Angello Osborne v. Peter Georgiades , 679 F. App'x 234 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2468
ANGELLO A. D. OSBORNE,
Plaintiff - Appellee,
v.
PETER GEORGIADES, Police Corporal,
Defendant – Appellant,
and
DIONE WHITE, LGSW; MEREDITH LYNN PIPITONE,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cv-00182-RDB)
Argued: May 10, 2016 Decided: February 8, 2017
Before GREGORY, Chief Judge, TRAXLER, Circuit Judge, and Joseph
F. ANDERSON, Jr., Senior United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by unpublished opinion. Chief Judge Gregory wrote the
opinion, in which Judge Anderson joined. Judge Traxler wrote a
dissenting opinion.
ARGUED: Deborah Street Duvall, HARFORD COUNTY DEPARTMENT OF
LAW, Bel Air, Maryland, for Appellant. Robert Louis Smith, Jr.,
LAW OFFICE OF ROBERT L. SMITH, JR., Baltimore, Maryland,
for Appellee. ON BRIEF: Melissa Lambert, County Attorney,
Kristin L. Lewis Noon, Assistant County Attorney, HARFORD COUNTY
DEPARTMENT OF LAW, Bel Air, Maryland, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Chief Judge:
Plaintiff-appellee Angelo Osborne sued Defendant-appellant
Corporal Peter Georgiades, as well as Dione White and Meredith
Lynn Pipitone, alleging violations of his constitutional rights
under 42 U.S.C. §§ 1983 and 1985. Specifically, Osborne
contends that Georgiades, in the process of investigating him
for alleged sexual abuse of his minor child, unreasonably seized
him in violation of the Fourth and Fourteenth Amendments.
Georgiades moved for summary judgment on grounds of qualified
immunity. The district court denied the motion, holding that
Georgiades is not entitled to qualified immunity. For the
reasons stated below, we affirm the judgment of the district
court.
I.
A.
As a preliminary matter, we view the facts in the light
most favorable to Osborne, the nonmoving party. See ACLU of
Md., Inc. v. Wicomico County, 999 F.2d 780, 784 (4th Cir. 1993).
Osborne and Pipitone are the parents of two minor children—a
daughter (“JMLO”), five years old at the time of the events in
question, and a son (“CJP”), then two years old. On November 1,
2010, Pipitone contacted the Harford County Child Advocacy
Center to report the alleged sexual assault of JMLO. Pipitone
3
claimed that JMLO did not want to spend Halloween with her
father. JMLO purportedly told Pipitone that a few weeks prior,
Osborne had
Sealed App. 63. *
Later that day, White, a licensed social worker for the
Harford County Child Advocacy Center, interviewed Pipitone.
After speaking with Pipitone, White interviewed JMLO. Although
Georgiades was not present, he remained in telephone contact
with White and observed the interview from a nearby room via
live video feed for purposes of investigating the allegations.
White employed the Rapport, Anatomical Identification, Touch
Inquiry, Abuse Scenario, Closure (“RATAC”) method when
questioning JMLO. RATAC focuses on reducing any potential
trauma to the child during the interview.
In her initial responses to White’s questions, JMLO
consistently denied that Osborne, or anyone else, had touched
her on parts of her body covered by a bathing suit.
Id. In
*The
Court will cite to the audio and video recording of
JMLO’s interview because the transcript, Sealed App. 36-56,
contains numerous errors.
4
total, JMLO denied abuse six times. See J.A. 250, 252, 255
(classifying JMLO’s responses as “denials”).
Id. After approximately three minutes of similar
questions, JMLO changed course and finally replied, “He did.”
Id.JMLO went on to state
Id.Id.
JMLO also described
She then referred to an incident at Osborne’s
house in which CJP got in “trouble” with Osborne’s girlfriend.
Id. Although it is not entirely clear what CJP did, JMLO stated
“that’s why I’m never going over there again.” Id. White never
asked any follow-up questions concerning that incident.
5
Instead, White asked several questions regarding whether
Osborne’s girlfriend and CJP “saw it happen.” Id. JMLO again
changed course and stated that Osborne’s girlfriend was not
present when the alleged abuse occurred and that CJP was asleep.
Id.After JMLO described and demonstrated with dolls the
alleged acts of abuse, White placed a phone call to Georgiades,
who suggested other topics to discuss. J.A. 226, 237. After
this call, she asked JMLO whether CJP was present during the
second instance of abuse. JMLO stated that CJP was asleep in
the bed next to her. Id. at 54. JMLO also stated Osborne
Id. at 55. White then asked
Id.
Their conversation was then interrupted by a second phone
call from Georgiades. After this conversation, White asked JMLO
a series of questions regarding
At this point, Georgiades immediately placed a
third phone call, resulting in White terminating the interview.
White and Georgiades spoke on three occasions throughout the
interview.
6
After White completed the interview, Pipitone called
Osborne to accuse him of sexually assaulting their daughter.
With Pipitone’s consent, Georgiades listened in on the call.
During that conversation, Osborne consistently denied Pipitone’s
accusations. Osborne also told Pipitone he would take a
polygraph test if she took one. J.A. 318, 319-20.
The most recent assault allegedly occurred on October 16,
2010. Dr. Paul Lomonico conducted a thorough physical exam of
JMLO on November 3, 2010, for evidence of sexual assault. He
examined her entire body,
Sealed App. 58.
His medical report indicated “no physical signs . . . of sexual
abuse” but noted, “This does not rule out abuse.” Id.
On December 15, 2010, Georgiades met with Diane Tobin
(“Tobin”), a Deputy State’s Attorney for Harford County,
Maryland. After reviewing the video of the JMLO interview,
Tobin accepted the case for prosecution. For over a month,
Georgiades attempted to contact Osborne, but was unsuccessful.
On January 21, 2011, Georgiades spoke to Osborne, who stated
that he would only speak with Georgiades with his attorney
present. Id. at 68.
7
On January 24, 2011, Georgiades applied for an arrest
warrant. Georgiades’s affidavit disclosed only JMLO’s
accusations of sexual abuse but not her repeated denials, nor
the results of the medical examination. An arrest warrant was
issued, and Osborne was arrested on the same day. Osborne was
charged with eight counts of sexual—assault-based offenses. On
January 25, 2011, Osborne was detained in the Harford County
Detention Center, with bail set for $500,000. A grand jury
subsequently indicted Osborne on February 15, 2011, on sixteen
counts of sexual-assault-related crimes. Osborne was
incarcerated without bond for over eight months, until October
3, 2011, when a bond was set for $25,000. The state eventually
declined to prosecute Osborne on December 13, 2011, instead
placing his case on the inactive “stet” docket.
B.
Osborne initiated the present action on January 23, 2014.
Osborne claims that White, with Georgiades’s guidance,
fabricated evidence against him by asking JMLO “unduly
suggestive and leading” questions “designed and intended to
cajole the minor child into making up a story to support”
Pipitone’s accusations. J.A. 9. Osborne also claims that
Georgiades knowingly omitted relevant facts from his application
for Osborne’s arrest warrant. Osborne denies ever assaulting or
even attempting to assault the minor child. He argues that his
8
arrest and ensuing incarceration were “without justification,
without probable cause, and were motivated by [Defendants’]
wanton, malicious[,] and reckless desire to inflict great
emotional and physical distress and pain and suffering upon”
him. Id. at 11.
