United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 9, 2000 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 99-10104 Summary Calendar
KENNETH PAUL JONES,
Plaintiff-Counter Defendant-Appellee,
VERSUS
THE CITY OF GRAND PRAIRIE, TEXAS, ET AL.,
Defendants,
DENNIS MEYER, Detective,
Defendant-Counter Claimant-Appellant.
-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:97-CV-1907-H -------------------- February 9, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth Paul Jones filed suit in the district court, naming as
defendants the City of Grand Prairie, Texas, and three of its
officers. Jones alleged, among other things, that the individual
defendants falsely arrested and maliciously prosecuted him. He
also brought similar state-law claims against the defendants. On
motions for summary judgment, the district court dismissed all
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-10104 -2-
claims against the City and two of the officers. It only partially
granted summary judgment to the remaining officer, Detective Dennis
Meyer. The court held that Meyer was not entitled to qualified
immunity on Jones’s federal claims for false arrest and malicious
prosecution. It also rejected Meyer’s arguments that he was immune
under Texas law on Jones’s similar state-law claims. According to
the district court, Meyer’s failure to include exculpatory evidence
in an affidavit prepared for the second of two probable-cause
hearings and his failure to call the evidence to the attention of
prosecutors would violate clearly established constitutional law if
Jones could demonstrate--as he alleged--that Meyer’s omissions were
intentional or reckless.
In an appeal from the denial of summary judgment, we review
the record de novo. Nerren v. Livingston Police Dep’t, 86 F.3d
469, 472 (5th Cir. 1996). Although there is not ordinarily
appellate jurisdiction to review immediately the denial of a motion
for summary judgment, there is an exception when the motion was
predicated on qualified immunity. Mitchell v. Forsyth, 472 U.S.
511, 525, 530 (1985). The district court’s denial is reviewable to
the extent it turned on issues of law, not fact. Id. at 528.
Although we lack jurisdiction to review a district court’s
determination that there exist genuine issues of fact, we do have
jurisdiction to review a determination that the issues of fact are
material. Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.), cert.
denied, 119 S. Ct. 618 (1998). We conduct a de novo review of the No. 99-10104 -3-
district court’s conclusions about materiality. Lemoine v. New
Horizons Ranch and Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).
Jones argues that we lack jurisdiction over Meyer’s appeal
because Meyer concedes the existence of a Fourth Amendment right to
be free from false arrest. Jones apparently is arguing that the
only remaining questions are factual, whether he can prove the
facts of a Fourth Amendment violation. In a case involving quite
similar facts and claims, however, we held that we had jurisdiction
to determine whether “contrary to the district court’s judgment,
enough uncontested facts exist to determine that [the defendants]
are immune as a matter of law.” Hart v. O’Brien, 127 F.3d 424, 436
(5th Cir. 1997). To that extent, then, we have jurisdiction over
Meyer’s appeal.
Meyer argues that the district court erred in overruling his
objections to three affidavits submitted by Jones. We have
jurisdiction to consider the district court’s evidentiary rulings
on relevant summary-judgment evidence, but we review only for
manifest error. Id. at 437. Meyer’s principal objection is that
the three affiants expressed opinions about whether there was
probable cause for Jones’s arrest. So long as an affiant ties her
opinion to relevant facts, there is no manifest error in a district
court’s consideration of an opinion whether probable cause existed.
See Hayter, 154 F.3d at 274. We have reviewed the affidavits, and
we perceive no manifest error in the district court’s consideration
of them.1
1 Meyer also argues that the district court should have stricken (i) certain affidavits and declarations attached to the affidavit of one of the affiants, Peter Scharf, and (ii) any No. 99-10104 -4-
Meyer argues that the district court should have held that he
had qualified immunity from Jones’s federal claims. Whether a
public official is qualifiedly immune depends on two inquiries.
Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 223 (5th Cir.),
cert. denied, 1999 WL 812948 (U.S. Nov. 29, 1999) (No. 99-588).
First, a defendant is entitled to qualified immunity when a
plaintiff has failed to allege the violation of a clearly
established constitutional right. Id. Second, a defense of
qualified immunity will succeed if the defendant’s conduct was
objectively reasonable at the time in light of clearly established
law. Id.
We turn first to Meyer’s argument that he was qualifiedly
immune from Jones’s false-arrest claim. Meyer concedes that there
is a clearly established constitutional right to be free from
arrest without probable cause. See, e.g., Sanders v. English, 950
F.2d 1152, 1159 (5th Cir. 1992). However, he asserts that there
was probable cause for Jones’s arrest and that his conduct was, at
all times, objectively reasonable. His failure to provide
exculpatory evidence to the magistrate was, he says, at most
negligence.
