Jordan v. Town of Waldoboro

943 F.3d 532

• Court: Court of Appeals for the First Circuit
• Decided: November 27, 2019
• Docket: 18-2062P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 18-2062

SCOTT JORDAN, JR.,

Plaintiff, Appellant,

v.

TOWN OF WALDOBORO; WILLIAM LABOMBARDE, Waldoboro Chief of Police; LAWRENCE W. HESSELTINE, JR., Waldoboro Police Officer; JEFFERY FULLER, Waldoboro Police Officer; ANDREW SANTHESON, Waldoboro Police Officer,

Defendants, Appellees,

WALDOBORO POLICE DEPARTMENT,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John H. Rich III, U.S. Magistrate Judge]

Before

Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

Karen Wolfram, with whom Fairfield & Associates, P.A. was on brief, for appellant. Kasia S. Park, with whom Edward R. Benjamin, Jr. and Drummond Woodsum were on brief, for appellees. November 27, 2019 KAYATTA, Circuit Judge. Scott M. Jordan ("Senior"), his

health failing, executed a Power of Attorney (POA) authorizing his

son, Scott M. Jordan, Jr. ("Jordan"), to take control and dispose

of Senior's property in any way Senior might do were he able.

Unhappy with Jordan's subsequent decisions concerning his

property, Senior revoked the POA and complained to the Waldoboro

Police Department. Waldoboro Police Officers obtained a warrant

to search Jordan's home for Senior's property, and after finding

Senior's property there, arrested Jordan for theft. The district

attorney dismissed the criminal prosecution after Senior died.

Jordan brought this civil rights action against the Town

of Waldoboro, the Waldoboro Police Department, and several

Waldoboro Police Officers. He alleged that the affidavit

accompanying the search warrant contained intentional or reckless

omissions and misstatements of fact, that an accurate affidavit

would not have supported probable cause for the search of his home,

and that there was no probable cause for his arrest. A magistrate

judge, sitting as the district court with the consent of the

parties, granted summary judgment for the defendants, dismissing

all of Jordan's claims. Jordan timely appealed to this court.

For the following reasons, we reverse in part and affirm in part.

- 3 - I.

In this appeal from the entry of summary judgment, we

take the facts in the light most favorable to Jordan. See Staples

v. Gerry, 923 F.3d 7, 14 (1st Cir. 2019).

Jordan was employed in the corrections division of the

Cumberland County Sheriff's office. As of May 2014, Senior was

living independently at his home in Waldoboro, Maine, while Jordan

and Jordan's daughter lived together in Standish, Maine. Jordan

and Senior made plans for Senior to move in with Jordan and his

daughter. They agreed that, in anticipation of the move, Jordan

would help fix up Senior's home and sell some of Senior's property

so that Senior's home could be rented or sold.

On May 12, 2014, Senior was taken by ambulance to the

hospital, where he was admitted for progressive confusion. After

improving, Senior was discharged on May 23, 2014, but the next day

he was "[u]nresponsive" and "not able to provide any answers to

questions" and returned to the hospital. Senior was in and out of

the hospital through July of 2014.

In accordance with Senior and Junior's plan for Junior

to sell some of Senior's property, on May 15, 2014, during Senior's

initial hospitalization, Senior directed his attorney to draft an

Appointment of Agent Financial Power of Attorney appointing Jordan

as his agent and attorney-in-fact. Senior executed the POA before

a witness and a notary public. The notary public noted that Senior

- 4 - was "alert and oriented." The POA granted Jordan "full power to

exercise or perform any act, power, duty, right, or obligation

whatsoever . . . relating to any person, matter, transaction, or

property, real or personal, tangible, intangible, or mixed, now

owned or hereafter acquired by [Senior], as [Senior] might or could

do if personally present." It listed "by way of example" several

"specifically enumerated powers" that did not limit the broad

authority quoted above. One of those enumerated powers was to

"make gifts of any property . . . as [Jordan] may consider

advisable or appropriate, which gifts may be made to or for the

benefit of [Jordan]." Another was to sell "any property

whatsoever," "or any right or interest thereon, or any part

thereof, upon such terms as [Jordan] shall think proper."

Central to this case are Senior's complaints about the

actions Jordan took pursuant to the POA. Acting as Senior's agent

and attorney-in-fact, Jordan either transferred to himself or sold

much of Senior's personal property, and he also withdrew money

from Senior's accounts. Jordan maintained that he took these

actions in accordance with the plan he and Senior had developed

and in order to facilitate and fund his efforts to take care of

his father. Senior claimed that Jordan acted contrary to his

wishes.

On July 27, 2014, while out of the hospital, Senior

reported to the Waldoboro Police Department that Jordan had

- 5 - assaulted him. Defendant Andrew Santheson, a Waldoboro Police

Officer, spoke to Jordan over the phone. Jordan said the dispute

began with an argument over Jordan's decision to register Senior's

truck in Jordan's name. Neither party desired criminal prosecution

of the other, and neither provided a statement, so Santheson

investigated no further.

Senior took no steps to revoke the POA until July 31,

2014, when he sent Jordan a notice of revocation. That day, and

in the week or so following, Senior made several demands that

Jordan explain or undo the actions he took under the POA. Of

relevance here, Senior demanded: (1) the return of his truck;

(2) the return of three firearms; and (3) an accounting of the

financial activities Jordan undertook on Senior's behalf,

including "an explanation of the $3,000.00 worth of antiques which

[Senior] believe[d] were sold." In a written response to Senior's

attorney, Jordan explained that he and his father had agreed to

put the truck in Jordan's name "in case [Senior] never came out of

the hospital, and they went after his assets." Jordan refused to

return the firearms, among other reasons, because he was concerned

that Senior was suicidal. He also explained that, in selling

Senior's property, he was acting as authorized under the POA, and

that he did so to cover expenses associated with caring for his

father and improving his father's house.

- 6 - In the months that followed, Senior made multiple

complaints to the Waldoboro Police Department about the actions

Jordan took under the POA prior to its revocation. In a written

statement dated October 10, Senior stated that, while

hospitalized, "my son came to me about making him my power of

attorney," and that "I did not read it and don't feel at this time

I should have signed it." Senior conceded that he and Jordan

planned to move in together in Standish, and that he had authorized

Jordan to sell some of his things and do some work on his house,

but complained that Jordan held the sale while Senior was

hospitalized even though Senior wanted to be present.

On October 17, Senior told defendant Jeffrey Fuller, a

Waldoboro Police Officer, that he had been hospitalized as a result

of a liver condition that at times made him feel confused and act

abnormally. He explained to Fuller and defendant Lawrence

Hesseltine, also a Waldoboro Police Officer, that he had executed

a POA and that, pursuant to it, Jordan had taken his truck,

transferred ownership to himself, and was refusing Senior's

demands to return it. Senior acknowledged that Jordan left his

own truck for Senior to use, but said that Jordan's truck was too

large for him. Hesseltine confirmed that the title to Senior's

former truck was in Jordan's name. Senior also complained that

Jordan was refusing to return several firearms. Fuller asked

- 7 - Senior to provide him a copy of the POA, which Senior delivered to

the Waldoboro police station the next day.

Also on October 17, after taking Senior's complaint,

Fuller spoke to Jordan by telephone. Jordan told Fuller about

Senior's plan to move in with him and explained that he had started

executing the plan before Senior changed his mind about it. Jordan

said he had spent a large amount of time and money fixing up his

father's home. When asked if he intended to return his father's

firearms, Jordan responded that he did not because his father was

not mentally stable. Jordan asked Fuller if the police department

might take the firearms for safekeeping, but Fuller responded that

the police would have no legal basis to refuse to return the

firearms to Senior.