After the district court dismissed all claims against White
and Pipitone, Georgiades moved for summary judgment on the sole
remaining claim that he violated Osborne’s Fourth Amendment
right against unreasonable seizure under 42 U.S.C. § 1983.
Georgiades argued that he is entitled to qualified immunity for
his actions. The district court concluded that Georgiades is
not entitled to immunity for the acts underlying Osborne’s §
1983 claim—fabrication of evidence and omission of material
facts from the warrant application. First, the court held that
because the contents of the conversations between White and
Georgiades were not “disclosed,” a reasonable jury could
conclude that Georgiades exerted pressure that resulted in the
fabrication of evidence against Osborne. J.A. at 331. Second,
the court found that a reasonable jury could conclude that
Georgiades’s warrant application contained omissions made
deliberately or with reckless disregard for any misleading
effect and that the omitted evidence had the potential to negate
probable cause. Id. at 333. This appeal timely followed.
9
II.
We review an award of summary judgment on the basis of
qualified immunity de novo. Durham v. Horner, 690 F.3d 183, 188
(4th Cir. 2012). In reviewing the district court’s denial of
summary judgment based on qualified immunity, “we accept as true
the facts that the district court concluded may be reasonably
inferred from the record when viewed in the light most favorable
to the plaintiff.” Yates v. Terry, 817 F.3d 877, 884 (4th Cir.
2016) (citation omitted). “To the extent that the district
court has not fully set forth the facts on which its decision is
based, we assume the facts that may reasonably be inferred from
the record when viewed in the light most favorable to the
plaintiff.” Id. (citation omitted). “[T]his usually means
adopting . . . the plaintiff’s version of the facts.” Iko v.
Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (quoting Scott v.
Harris, 550 U.S. 372, 378 (2007)).
III.
Qualified immunity shields government officials from
liability in a § 1983 suit unless their conduct violated
“clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). To determine whether an official is
entitled to qualified immunity, we ask (1) whether the facts
10
illustrate that the official violated the plaintiff’s
constitutional right; and (2) whether the right was clearly
established law at the time of the alleged event such that “a
reasonable officer would have understood that his conduct
violated the asserted right.” Miller v. Prince George’s County,
475 F.3d 621, 627 (4th Cir. 2007) (quoting Saucier v. Katz, 533
U.S. 194, 201-02 (2001)). The answer to both questions must be
in the affirmative to defeat the official’s motion for summary
judgment on qualified immunity grounds. Id.A.
First, we consider whether the facts demonstrate that
Georgiades violated Osborne’s asserted constitutional right.
Osborne maintains that the facts outlined above, considered in
the light most favorable to him, allege a claim that he was
seized without probable cause in violation of the Fourth
Amendment. “The Fourth Amendment prohibits law enforcement
officers from making unreasonable seizures, and seizure of an
individual effected without probable cause is unreasonable.”
Brooks v. City of Winston–Salem, 85 F.3d 178, 183 (4th Cir.
1996). Osborne specifically contends that his seizure was
unreasonable because it resulted from (1) Georgiades’s
fabrication of evidence and (2) the omission of material facts
from the warrant application.
11
1.
Osborne alleges that Georgiades fabricated evidence by
directing White to ask JMLO misleading questions, thereby
resulting in JMLO’s false account of sexual abuse. The district
court held that a reasonable jury could conclude that Georgiades
committed a constitutional violation by exerting pressure that
caused the fabrication of evidence against Osborne and directly
resulted in his unreasonable seizure. J.A. 331. The district
court further held that the right to be free from deprivation of
liberty due to an officer’s fabrication of evidence was clearly
established at the time of Georgiades’s alleged conduct. J.A.
332. As such, the district concluded that Georgiades was not
entitled to qualified immunity for the alleged fabrication.
Georgiades has waived his challenges to these holdings by
raising them for the first time in his reply brief. See Metro.
Reg’l Info. Sys., Inc. v. Am. Home Realty Network, 722 F.3d 591,
602 n.13 (4th Cir. 2013) (stating that appellant’s failure to
address issue in opening brief will deem issue waived or
abandoned). Therefore, Georgiades’s challenges are not properly
before us, and we will not address the district court’s holdings
on the fabrication claim.
2.
Osborne, arrested pursuant to a warrant, also contends that
Georgiades unlawfully omitted certain key facts from the warrant
12
application. Relying on the two-prong standard set forth in
Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (requiring
intent and materiality), the district court held that Osborne
must show that Georgiades “deliberately or with reckless
disregard for the truth made material false statements in his
affidavit, . . . or omitted from that affidavit material facts
with the intent to make, or with reckless disregard of whether
they thereby made, the affidavit misleading.” J.A. 332 (quoting
Miller, 475 F.3d at 627).
Below, we consider the district court’s holdings as to the
intent and materiality prongs to determine whether Georgiades’s
omissions amount to a constitutional violation.
a.
Initially, we conclude that Georgiades has waived any
challenge to the district court’s holding regarding his intent
to mislead. The district court held that a reasonable jury
could conclude that Georgiades’s warrant application contained
omissions made deliberately or with reckless disregard for any
misleading effect. J.A. 332. Georgiades only makes a passing
reference to the district court’s holding, contending in a
footnote that “Osborne has failed to demonstrate that the
omissions were made with reckless disregard for the truth. . . .
However, the Court need not reach this issue since probable
cause existed for the warrant against Osborne.” Appellant’s Br.
13
15 n.4. Georgiades makes no attempt to explain the basis for
his belief, nor does he present any argument on why summary
judgment should have been granted in his favor on this issue.
The issue is therefore waived. See, e.g., Belk, Inc. v. Meyer
Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (concluding that
defendant waived issue for failure to develop argument in
brief).
b.
Next, we consider the district court’s holding regarding
the materiality of the omitted facts. Id. at 333. Georgiades
argues that the district court erred by concluding that the
omitted facts “could” and “had the potential” to negate a
finding of probable cause. J.A. 333. We agree that the
district court employed the wrong standard, but the error was
harmless because the omissions met the proper standard under
Franks.
The correct materiality standard under Franks requires that
the omissions be necessary to the neutral and disinterested
magistrate’s finding of probable cause. Evans v. Chalmers, 703
F.3d 636, 650 (4th Cir. 2012) (quoting Miller, 475 F.3d at 628).
The omission “must be such that its inclusion in the affidavit
would defeat probable cause for arrest.” United States v.
Colkley, 899 F.2d 297, 301 (4th Cir. 1990). The court must
insert the facts recklessly omitted and determine whether or not
14
the “corrected” warrant affidavit would establish probable
cause. Miller, 475 F.3d at 628. If the “corrected” warrant
affidavit establishes probable cause, the omissions do not
amount to a constitutional violation. Id.Probable cause for an arrest “exists where the facts and
circumstances within [the officer’s] knowledge and of which [he
or she] had reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief
that an offense has been . . . committed by the person to be
arrested.” Clipper v. Takoma Park, Md., 876 F.2d 17, 19 (4th
Cir. 1989) (citing Dunaway v. New York, 442 U.S. 200, 208 n.9
(1979)).