A false-arrest claim is not viable if the law-enforcement
officer has probable cause. Sanders, 950 F.2d at 1159. “Probable
cause is defined in terms of facts and circumstances sufficient to
mention of another of Meyer’s cases in the affidavit submitted by Danny LaRue. The district court did not refer to any of this information in its order, and we conclude that the court did not rely on this information. Accordingly, we need not consider whether there was any error in the court’s failure to strike the evidence. Hart, 127 F.3d at 437. No. 99-10104 -5-
warrant a prudent man in believing that the suspect had committed
or was committing an offense.” United States v. Webster, 162 F.3d
308, 331 (5th Cir. 1998) (citations, internal quotations, and
brackets omitted), cert. denied, 120 S. Ct. 83 (1999). To prevail
on a false-arrest claim, a plaintiff “must tender evidence
establishing misconduct that exceeds mere negligence.” Sanders,
950 F.2d at 1159. Normally, a neutral magistrate’s determination
that probable cause existed will insulate a police officer from a
claim of false arrest. Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir.
1994). However, if the officer, acting intentionally or with
reckless disregard for the truth, fails to provide a magistrate
with information that was critical to a finding of probable cause,
then the officer may be held liable. Hale v. Fish, 899 F.2d 390,
400 (5th Cir. 1990).
Viewing the evidence in the light most favorable to Jones, as
the district court did, we hold that probable cause was vitiated by
the information that Meyer withheld. In Meyer’s affidavit for an
arrest warrant, he described the crime, the abduction and
molestation of a four-year-old boy, in some detail. However, there
was little in the affidavit about the identity of the boy’s
attacker. The affidavit noted that an officer had stopped Jones,
who was white and wearing a mustache, near the boy’s apartment
complex shortly after the assault and that the officer had seen
green plastic boxes in Jones’s Suburban. The affidavit also noted
that Jones admitted having been at the complex selling candy.
Little in the affidavit, however, suggested that Jones was the
boy’s attacker. According to the document, the child said only No. 99-10104 -6-
that the attacker was a man with a “gray car” and that the man had
a “lot of blue boxes in the car.” The only identification of Jones
in the affidavit was Rick Spurrier’s; Spurrier, who was living with
the boy’s mother, had seen Jones near the complex shortly after it
was discovered that the boy was missing.
When the boy was taken to a hospital, he told a nurse examiner
that his attacker was a “big black” man, a description that would
exclude Jones. Although there is no dispute that Meyer learned of
this information before the second probable-cause hearing, he did
not include it in the information presented to the magistrate. We
conclude that had this information been presented to the
magistrate, there would not have been sufficient information “to
warrant a prudent man in believing that [Jones] had committed . .
. an offense.” Webster, 162 F.3d at 331. At most, a “corrected”
affidavit would have suggested that Jones was in the vicinity when
Justin was attacked. Without more, a person’s mere proximity to
the scene of a crime does not provide probable cause for the
person’s arrest. See, e.g., United States v. Ashcroft, 607 F.2d
1167, 1171 (5th Cir. 1979).
Meyer argues that probable cause existed because (i) Jones
admitted to being at the complex at the time of the assault; (ii)
he was seen, apparently by Spurrier, shortly after the assault;
(iii) he was driving the type of vehicle described by Spurrier and
the boy; (iv) Jones fit the description given by Spurrier and the
boy; and (v) there was evidence that Jones had candy and toys in No. 99-10104 -7-
his vehicle2. The first two of these merely place Jones in the
vicinity, something that is insufficient to undergird a finding of
probable cause. Ashcroft, 607 F.2d at 1171. Likewise, that Jones
and his car fit the description given by Spurrier is meaningless,
since Spurrier did not witness the attack.
Meyer’s remaining arguments are unsupported by the record or
involve disputed issues of fact. Nowhere in the affidavit does it
suggest that Justin described his attacker, except for his
statement that the man was wearing a black shirt and blue pants.
The affidavit itself noted that Jones was wearing a blue shirt and
black shorts when Hubbard stopped him. According to the affidavit,
Justin described his attacker as having a “gray car”; it was
Spurrier who reported seeing a gray Suburban. Although Justin saw
blue boxes in his attacker’s car, Jones’s Suburban was found to
contain green boxes. This one similarity is insufficient to
support an inference that Jones was Justin’s attacker. Finally,
Meyer argues that candy and toys were seen by an officer in Jones’s
Suburban. The officer’s affidavit, however, suggests only that
boxes of candy were in Jones’s Suburban. Nowhere does it state
that Hubbard saw toys in the car, and Jones has disputed that fact.
