: we may assume some facts when the district court does not explicitly state them, provided that we draw all inferences in the plaintiff’s favor.” Williams v. Strickland, 917 F.3d 763, 768 n.3 (4th Cir. 2019). Here, however, the district court explicitly stated all that is needed to decide whether probable cause existed—that Deputy Buchanan and Sheriff Frye knew that Thurston was eager to comply with the law and that he had complied with their office’s instructions. This places us in a markedly distinct procedural posture than the Supreme Court in District of Columbia v. Wesby. There, the district court made no explicit statement that the officers knew that the arrestees lacked the requisite mens rea. See 583 U.S. at 57. So the Court could reject the appeals court’s conclusion that the arrestees had the requisite mens rea. Id. In contrast, we are bound by the district court’s version of the facts. 10 Though accepting that the officers knew that “Thurston was eager to comply with the law” for evaluating summary judgment, the district court acknowledged that a genuine dispute of material fact remained “about what [Deputy] Buchanan knew” as well as “what he communicated to the district attorney and magistrate judge when he sought the warrant.” Thurston, 2021 WL 1093097, at *8–9. 13 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 14 of 20
there was no probable cause to believe that he was guilty of either the second or the third
charge.
Accordingly, accepting the facts as the district court has given them to us, Sheriff
Frye and Deputy Buchanan lacked probable cause to arrest Thurston for any of the crimes
alleged in the warrant. For “notwithstanding the deference that magistrates deserve,” Leon,
468 U.S. at 915, the officers’ knowledge of Thurston’s pure motives precludes finding that
probable cause existed.
2. The officers did not prove that Thurston’s arrest was not contrary to clearly established law.
Finding a constitutional violation merely begins the qualified-immunity inquiry.
Now the burden shifts to Sheriff Frye and Deputy Buchanan to show that the arrest was
not contrary to clearly established law. Stanton, 25 F.4th at 233 n.5. This requires showing
that Thurston’s “right to be free from arrest under the particular circumstances of the case”
was not clearly established. See Graham, 831 F.3d at 182. And the officers should be
immune—that is, they did not act contrary to clearly established law—so long as they
“acted in an objectively reasonable manner or . . . in ‘objective good faith.’”
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting Leon, 468 U.S. at 922–
23). So whether a plaintiff’s right to be free from arrest is clearly established turns not on
“whether there actually was probable cause . . . but whether an objective law officer could
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reasonably have believed probable cause to exist.” Gomez v. Atkins, 296 F.3d 253, 261–
62 (4th Cir. 2002). 11
The officers’ primary evidence that an objective officer could believe that probable
cause existed is that they arrested Thurston pursuant to a warrant. And it is true that, when
officers conduct an arrest pursuant to a warrant, “the fact that a neutral magistrate has
issued a warrant is the clearest indication that the officers acted in an objectively reasonable
manner.” Messerschmidt, 565 U.S. at 546; Graham, 831 F.3d at 183. But the Supreme
Court has recognized a narrow exception to this rule, holding that a warrant loses its
evidentiary value for objective reasonableness when “it is obvious that no reasonably
competent officer would have concluded that a warrant should issue.” Messerschmidt, 565
U.S. at 547 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); Smith, 848 F.3d at 255.
For instance, “where the warrant was ‘based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable,’” “the
‘shield of immunity’ otherwise conferred by the warrant . . . will be lost.” Messerschmidt,
11 Some circuits have explained this concept as “arguable probable cause.” See, e.g., Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985) (“[S]eeking an arrest warrant is ‘objectively reasonable’ so long as the presence of probable cause is at least arguable.”). We see no distinction between the “arguable probable cause” test and the Supreme Court’s formulation of the inquiry that turns on whether a probable-cause belief is “reasonable.” And as even those circuits recognize, “probable cause for a warrantless arrest may be different than probable cause for the issuance of an arrest warrant.” Id.
