Michael Durham v. David Horner , 690 F.3d 183 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL DWAYNE DURHAM, 
Plaintiff-Appellant,
v.
DAVID L. HORNER, Wise County
Sheriff’s Deputy and Member of
the Regional Drug Task Force,

individually, and in his official
capacity as a Wise County No. 11-1022
Sheriff’s Deputy and Regional
Drug Task Force Member,
Defendant-Appellee,
and
JOHN DOES,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(2:09-cv-00012-jpj-pms)
Argued: May 15, 2012
Decided: August 8, 2012
Before TRAXLER, Chief Judge, and KING and WYNN,
Circuit Judges.
2 DURHAM v. HORNER
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Chief Judge Traxler joined. Judge Wynn wrote
a dissenting opinion.
COUNSEL
Charles Adam Kinser, MONTGOMERY KINSER LAW
OFFICES, Jonesville, Virginia, for Appellant. Henry Keuling-
Stout, KEULING-STOUT, PC, Big Stone Gap, Virginia, for
Appellee.
OPINION
KING, Circuit Judge:
In a case of mistaken identity, Michael Dwayne Durham
was charged and jailed in southwest Virginia for more than
three months before the prosecutor realized and rectified the
error. As a result, Durham initiated this civil action in the
Western District of Virginia against, inter alia, officer David
L. Horner, alleging a Fourth Amendment claim under 42
U.S.C. § 1983, plus a state law claim for malicious prosecution.1
The district court awarded summary judgment to Horner on
the basis of qualified immunity, and Durham appeals. See
Durham v. Horner, No. 2:09-cv-00012 (W.D. Va. Dec. 7,
2010) (the "Opinion").2 As explained below, we affirm.
1
Durham also named as defendants the Commonwealth’s Attorney of
Wise County and its high Sheriff. He has not appealed the district court’s
judgment of dismissal in favor of those defendants.
2
The district court’s unpublished Opinion is found at J.A. 357-66. (Cita-
tions herein to "J.A.___" refer to the contents of the Joint Appendix filed
by the parties in this appeal.)
DURHAM v. HORNER 3
I.
In 2005, Horner was a police officer in Big Stone Gap, Vir-
ginia, and a member of the Regional Drug Task Force.3 In
performing his Task Force duties, Horner arranged for three
controlled drug buys in late 2005 through a confidential infor-
mant (the "CI").4 On November 29, 2005, about an hour prior
to the first drug buy, Horner received a telephone call from
the CI, who disclosed his plan to purchase illegal drugs from
a man named "Michael Dwayne Durham." See Opinion 2;
J.A. 180. The CI described the drug dealer as an "old man"
who drove a Jeep with a stolen Tennessee license plate, num-
ber unknown. See J.A. 330-31, 334-35. Horner relayed the
name Michael Dwayne Durham to the Task Force office
which, in turn, provided a social security number and a Big
Stone Gap post office address associated with that name.
Although the Task Force generally sought photographs of sus-
pects, it did not secure a photo of the drug dealer.5
Horner used Accurint, an internet investigative tool avail-
able to law enforcement agencies, to query the name Michael
Dwayne Durham, inputting the social security number
obtained by the Task Force. The Accurint report listed Dur-
ham’s age as forty-five and his physical description, from
Tennessee DMV records, as 6′7″, 225 pounds, with brown
hair and hazel eyes. The report reflected the Big Stone Gap
3
For purposes of our review of the district court’s summary judgment
award, we recite the facts in the light most favorable to Durham, as the
nonmoving party. See Buckley v. Mukasey, 538 F.3d 306, 310 n.4 (4th Cir.
2008).
4
By its Opinion, the district court observed that "[t]here were apparently
more than one CI involved in some fashion, although the CI Tracking
Sheets prepared by Horner at the time indicated one and the same CI for
each drug purchase." Opinion 2 n.1.
5
After Horner became aware of this civil action, he conducted a review
of the case to determine what had happened. He eventually showed the CI
a photograph of a "Michael David Durham," whom the CI identified as the
person who sold him drugs. See J.A. 274-75 (emphasis added).
4 DURHAM v. HORNER
address where Durham received mail from 1982 to 1999.
Accurint identified other addresses for Durham, including
Memphis, Tennessee, between 1982 and 1999, Smithfield,
Virginia, in 1992 and between 1994 and 2002, and a "current"
address: Horn Lake, Mississippi, where he had moved in Sep-
tember 1999. According to Accurint, Durham owned a Jag-
uar, and he had been arrested once for driving while
intoxicated. The report cautioned that "[b]efore relying on any
data this system supplies, it should be independently veri-
fied." J.A. 228.