Despite Meyer’s arguments, the omitted information was critical to
a finding of probable cause.
Meyer also argues that his conduct was objectively reasonable.
He stresses that he could reasonably have concluded that Jones was
the attacker, especially by the time of the second probable-cause
2 Spurrier testified that the boy said he had been lured by his attacker with candy and toys. No. 99-10104 -8-
hearing. As noted above, however, little information in the
affidavit tied Justin and Jones together. Given this, a reasonable
police officer who knew, as Meyer did, that Justin had described
his attacker as a black man would not have believed that there was
probable cause to arrest Jones. More important, as the Ninth
Circuit has held, it can be “only objectively unreasonable for a
law enforcement officer deliberately or recklessly to make material
omissions” in an affidavit for a warrant. Lombardi v. City of El
Cajon, 117 F.3d 1117, 1127 (9th Cir. 1997) (emphasis added). See
also id. at 1126 (holding that the test is whether the officer
reasonably withheld the information, not whether the officer
reasonably believed there was probable cause notwithstanding his
material omissions).
Meyer contends that there is no evidence that his omission was
anything more than mere negligence. It is true that Jones must
show that Meyer’s omission occurred not from negligence, but
intentionally or with reckless disregard for the truth. Sanders,
950 F.2d at 1159; Hale, 899 F.2d at 400. In Hale, however, the
court concluded that recklessness may be inferred when the
officer’s omission was “clearly critical” to a finding of probable
cause. 899 F.2d at 400. In this case, too, we hold that a
reasonable jury could find that the omitted evidence was “clearly
critical.” See Hindman v. City of Paris, Tex., 746 F.2d 1063, 1067
(5th Cir. 1984) (“[t]he issue of [an officer’s] truthfulness and
intent at the time [he] applied for the warrant is one of fact”).
Jones has alleged the violation of a clearly established
constitutional right, the right to be free from arrest without No. 99-10104 -9-
probable cause. When supplemented with the information that Meyer
withheld, Meyer’s affidavit did not provide probable cause for
Jones’s arrest. Meyer’s omission of “clearly critical” information
from his affidavit was objectively unreasonable and, at the same
time, an indication--at a minimum--of the recklessness necessary to
find liability for false arrest. We hold that the district court
did not err in denying summary judgment on the basis of qualified
immunity on this claim.
Meyer also argues that he was entitled to qualified immunity
as to Jones’s claim of malicious prosecution. To maintain such an
action, a plaintiff must show that (1) a criminal action was
commenced against the plaintiff, (2) the prosecution was caused by
the defendant or through the defendant’s aid or cooperation, (3)
the action terminated in plaintiff’s favor, (4) the plaintiff was
innocent, (5) the prosecution lacked probable cause for the
proceeding, (6) the defendant acted with malice, and (7) the
criminal prosecution damaged the plaintiff. Kerr v. Lyford, 171
F.3d 330, 340 (5th Cir. 1999). As in the case of a false-arrest
claim, a plaintiff must show more than mere negligence on the part
of the defendant. Sanders, 950 F.2d at 1159.
Although Meyer concedes that this court has recognized a
Fourth Amendment right to be free from malicious prosecution, he
argues that the Amendment does not really authorize any such cause
of action. Absent reconsideration of this by the en banc court,
however, Jones’s malicious-prosecution claim is viable. See FDIC
v. Abraham, 137 F.3d 264, 268 (5th Cir. 1998) (“[w]e are, of
course, a strict stare decisis court”). No. 99-10104 -10-
Meyer argues that Jones failed to make out a claim of
malicious prosecution because he did not show a lack of probable
cause. For the reasons previously discussed, however, we disagree:
Once Meyer’s affidavit is supplemented with the withheld
information, probable cause is absent. Meyer argues that Jones
failed to point to any evidence of deliberate misconduct. This
argument has no relevance; the requisite recklessness reasonably
could be inferred from the officer’s omission. See Hale, 899 F.2d
at 400; Hart, 127 F.3d at 442. Meyer argues that Jones has pointed
to no evidence suggesting that he is innocent or that the
prosecution was terminated in his favor. To satisfy this
requirement, it is not necessary that the defendant have gone to
trial and won an acquittal. See, e.g., Sanders, 950 F.2d at 1164.