Hesseltine then took over the investigation from Fuller,

who left for an extended vacation. Hesseltine received all the

documents Senior and Jordan provided to Fuller, including the POA.

On November 1, Hesseltine met with Senior about the complaint.

Senior told Hesseltine that, while the POA was in effect, Jordan

had sold upwards of $5,000 of Senior's personal property and

withdrawn more than $2,000 in Social Security and Veterans

Administration benefits from Senior's bank account. Senior gave

Hesseltine copies of the revocation of the POA and the July and

August correspondence between Senior's attorney and Jordan.

- 8 - Some time that fall, Hesseltine and defendant William

Labombarde, Waldoboro Chief of Police, called Senior's sister,

Raeberta Myers, asking for her "help in clarifying things." They

explained that they had spoken to Senior, and that they "understood

[Junior] had pushed [Senior] into signing a [POA] while he was not

in his right mind." Myers told the officers that "this was

definitely not true." Myers described a phone call she had with

Senior before he was hospitalized. In that phone call, Senior

explained that he intended to grant Jordan a POA and that he

planned to have his lawyer draft one. Myers knew that Senior and

Jordan had "knocked heads" in the past, but she asked Senior "a

number of times" if he was sure about this plan, and "each time he

assured [her that it was] what he wanted to do." Myers told the

officers that Senior "knew exactly what he wanted and what he was

doing" at the time. Myers "had the feeling that [the officers]

did not like what [she] had told them about [Senior] and the

[POA]."

On November 18, 2014, Senior reported to the Waldoboro

Police that he had learned that Jordan was planning to sell the

truck Senior wanted back. Hesseltine found an online posting in

which Jordan offered to sell the truck for $7,900. That day,

Senior also provided Hesseltine with a copy of a $305 AT&T Wireless

bill for a cell phone account that had been opened in Senior's

name but that was associated with Jordan's cell phone number.

- 9 - On November 20, Hesseltine wrote and filed in Maine

district court an affidavit and request for a warrant to search

Jordan's residence as well as any vehicles, boats, and outbuildings

on the premises. The warrant provided for the seizure of Senior's

property, specifically listing the truck, the firearms, and any

financial documentation relating to the disposition of Senior's

property. Much of this appeal concerns the content of the

affidavit accompanying the search warrant, which we will discuss

in detail below. Before Hesseltine filed the affidavit and

request, Labombarde and Assistant District Attorney Andrew Wright

reviewed it. A Maine district court judge granted the request

that same day.

On November 21, Hesseltine, Santheson, and Maine State

Police officers executed the warrant at Jordan's property. As

expected, they found Senior's truck parked in Jordan's driveway.

In the glove compartment, officers found the title to the truck as

well as a bill of sale, signed by Senior, granting the truck to

Jordan. Officers also recovered the firearms. Jordan told

Hesseltine that he had sold all of the other personal property he

had taken from Senior's home.

Hesseltine arrested Jordan without a warrant for Class B

theft by unauthorized taking or transfer.1 Hesseltine and

1 "A person is guilty of theft if . . . [t]he person obtains or exercises unauthorized control over the property of another

- 10 - Santheson took Jordan to the local jail, where he was released the

same day on a $5,000 bond. Foreseeably, the local press coverage

latched on to the story of a corrections officer being arrested

for stealing from his ill father.

A Lincoln County grand jury convened to consider

Jordan's charges. Hesseltine, Senior, and Jordan all testified

before the grand jury. The District Attorney used the POA while

questioning Hesseltine, but Hesseltine recalls telling the grand

jury only "that there was [a POA] in effect and then it was

rescinded." Jordan explained to the grand jury that Senior's

attorney drafted the POA. There is no evidence in the record that

the grand jury viewed a copy of the POA or learned about its broad

grant of power to Jordan. On March 10, 2015, the grand jury

returned an indictment against Jordan for five counts of Class B

theft.

Senior died in early September, 2015. The Lincoln County

District Attorney's Office dismissed the criminal proceedings

against Jordan for want of the "victim and key witness." Because

of his bail conditions, Jordan was unable to see Senior again

before his death.

with intent to deprive the other person of the property." Me. Stat. tit. 17-A, § 353(1)(A). Theft by unauthorized taking is a Class B crime if "[t]he value of the property is more than $10,000" or "[t]he property stolen is a firearm or an explosive device." Id. § 353(1)(B)(1)–(2).

- 11 - Jordan brought this civil rights action against the Town

of Waldoboro, the Waldoboro Police Department, Chief of Police

Labombarde, and Officers Fuller, Hesseltine, and Santheson. Under

the federal civil rights statute, 42 U.S.C. § 1983, he alleged

Fourth Amendment violations of unlawful search and seizure, false

arrest, malicious prosecution, and "due process/defamation." He

also brought Maine state constitutional claims for false arrest

and unlawful search and seizure under the Maine Civil Rights Act,

Me. Rev. Stat. tit. 5, § 4682, as well as Maine tort claims for

malicious prosecution, false imprisonment, intentional infliction

of emotional distress, negligent infliction of emotional distress,

defamation, and false light. Jordan sought compensatory and

punitive damages. Invoking federal question jurisdiction, 28

U.S.C. §§ 1331, 1367, the defendants removed the case to the United

States District Court for the District of Maine. The parties

stipulated to the dismissal of the defamation claims against all

defendants and the false light claim against two of the defendants.

Adjudicating the case with the consent of the parties, a magistrate

judge entered summary judgment in favor of the defendants on all

remaining counts.

On appeal, Jordan challenges the entry of summary

judgment on: (1) the federal and state constitutional claims for

search and seizure; (2) the federal and state constitutional

claims for false arrest; (3) the federal and state constitutional

- 12 - claims for malicious prosecution; (4) the Maine tort claims for

malicious prosecution and false imprisonment; and (5) the request

for punitive damages. We take up each issue in turn.

II.

Summary judgment is appropriate "if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a). We review de novo the grant of summary judgment, "under

the identical criteria governing the district court." Hegarty v.

Somerset Cty., 53 F.3d 1367, 1372 (1st Cir. 1995).

A.

We begin with Jordan's claim that the defendants

violated his rights under the Fourth Amendment to the U.S.

Constitution and article 1, section 5 of the Maine Constitution by

searching and seizing his property.2 The search warrant executed

by a judicial officer stands as an imposing impediment to this

claim. The Fourth Amendment countenances searches conducted

pursuant to warrants issued "upon probable cause, supported by

Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized." U.S. Const.

amend. IV. Jordan seeks to overcome this impediment by contending

2 The parties agree that relevant Maine law tracks the requirements of the Fourth Amendment and 42 U.S.C. § 1983, so we will assume that to be so.

- 13 - that the warrant was invalid because the officers procured it by

deliberately misleading the Maine district court judge who granted

it.

The rules for challenging a warrant by attacking the

affidavit used to procure it trace to the Supreme Court's opinion

in Franks v. Delaware, 438 U.S. 154 (1978). Franks addressed the

showing a defendant must make in order to suppress the fruits of

a search by proving that a facially valid warrant was invalidly

obtained. Franks held that a search warrant must be voided if

(1) "a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in

the warrant affidavit"; and (2) "the affidavit's remaining content

is insufficient to establish probable cause." Id. at 155–56; see

also United States v. Owens, 917 F.3d 26, 38 (1st Cir. 2019). We

have since drawn on Franks to observe that "[a]n officer who

obtain[ed] a warrant through material false statements which

result[ed] in an unconstitutional search may be held personally

liable for his actions under § 1983." Aponte Matos v. Toledo

Dávila, 135 F.3d 182, 187 (1st Cir. 1998).