Osborne contends that a “corrected” affidavit would not
have established probable cause for his arrest. As corrected,
Georgiades’s warrant application would have shown that (1) JMLO
repeatedly denied (six times in total) that she was sexually
abused by Osborne; (2) she then stated, and demonstrated by
using dolls,
; (3) the most recent acts of abuse occurred on October 16,
2010; and (4) a thorough medical exam conducted on November 3,
2010 revealed no physical signs of sexual abuse. Considering
the totality of the circumstances presented by this information,
15
the “corrected” warrant application would not have established
probable cause to arrest Osborne.
The facts and circumstances presented by the “corrected”
warrant application are not sufficient in themselves to warrant
a person of reasonable caution in the belief that Osborne
committed the offense stated in the application. The corrected
warrant application would have asked the magistrate to issue a
warrant for Osborne’s arrest in spite of JMLO’s inconsistent
allegations of abuse and direct evidence that may contradict
that any abuse occurred-Dr. Lomonico’s medical examination and
report.
As such, the omitted facts
are material because their inclusion would have defeated
probable cause.
B.
Georgiades has never contended that the right asserted by
Osborne was not clearly established. For the reasons stated
above, this issue is undoubtedly waived. And even if not
waived, this contention is without merit.
The Fourth Amendment right to be arrested only on probable
cause was clearly established at the time of the events at issue
here. Miller, 475 F.3d at 632; Brooks, 85 F.3d at 183. More
specifically, it was also clearly established “that the
16
Constitution did not permit a police officer deliberately, or
with reckless disregard for the truth, to make . . . omissions
to seek a warrant that would otherwise be without probable
cause.” Miller, 475 F.3d at 631-32 (collecting cases). The
objective standard for qualified immunity accommodates the
allegation of material omissions “because a reasonable officer
cannot believe a warrant is supported by probable cause if the
magistrate is misled by [omitted facts] that the officer knows
or should know [would negate probable cause].” Smith, 1010 F.3d
at 355.
We therefore conclude that Georgiades is not entitled to
qualified immunity.
IV.
Georgiades also argues that the February 15, 2011, grand
jury indictment “conclusively determined the existence of
probable cause, which unless rebutted by Osborne, nullifies
Osborne’s claims of false arrest and false imprisonment.”
Appellant’s Br. 9. Georgiades, however, failed to raise this
argument in the district court.
This Court has repeatedly held that issues raised for the
first time on appeal generally will not be considered. Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993) (collecting
cases). “The matter of what questions may be taken up and
17
resolved for the first time on appeal is one left primarily to
the discretion of the courts of appeals, to be exercised on the
facts of individual cases.” In re Under Seal, 749 F.3d 276, 285
(4th Cir. 2014) (quoting Singleton v. Wulff, 428 U.S. 106, 121
(1976)). In this circuit, we exercise that discretion
sparingly. Exceptions to this general rule are made only in
very limited circumstances, such as when the newly raised
argument establishes “fundamental error” or a denial of
fundamental justice. Stewart v. Hall, 770 F.2d 1267, 1271 (4th
Cir. 1985). The error must be “so serious and flagrant that it
goes to the very integrity of the trial.” Id.Because fundamental error is a more limited standard than
the plain-error standard applied in criminal cases, we use the
plain-error standard “as something of an intermediate step in a
civil case.” In re Under Seal, 749 F.3d at 285-86. If a party
in a civil case fails to meet the plain-error standard, it is
clear that he also fails to establish fundamental error. Id.
Under the plain-error standard, we may correct an error not
raised before the district court only where the appellant
demonstrates: (1) there is in fact an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute;
(3) the error affected the appellant’s substantial rights,
meaning it affected the outcome of the district court
proceedings; and (4) the error seriously affects the fairness,
18
integrity, or public reputation of judicial proceedings. United
States v. Marcus, 560 U.S. 258, 262 (2010). We have refused,
however, to conduct plain error review where the party “failed
to make its most essential argument in its briefs or at oral
argument: . . . that the district court fundamentally or even
plainly erred.” In re Under Seal, 749 F.3d at 292.
Here, Georgiades has not made his most essential argument.
His “failure to argue for plain error and its application on
appeal surely marks the end of the road for [his] argument for
reversal not first presented to the district court.” Id. Thus,
Georgiades’s argument is waived.
V.
For the foregoing reasons, the district court’s denial of
Georgiades’s summary judgment motion is
AFFIRMED.
19
TRAXLER, Circuit Judge, dissenting:
We are talking about a five year old little girl. She
described how her father sexually molested her to a trained and
experienced forensic interviewer, using anatomically correct
drawings and dolls to demonstrate what he did to her. The
majority holds it was illegal to arrest the father.
The little girl initially denied being abused during the
interview and a medical examination conducted over two weeks
after the abuse showed no signs of physical injury.
Notwithstanding the fact that a trained and experienced social
worker and interviewer, with full knowledge of the two
additional facts, determined that sexual abuse was indicated
under Maryland law, the majority holds there can be no arrest
because there was no probable cause. If this were a published
case which would set precedent for this circuit, you could say
goodbye to the prosecution of many child sexual abuse cases,
because those two facts are common to sexual abuse cases
involving children.
This little girl is like most five year olds who have
been sexually abused. She does not want to talk about it. The
video of her forensic interview makes that plain. There are
many reasons why this occurs and why children, more often than
not, initially deny sexual abuse, particularly abuse by a
parent or other trusted adult. The child may have been
20
threatened not to talk by her abuser. She may have been told
not to tell (as was the case with this little girl) or led into
a promise to “keep our secret.” She may be simply embarrassed.
A child’s reluctance to talk about sexual abuse happens all the
time. But such initial denials do not mean the abuse did not
occur and they cannot be accepted at face value. More questions
must be asked and different interview approaches must be
explored. It takes a trained and skilled interviewer to get
past these initial denials to uncover the truth of what happened
in a reliable way. That is precisely what happened here.
Likewise, the absence of physical trauma is not unusual,
because there are degrees of sexual abuse. A lack of injury
does not mean no sexual abuse occurred. This child told the
interviewer S.J.A.
46. The particular incident caused pain to her but not physical
injury. Hence the validity of the examining doctor’s conclusion
that the absence of physical trauma did not mean that no sexual
abuse occurred.
According to the majority’s holding in this case, if a
small child initially and briefly denies sexual abuse and the
medical examination shows no injury, but is otherwise
inconclusive, then there is no probable cause to arrest the
abuser. Yet, in Maryland, a sex offender can be convicted at
trial solely on the testimony of his young victim. There is no
21
requirement of corroboration, and initial denials by the child
do not affect the admissibility of her testimony about what
happened. It is for the jury to decide whether the child’s
statement is enough, or whether the initial denials render her
testimony unreliable. The majority is requiring more evidence
for an arrest than Maryland requires for a conviction.
I.
A.