After obtaining the Accurint report, Horner checked VCIN,
another internet resource for law enforcement agencies, where
he acquired Durham’s criminal history record in Mississippi.
That record, from the state Department of Public Safety,
described Durham as 6′1″ and 197 pounds, with state convic-
tions for possession of drug paraphernalia in February 2003,
and for public drunkenness and possession of drug parapher-
nalia in July 2003.
With respect to the CI’s first drug buy, Horner completed
a "CSI Tracking Sheet," identifying the target as "Mike Dur-
ham" with the Big Stone Gap address. J.A. 222. He also com-
pleted a laboratory examination request for eight yellow pills
(believed to be Percocet) purchased from "Durham, Michael
Dwayne" on November 29, 2005. Id. at 223. Horner submit-
ted the CSI Tracking Sheet and the laboratory request to the
Task Force for processing.
The CI’s two other drug buys occurred in Wise County on
December 3 and 16, 2005. On both occasions, the CI identi-
fied the drug dealer as Michael Dwayne Durham. The CI pur-
chased eight yellow pills in the second drug buy and two
packs of white powder (believed to be methamphetamine)
during the third. Officer Horner submitted a CSI Tracking
Sheet and laboratory request to the Task Force for each of the
latter two drug transactions. When the laboratory results con-
firmed that the CI had, in fact, purchased drugs in each of the
DURHAM v. HORNER 5
three incidents, Horner "told [the Task Force] to go ahead and
indict [Durham]." J.A. 331. From that point on, Horner had no
involvement in Durham’s arrest and prosecution.
On May 31, 2006, Task Force Agent Larry Mullins testi-
fied before the grand jury in Wise County. An excerpt of
those grand jury proceedings shows the following exchange:
LARRY MULLINS: Next one will be on Michael
Dwayne Durham, D-U-R-H-A-M.
THE JUROR: I have two on him.
LARRY MULLINS: Should be an offense day of
12/16/05.
THE JUROR: I have three on him.
LARRY MULLINS: On 12/16/05 informant con-
tacted agent David Horner and advised him he made
arrangements to purchase Methamphetamine from
Michael Durham. Informant met with Agent Horner
where they were searched for no contraband found.
Informant was provided with a transmitter recording
device and money to make the purchase.
Informant met with suspect Michael Durham and
purchased one gram of Methamphetamine for $100.
Informant met back with Agent Horner turning the
narcotic over to him where they were searched again
with no contraband found.
THE JUROR: Now when you say one unit is that –-
J.A. 284. On May 31, 2006, the grand jury returned three
indictments against Michael Dwayne Durham — relating to
the three drug transactions with the CI — charging him with
felony drug distribution offenses. See id. 207, 216, 219. As a
6 DURHAM v. HORNER
result, the circuit court issued three separate bench warrants
directing "Sgt. D. Horner, or Any Other Authorized Law
Enforcement Officer" to arrest "Michael Dwayne Durham."
See id. at 208, 217, 220.
Nearly six months later, in November 2006, Durham, who
was living in Memphis, Tennessee, received a letter from the
Social Security Administration notifying him that his disabil-
ity benefits would be terminated due to an outstanding arrest
warrant in Wise County, Virginia. As a result, David Byard,
one of Durham’s friends, contacted the Wise County Sheriff’s
Department to inquire about the warrant and explain that Dur-
ham had not lived in Virginia for more than ten years. Byard
was told that Durham should surrender to the authorities in
Memphis, and "they would straighten it out." See J.A. 242. In
December 2006, Durham surrendered to the Memphis author-
ities, waived extradition, and was transported to the South-
west Virginia Regional Jail at Duffield, Virginia.
On December 15, 2006, Durham appeared before a Vir-
ginia magistrate and informed the court, inter alia, that
"they’ve got the wrong person" because he had never sold
drugs. See J.A. 248. The magistrate responded, "[W]ell,
we’ve got your address where you lived in Big Stone Gap,
Virginia." Id. Durham replied, "[Y]es, sir, that’s right [but]
what does that prove[?]" Id. Although the court fixed Dur-
ham’s bail at "$9,000 secured," he was unable to post bond.