To apply Franks in this case, we find it helpful to break

the two-prong test into its three elements: The affidavit need

contain a falsehood; the falsehood must be such that its deletion

would eliminate probable cause; and the falsehood must have been

- 14 - made deliberately, or at least with reckless disregard for the

truth. We address each element in turn.

1.

In examining the affidavit for the presence of

falsehoods, we look not only for affirmative misrepresentations,

but also for material omissions. United States v. Tanguay, 787

F.3d 44, 49 (1st Cir. 2015) ("Material omissions from a warrant

affidavit also may furnish the basis for a successful Franks

challenge."). We conclude that the record in this case would allow

a jury to find that there was at least one affirmative

misrepresentation and two material omissions.

First, the affidavit plainly suggested that Jordan

prepared the POA and foisted it on his ill father. The affidavit

stated that Jordan "presented [Senior] with paperwork requesting

he appoint himself as his father's [f]inancial [POA]." But, as

Myers explained, even before his hospitalization Senior intended

to give Jordan a POA, and Senior's own attorney eventually prepared

the POA at Senior's behest.

Second, Hesseltine's affidavit failed to disclose that

the POA (which Hesseltine did not attach to the affidavit)

expressly provided for the type of self-dealing in which Jordan

engaged, and which Jordan claimed was his father's basic purpose

in granting the POA.

- 15 - Third, although the affidavit acknowledged Jordan's

claim that he took his father's firearms because he feared that

his father might harm himself, it omitted the highly corroborating

fact that Jordan offered to turn over the firearms to the police

for safekeeping.

The defendants argue -- and the magistrate judge in this

federal case agreed -- that the foregoing omissions are not

relevant to the Franks analysis because "probable cause does not

require officers to rule out a suspect's innocent explanation for

suspicious facts." Jordan v. Town of Waldoboro, No. 2:17-CV-

00025-JHR, 2018 WL 4688724, at *9 (D. Me. Sept. 28, 2018) (quoting

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)). But

Jordan is not arguing that the police had to rule out his innocent

explanations. Rather, he argues that his offer to give the

firearms to the police as well as the provenance and terms of the

POA were undisputed facts that were material to the assessment of

the conduct described in the affidavit. And as we have said,

material omissions can be the basis of a Fourth Amendment violation

if all three elements of Franks's two-part test are satisfied.

See United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990).

2.

We turn now to the question of whether a more complete

and accurate affidavit would have nevertheless supported a finding

of probable cause for the search and seizure. In answering this

- 16 - question, we "take into account the cumulative effect of the

multiple omissions" and misstatements in the affidavit. United

States v. Vigeant, 176 F.3d 565, 572 n.8 (1st Cir. 1999).

Though only a jury can resolve reasonably disputed

issues of fact, whether a given set of facts constitutes probable

cause is a legal question. See Ornelas v. United States, 517 U.S.

690, 699 (1996); Dir. Gen. of R.R.s v. Kastenbaum, 263 U.S. 25, 28

(1923) ("Probable cause is a mixed question of law and fact. The

court submits the evidence of it to the jury, with instructions as

to what facts will amount to probable cause if proved."); Bolton

v. Taylor, 367 F.3d 5, 8 (1st Cir. 2004) ("[N]o deference should

be given to the fact-finder as to probable cause or reasonable

suspicion where the raw facts are undisputed or settled and the

only issue is one of law application.").

In assessing whether probable cause exists, we consider

"the whole picture." Wesby, 138 S. Ct. at 588 (quoting United

States v. Cortez, 449 U.S. 411, 417 (1981)). Probable cause does

not require proof of guilt beyond a reasonable doubt, but "only an

objectively reasonable basis for believing 'that evidence of [the

crime] can likely be found at the described locus at the time of

the search.'" United States v. Flores, 888 F.3d 537, 548 (1st

Cir. 2018) (alteration in original) (quoting United States v.

Floyd, 740 F.3d 22, 32 (1st Cir. 2014)).

- 17 - The probable cause question here turns on the underlying

Maine law. As noted above, "[a] person is guilty of theft if . . .

[t]he person obtains or exercises unauthorized control over the

property of another with intent to deprive the other person of the

property." Me. Rev. Stat. tit. 17-A, § 353(a). The critical

question is whether the affidavit, had it not contained the above-

noted deficiencies, would still have established probable cause to

believe that Jordan's exercise of control over Senior's property

was unauthorized.

The origin and terms of the POA weigh heavily in favor

of a "no" answer to this question because it expressly granted

Jordan the authority to take control of Senior's property. The

affidavit sought to diminish the exculpatory weight of the POA by

giving the impression that Jordan prepared the POA and foisted it

on his befuddled parent. In other words, it tacitly suggested

that the POA was not validly executed and therefore that it could

not authorize the seizure. But once one learns that the POA was

the product of pre-hospitalization discussions, that Senior's

lawyer prepared the POA, and that Senior authorized Jordan to

transfer property to himself, all of Jordan's behavior is cast in

a very different, markedly benign light.

The defendants try another tack, arguing that the POA,

although legitimately executed, did not actually grant Jordan

authority to transfer Senior's property to himself because any

- 18 - such grant of power would be invalid under Maine law. They point

out that the Maine Uniform Power of Attorney Act, Me. Rev. Stat.

tit. 18-A, § 5-914, incorporates section 802 of the Maine Uniform

Trust Code, which in turn provides that "[a] trustee shall

administer the trust solely in the interests of the beneficiaries."

Me. Rev. Stat. tit. 18–B, § 802(1). But under that section of the

Trust Code, a trustee has no such duty if "[t]he transaction was

authorized by the terms of the trust." Id. § 802(2)(A). Leaving

no doubt on this point, the Maine Uniform Power of Attorney Act

provides that the agent shall "[a]ct loyally for the principal's

benefit," "[e]xcept as otherwise provided in the power of

attorney." Me. Rev. Stat. tit. 18-A, § 5-914(b)(1) (emphasis

added). Therefore, since the POA expressly authorized the

challenged self-dealing, Jordan was not obligated to act solely in

Senior's interests.

Jordan still had the basic obligation under Maine law to

"[a]ct in accordance with the principal's reasonable expectations

to the extent actually known by the agent." Id. § 5-914(a)(1)

(emphasis added). The defendants argue that Jordan violated this

duty by declining to follow Senior's directives about the

disposition of Senior property. But the POA authorized Junior to

advisable or appropriate, which gifts may be made to or for the

benefit of [Jordan]." This express authorization to sell any

- 19 - property seriously undercuts any argument that Senior reasonably

expected Jordan to keep Senior's property in Senior's name.