Under Maryland’s child abuse and neglect statute, local
social services departments are charged, along with law
enforcement, with investigating allegations of child abuse. See
Md. Code Fam. Law § 5-706. At the conclusion of an
investigation, the department must determine whether child abuse
is “indicated,” “ruled out,” or “unsubstantiated.” See Md. Code
Regs. § 07.02.07.12.
On November 1, 2010, Meredith Pipitone reported to the
Harford County Child Advocacy Center that her 5 year-old
daughter, “JMLO,” had been sexually abused by Osborne, JMLO’s
father. Later that day, Pipitone brought JMLO to the child
advocacy center and talked to Dion White, a licensed social
worker and trained forensic interviewer in child sexual abuse
cases.
In accordance with Maryland law, White immediately
conducted a forensic interview of JMLO. White’s interview
22
followed the RATAC method. See Jennifer Anderson et al, The
Cornerhouse Forensic Interview Protocol: RATAC, 12 T.M. Cooley
J. of Prac. & Clinical L. 193, 202 (2010). RATAC, an acronym
for “Rapport, Anatomy Identification, Touch Inquiry, Abuse
Scenario, and Closure,” see id., is a well-recognized and
widely-accepted model for interviewing and questioning children
about sexual abuse. A trained interviewer generally goes
through the steps sequentially and begins by establishing a
rapport and gaining the child’s trust. The interviewer then
utilizes anatomical drawings “to identify different parts of the
body, to develop a common language,” for the child to use in
identifying body parts. J.A. 210. She then moves to the Touch
Inquiry, wherein the child is asked about “what parts of the
body may not be okay for someone to touch.” J.A. 211. Finally,
the interviewer delves into whether the allegations of abuse
have occurred – the “Abuse Scenario” – and ultimately reaches
closure with the child.
Of particular relevance in this case is the “Abuse
Scenario” component, pursuant to which the interviewer seeks to
determine if the allegations of abuse have actually occurred.
Generally, the interviewer “start[s] with open-ended questions”
and “use[s] the child’s spontaneity.” J.A. 211. However, the
interviewers are also taught to use direct questions, or yes-no
questions, or multiple choice when necessary. According to
23
J.A. 46-47. At that point, JMLO proceeded to describe in
S.J.A. 55.
Based on the results of the RATAC interview, White’s
written assessment was “that th[e] child was sexually abused” as
described in detail during the forensic interview. White
provided the following official disposition, pursuant to state
law: “Sexual Abuse of [JMLO] is ruled ‘Indicated,’ in
accordance with the provisions of [Maryland] Family Law Article
5-701 and [the Code of Maryland Regulations] 07.02.07.12 (A-2).”
S.J.A. 63.
Corporal Peter Georgiades of the Harford County Sheriff’s
Office was assigned to investigate the case and appeared at the
child advocacy center to monitor the interview of JMLO. There
is no evidence in the record that Corporal Georgiades talked to
JMLO before the interview. There is no evidence in the record
that he knew JMLO or her mother or her father. He was not
physically present in the room while White interviewed JMLO, but
instead observed what transpired from another room by means of a
27
live video feed. Georgiades and White were able to communicate
by phone during the interview, which they did three times during
the 37 minutes White talked to JMLO.
Following the interview, JMLO’s mother called Osborne and
relayed what JMLO had described to White during the interview.
Law enforcement recorded the call. Osborne denied JMLO’s story.
Rather than seek a warrant immediately, Corporal Georgiades
elected to continue the investigation. In particular, Corporal
Georgiades wanted to afford Osborne an opportunity to provide an
explanation for JMLO’s statements; however, Georgiades’ attempts
to contact Osborne were unsuccessful, despite Georgiades having
left his card at Osborne’s residence multiple times.
On November 3, 2010, Dr. Lomonico was advised by DSS that
JMLO had reported
S.J.A. 58.
Although Dr. Lomonico found “no physical signs in today’s exam
for sexual abuse,” he concluded that “[t]his does not rule out
abuse.” S.J.A. 58. Maryland law specifically provides that
“[p]hysical injury is not required for a finding of indicated
sexual abuse.” Md. Code Regs. § 07.02.07.12(A)(2)(b); see also
Md. Code, Fam. Law § 5-701(b)(2) (defining “abuse” to include
“sexual abuse of a child, whether physical injuries are
sustained or not.”). Moreover, under Maryland law, any
penetration, “however slight,” is sufficient to establish rape.
28
Kackley v. State, 493 A.2d 364, 366 (Md. Ct. Spec. App. 1985).
White later testified without contradiction that “[i]n my
experience there’s seldom trauma. . . . [W]hen a doctor, Dr.
Lomonico would look at a child, there is seldom evidence or an
observation o[f] physical trauma.” S.J.A. 34. White’s
experience consisted of her investigation of an average of 100
cases a year, since 2004, amounting to over one thousand cases,
the majority of which were sexual abuse cases.
On December 15, 2010, six weeks after the initial
statements by JMLO, Corporal Georgiades met with the prosecutor,
Deputy State’s Attorney Diane Tobin, to have his case assessed.
After viewing the entire video of White’s interview of JMLO and
discussing the merits of the case with Georgiades, Tobin
accepted the case for prosecution.
Despite the go-ahead from the prosecutor, Corporal
Georgiades still persisted in his efforts to contact Osborne.
Even after leaving his card several more times, Georgiades was
not able to get Osborne to contact him. On January 14, 2011,
Georgiades contacted Osborne’s girlfriend by telephone,
believing her to be a possible witness to the reported
incidents. The girlfriend told Georgiades that Osborne did not
trust the police and would not contact them, but she agreed she
would encourage Osborne to call. Finally, on January 24, 2011,
Osborne called Georgiades but explained that he wanted to talk
29
with his attorney before saying anything else. Osborne then
ended the call.
On January 24, 2011, Corporal Georgiades applied for an
arrest warrant. After recounting the allegations from JMLO’s
mother in his warrant application, Georgiades expressly referred
to the recorded interview: “[JMLO] was brought to the [child
advocacy center] on Monday 11/1/2010 and a forensic interview
was conducted. The Interview was both visually and audibly
recorded.” J.A. 160. Georgiades then briefly summarized the
portions of JMLO’s interview that supported probable cause to
believe that Osborne had sexually abused his daughter.
The arrest warrant was issued and Osborne was charged with
8 sexual-assault counts. Subsequently, a grand jury presented
with the evidence issued a 16-count indictment for sexual-
assault offenses. Osborne was held in jail for more than 8
months pending trial. Ultimately, the State’s Attorney’s Office
placed Osborne’s case on the “stet docket” rather than moving
forward to trial and released Osborne.
B.
Osborne sued the police officer. He asserted under 42
U.S.C. § 1983 that his arrest by Corporal Georgiades constituted
an unreasonable seizure in contravention of the Fourth Amendment
because Corporal Georgiades (1) included “fabricated” evidence
in the warrant application in that he knowingly and
30
intentionally induced JMLO to invent facts supporting the sexual
abuse allegations, see J.A. 330-31, and (2) omitted from his
application for an arrest warrant JMLO’s initial denials of
sexual abuse as well as the fact that a medical examination did
not reveal any physical trauma, see J.A. 332-33.