See id. at 212. On December 18, 2006, Durham appeared
before the Wise County circuit judge and the court appointed
counsel. Durham’s lawyer, however, waited for two months,
until February 2007, to contact his client. Meanwhile, Dur-
ham did not raise any mistaken identity issues with the
Regional Jail authorities because, according to Durham, "they
wouldn’t have believed [him]." See id. at 247. When Dur-
ham’s lawyer finally talked to his client, Durham apparently
explained the situation. Durham remained in the Regional Jail
for another month, however, until March 20, 2007, when his
lawyer presented Durham’s cell phone records to the Com-
DURHAM v. HORNER 7
monwealth’s Attorney and argued that the wrong person had
been indicted and arrested. The prosecutor agreed with the
defense lawyer and dismissed the three indictments against
Durham later that same day.
Nearly two years later, on March 17, 2009, Durham initi-
ated this federal court civil action against the Common-
wealth’s Attorney, the Sheriff, and Horner. The only alleged
claims to survive the initial round of dispositive motions in
the district court were Durham’s § 1983 claim and a state law
malicious prosecution claim against Horner, each predicated
on an asserted violation of his Fourth Amendment right to be
free from unreasonable seizure. Horner moved for summary
judgment on the basis of qualified immunity, and, on Decem-
ber 7, 2010, the district court granted judgment in his favor.
In rejecting Durham’s attempts to show factual disputes con-
cerning Horner’s investigation and the resulting prosecution,
the court explained that, at bottom,
[q]ualified immunity does not protect only those
police officers who are never mistaken. To have
probable cause does not mean to have proof suffi-
cient to convict. It is clear from the present record
that . . . Horner acted in good faith in accord with the
information available to him. That his investigation
led to the very unfortunate circumstance portrayed in
this case is highly regrettable, but under the law,
these facts do not permit the officer to be subject to
a trial for money damages.
Opinion 8-9. Durham has timely appealed from the district
court’s qualified immunity ruling, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
We review de novo an award of summary judgment on the
basis of qualified immunity. See Lefemine v. Wideman, 672
8 DURHAM v. HORNER
F.3d 292, 297 (4th Cir. 2012). Summary judgment is proper
"only if taking the evidence and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party," there is no genuine dispute of material fact, and the
moving party is entitled to judgment as a matter of law. See
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).
III.
Durham contends on appeal that Horner was not entitled to
qualified immunity because he relied on and utilized unveri-
fied information to set "forth a chain of events that would lead
to the indictment and arrest of the wrong individual." Br. of
Appellant 10. Durham emphasizes that Horner knew from the
Accurint report that Durham had not had a Big Stone Gap
address since 1999; that Horner never obtained the Tennessee
license number to confirm whether the Jeep belonged to Dur-
ham; that Horner had not secured a photograph of Durham to
show the CI and confirm the drug dealer’s identity; that
Horner believed the dealer was approximately sixty years old,
and not, like Durham, in his mid-forties; and that Horner
admitted by deposition that he was not a hundred percent cer-
tain that he had the correct Michael Durham. Accordingly,
Durham maintains that "Horner’s actions were plainly incom-
petent," arguing that "whether or not Horner acted reasonably
is a jury question." Id. at 11.
As we have recognized, "[q]ualified immunity protects
officers who commit constitutional violations but who, in
light of clearly established law, could reasonably believe that
their actions were lawful." Henry v. Purnell, 652 F.3d 524,
531 (4th Cir. 2011). Hence, our qualified immunity defense
involves a "two-step" inquiry, asking "first whether a consti-
tutional violation occurred and second whether the right vio-
lated was clearly established." Id. (internal quotation marks
omitted).
DURHAM v. HORNER 9
Put succinctly, Durham’s "malicious prosecution" claim
fails the first step of the qualified immunity inquiry.6
Although "it is not entirely clear whether [there is] a separate
constitutional right to be free from malicious prosecution, if
there is such a right, the plaintiff must demonstrate both an
unreasonable seizure and a favorable termination of the crimi-
nal proceeding flowing from the seizure." Snider v. Seung
Lee, 584 F.3d 193, 199 (4th Cir. 2009) (citations omitted).