Moreover, Jordan maintains that he took all the disputed actions

in furtherance of a plan he and Senior agreed to before Senior

executed the POA. There is no evidence that Senior ever denied

the existence of the pre-hospitalization plan to move assets out

of his name by having his lawyer prepare a POA that granted Jordan

discretion to decide what property to sell. And Myers confirmed

the existence of the pre-hospitalization plan. Moreover,

everything Jordan did is consistent with that plan. Conversely,

Senior's belated, post-hospitalization critique of Jordan's

actions seemed inconsistent with his reason for granting the POA

in the first place. Under these circumstances, it seems

implausible that Jordan "actually kn[ew]" that Senior

"reasonabl[y] expect[ed]" Jordan to cease implementing their pre-

hospitalization agreement. Id.3

Seriously weakened by the facts concerning the

provenance and breadth of the POA, the affidavit's remaining

3 Maine law also makes it an affirmative defense to theft "that the defendant acted in good faith under a claim of right to property." Me. Rev. Stat. tit. 17-A, § 361. We do not address, however, whether the officers violated the Fourth Amendment by failing to include known facts that established an affirmative defense, because Jordan has made no such claim. See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("Our precedent is clear: we do not consider arguments for reversing a decision of a district court when the argument is not raised in a party's opening brief.").

- 20 - inculpatory force would further dissipate if the affidavit

correctly described Jordan's offer to give the firearms to the

police. A reader of the affidavit might think that Jordan's stated

reason for taking the firearms was pretextual. Indeed, the fact

that the warrant authorized the officers to search for the very

same firearms that Jordan had offered to the police suggests that

the Maine district court judge believed that Jordan took the guns

for his own benefit. Once one includes in the picture Jordan's

undisputed proffer, such a belief becomes implausible.

Collectively, correction of the misrepresentation and

the two omissions would have painted a fundamentally different

picture of Jordan's actions in trying to assist an episodically

confused and often hostile parent. It is not a reasonable picture

of a thief in action and, thus, would fall short of establishing

probable cause for a search warrant.

3.

That leaves the matter of state of mind. Officers can

easily forget information or fail to perceive its significance in

seeking warrants, so the law provides no evidentiary exclusion or

legal liability for such errors, even when made negligently.

Franks, 438 U.S. at 171 ("Allegations of negligence or innocent

mistake are insufficient."); Tanguay, 787 F.3d at 49 ("Negligent

omissions -- even negligent omissions of highly probative

information -- do not satisfy [the Franks] standard."). For Jordan

- 21 - to prevail, there must be evidence upon which a jury could

reasonably find that the defects in the affidavit were made

"knowingly and intentionally, or with reckless disregard for the

truth." Franks, 438 U.S. at 155 (1978). And in the case of

omissions, there is an additional element: "Because there is no

requirement that every shred of known information be included in

a warrant affidavit," an omission satisfies the Franks test "only

if it is 'designed to mislead or . . . made in reckless disregard

of whether [it] would mislead, the magistrate' in his appraisal of

the affidavit." Tanguay, 787 F.3d at 49 (alterations in original)

(quoting United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir.

1990)).

Determining an actor's mental state is traditionally a

role for the jury. See Stepanischen v. Merchs. Despatch Transp.

Corp., 722 F.2d 922, 928 (1st Cir. 1983) (noting that "where, as

here, the state of mind of one of the parties is crucial to the

outcome of the case," "courts are particularly cautious about

granting summary judgment").

An intent to deceive, and certainly recklessness, need

not be proven by direct evidence. "In the case of allegedly

material omissions, 'recklessness may be inferred where the

omitted information was critical to the probable cause

determination.'" Burke v. Town of Walpole, 405 F.3d 66, 81–82

(1st Cir. 2005) (quoting Golino v. New Haven, 950 F.2d 864, 871

- 22 - (2d Cir. 1991)); see also United States v. Gifford, 727 F.3d 92,

101 (1st Cir. 2013) (inferring recklessness from the omission of

critical information).

Viewing the record as a whole, we find that there is

enough evidence that a jury could reasonably conclude that

Hesseltine had such a mental state. As for the misrepresentation,

the jury could decide -- based on Myers's testimony -- that

Hesseltine, at best, recklessly disregarded the true origins of

the POA, and that the exculpatory force of the correct information

would have been obvious to him. As for the omissions, the

defendants conceded that Fuller disclosed to Hesseltine all the

information he received from Senior and Junior, which would include

the terms of the POA and the fact that Junior offered to turn the

firearms over to the Waldoboro Police Department. And if jurors

concluded that the misrepresentation was the result of an intent

to deceive the judicial officer to serve a warrant, it would

require no unreasonable leap to find that the two omissions were

part of the same effort.

We conclude, therefore, that the record viewed favorably

to Jordan would support findings satisfying all three elements of

the Franks test: The affidavit contained a false statement and

two omissions; correction of those three deficiencies,

collectively, would eliminate probable cause; and those three

deficiencies were designed to mislead or made in reckless disregard

- 23 - of whether they would mislead the magistrate in considering whether

to issue a warrant. The magistrate judge therefore erred by

granting summary judgment on the claims under the federal and state

civil rights acts that the officers unlawfully searched Jordan's

property. Instead, a factfinder will need to determine that the

POA was Senior's idea and the handiwork of his lawyer, that it

contained a clause allowing transfers to Jordan, and that Jordan

offered the firearms to the police. The factfinder would further

need to find that a defendant4 knew (or recklessly disregarded)

all three facts, and that through the combined use of falsehoods

and omissions the defendant prepared an affidavit designed to

mislead (or made in reckless disregard of whether it would mislead)

the judicial officer in his appraisal of the affidavit.

B.

We turn now to Jordan's argument that the magistrate

judge erroneously granted summary judgment on Jordan's federal and

state civil rights claims for false arrest. Again, both parties

assume that the disposition of the federal claim controls the

disposition of the parallel state constitutional claim, so we

assume as much as well.

To make a claim for false arrest, Jordan must show that

an arresting officer lacked probable cause to believe that Jordan

4 See infra Part II.E.

- 24 - had committed theft. See Morelli v. Webster, 552 F.3d 12, 19 (1st

Cir. 2009). The only fact that distinguishes this probable cause

analysis from the preceding one is that the officers, while

conducting the search, found a title to the truck in Jordan's name,

signed by Senior -- further indication that Senior consented to

swapping trucks. This additional piece of evidence shrunk the

already insufficient probability that the transfer of ownership of

the truck was unauthorized. We therefore conclude, a fortiori,

that a reasonable juror could find that anyone aware of the

deficiencies in the warrant application would know (or recklessly

disregard the fact that) there was no probable cause to arrest

Jordan.

C.

Next, Jordan argues that the magistrate erred in

granting summary judgment for the defendants on his federal

constitutional claims for malicious prosecution. The parties

agree that to make out a claim for malicious prosecution, Jordan

must show that "the defendant (1) caused (2) a seizure of the

plaintiff pursuant to legal process unsupported by probable cause,

and (3) criminal proceedings terminated in plaintiff's favor."

Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013)

(quoting Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)).

The district court held that -- even assuming Jordan could meet

the first two requirements -- he could not show that the criminal

- 25 - proceedings terminated in his favor, and it therefore concluded

that summary judgment was appropriate.

It was recently a live question in our circuit whether

post-Hernandez-Cuevas Supreme Court precedent rendered the

favorable termination element "an anachronism." See Pagán-

González, 919 F.3d at 609 (Barron, J., concurring) (citing Manuel

v. City of Joliet, Ill., 137 S. Ct. 911, 925–26 (2017) (Alito, J.,

dissenting)). But the Supreme Court arguably resolved this

question when it reiterated that a plaintiff cannot bring a

section 1983 fabricated-evidence claim that is analogous to the

common-law tort of malicious prosecution "prior to favorable

termination of [the] prosecution." McDonough v. Smith, 139 S. Ct.