Corporal Georgiades moved for summary judgment on the basis
of qualified immunity. The district court denied summary
judgment, ruling that (1) a reasonable jury could conclude that
Corporal Georgiades manufactured the case against Osborne by
directing White to pose questions designed to mislead or confuse
JMLO and (2) the omissions from Georgiades’ affidavit were
material to the probable cause determination. The district
court reasoned that “the presence of this contradictory
evidence” such as the initial denials from JMLO and the lack of
trauma findings by the examining doctor “could certainly negate
a finding of probable cause,” meaning that “a neutral,
reasonable judicial officer could choose to credit this evidence
over the evidence of JMLO’s account of abuse.” J.A. 333
(emphasis added). As to its first decision, for reasons I will
show, the district court was clearly incorrect. As to the
second ruling, the district court was wrong on the law, a point
acknowledged by the majority.
II.
31
We review de novo a district court’s decision to deny a
summary judgment motion based on qualified immunity. See Danser
v. Stansberry, 772 F.3d 340, 345 (4th Cir. 2014). Summary
judgment is proper “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).
In § 1983 actions, government officials are entitled to
qualified immunity so long as they have not violated “clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). “Officials are not liable for bad guesses
in gray areas; they are liable for transgressing bright lines.”
S.P. v. City of Takoma Park, Md., 134 F.3d 260, 266 (4th Cir.
1998) (internal quotation marks omitted). The doctrine of
qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475
U.S. 335, 341 (1986). This doctrine “balances two important
interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). It “gives government officials breathing room
to make reasonable but mistaken judgments.” Stanton v. Sims,
134 S. Ct. 3, 5 (2013) (per curiam) (internal quotation marks
32
omitted). The application of the qualified immunity doctrine
serves two purposes: first, to protect an officer from an
unnecessary trial where the doctrine plainly applies at the
pretrial stage, see Johnson v. Jones, 515 U.S. 304, 312 (1995),
and second to prevent liability when a trial resolves facts
establishing that qualified immunity is applicable, see Merchant
v. Bauer, 677 F.3d 656, 665 n.6 (4th Cir. 2012).
In determining whether an officer is entitled to summary
judgment on the basis of qualified immunity, we employ a two-
part inquiry. See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014)
(per curiam). Courts are “permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555
U.S. at 236. The first question is “whether the facts, viewed
in the light most favorable to the plaintiff, show that the
officer’s conduct violated a federal right.” Smith v. Ray, 781
F.3d 95, 100 (4th Cir. 2015); see Saucier v. Katz, 533 U.S. 194,
201 (2001). “The second [question] of the qualified-immunity
inquiry asks whether the right was clearly established at the
time the violation occurred such that a reasonable person would
have known that his conduct was unconstitutional.” Ray, 781
F.3d at 100; see Ridpath v. Bd. of Governors Marshall Univ., 447
F.3d 292, 306 (4th Cir. 2006). “The answer to both . . .
33
questions must be in the affirmative in order for a plaintiff to
defeat a defendant police officer’s motion for summary judgment
on qualified immunity grounds.” Miller v. Prince George’s Cty.,
Md., 475 F.3d 621, 627 (4th Cir. 2007) (internal alteration and
quotation marks omitted). As neither question can be answered
in the affirmative in this case, Corporal Georgiades is entitled
to summary judgment based on qualified immunity.
A. No Constitutional Violation
Osborne claims that he was arrested without probable cause
in violation of the Fourth Amendment’s guarantee against
unreasonable seizures. “The Fourth Amendment prohibits law
enforcement officers from making unreasonable seizures, and
seizure of an individual effected without probable cause is
unreasonable.” Brooks v. City of Winston–Salem, N.C., 85 F.3d
178, 183 (4th Cir. 1996). Osborne was arrested pursuant to a
warrant, and the Fourth Amendment does not permit the issuance
of a warrant “but upon probable cause.” U.S. Const. amend. IV.
An arrest made pursuant to a facially valid warrant may be
presumed to rest upon probable cause, and Osborne does not
contend that the arrest warrant was invalid on its face.
Rather, Osborne claims that Corporal Georgiades misled the
magistrate by including facts he knew to be false and by
omitting material facts from the warrant application. Our
analysis, therefore, is guided by Franks v. Delaware, 438 U.S.
34154 (1978), “as to whether asserted material false statements
and omissions in the . . . supporting affidavit[] . . . state a
constitutional claim.” Evans v. Chalmers, 703 F.3d 636, 649-50
(4th Cir. 2012). To succeed on his claim, Osborne must prove
that Corporal Georgiades deliberately or with a “reckless
disregard for the truth” made false statements of material fact
in his affidavit, Franks, 438 U.S. at 171, or omitted from that
affidavit “material facts with the intent to make, or in
reckless disregard of whether they thereby made, the affidavit
misleading,” United States v. Colkley, 899 F.2d 297, 300 (4th
Cir. 1990) (internal quotation marks omitted). Furthermore, to
establish his claim, Osborne must prove that the fabricated or
omitted facts were material. “It is well-established that a
false or misleading statement in a warrant affidavit does not
constitute a Fourth Amendment violation unless the statement is
necessary to the finding of probable cause.” Wilkes v. Young,
28 F.3d 1362, 1365 (4th Cir. 1994) (emphasis added) (internal
quotation marks omitted).
1. The Alleged False Statements in the Warrant Affidavit
Osborne contends that JMLO’s account of sexual abuse was
false, resulting from coercive interview techniques and pressure
applied by Corporal Georgiades. And, according to Osborne, the
inclusion of this manufactured account in Georgiades’ warrant
affidavit resulted in the issuance of the warrant and his
35
unreasonable seizure. The district court found that “a
reasonable jury could certainly conclude that Corporal
Georgiades exerted pressure that resulted in the fabrication of
evidence against [Osborne]” based solely on the following: that
Corporal Georgiades spoke by phone with White three times during
the interview and that Corporal Georgiades ended the interview
after JMLO indicated
J.A. 331.
The district court’s conclusion, in my view, finds
absolutely no support in the record and amounts to rank
speculation. To survive summary judgment here, Osborne must
adduce evidence showing that Corporal Georgiades deliberately
caused fabricated or falsified evidence. See Devereaux v.
Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc); Myers v.
Morris, 810 F.2d 1437, 1458 (8th Cir. 1987) (requiring “a
specific affirmative showing of dishonesty”), abrogated on other
grounds, Burns v. Reed, 500 U.S. 478 (1991). It is Osborne’s
burden to produce evidence of fabrication, not Georgiades’
burden to negate it.
Georgiades asserted a general right to qualified immunity
in his opening brief to this court, but the majority is correct
that he did not specifically challenge the district court’s
ruling on the fabrication allegation. I think nevertheless we
should reach this issue for several reasons. First, Georgiades
36
in his brief did claim the defense of qualified immunity. When
this defense is presented, a court may determine whether there
is proof that the official violated the plaintiff’s
constitutional rights. Second, the record irrefutably shows
there was no fabrication of evidence. There is not a shred of
evidence of any coercion or any fabrication of any type. Third,
Georgiades’s lawyer used a substantial portion of her oral
argument to challenge the allegations of fabrication and she was
thoroughly questioned by judges on the panel about it, all
without anyone objecting to its relevance or suggesting that
waiver precluded counsel from adressing the fabrication issue.