Thus, what has been inartfully "termed a ‘malicious prosecu-
tion’ claim . . . is simply a claim founded on a Fourth Amend-
ment seizure that incorporates the elements of the analogous
common law tort of malicious prosecution." Id. (internal quo-
tation marks omitted). More specifically, "we have required
that [1] the defendant have ‘seized plaintiff pursuant to legal
process that was not supported by probable cause and [2] that
the criminal proceedings have terminated in plaintiff’s
favor.’" Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)
(quoting Brooks v. City of Winston-Salem, 85 F.3d 178, 183-
84 (4th Cir. 1996)) (alterations and emphasis omitted).
Durham is unable to establish a constitutional violation
because, although the underlying criminal proceedings were
terminated in his favor, the prosecution was plainly supported
by probable cause, as conclusively established by the three
indictments. It has long since been settled by the Supreme
Court that "an indictment, ‘fair upon its face,’ returned by a
‘properly constituted grand jury,’ conclusively determines the
existence of probable cause." Gerstein v. Pugh, 420 U.S. 103,
117 n.19 (1975) (internal quotation marks omitted); Costello
v. United States, 350 U.S. 359, 363 (1956) (recognizing that
grand jury "indictment . . . valid on its face, is enough to call
for trial of the charge on the merits"). Notwithstanding the
conclusive effect of the indictments, our precedents instruct
6
Consistent with the Supreme Court’s decision in Pearson v. Callahan,
555 U.S. 223, 236 (2009), we are entitled to evaluate the two qualified
immunity inquiries in either order. Because we can dispose of this case on
the first step, we turn immediately to it.
10 DURHAM v. HORNER
that "a grand jury’s decision to indict . . . will [not] shield a
police officer who deliberately supplied misleading informa-
tion that influenced the decision." See, e.g., Goodwin v. Metts,
885 F.2d 157, 162 (4th Cir. 1989) (quoting favorably Jones
v. City of Chicago, 856 F.2d 985, 993 (7th Cir. 1988)), over-
ruled in part by, Albright v. Oliver, 510 U.S. 266 (1994); see
also Miller v. Prince George’s Cnty., Md., 475 F.3d 621, 632
(4th Cir. 2007) (observing that "the Constitution did not per-
mit a police officer . . . with reckless disregard for the truth,
to make material misrepresentations or omissions to seek [an
arrest] warrant that would otherwise be without probable
cause").
The primary problem that Durham faces in this proceeding
is that he was indicted by a Wise County grand jury before
which Horner did not even testify. Agent Mullins was the
only law enforcement officer to testify before the grand jury
and, in that circumstance, Horner could hardly have been the
instrument of its misapprehension. Indeed, we have no basis
for concluding that Horner tainted the grand jury process,
because, other than the excerpt from Agent Mullins’s testi-
mony (referenced above), the record does not disclose the evi-
dence that the grand jury heard and considered. Nor has
Durham put forward any evidence to show that Horner acted
maliciously or conspired with Agent Mullins to mislead the
grand jury.7 As a result, the grand jury’s probable cause deter-
minations and its three indictments were the proximate cause
7
We recognize that malice is not an essential element of a Fourth
Amendment claim for unreasonable seizure because "the reasonableness
of a seizure . . . should be analyzed objectively." Burrell, 395 F.3d at 514
n.5. Of course, the determination of probable cause inherent in any indict-
ment — typically rendering perforce any seizure of the named defendant
objectively reasonable — can be legitimately questioned in the presence
of facts indicating that a law enforcement officer has maliciously tainted
the grand jury process. Other than a bald allegation of a lack of probable
cause, however, there is no allegation or evidence that any of Horner’s
actions contributing to Durham’s indictments and arrest were motivated
by either malice or ill will.
DURHAM v. HORNER 11
of Durham’s arrest and detention, which by operation of law
constituted a reasonable seizure. Cf. Brooks, 85 F.3d at 184 &
n.7 (recognizing that, where untainted facts support officer’s
assessment of probable cause, seizure "rendered reasonable
by virtue of a probable cause determination by a neutral and
detached magistrate . . . is reasonable" and "break[s] the
causal chain between the application for the warrant and the
improvident arrest"); see also Jennings v. Patton, 644 F.3d
297, 301 (5th Cir. 2011) (upholding award of qualified immu-
nity to public official, despite assertion that he tainted grand
jury process, because, inter alia, official did not testify before
grand jury); Anthony v. Baker, 767 F.2d 657, 666 (10th Cir.
1985) (affirming verdict in favor of officer who assisted in
investigation but did not testify before grand jury as there was
no evidence that he "conspired . . . to taint the probable cause
determinations").