2149, 2156 (2019). And in any event, Jordan's brief to this court

accepts the Hernandez-Cuevas elements, and Jordan has therefore

waived any argument that he need not satisfy the favorable

termination element of a malicious prosecution claim. See Sparkle

Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir.

2015).

So, we face the question of whether the state criminal

proceedings against Jordan terminated in Jordan's favor.

Hernandez-Cuevas, 723 F.3d at 101. Jordan concedes that, to

satisfy the favorable termination element, a plaintiff must show

that the prosecution was terminated in such a way as to imply the

plaintiff's innocence. See Restatement (Second) of Torts § 660

- 26 - cmt. a (1977) ("Proceedings are 'terminated in favor of the

accused' . . . only when their final disposition is such as to

indicate the innocence of the accused."); cf. Jones v. City of

Boston, 135 F. App'x 439, 440 (1st Cir. 2005) (unpublished opinion)

(affirming the dismissal of a constitutional malicious prosecution

claim because the plaintiff did "not allege facts that would permit

an inference that the charges were dismissed because of his

innocence or the Commonwealth's lack of reasonable grounds for the

prosecution").

The district attorney dismissed the criminal proceedings

against Jordan because "[t]he victim and key witness in the case

for the State, Scott Jordan[,] Sr[.], ha[d] died." Jordan contends

that this dismissal was "indicative of innocence." To support

this claim, Jordan cites section 660 of the Restatement (Second)

of Torts, which lists examples of terminations insufficient to

state a malicious prosecution claim.5

5 Section 660 provides:

A termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient termination to meet the requirements of a cause of action for malicious prosecution if

(a) the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused; or

(b) the charge is withdrawn or the prosecution abandoned because of misconduct on the part of

- 27 - Jordan argues that, since none of the enumerated circumstances

describes the reason for the dismissal of his criminal case, we

should conclude that the dismissal was a favorable termination.

However, the Restatement itself makes clear that section 660's

list of insufficiently favorable reasons for termination is not

exhaustive; section 661 states that "[t]he formal abandonment of

proceedings by a public prosecutor is not a sufficient termination

in favor of the accused if the abandonment is due to the

impossibility or impracticability of bringing the accused to

trial." Jordan's criminal case was dismissed because the death of

the key witness made the prosecution impracticable. Therefore,

the dismissal was not sufficiently favorable to the accused, and

Jordan cannot satisfy the favorable termination element under

Hernandez-Cuevas, 723 F.3d at 101.6

the accused or in his behalf for the purpose of preventing proper trial; or

(c) the charge is withdrawn or the proceeding abandoned out of mercy requested or accepted by the accused; or

(d) new proceedings for the same offense have been properly instituted and have not been terminated in favor of the accused. 6Oddly, and possibly for no good reason as Judge Barron's concurring opinion explains, a malicious prosecution claim appears to require favorable termination, McDonough, 139 S. Ct. at 2156, while a claim for false arrest does not, see Wallace v. Kato, 549 U.S. 384, 388–92 (2007).

- 28 - D.

Jordan also challenges the district court's entry of

summary judgment on the Maine tort claims for malicious prosecution

and false imprisonment. For each of these claims, his brief to

this court relies entirely on his arguments regarding the analogous

constitutional claims of malicious prosecution and false arrest.

Therefore, the malicious prosecution claim fails in view of

Jordan's failure to satisfy the favorable termination element, as

discussed above in subpart D. And the false imprisonment claim

fails because Jordan provides no analysis as to how the Maine

common-law tort would apply to the facts here, even assuming a

false arrest. See United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived."). We therefore affirm the entry of summary

judgment as to the state-law tort claims.

E.

Next, we address the defendants' argument that -- should

we disagree with the district court's decision to enter summary

judgment on all claims -- we should nevertheless affirm the entry

of summary judgment for the federal claims against Santheson,

Fuller, Labombarde, and the Town of Waldoboro on the alternative

basis that they had too minimal a role in the conduct giving rise

to Jordan's claims.

- 29 - Jordan has alleged sufficient facts that a jury might

reasonably find Chief of Police Labombarde liable on the Fourth

Amendment claims. Recall that, according to Myers, Labombarde

participated in the phone call in which Myers refuted the theory

conveyed by the affidavit. In his affidavit in this litigation,

Labombarde stated that he received regular updates about the status

of the investigation and conceded that he reviewed the affidavit

and the application for a search warrant before Hesseltine

submitted them to the Maine district court judge. And Hesseltine

stated, in his deposition, that Labombarde "was well aware of all

the evidence that [Hesseltine] had" because Hesseltine "bounced

everything off" Labombarde. These facts, taken together, convince

us that -- should the jury find for Jordan -- it could reasonably

find Labombarde partially responsible.

We agree, though, that Jordan has failed to allege facts

upon which a jury could reasonably find Officers Fuller and

Santheson culpable. Though Fuller interviewed Senior and Jordan,

and heard Jordan offer to turn the firearms over for safekeeping,

he had no role in applying for the search warrant, searching

Jordan's home, or arresting Jordan. And though Jordan alleges

that "Santheson was also an active participant in the

investigation," he has marshalled no facts supporting an inference

that Santheson had any material involvement aside from

participating in the execution of the search warrant. Jordan

- 30 - raises the specter of conspiracy and intervenor theories of

liability, but he neither presents facts tending to show a

conspiracy or intervenor liability nor develops any argumentation

supporting these theories. These points are therefore waived.

See Zannino, 895 F.2d at 17.

We also agree with the defendants that summary judgment

is warranted for the claims against the Town of Waldoboro. "[A]

municipality can be found liable under § 1983 only where the

municipality itself causes the constitutional violation at issue."

City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell

v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 694–95 (1978)).

"Thus, a plaintiff must show that a policy or custom of the city

led to the constitutional deprivation alleged." Santiago v.

Fenton, 891 F.2d 373, 381 (1st Cir. 1989). Jordan posits that the

"unwritten policies, customs and/or practices of officers

destroying notes of their investigations, not documenting witness

interviews and exculpatory evidence in investigations, and not

writing timely police reports was the cause" of the alleged

constitutional deprivations. But Jordan's case theory is not that

exculpatory information slipped through the cracks. Rather, he

necessarily contends that officers recklessly or intentionally

drew up a misleading affidavit in order to secure a warrant. We

fail to see, on the record before us, how this misbehavior can be

attributed to a custom or policy of the Town of Waldoboro. We

- 31 - therefore affirm the entry of summary judgment for the claims

against the municipality.

F.

Having concluded that a jury could find that Officer

Hesseltine and Chief Labombarde violated Jordan's constitutional

rights to be free from unreasonable search and seizure and false

arrest, we turn to these two defendants' contention that we should

affirm on the alternative grounds that they are entitled to

qualified immunity. "[O]fficers are entitled to qualified

immunity under § 1983 unless (1) they violated a federal statutory

or constitutional right, and (2) the unlawfulness of their conduct

was 'clearly established at the time.'" Wesby, 138 S. Ct. at 589

(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). We have

already concluded that the officers violated a federal

constitutional right, so the sole question is whether the

unlawfulness of their conduct was "clearly established at the

time." Id. at 589. "[T]he relevant, dispositive inquiry in

determining whether a right is clearly established is whether it

would be clear to a reasonable [officer] that his conduct was

unlawful in the situation he confronted." Rocket Learning, Inc.

v. Rivera-Sanchez, 715 F.3d 1, 9 (1st Cir. 2013) (emphasis omitted)

(quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)).