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565 U.S. at 547 (first quoting Leon, 468 U.S. at 923; and then quoting Malley, 475 U.S. at
345); Sims v. Lavowitz, 885 F.3d 254, 264 (4th Cir. 2018). 12
This is one such exceptional case. Although we do not have the warrant application
on record, we assume that the officers fairly presented the facts known to them to the
magistrate. See Graham, 831 F.3d at 189 (assuming, in the absence of the application on
record, that the officers “fairly presented” the known facts to the magistrate); Merchant,
677 F.3d at 665. 13 Accepting the district court’s view of the facts, this would include their
12 The principles we espouse here apply to an officer who sought and obtained the warrant. Different principles may apply to an officer who only executed the warrant. After a warrant issues, officers have “a sworn duty to carry out its provisions.” Leon, 468 U.S. at 920 n.21. Warrants thus impose on officers “an obligation to arrest” the person named in the warrant. Utah v. Strieff, 579 U.S. 232, 240 (2016). Of course, before executing the warrant, the officer has “a duty to ensure that the warrant conforms to constitutional requirements.” Groh, 540 U.S. at 563 n.6. But as long as the previously issued warrant is not “so facially deficient . . . that the executing officers cannot reasonably presume it to be valid,” “‘a warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith’” in executing it. Leon, 468 U.S. at 922–23 (quoting United States v. Ross, 456 U.S. 798, 823 n.32 (1982)). That is because, “[i]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.” Id. at 921. 13 We caution that this assumption may not always be warranted. But under these circumstances, it is. Drawing all inferences in Thurston’s favor, the district court accepted that the officers knew a highly exculpatory fact that would have negated probable cause. This leaves us with only two options: Either the officers included this fact in the warrant application, in which case they likely transgressed Leon, or they omitted it from the application, in which case they likely violated Franks v. Delaware, 438 U.S. 154 (1978). See Miller v. Prince George’s County, 475 F.3d 621, 627 (4th Cir. 2007) (holding that an officer violates Franks when he omits from the affidavit “material facts with the intent to make, or with reckless disregard of whether [he] thereby made, the affidavit misleading” (citation omitted)); United States v. Lull, 824 F.3d 109, 117 & n.2 (4th Cir. 2016) (holding that the exculpatory significance of the information omitted can inform our conclusion about an officer’s intent). Either option fatally undermines the evidentiary value of the (Continued) 16 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 17 of 20
knowledge that Thurston was trying to comply with the law. At the time of the officers’
actions, the North Carolina Supreme Court had acknowledged the willfulness requirement
baked into North Carolina’s sex-offender-registry statute. See State v. Crockett, 782 S.E.2d
878, 883 (N.C. 2016). And as discussed above, North Carolina law has clearly established
that people do not act willfully when they are motived by a desire to comply with the law.
So when the officers sought and obtained an arrest warrant, they had affirmative knowledge
that Thurston was not breaking the law. 14 No reasonable officer in such circumstances
could believe that a warrant should issue. Malley, 475 U.S. at 341. Therefore, the warrant
cannot establish the officers’ objective reasonableness.
In so holding, we are mindful of the Supreme Court’s oft-repeated guidance that a
right is only clearly established if it has a “sufficiently clear foundation in then-existing
precedent.” Wesby, 583 U.S. at 63; see also White v. Pauly, 580 U.S. 73, 79 (2017) (per
curiam) (holding that a court must “identify a case where an officer acting under similar
circumstances . . . was held to have violated the Fourth Amendment”). Even so, the
unlawfulness of seeking out and executing a warrant after learning facts establishing a
warrant. Thus, given that the officers bear the burden of proof at this step of the inquiry, and given that we must draw all inferences for Thurston, we cannot hold at this posture that the warrant is sufficient evidence of objective reasonableness. 14 While Deputy Buchanan was the officer who sought out the warrant, there was a dispute about Sheriff Frye’s involvement in the warrant-application process. As the district court concluded, “it is unclear what communications occurred between [Deputy] Buchanan and Sheriff Frye as [Deputy] Buchanan began to seek an arrest warrant for Mr. Thurston.” Thurston, 2021 WL 1093097, at *6. Still, there is some evidence that the two officers discussed Thurston’s case before Deputy Buchanan applied for the warrant. So, viewing the evidence in the light most favorable to Thurston, Sheriff Frye was sufficiently involved to justify liability at this stage. See Leon, 468 U.S. at 923 n.24. 17 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 18 of 20
suspect’s innocence was clearly established by our holding in Merchant v. Bauer, 677 F.3d