The relevant test is that the outcome be such that a jury
reasonably could infer a lack of guilt. Evans v. Ball, 168 F.3d
856, 859 (5th Cir. 1999). A reasonable jury could find that Jones
was innocent. Accordingly, we hold that the district court did not
err in denying summary judgment based on qualified immunity on this
claim.
Meyer argues that Jones’s state-law claims of false arrest and
malicious prosecution are barred by Texas’s doctrine of qualified
immunity. Without elucidation, Jones argues that we lack
jurisdiction to consider this argument in an interlocutory appeal
of the denial of qualified immunity under federal law. Indeed, in
Cantu v. Rocha, 77 F.3d 795, 805 (5th Cir. 1996) (citing Swint v.
Chambers County Comm’n, 514 U.S. 35 (1995)), we noted that the
“Supreme Court has been reluctant to endorse the exercise of No. 99-10104 -11-
pendant [sic] appellate jurisdiction over rulings that, while being
related to the denial of qualified immunity, are not themselves
independently appealable prior to judgment.” The exercise of this
pendent appellate jurisdiction is proper only when an issue is
“inextricably intertwined” with an appealable issue or when
appellate consideration is “necessary to ensure meaningful review”
of an appealable issue. Cantu, 77 F.3d at 805. In Cantu, the
court declined to consider the defendants’ non-qualified-immunity
grounds. Id. However, in Cantu and other cases, see, e.g., Morin
v. Caire, 77 F.3d 116, 119-20 (5th Cir. 1996), we have reviewed
state-law questions of qualified immunity because they involved the
same considerations involved in reviewing a questions of federal
qualified immunity. We do so here as well.
Under Texas law, government officials are immune from claims
arising out of (i) their discretionary duties (ii) when performed
in good faith (iii) in the scope of their authority. Cantu, 77
F.3d at 808. “An official acts in ‘good faith’ if any reasonably
prudent officer could have believed that the conduct was consistent
with the plaintiff’s rights.” Id. This test “focuses solely on
the objective legal reasonableness of the officer’s conduct.” Id.
at 809. See also id. at 808-09 (noting that unlike the federal law
on qualified immunity, Texas does not concern itself with whether
a plaintiff alleged a clearly established constitutional right).
As we suggested when addressing Jones’s federal claims, a
reasonably prudent officer would not have believed that failing to
forward the exculpatory evidence from the nurse examiner’s notes
was “consistent with [Jones’s] rights.” Id. at 808. This is No. 99-10104 -12-
certainly true when the exculpatory evidence would, as here, have
vitiated the probable cause established in the officer’s affidavit
for arrest. See Lang v. City of Nacogdoches, 942 S.W.2d 752, 764
(Tex. App. 1997, writ denied) (“[i]n false arrest cases, the
question of good faith turns on whether the officer had probable
cause to make the arrest”). The district court did not err in its
denial of summary judgment based on state-law qualified immunity.
Finally, Meyer argues that the district court erred in failing
to dismiss Jones’s state-law claims pursuant to TEX. CIV. PRAC. & REM.
§ 101.106, a section of the Texas Tort Claims Act that provides
immunity in some situations to the employees of a governmental
unit. As we just noted, however, we do not have appellate
jurisdiction to consider every ruling of the district court that
may be related somewhat to its denial of qualified immunity. See
Cantu, 77 F.3d at 805. The exercise of pendent appellate
jurisdiction is appropriate only when a claim is “inextricably
intertwined” with the denial of qualified immunity or when
resolution of the issue is “necessary” to resolve the question of
qualified immunity. Id. Neither condition is satisfied here. The
question whether TEX. CIV. PRAC. & REM. § 101.106 bars Jones’s state-
law claims against Meyer involves considerations wholly unrelated
to qualified immunity. See generally Thomas v. Oldham, 895 S.W.2d
352 (Tex. 1995). Furthermore, resolution of the issue is not
necessary to decide whether Meyer was entitled to qualified
immunity under federal law. Accordingly, we dismiss this part of
Meyer’s appeal for want of jurisdiction. No. 99-10104 -13-
In sum, we find no manifest error in the district court’s
evidentiary ruling. On the question of qualified immunity under
federal law, we hold that the district court did not err in denying
Meyer’s motion for summary judgment as to Jones’s false-arrest and
malicious-prosecution claims. As to Meyer’s claims of state-law
immunity, we have jurisdiction only to consider the applicability
of Texas’s doctrine of qualified immunity. On that matter, the
district court did not err in holding that Meyer was not
qualifiedly immune under state law.
AFFIRMED IN PART and DISMISSED IN PART.