As the defendants correctly conceded at oral argument,

the law clearly prohibited officers from "us[ing] deliberately

- 32 - falsified allegations to demonstrate probable cause." Franks, 438

U.S. at 168; see also Martínez-Rodríguez v. Guevara, 597 F.3d 414,

420 (1st Cir. 2010) ("It is . . . beyond peradventure that arrests

procured on the basis of material false statements or testimony

given in reckless disregard for the truth violate the Fourth

Amendment."); Miller v. Prince George's Cty., 475 F.3d 621, 630

(4th Cir. 2007) ("[T]he Supreme Court has made . . . clear that

police officers cannot intentionally lie in warrant affidavits, or

recklessly include or exclude material information known to

them."); Aponte Matos, 135 F.3d at 185 ("It has long been well

established that . . . a material fabrication [in a warrant

application] violates the Warrant Clause of the Fourth

Amendment.").

Despite this concession, the defendants' brief could be

read to argue that -- even assuming Hesseltine and Labombarde

deliberately included falsehoods in the warrant affidavit -- they

are entitled to qualified immunity unless Jordan can show that any

reasonable officer would have understood that, absent the

falsehoods, probable cause would not have existed. We must

disagree. See Aponte Matos, 135 F.3d at 187 (1st Cir. 1998)

(holding that "[a]n officer who obtains a warrant through material

false statements which result in an unconstitutional search may be

held personally liable for his actions under § 1983.")

- 33 - The aim of the doctrine of qualified immunity "is to

avoid the chilling effect of second-guessing where the officers,

acting in the heat of events, made a defensible (albeit imperfect)

judgment." Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010).

There is no good reason to provide such protection to an officer

who deliberately paints a misleading picture of the facts in order

to procure a warrant. Whether or not it would have been clear to

a reasonable officer that the false picture was necessary to

establish probable cause, it certainly would be clear to any law

enforcement officer that trying to mislead the judicial officer in

seeking a warrant is highly improper. See Aponte Matos, 135 F.3d

at 185 (noting that, because there was "no doubt that officers

reasonably understand that they may not lie in order to establish

probable cause in a warrant application," defendants would not be

protected by qualified immunity if plaintiffs satisfied the Franks

test).

Leon itself makes clear that among the "circumstances

[in which an] officer will have no reasonable grounds for believing

that the warrant was properly issued" is when "the magistrate or

judge in issuing a warrant was misled by information in an

affidavit that the affiant knew was false or would have known was

false except for his reckless disregard of the truth." Leon, 468

U.S. at 922–23 (citing Franks, 438 U.S. at 171); see also Vigeant,

176 F.3d at 572 (observing that the Leon good-faith exception would

- 34 - be difficult to invoke "where the shortcomings in probable cause

were attributable to 'the inspectors' omissions in the warrant-

application process.'" (quoting United States v. Ricciardelli,

998 F.2d 8, 16 (1st Cir. 1993))).

As the Seventh Circuit explained when confronting this

question, "[q]ualified immunity depends on whether it would have

been 'clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.'" Rainsberger v. Benner, 913 F.3d

640, 652 (7th Cir. 2019) (emphasis omitted) (quoting Wesby, 138

S.Ct. at 590). An officer "d[oes] not face a choice about whether

the facts in the hypothetical affidavit established probable

cause," but rather "a choice about whether to make false or

misleading statements in the affidavit." Id. And, needless to

say, "a competent officer would not even entertain the question

whether it was lawful for him to lie in a probable cause

affidavit." Id.

The Seventh Circuit does distinguish between omissions

and affirmative misstatements in warrant affidavits, holding that

qualified immunity protects an officer who omitted material

information from a warrant affidavit unless "it would have been

clear to a reasonable officer that the omitted fact was material

to the probable-cause determination." Id. at 654 (quoting Leaver

v. Shortess, 844 F.3d 665, 669 (7th Cir. 2016)). The Seventh

Circuit based its distinction between omissions and affirmative

- 35 - misstatements on the need to protect "an officer acting in good

faith [who] make[s] a reasonable mistake about his disclosure

obligation." Id. But the question of qualified immunity arises

only if we first presume a constitutional violation. And under

Franks, such a violation in the case of an omitted fact requires,

among other things, a finding that the omission was "'designed to

mislead, or . . . made in reckless disregard of whether [it] would

mislead, the magistrate' in his appraisal of the affidavit."

Tanguay, 787 F.3d at 49 (alterations in original) (quoting Colkley,

899 F.2d at 301). So we are not so sure that there is any reason

to treat omissions differently than misrepresentations in the

qualified immunity analysis. In any event, on this record we

consider the cumulative impact of what jurors might find to be a

deliberate attempt to convey a knowingly false picture by combining

a falsehood and two omissions in an effort to secure a warrant.

So we are confident that the requirements for establishing a

constitutional violation in this case provide sufficient

protection for the officers so as to render any further qualified

immunity analysis unnecessary.

We therefore decline to affirm the judgment on qualified

immunity grounds.7

7 Nothing in this opinion should be read as saying that either Hesseltine or Labombarde actually did anything improper. Rather, we hold only that if the facts are viewed favorably to Jordan, rational jurors could reasonably so conclude.

- 36 - G.

Finally, we confront Jordan's argument that the district

court erred in its conclusion that punitive damages are not

available in this case. The sole basis of the district court's

decision regarding punitive damages was "plaintiff's failure to

generate triable issues as to his substantive federal and state-

law claims." Jordan, 2018 WL 4688724, at *26. Since we have

concluded that summary judgment was not appropriate on the

constitutional false arrest and search and seizure claims, we

vacate the district court's decision forbidding Jordan from

seeking punitive damages. In so doing, we take no position on the

availability of punitive damages.

III.

For the foregoing reasons, we affirm in part and reverse

in part the entry of summary judgment against Chief of Police

Labombarde and Officer Hesseltine. We affirm the entry of summary

judgment against the other defendants, and we remand for

proceedings consistent with this opinion. The parties shall bear

their own costs.

–Concurring Opinion Follows–

- 37 - BARRON, Circuit Judge, concurring. Scott Jordan, Jr.

brings a pair of claims under 42 U.S.C. § 1983 for damages that

target the pretrial criminal detention that he allegedly endured

in violation of the Fourth Amendment of the federal Constitution.

He styles his first such § 1983 claim, which targets the pretrial

detention that followed his initial warrantless arrest, as one for

"false arrest." He styles his second such § 1983 claim, which

targets the pretrial detention that, it appears, followed a

criminal complaint and summons, as one for "malicious

prosecution." Without assessing the relative strength of the

underlying alleged Fourth Amendment violations, we hold that this

"false arrest" § 1983 claim may proceed but that this "malicious

prosecution" § 1983 claim may not. The question that prompts this

concurrence thus arises: how can our different treatment of these

two § 1983 claims be justified?

Our answer relies on Jordan's concession that a

"favorable termination" requirement applies to this "malicious

prosecution" § 1983 claim but not to this "false arrest" § 1983

claim. Maj. Op. at 26. Because the criminal proceedings ended

upon the alleged victim's death before the criminal trial and not

after, say, an acquittal, Jordan cannot satisfy that requirement.

Id. I thus join our opinion in full.