Fourth, given the importance of the interest the court has in
eliminating baseless claims early on, I would take this
opportunity to address and get rid of this allegation.
Osborne presented absolutely no evidence suggesting that
Georgiades somehow manipulated JMLO into falsely accusing
Osborne of sexual abuse, and the district court relied upon
sheer speculation in concluding otherwise. The sole factual
basis for the district court’s opinion was that Corporal
Georgiades and White spoke by telephone during the interview.
From that fact and that fact alone, the district court
conjectured that Georgiades directed White to ask questions
designed to manipulate JMLO into falsely accusing Osborne of
abuse. The majority apparently believes we are bound by the
37
opinion of the district court. If there were any facts in the
record to support his conclusion, I might agree. But this record
is completely devoid of any evidence that Officer Georgiades
exerted any pressure or fabricated any evidence.
First and foremost, the child had already told White about
Osborne’s molestation of her and described in detail what
Osborne had done to her before there was the first phone
conversation between Corporal Georgiades and White. This fact
alone renders the fabrication claim frivolous. Second, there is
absolutely no evidence in the record at all as to what was said
during those phone conversations. And, third, neither the
district court in its order nor Osborne on appeal identified a
single improper question posed to JMLO during the interview,
which was recorded from start to finish and followed the widely-
accepted RATAC forensic interview model. Thus, there is simply
no evidence that Georgiades violated Osborne’s constitutional
rights by causing fabricated evidence to be elicited during that
interview and this claim should be eliminated.
2. Information Omitted from the Warrant Application
Osborne also claims that Corporal Georgiades deliberately
or with a reckless disregard for the truth omitted important
“contradictory evidence” from the warrant application--namely
JMLO’s initial denials of abuse and the “dearth of any physical
evidence of abuse,” J.A. 333—in order to mislead the magistrate
38
into issuing a warrant. The district court denied summary
judgment, concluding (1) that a reasonable factfinder could
decide that Corporal Georgiades had the requisite intent to
mislead the magistrate, and (2) that the omitted “contradictory
evidence” was material because it “could certainly negate a
finding of probable cause.” Id. In my view, and with due
respect for the district court, these decisions were clearly in
error.
a. Intent
“To satisfy the Franks’ intentional or reckless falsity
requirement for an omission, the defendant must show that facts
were omitted with the intent to make, or in reckless disregard
of whether they thereby made, the affidavit misleading.” United
States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008) (internal
quotation marks omitted). That is, “the omission must be
designed to mislead or must be made in reckless disregard of
whether it would mislead.” Id. (internal quotation marks and
alteration omitted). To establish “reckless disregard,” the
defendant must show that the “officer failed to inform the
judicial officer of facts he knew would negate probable cause.”
Miller, 475 F.3d at 627 (internal question marks and alteration
omitted).
Officers applying for a warrant “cannot be expected to
include in an affidavit every piece of information gathered in
39
the course of an investigation,” Colkley, 899 F.2d at 300, and
they are “not required to include every piece of exculpatory
information in [such] affidavits,” Evans, 703 F.3d at 651. Not
every omission amounts to a constitutional violation:
[B]ecause every piece of information cannot be
expected to be included, the very process of selecting
facts to include for the demonstration of probable
cause must also be a deliberate process of omitting
pieces of information. Certainly, such intentional
omissions do not satisfy the requirement of Franks. .
. . [If] this type of intentional omission is all
that Franks requires, the Franks intent prerequisite
would be satisfied in almost every case. Accordingly,
merely showing an intentional omission of a fact from
a warrant affidavit does not fulfill Franks’
requirements.
Tate, 524 F.3d at 455 (internal quotation marks and citations
omitted).
Other than the mere fact that Corporal Georgiades omitted
JMLO’s initial denials and the inconclusive medical report, the
record is bereft of evidence suggesting that he misled the
issuing magistrate intentionally or recklessly. In fact, all of
the evidence is to the contrary. Neither the district court nor
Osborne point to any evidence of the required intent other than
the fact that allegedly contradictory evidence was omitted. The
district court concluded that a jury could infer the requisite
intent or recklessness from the mere fact of omission itself.
This court, however, has refused to embrace “the validity of
inferring bad motive under Franks from the fact of omission [of
40
contradictory information] alone, for such an inference
collapses into a single inquiry the two elements—
‘intentionality’ and ‘materiality’—which Franks states are
independently necessary.” Colkley, 899 F.2d at 301. In
Colkley, we concluded that the defendant failed to show that the
officer applying for the warrant intended to mislead the
magistrate even though he omitted from his affidavit the fact
that none of the six eyewitnesses were able to identify
defendant out of a photo lineup and that he used only the height
description provided by one eyewitness but did not mention that
other witnesses indicated the bank robber was shorter than the
defendant. See id. at 300-01. Likewise, in Simmons v. Poe, we
held that an officer had not acted with a reckless disregard for
the truth where he included in his affidavit only the profile
factors that were consistent with the suspect and omitted
several inconsistent profile factors as well as the victim’s
initial belief that her attacker was of a different race. See
47 F.3d 1370, 1383-84 (4th Cir. 1995).
The record does not create any question of fact as to
whether Georgiades omitted JMLO’s initial denials or the results
of the medical examination with the intent to mislead the
magistrate or with a reckless disregard for the truth. In fact,
I am unable to find any evidence in the record showing that
Georgiades even knew about the existence of Dr. Lomonico’s
41
report before he applied for the warrant. Actually, insofar as
the record contains facts relating to Corporal Georgiades’
intent with regard to the arrest warrant, they suggest that he
harbored no deceit and wanted to make sure he covered all his
bases before arresting Osborne. He had seen the interview of
the little girl. The opinion of Dion White, the experienced
social worker who interviewed JMLO, was that sexual abuse of
JMLO had indeed occurred. He knew the child’s father had told
her not to tell anybody about what he had done. In addition,
prior to applying for the arrest warrant, Georgiades took the
recording of the interview to Tobin, the prosecutor, for her
assessment of the case. After watching the interview, which
included JMLO’s initial denials, and discussing the merits of
the case with Georgiades, Tobin wanted to move forward with the
prosecution. Only after receiving the go-ahead from the
prosecutor did Georgiades prepare and submit his warrant
application, which specifically stated that there was a
recording of JMLO’s interview. Thus, he disclosed the video to
the magistrate who could have watched and seen for himself what
JMLO said if he so desired.
The consultation with Tobin shows, at the least, that
Georgiades fully disclosed his evidence to the legal expert who
was assigned by the State of Maryland to handle the case.