656. Merchant involved a § 1983 suit against an officer who applied for a warrant and
arrested the plaintiff for falsely assuming the privileges of or pretending to be a police
officer. Id. at 665. We held that the officer lacked probable cause to conduct the arrest,
despite the issuance of a warrant, because he knew information before applying for the
warrant that both undermined any other evidence the officer might have had and tended to
exonerate the plaintiff of the crime. Id. at 663, 665. In other words, we held that knowledge
of sufficiently exculpatory information trumps the inculpatory evidence of the warrant. So
too here. The district court found that Sheriff Frye and Deputy Buchanan knew that
Thurston was not acting willfully and thus could not satisfy each element of the relevant
crimes, yet they sought a warrant and arrested him anyway. After Merchant, no reasonable
officer could believe that an arrest in such circumstances was lawful. 15
In one last attempt, the officers point to an assistant district attorney’s suggestion
that Deputy Buchanan seek out a warrant against Thurston. And the Supreme Court in
Messerschmidt did treat the officer’s decision to speak with two superiors and a prosecutor
as “pertinent” evidence of objective reasonableness. 565 U.S. at 554–55. For when
officers “t[ake] every step that could reasonably be expected of them” to confirm the
existence of probable cause, such as by going all the way up the internal chain of command
before submitting a warrant application to a magistrate, that is good evidence of the
15 Even if Merchant were not fully on-point, we would still decline to rule in the officers’ favor, since this is one of those rare “obvious case[s] where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Wesby, 538 U.S. at 64. 18 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 19 of 20
officers’ good faith. Id. at 554 (quoting Massachusetts v. Sheppard, 468 U.S. 981, 989
(1984)). But the officer in Merchant did so, too, yet we still found that this could not
overcome the extreme unreasonableness of the officer’s actions. Merchant, 677 F.3d at
664. This makes sense. When probable cause is debatable, a district attorney’s approval,
following “a full presentation of the known facts,” Kelly v. Borough of Carlisle, 622 F.3d
248, 255 (3d Cir. 2010) (quoting Cox v. Hainey, 391 F.3d 25, 32 (1st Cir. 2004)), should
serve as good evidence of objective reasonableness. Messerschmidt, 565 U.S. at 555. But
it makes less sense to do so when no reasonable officer would have sought out the warrant.
If “the greater incompetence of the magistrate” issuing a warrant cannot excuse the
officer’s conduct, Malley, 475 U.S. at 346 n.9, then it’s hard to see why the greater
incompetence of the district attorney can do so. Like we held in Merchant, when no
reasonable officer would seek out a warrant, an officer’s “conversation with the state’s
lawyer does not—as a matter of law—overcome the unreasonableness of the criminal
charge and its lack of probable cause.” 677 F.3d at 664. This is especially true when we
don’t even know what the officers told the district attorney during that conversation. 16 Cf.
Messerschmidt, 565 U.S. at 553–54 (detailing how the officers “submitted the warrant
application for review by [two superiors and a deputy district attorney]”); Gomez, 296 F.3d
at 264. Thus, the assistant district attorney’s suggestion that the officers seek out a warrant
against Thurston does not prove the objective reasonableness of their actions.
16 Thurston, 2021 WL 1093097, at *9 (“[T]here remains a genuine dispute of material fact about what [Deputy] Buchanan knew and what he communicated to the district attorney and magistrate judge when he sought the warrant.”). 19 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 20 of 20
We thus conclude that the officers have failed to carry their burden to show that they
are entitled to summary judgment. Though they acted pursuant to a warrant, no reasonable
officer would have sought out a warrant here. The district court therefore correctly denied
their assertions of qualified immunity.
* * *
Qualified immunity is controversial and criticized. But it is binding. And it
provides a powerful defense for officers who, while performing the critical services they
provide to society, make reasonable mistakes in complying with the law. And warrants
serve a similar purpose. We recognize that “the magistrate is more qualified than the police
officer to make a probable cause determination.” Malley, 475 U.S. at 346 n.9. Thus, a
magistrate’s approval of a warrant application in the average case will be the “clearest
indication” of the officer’s objective reasonableness. Messerschmidt, 565 U.S. at 546.
But “clearest” should not be confused with “absolute.” In a narrow set of cases,
where no reasonable officer would have sought the warrant, we cannot treat its issuance as
evidence of objective reasonableness. Taking the facts as the district court has given them
to us, we find that this is one such case, and that the officers have not carried their burden
to prove objective reasonableness. Thus, the district court’s decision must be
AFFIRMED.