I write separately, however, to register my doubt that

the "favorable termination" requirement applies to a § 1983 claim

- 38 - that targets a pretrial criminal seizure simply because it is made

pursuant to an arrest warrant, as some of the precedent that Jordan

cites in support of his concession appears to indicate.8 Even an

arrest pursuant to a warrant violates the Fourth Amendment if law

enforcement secures it by tricking the magistrate into finding

probable cause. See Franks v. Delaware, 438 U.S. 154, 168-172

(1978). I am thus not convinced that a plaintiff must show that

any follow-on criminal proceedings ended in his favor when he seeks

damages under § 1983 for a seizure pursuant to an arrest warrant.

Or, at least, I am not convinced that a plaintiff should have to

make that showing even when the challenged seizure occurs so early

in the criminal case that it precedes a grand jury handing up an

indictment or a prosecutor filing a criminal information.9 For,

as our treatment of Jordan's "false arrest" § 1983 claim

demonstrates, a plaintiff need not make that showing when he seeks

damages for the harm caused by a similarly early-stage warrantless

8 See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013) (stating that a Fourth Amendment-based § 1983 "malicious prosecution" claim challenging a pre-indictment, warrant-based seizure is subject to a favorable termination requirement, seemingly no matter how early on in the case the warrant-based arrest occurs); cf. McDonough v. Smith, 139 S. Ct. 2149, 2156 (2019) (applying that requirement to a § 1983 malicious prosecution claim seeking damages, in part, for restraints on liberty resulting from pretrial detention). 9 In referencing these types of charging events, here and

throughout this concurrence, I do not mean to exclude any comparable ones that may be permitted in a particular state under that state's law.

- 39 - seizure. See Manuel v. City of Joliet, 137 S. Ct. 911, 925-26

(2017) (Alito, J., dissenting) ("The Fourth Amendment . . .

prohibits all unreasonable seizures -- regardless of whether a

prosecution is ever brought or how a prosecution ends."); see also

Pagán-González v. Moreno, 919 F.3d 582, 609 (1st Cir. 2019)

(Barron, J., concurring) (describing the "favorable termination"

requirement as applied to such a claim as an "anachronism").10

10I focus in this concurrence on whether, just because a seizure is made pursuant to an arrest warrant, the "favorable termination" requirement applies to a Fourth Amendment-based § 1983 claim for damages from that seizure. Jordan's "malicious prosecution" § 1983 claim does not, however, involve a seizure made pursuant to an arrest warrant. Rather, according to the stipulated facts, following his warrantless arrest on November 21, 2014, law enforcement personnel served Jordan with a Uniform Summons and Complaint that same day for a violation of Me. Stat. tit. 17-A, § 353.1A.2 by unauthorized taking/transfer. Law enforcement then transported Jordan to Two Bridges Jail, from which Jordan was released that same day on bail with conditions of release pursuant to a bail bond. It thus appears that this Fourth Amendment-based § 1983 claim -- unlike his Fourth Amendment-based "false arrest" § 1983 claim -- seeks damages for a period of detention that followed some legal process, in which that legal process took the form of the issuance of a mere criminal complaint and summons, which, under Maine law, may occur even without the involvement of a prosecutor and simply upon the action of a law enforcement officer. See Me. Stat. tit. 17-A, § 15-A. I do not address whether detention that follows that kind of relatively informal legal process -- unlike detention that follows legal process that takes the form of an indictment, a criminal information filed by a prosecutor, or some comparable charging event -- justifies subjecting a Fourth Amendment-based § 1983 claim to a "favorable termination" requirement to ensure that its pursuit will not interfere with any state criminal prosecution that may ensue. See infra. I also do not address whether the seizure that grounds this claim ended upon Jordan’s release on bail or instead only upon the termination of certain bail conditions that restricted his liberty.

- 40 - I.

Jordan's "false arrest" § 1983 claim borrows its

elements from the common-law tort of false arrest, which permits

recovery for an unlawful seizure without legal process and which

does not impose the "favorable termination" requirement. See

Wallace v. Kato, 549 U.S. 384, 389 (2007) (describing the elements

for such a § 1983 claim as: (1) causing "unlawful detention,"

i.e., detention without probable cause, and (2) "without legal

process"). The accrual rule for this type of § 1983 claim is also

borrowed from the claim for the common-law tort of false arrest,

which accrues when the "alleged false imprisonment end[s]." Id.

(internal quotation marks omitted). Because both the § 1983 and

common-law types of "false arrest" claims target seizures that

precede any criminal process, moreover, it makes sense that no

"favorable termination" requirement applies. Neither the

seizure's lawfulness nor the harm that it inflicts turns on how

any follow-on criminal proceedings end.

There is, however, another type of Fourth

Amendment-based § 1983 claim that also takes aim at a seizure that

occurs early in a criminal case and thus before even, say, a grand

jury has handed up an indictment or a prosecutor has filed a

criminal information. See, e.g., Hernandez-Cuevas v. Taylor, 723

F.3d 91, 93-94 (1st Cir. 2013). But, this type of Fourth

Amendment-based § 1983 claim targets a seizure that is made

- 41 - pursuant to at least some legal process, as it targets a seizure

that is made pursuant to an arrest warrant. Thus, in accord with

how plaintiffs often style such § 1983 claims, the common-law tort

of malicious prosecution, which is subject to a "favorable

termination" requirement, is often thought to supply the proper

common-law analog for this type of § 1983 claim, as our precedent

has also indicated. See id. at 97-98.11 But, although this type

of § 1983 claim, like the claim for the common-law tort of

malicious prosecution, seeks recovery for a seizure pursuant to

legal process, the two types of claims differ in important ways.

A claim for the common-law tort of malicious prosecution

focuses on whether "criminal proceeding[s]" have been initiated or

continued with malice and without probable cause. Manuel, 137 S.

Ct. at 925 (Alito, J., dissenting). For that reason, "[a]lmost

any kind of criminal proceeding" can ground such a claim, 3 Dan B.

Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 587

(2d ed. 2011), including not only a magistrate's issuance of an

arrest warrant but also a grand jury indictment, a summons for the

criminal defendant to appear at a hearing in his criminal case, a

magistrate's determination in a criminal case at a probable-cause

11 Insofar as the common-law abuse-of-process tort is a good analog, it appears not to have a "favorable termination" requirement. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on The Law of Torts § 121 (5th ed. 1984).

- 42 - hearing that the criminal defendant should be held, or the

prosecutor's filing of a criminal information, Restatement

(Second) of Torts § 654 & cmt. (c)-(e) (Am. Law Inst. 1977); W.

Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen,

Prosser and Keeton on The Law of Torts § 119 (5th ed. 1984).

After all, the initiation of the criminal process -- and

the stigma inherent in its initiation -- is the source of the

injury for the common-law tort of malicious prosecution. Thus,

such a claim for that tort "always involves defamation" while

"detention or confinement is no part of the issue," 3 Dobbs, Hayden

& Bublick, supra, § 586, and "any damages recoverable" must be

based "on the wrongful use of judicial process rather than

detention itself," Keeton, Dobbs, Keeton & Owen, supra, § 119.

The source of the injury for a Fourth Amendment-based

§ 1983 claim that seeks recompense for a seizure pursuant to legal

process, however, is the detention itself, not the legal process

used to effect it.12 Thus, per Congress's instruction in 42 U.S.C.

§ 1988, we likely must look beyond the common-law tort of malicious

prosecution to determine this type of § 1983 claim's requirements.

12I do not address the question of "whether injury from the issuance of a warrant without arrest" "may itself deprive a person of his liberty in violation of the Fourth Amendment." Ord v. District of Columbia, 587 F.3d 1136, 1146 (D.C. Cir. 2009).