Even if we were disposed to look behind the indictments in
this case, we would agree with the district court that Horner
was not plainly incompetent in assessing the probable cause
issue. As we have recognized, "[f]or probable cause to exist,
there need only be enough evidence to warrant the belief of
a reasonable officer that an offense has been or is being com-
mitted; evidence sufficient to convict is not required." Brown
v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002) (analyzing
§ 1983 false arrest claim under Fourth Amendment’s unrea-
sonable seizure framework). Put simply, there was ample evi-
dence for a reasonable law enforcement officer to believe that
Durham was involved in the three drug transactions —
namely, the CI had on three occasions identified the drug
dealer as Michael Dwayne Durham; Durham had a Big Stone
Gap address; the drug dealer had a vehicle with Tennessee
license plates; Durham had a Tennessee driver’s license; and
Durham’s criminal history included two drug-related convic-
tions. Contrary to Durham’s assertions, Horner was "not
required to exhaust every potentially exculpatory lead or
resolve every doubt about [Durham’s] guilt before probable
cause [was] established." See Miller, 475 F.3d at 630 (internal
12 DURHAM v. HORNER
quotation marks omitted). Nevertheless, even if the existence
of probable cause were a close question, the "qualified immu-
nity standard gives ample room for mistaken judgments."
Henry, 652 F.3d at 534 (internal quotation marks omitted).
Indeed, qualified immunity protects public officials from "bad
guesses in gray areas." Maciariello v. Sumner, 973 F.2d 295,
298 (4th Cir. 1992).
In sum, Durham is unable to establish that his seizure was
"pursuant to legal process that was not supported by probable
cause," Burrell, 395 F.3d at 514, and he has not shown the
essential constitutional violation underlying a § 1983 claim.8
Because there was, as a matter of law, probable cause for
Durham’s arrest and detention, his state law malicious prose-
cution claim fails as well. See Lewis v. Kei, 708 S.E.2d 884,
889-90 (Va. 2011) (affirming dismissal of state law malicious
prosecution claim where plaintiff failed to allege essential ele-
ment of lack of probable cause).
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
WYNN, Circuit Judge, dissenting:
When viewed in the light most favorable to the nonmoving
party, the evidence in this case could support a finding that,
as a result of Officer Horner’s failure to perform his duties
competently and thoroughly, Michael Dwayne Durham
("Durham") was wrongfully indicted, arrested, and incarcer-
8
Having concluded that Durham has no "viable § 1983 claim, we need
not determine whether any rights [he] asserted were ‘clearly established’
for purposes of qualified immunity." See Lambert v. Williams, 223 F.3d
257, 263 n.5 (4th Cir. 2000).
DURHAM v. HORNER 13
ated. Because I would find that Officer Horner’s mistaken
conclusion regarding Durham’s identity cannot be deemed
objectively reasonable as a matter of law-and that, by turn, he
is therefore not entitled to qualified immunity as a matter of
law—I must respectfully dissent.
I.
The majority opinion would grant Officer Horner qualified
immunity on the basis that a grand jury "indictment, fair upon
its face, returned by a properly constituted grand jury, conclu-
sively determines the existence of probable cause."1 Ante at 9
(quotation marks omitted). According to the majority opinion,
because of this indictment Durham is unable to establish that
"a constitutional violation" occurred. See id. ("[T]he prosecu-
tion was plainly supported by probable cause, as conclusively
established by three indictments."). Thus, for the majority, the
indictment breaks the causal chain between Officer Horner’s
alleged incompetence and Durham’s injury. Id. at 11.
However, the Supreme Court has rejected a similar argu-
ment:
§ 1983 should be read against the background of tort
liability that makes a man responsible for the natural
consequences of his actions. Since the common law
recognized the causal link between the submission of
a complaint and an ensuing arrest, we read § 1983 as
recognizing the same causal link.
Malley v. Briggs, 475 U.S. 335, 345 n.7 (1986) (citation omit-
ted). In applying Malley, we have held that "[a]n officer can-
1
To support this proposition, the majority relies on Costello v. United
States, 350 U.S. 359, 363 (1956). However, that case dealt with the Fifth
Amendment’s requirement for a grand jury, not the Fourth Amendment’s
right to be free from unreasonable searches and seizures and its probable
cause requirement, which are at issue here.
14 DURHAM v. HORNER
not invoke qualified immunity where he ‘did not avail himself
of readily available information that would have clarified mat-
ters to the point that [the criminal charges] would have been
flatly ruled out as factually unsupportable.’" Goodwin v.