Georgiades also extended to Osborne numerous invitations to tell
42
his side of the story. None of the evidence points to an intent
to “railroad” Osborne. Accordingly, Osborne has failed to
establish the requisite intent required to sustain his claim
that Georgiades violated his constitutional rights.
b. Materiality
“It is well-established that a false or misleading
statement in a warrant affidavit does not constitute a Fourth
Amendment violation unless the statement is necessary to the
finding of probable cause.” Wilkes, 28 F.3d at 1365 (emphasis
added) (internal quotation marks omitted). Where a plaintiff
alleges that an officer has omitted material facts, he must
establish that without such omissions there would have been no
probable cause. See Miller, 475 F.3d at 632 (“[T]he
Constitution [does] not permit a police officer deliberately, or
with reckless disregard for the truth, to make material
misrepresentations or omissions to seek a warrant that would
otherwise be without probable cause.”).
In concluding that the facts omitted from Georgiades’
affidavit were material, the district court did not apply the
correct standard of materiality. The district court stated that
the omitted facts had the “potential to negate probable cause”
and that a “reasonable judicial officer could choose to credit
this evidence over the evidence of JMLO’s account of abuse.”
J.A. 333.
43
This court rejected virtually this same formulation of
materiality in Colkley, where the district court “believed that
the affiant’s omission was material because it ‘may have
affected the outcome’ of the probable cause determination.” 899
F.2d at 301. We explained that the court had “misstated” the
Franks materiality standard, under which “an omission must do
more than potentially affect the probable cause determination:
it must be necessary to the finding of probable cause.” Id.(emphasis added) (internal quotation marks omitted). * The
possibility that the omitted facts could be credited by a
magistrate over the facts included in the warrant affidavit does
not make such facts material under this standard. For the
omitted facts to be material, their inclusion in the warrant
affidavit must necessarily defeat probable cause. See id.In order to assess the materiality of an omission, we must
insert the omitted information “and then determine whether or
*Wefurther noted that the idea that a warrant affidavit
must include “potentially exculpatory evidence” was akin “to
import[ing] the rule of Brady v. Maryland into the warrant
application process.” United States v. Colkley, 899 F.2d 297,
302 (4th Cir. 1990) (internal citation omitted). Brady is
concerned with the fairness of criminal trials and “with the
justice of the finding of guilt that is appropriate at trial,”
while Franks “recognizes that the information an affiant reports
. . . may not ultimately be accurate . . . so long as the
affiant did not deliberately mislead the magistrate.” Id. at
303 (internal quotation marks omitted). Thus, “a requirement
that all potentially exculpatory evidence be included in an
affidavit would severely disrupt the warrant process.” Id.44
not the ‘corrected’ warrant affidavit would establish probable
cause.” Miller, 475 F.3d at 628 (internal quotation marks
omitted). Even if JMLO’s initial denials and the result of Dr.
Lomonico’s examination had been inserted into Corporal
Georgiades’ affidavit, there was still a sufficient basis for a
reasonable jurist to find probable cause. The affidavit
described the statements made by JMLO during her forensic
interview and included details from JMLO regarding sexual
activity that would have been beyond the understanding and
experience of a typical five-year old. And the medical report
did not necessarily negate JMLO’s claims, as Dr. Lomonico
himself seemed to recognize, expressly stating that his exam did
not rule out abuse. The conflicting evidence presented a
question for the jury as to JMLO’s credibility and the ultimate
guilt of Osborne, but it did not necessarily defeat probable
cause for an arrest.
B. No Clearly Established Constitutional Right
Because “[q]ualified immunity shields an officer from suit
when []he makes a decision that, even if constitutionally
deficient, reasonably misapprehends the law governing the
circumstances,” we focus our inquiry on the body of law at the
time of the police conduct to determine “whether the officer had
fair notice that [the] conduct was unlawful.” Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam). The clearly-
45
established inquiry “must be undertaken in light of the specific
context of the case, not as a broad general proposition.”
Saucier, 533 U.S. at 201. But “[w]e do not require a case
directly on point” to find the requirement satisfied so long as
“existing precedent [has] placed the statutory or constitutional
question beyond debate.” Ashcroft v. al–Kidd, 131 S. Ct. 2074,
2083 (2011) (internal quotation marks omitted).
In deciding whether an officer’s conduct violated clearly
established law, “we have long held that it is case law from
this Circuit and the Supreme Court that provide notice of
whether a right is clearly established.” Hill v. Crum, 727 F.3d
312, 322 (4th Cir. 2013) (internal quotation marks and
alteration omitted).
In determining whether a right was clearly established
at the time of the claimed violation, courts in this
circuit ordinarily need not look beyond the decisions
of the Supreme Court, this court of appeals, and the
highest court of the state in which the cases arose. .
. . If a right is recognized in some other circuit,
but not in this one, an official will ordinarily
retain the immunity defense.
Id. (internal quotation marks omitted).
The district court determined, and my friends in the
majority agree, that Corporal Georgiades should have understood
that his conduct was unlawful because it was clearly established
in 2010 under Franks v. Delaware that an officer violates the
constitution by deliberately, or with a “reckless disregard for
46
the truth,” omitting material facts from an arrest warrant
affidavit. 438 U.S. at 155-56.
Although the general Franks principle is unquestionably
well-established, we do not stop there. The law requires that
we go farther and assess the right in a more particularized
sense in the context of the specific facts of this case. As the
Supreme Court has admonished, courts must not “define clearly
established law at a high level of generality,” al-Kidd, 131 S.
Ct. at 2084, but rather must identify a constitutional right
that was “‘clearly established’ in a more particularized, and
hence more relevant, sense,” Anderson v. Creighton, 483 U.S.
635, 640 (1987).
Thus, even though it was clearly established on a general
level that an officer could not omit material facts from a
warrant application with a reckless disregard for the truth, the
contours of this right were not clearly established by Supreme
Court or Fourth Circuit precedent in the particularized context
of this case. In light of cases such as Colkley and Simmons, it
was not clear that Officer Georgiades’ omissions, which would
not have defeated probable cause, were unconstitutional. The
majority cannot cite a single case to show that the right they
claim was clearly established. The general rule established by
Franks did not afford Corporal Georgiades fair notice that his
specific conduct was unlawful, and my friends in the majority
47
cannot show that such conduct was contrary to clearly
established law.
III.
A.
Georgiades argued that the issuance of the indictment
settled the question of whether there was probable cause for the
prior arrest of Osborne. The indictment is regular on its face
and there are absolutely no allegations in Osborne’s complaint
asserting any wrongdoing or improprieties in the proceedings
before the Grand Jury. Likewise there is no evidence in the
Joint Appendix regarding what evidence the Grand Jury had before
it. There being nothing out of the ordinary regarding the Grand
Jury proceedings or the indictment, I would not speculate about
what might have happened or what could have happened in the
Grand Jury room. I would hold at the very least that the
indictment broke any chain of causation that might have existed.
See Durham v. Horner, 690 F.3d 183, 189-90 (4th Cir. 2012).
Besides, there was an independent decision made by the
prosecutor that the evidence was strong enough to go forward
with the case before Officer Georgiades ever sought a warrant.
It is uncontradicted that Officer Georgiades went over the
merits of his case with Diane Tobin, the Deputy State’s
Attorney, before making an arrest. Tobin watched the entire
video of the child’s statements, including the “denials” at the
48
beginning of the interview and nevertheless accepted the case
for prosecution. We should remember here that in a malicious
prosecution context, similar in principle to the issues before
us, we quoted with approval the following statement:
A law enforcement officer who presents all relevant
probable cause evidence to a prosecutor . . . is
insulated from a malicious prosecution claim where
such intermediary makes an independent decision . . .
unless the officer (1) concealed or misrepresented
facts or (2) brought such undue pressure to bear on
the intermediary that the intermediary's independent
judgment was overborne.