- 43 - See Carey v. Piphus, 435 U.S. 247, 258 n.13 (1978) (discussing 42

U.S.C. § 1988).

Manuel also supports our doing so. The plaintiff

contended there that his pretrial detention violated the Fourth

Amendment because the magistrate's finding of probable cause

relied on evidence that law enforcement authorities had

fabricated. See 137 S. Ct. at 915-16. Manuel permitted that

Fourth Amendment-based § 1983 claim, even though the plaintiff had

styled it as one for "malicious prosecution," to proceed, without

referring to the § 1983 claim at issue as one for "malicious

prosecution." Id. at 918, 921 (explaining that "pretrial detention

can violate the Fourth Amendment not only when it precedes, but

also when it follows, the start of legal process in a criminal

case"). In fact, although Manuel explained that judges should

"look first to the common law of torts" to identify the Fourth

Amendment-based § 1983 claim's requirements, id. at 920, the Court

also warned that judges should keep in mind that "[c]ommon-law

principles are meant to guide rather than to control the definition

of § 1983 claims, serving more as a source of inspired examples

than of prefabricated components," id. at 921 (internal quotation

marks omitted). Thus, the Court cautioned in Manuel, "[i]n

applying, selecting among, or adjusting common-law approaches,

courts must closely attend to the values and purposes of the

constitutional right at issue." Id.

- 44 - Manuel ultimately left open whether a "favorable

termination" requirement applied to the claim there at issue, id.

at 922, and, prior to Manuel, we did state that the "favorable

termination" requirement applied to such a claim, see Hernandez-

Cuevas, 723 F.3d at 99 n.8. But, Hernandez-Cuevas declined to

borrow the requirements of the common-law tort of malicious

prosecution wholesale in defining the requirements for that Fourth

Amendment-based § 1983 claim, even though it involved a seizure

made pursuant to an arrest warrant. Id. at 99-105 (discussing the

omission of the common-law malice element from a Fourth Amendment-

based challenge, per Franks, to a pre-indictment, warrant-based

arrest and impliedly adjusting the probable-cause element). And,

after Manuel, we suggested that the "favorable termination" might

not apply to such a Fourth Amendment-based § 1983 claim,

notwithstanding that it seeks recompense for a seizure made

pursuant to legal process. See Pagán-González, 919 F.3d at 602;

id. at 605-11 (Barron, J., concurring) (discussing the possible

need for adjustment of the probable-cause and favorable-

termination elements).

But, while all these signs point away from applying the

"favorable termination" requirement to this type of Fourth

Amendment-based § 1983 claim for damages from a seizure pursuant

to an arrest warrant, there is one important sign that arguably

does not. In McDonough, the Supreme Court recently held that the

- 45 - "favorable termination" requirement did apply to the "malicious

prosecution" § 1983 claim at issue there, even though the plaintiff

sought damages, in part, for restraints on his liberty that he

attributed to his pretrial seizure. 139 S. Ct. at 2156. Thus, I

must address whether McDonough calls for a different analysis than

the one that, in Pagán-González, I suggested would be proper.

I do not think that McDonough does. The Court described

the § 1983 claim in that case as one that targeted "the integrity

of criminal prosecutions undertaken 'pursuant to legal process'"

rather than only the plaintiff's initial seizure pursuant to an

arrest warrant. Id. (emphasis added) (citing Heck v. Humphrey,

512 U.S. 477, 484 (1994)). Nor did McDonough indicate that --

like the claims in Manuel and Pagán-González, and like the claim

that Jordan brings -- the § 1983 claim there was based on the

Fourth Amendment as opposed to, for example, the federal

constitutional right to procedural due process. Moreover, while

McDonough did identify practical reasons for applying a "favorable

termination" requirement to the § 1983 claim before it, I am not

convinced that these practical reasons apply equally to all purely

Fourth Amendment-based § 1983 claims that seek damages for the

harm caused by a warrant-based seizure.

McDonough invoked the need to prevent a "ticking

limitations clock on criminal defendants as soon as they become

aware that fabricated evidence has been used against them," given

- 46 - "practical problems in jurisdictions where prosecutions regularly

last nearly as long as -- or even longer than -- the relevant civil

limitations period" and thus where "criminal defendants could face

an untenable choice between (1) letting their claims expire and

(2) filing a civil suit against the very person who is in the midst

of prosecuting them." Id. at 2158. But, that concern would not

necessitate the imposition of a "favorable termination"

requirement if such a Fourth Amendment-based § 1983 claim would

not accrue until the assertedly unlawful detention terminates.

Such termination could occur upon either the plaintiff's release

from detention (including bail conditions) or the emergence of a

separate legal basis for the detention -- whether that separate

legal basis takes the form of a subsequent lawful arrest warrant,

the handing up of an indictment by a grand jury, or a prosecutor's

filing of a criminal information -- and thus would have nothing to

do with the way that any follow-on criminal proceedings end.

McDonough also explained that the "favorable

termination" requirement "avoid[s] parallel criminal and civil

litigation over the same subject matter and the related possibility

of conflicting civil and criminal judgments." Id. at 2156–57.

But, the Fourth Amendment's warrant requirement stems from

concerns about trusting law enforcement to assess probable cause

for itself. See Mincey v. Arizona, 437 U.S. 385, 394 (1978).

Thus, a Fourth Amendment-based § 1983 claim for damages from a

- 47 - warrant-based arrest -- at least when that seizure precedes a grand

jury's indictment or a prosecutor's filing of a criminal

information -- poses no greater inherent risk of interfering with

follow-on state criminal proceedings than does a § 1983 claim that

targets an equally early-stage warrantless arrest. Yet, "in accord

with [the] common practice," a federal court that faces a § 1983

claim of that latter, warrantless-seizure-based sort may simply

"stay the civil action until the criminal case or the likelihood

of a criminal case is ended." Wallace, 549 U.S. at 393–94.

McDonough did also emphasize that "clear accrual rules

are valuable." 139 S. Ct. at 2160. A termination requirement

such as I have described, however, would not appear to be unduly

hard to administer. That is especially so, given how uncertain

even the "favorable termination" requirement itself can be.13

The time that a criminal defendant may spend in pretrial

detention after a warrant-based arrest but before a prosecutor

files a criminal information or a grand jury hands up an indictment

may be brief. But then, so too is the time that a criminal

13I note that, as long as the Franks violation is clear, it is not evident to me that, to overcome a qualified immunity defense, a plaintiff who brings a Fourth Amendment-based § 1983 claim of this sort needs also to demonstrate that it is clearly established that the claim is not subject to the "favorable termination" requirement. See Pagán-González, 919 F.3d at 616 (Barron, J., concurring).

- 48 - defendant may spend in such early-stage detention after a

warrantless arrest. The brevity of that detention has never been

thought to justify conditioning a plaintiff's right to recover

damages under § 1983 for that detention on his capacity to show

that any criminal proceedings that may thereafter ensue ended in

his favor. That is why we permit Jordan's "false arrest" § 1983

claim to proceed. But, for that very reason, I am not convinced

that a plaintiff should have to make that "favorable termination"

showing to obtain such recompense under § 1983 when he seeks

damages for the harm caused by an equally early-stage

unconstitutional seizure just because it is made pursuant to an

arrest warrant. For, brief though the detention caused by that

seizure may have been, there are few protections more basic than

the right to be free from unjustified imprisonment, and thus there

are few that are more in need of the kind of fulsome remedy that

Congress supplied in § 1983 -- even if the common law itself does

not supply one, too.

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