Metts, 885 F.2d 157, 164 (4th Cir. 1989) (quoting Sevigny v.
Dicksey, 846 F.2d 953, 957-58 (4th Cir. 1988)), overruled in
part by, Albright v. Oliver, 510 U.S. 266 (1994). This limita-
tion on qualified immunity comports with the Supreme
Court’s admonition in Malley that officers who are "plainly
incompetent or those who knowingly violate the law" should
not be shielded from liability. 475 U.S. at 341. Thus, a mali-
cious or incompetent police officer who applies for an arrest
warrant will not be protected from liability by qualified
immunity. See Goodwin, 885 F.2d at 162. Likewise, such an
officer will not be shielded from liability by a grand jury’s indict-
ment.2 See also Miller v. Prince George’s Cnty., M.D., 475
F.3d 621, 632 (4th Cir. 2007).
II.
Nonetheless, the majority determines, as a matter of law,
that qualified immunity shields Officer Horner from liability
regarding the wrongful arrest and confinement of Durham,
based on a standard of "deliberately suppl[ying] misleading
information that influenced the [grand jury’s] decision" to
indict. Goodwin, 885 F.2d at 162. However, Goodwin also
states that an officer is not shielded from liability if "a reason-
ably well-trained officer in [his] position would have known
that his affidavit [for a warrant] failed to establish probable
cause and that he should not have applied for the warrant." Id.(citation omitted). As the Supreme Court has noted, "objec-
2
The majority opinion relies on Jennings v. Patton, 644 F.3d 297 (5th
Cir. 2011), for the proposition that the failure to testify before the grand
jury should afford Officer Horner an additional layer of protection. Ante
at 11. However, in Jennings, the official given qualified immunity was not
responsible for the preparation or presentation of the warrant application.
Here, by contrast, Officer Horner prepared the evidence brought before the
grand jury.
DURHAM v. HORNER 15
tive reasonableness" is the correct "standard . . . [that] defines
the qualified immunity accorded an officer whose request for
a warrant allegedly caused an unconstitutional arrest." Malley,
475 U.S. at 344; see also Miller, 475 F.3d at 632 ("[A] police
officer who recklessly . . . omits material information from[]
a search warrant affidavit cannot be said to have acted in an
objectively reasonable manner, and the shield of qualified
immunity is lost." (citation and quotation marks omitted)). In
this case, a genuine dispute of fact remains regarding whether
Officer Horner’s mistakes were objectively reasonable. As
such, this case cannot and should not be decided as a matter
of law.
On a motion for summary judgment, the evidence and all
reasonable inferences drawn from it should be viewed in the
light most favorable to the nonmoving party, Durham. See
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011). When
viewed in this light, the evidence indicates that Officer Horner
erroneously relied on a report from Accurint, a system which
conspicuously warns that the information given needs corrobo-
ration.3 That report showed at most a tenuous link between
Officer Horner’s target and Durham’s Social Security number
and former post office box.
Officer Horner’s unreasonable reliance and alleged failure
to perform his duties thoroughly and competently set in
motion a chain of events that ended with Durham’s wrongful
arrest and imprisonment for over ninety days. Regardless of
the performance of court-appointed counsel, the undeniable
truth remains that, but for Officer Horner’s actions, Durham
3
The Accurint report begins with the following disclaimer:
The Public Records and commercially available data sources
used on reports have errors. Data is sometimes entered poorly,
processed incorrectly and is generally not free from defect. This
system should not be relied on as definitely accurate. Before rely-
ing on any data this system supplies, it should be independently
verified.
16 DURHAM v. HORNER
would never have been arrested and incarcerated. If the inves-
tigative officer cannot be held accountable for his reckless-
ness or incompetence, then where is an innocent man to turn?
The record shows that the confidential "informant con-
tacted [Officer] Horner and advised him [that] he made
arrangements to purchase Methamphet[a]mine from Michael
Durham."4 J.A. 284. Officer Horner put that name into the
Accurint system and relied on the results of the resulting
Accurint report, notwithstanding his knowledge of facts that
directly undermined and contradicted the accuracy of the
Accurint report.
For example, Officer Horner knew that his target was driv-
ing a Jeep with a stolen Tennessee license plate; however,
Durham had a Mississippi driver’s license. Additionally,
based on information from the confidential informant, Officer
Horner believed his target was approximately sixty years old,
but Officer Horner possessed a copy of the law enforcement
report that showed Durham was only forty-nine years old.