Evans v. Chalmers, 703 F.3d 636, 648 (4th Cir. 2012) (internal
quotation marks omitted).
Here, there is no evidence either exception applies, and
the approval of the case for prosecution by the Deputy State’s
Attorney and her subsequent submission of the case to the Grand
Jury should insulate Officer Georgiades from any liability
because he sought and obtained this prosecutor's independent
evaluation before he ever applied for an arrest warrant. She
saw the “denials” and still advised Officer Georgiades she would
go forward with the case. Under these circumstances, no fault
can be attributed to the officer, and he should receive the
benefits of immunity as well as our commendation for the
appropriate steps he took.
The majority would not reach this issue because it was not
argued to the district court. Although it does appear to be
49
raised for the first time on appeal, I would reach it for two
reasons: First, Osborne did not object to this question being
before us and in fact briefed the issue for our consideration.
Second, there is no evidence, or even any allegations, of any
wrongdoing with regard to the grand jury indictment or the
submission of the case to the prosecutor for a legal evaluation.
B.
My friends in the majority and I agree that the district
court used the wrong standard to evaluate the effect of the
omissions on the question of probable cause. The correct test is
whether the omissions necessarily negated probable cause. My
friends do not believe the child’s responses are reasonably
reliable to establish even probable cause because, in their
view, what five-year-old JMLO relates about the two nights
cannot be squared with her initial denials and lack of physical
injury. I must be watching a different interview video because
I see nothing that negates probable cause or warrants such a
dismissal of a five-year-old victim’s account of her abuse.
The events the child described happened on two separate
nights that her father had her in his bed, and it was not
necessary for the interviewer to try to make JMLO pinpoint
exactly what action or what statements were made on which
nights. What I do see is a five-year-old girl telling an
experienced forensic interviewer—both verbally and
50
demonstratively with dolls—about sex acts committed on her. And
it strains reason to conclude that she was coached or
manipulated by anyone into making these graphic sexual
statements during the interview. As I pointed out earlier, the
“denials” that my friends make so much of do not bother me in
the least. I frankly do not see how a five year old child’s
initial refusal to talk to a stranger about being sexually
abused by her father, who has told her not to tell anyone about
what he did, can have anything more than a fleeting effect on an
evaluation of the truthfulness of her description of what
happened to her. And the doctor’s report does not count for
much, as it is equivocal and expressly does not exclude the
prior occurrence of some type of sexual abuse. Given that
sexual abuse does not necessarily result in trauma, I would not
hesitate in saying the doctor’s report does not negate the
probable cause established by JMLO’s descriptions of what
happened. In short, the so-called omissions were not material
and do not come close to preventing the arrest of Osborne.
IV.
The majority relies on the prudential doctrine of waiver to
dispose of virtually every issue in this appeal, including the
question of whether the law was clearly established at the time
of Corporal Georgiades’s alleged constitutional violations. An
appellate court, of course, always possesses discretion to reach
51
an otherwise waived issue. See United States v. Vinson, 805
F.3d 120, 122 n.1 (4th Cir. 2015). But the circumstances in the
case before us make it particularly appropriate that we exercise
our discretion to decide whether the law was clearly
established.
First, it is especially proper that an appellate court
reach an otherwise waived issue if that issue is logically
antecedent to, and ultimately dispositive of, the dispute before
it. For example, in United States National Bank of Oregon v.
Independent Insurance Agents of America, the Supreme Court
concluded that the Eleventh Circuit Court of Appeals had
properly decided an issue first raised in supplemental post-
argument briefing, even though the appellants had failed to
raise it in either their opening or reply brief. See 508 U.S.
439, 447 (1993). The Court reached this conclusion because the
issue which had not been raised was “antecedent to” and
“dispositive of” the question addressed in the opening brief.
Id.The same reasoning applies here. The question of whether
the law was clearly established is “antecedent to” and, if
decided in the appellants’ favor, “dispositive of” the issue
that is before us on appeal—whether Corporal Georgiades is
shielded from trial by qualified immunity. If the law was not
clearly established, then it is irrelevant whether or Corporal
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Georgiades actually violated the law because he would be
shielded by qualified immunity and, as a result, entitled to
judgment as a matter of law. See Behrens v. Pelletier, 516 U.S.
299, 306 (1996) (“Unless the plaintiff's allegations state a
claim of violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before the
commencement of discovery.” (internal quotation marks omitted)).
Second, the standard policy bases for applying the waiver
doctrine do not apply with the same force in the qualified
immunity context. Much like the final judgment rule, see 19
James Wm. Moore, Moore’s Federal Practice § 201.10[1] (3d ed.
2011) (“The purposes of the final judgment rule are to avoid
piecemeal litigation, [and] to promote judicial efficiency . . .
.”), the waiver doctrine aims to “preserve[] judicial
resources,” United States v. Benton, 523 F.3d 424, 428 (4th Cir.
2008). Qualified immunity is an “immunity from suit rather than
a mere defense to liability; and like an absolute immunity, it
is effectively lost if a case is erroneously permitted to go to
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Accordingly, even though interlocutory appeals are generally
disfavored, immediate review of a district court’s denial of a
claim of qualified immunity is permitted “to the extent that it
turns on an issue of law.” Id. at 530. Likewise, in light of
the strong policy favoring an official’s “entitlement not to
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stand trial or face the other burdens of litigation,” id. at
526, we should exercise our discretion here and decide whether
the law was clearly established at the time of the alleged
violation—all the more so where, as here, the question is not
even close on the merits.
Finally, the majority’s dogged application of waiver
produces an ironic result. Even if Georgiades did not raise
qualified immunity in this appeal, he raised it as an
affirmative defense in his answer to the complaint and will thus
be permitted to press the defense when the case goes to trial.
In my view, the majority’s insistence on avoiding the merits and
applying the waiver rule in this case does nothing except kick
the can down the road.
V.
The initial denials by JMLO are consistent with common
experience in child sexual abuse cases where threats, or
innocent promises by children to keep a secret, are the norm and
easily account for the denials that are so familiar to those who
work in this area. Likewise, the fact that there was no
physical trauma. The absence of this information in a warrant
application does not undermine the probable cause established by
this five-year-old girl’s detailed description of the sexual
abuse by her father.
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Finally, the majority has elected not to publish this case.
The redeeming feature of this choice is that under our law this
case cannot be used in the future as legal authority for
qualified immunity purposes. In that context, thankfully, it
will be irrelevant. See Hogan v. Carter, 85 F.3d 1113, 1118
(4th Cir. 1996) (en banc) (“Since unpublished opinions are not
even regarded as binding precedent in our circuit, such opinions
cannot be considered in deciding whether particular conduct
violated clearly established law for purposes of adjudging
entitlement to qualified immunity.”). Nevertheless, I dissent
because, in my view, the lower court decision must be reversed.
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