Moreover, the controlled drug buys under investigation took
place in Wise County, Virginia, but Officer Horner knew that
Durham had not lived there since 1999 and was currently liv-
ing over 500 miles away, in Horn Lake, Mississippi. Indeed,
Officer Horner admitted that he harbored doubts as to whether
the Accurint report identified the correct target.
After Durham learned of the arrest warrant, David Byard,
a friend of Durham’s, called the Wise County Sheriff’s
Department on Durham’s behalf and explained that Durham
4
The majority determines that the confidential informant gave Officer
Horner the name "Michael Dwayne Durham". Ante at 3, 5, 11; J.A. 73,
180. However, the record reflects that the confidential informant may have
simply identified "Michael Durham" as the target suspect. J.A. 222, 284.
Therefore, it appears that there is a genuine dispute of material fact regard-
ing whether the confidential informant identified the target suspect as "Mi-
chael Durham" or "Michael Dwayne Durham." Such a disputed fact
should be decided by a jury.
DURHAM v. HORNER 17
could not have committed this crime and had not lived in Vir-
ginia for over ten years. Byard was informed that Durham
should turn himself in and that the matter would be straight-
ened out.
In December 2006, Durham surrendered to Memphis
authorities, waived extradition, and was transported to Vir-
ginia. Upon arrival, Durham told a magistrate that he had
been wrongly indicted and that he had never sold drugs. After
Durham’s arrest no picture was ever sent to the confidential
informant for verification, and no action was taken to verify
that the right person was arrested. J.A. 148-50. However,
when a new suspect, Michael David Durham, was found, the
investigative officer quickly sent a photograph to the confi-
dential informant, who identified him as the perpetrator. J.A.
167-68.
When viewed in the light most favorable to Durham, these
facts could support a finding that Officer Horner’s actions and
mistakes were not objectively reasonable. See Goodwin, 885
F.2d at 164 ("An officer cannot invoke qualified immunity
where he did not avail himself of readily available informa-
tion that would have clarified matters to the point that [the
criminal charges] would have been flatly ruled out as factu-
ally unsupportable." (quotation marks omitted)); United States
v. Reaves, 512 F.3d 123, 126 (4th Cir. 2008) ("When the
police rely on an anonymous tip to support reasonable suspi-
cion, the tip must be accompanied by some corroborative ele-
ments that establish its reliability." (quotation marks
omitted)); cf. United States v. Massenburg, 654 F.3d 480, 486
(4th Cir. 2011) ("Reliance on an anonymous tip may be rea-
sonable where, suitably corroborated, [it] exhibits sufficient
indicia of reliability." (quotation marks omitted)). Conse-
quently, in my view, the district court erred in granting sum-
mary judgment on the basis of qualified immunity.
III.
The majority also maintains that Durham cannot establish
a violation of a "clearly established" constitutional right. I dis-
18 DURHAM v. HORNER
agree and would hold that Durham’s § 1983 malicious
prosecution-type claim does meet this standard as a claim
founded on the Fourth Amendment right to be free from
unreasonable search and seizure. See Lambert v. Williams,
223 F.3d 257, 262 (4th Cir. 2000) (stating that incorporating
the common law elements of malicious prosecution claim
with the elements of a § 1983 claim was not the creation of
a new cause of action, but was done "in recognition of the fact
that § 1983 was designed to create a ‘special species of tort
liability.’" (quoting Imbler v. Pachtman, 424 U.S. 409, 417
(1976))).
In this case, the parties do not contest that there is a clearly
established, actionable right to freedom from prosecution
without probable cause. Accordingly, it follows that Dur-
ham’s § 1983 malicious prosecution-type claim, asserted
under the Fourth Amendment, amounts to a "clearly estab-
lished" right to be free from unreasonable seizure. See id. at
260.
IV.
In sum, the majority holds that, since the grand jury indict-
ment is conclusive evidence of probable cause, Durham is
unable to establish the unreasonable seizure element of a via-
ble § 1983 claim based on malicious prosecution. However, to
the contrary, Durham’s wrongful arrest and confinement may
indeed meet the requirements of a § 1983 claim. Because
there is a genuine dispute of fact as to whether Officer
Horner’s actions, which resulted in Durham’s wrongful arrest
and incarceration, were objectively reasonable, Brooks, 85
F.3d at 183-84, I respectfully dissent.