Gliatta v. Jones , 96 F. App'x 249 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 10, 2004
Charles R. Fulbruge III
No. 03-60079 Clerk
ANTHONY GLIATTA,
Plaintiff-Appellee,
versus
TERRY JONES; ET AL.,
Defendants,
TERRY JONES, Individually and in his Official Capacity,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(1:01-CV-253-M-D)
Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Terry Jones’ interlocutory appeal from a summary judgment
denial of qualified immunity against Anthony Gliatta’s Fourth
Amendment claim (arrest without probable cause) includes Gliatta’s
challenge to our jurisdiction. Because the undisputed material
evidence establishes entitlement to immunity, we have jurisdiction;
VACATE the immunity-denial; and RENDER judgment for Jones in his
individual capacity.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
This interlocutory appeal being from a summary judgment
ruling, we view the facts in the light most favorable to Gliatta,
the non-movant. E.g., Nerren v. Livingtston Police Dep’t, 86 F.3d
469, 470 (5th Cir. 1996). On 14 August 1998, Gliatta left the
house he shared with Pamela Reed and their infant son, Brandon, in
Lee County, Mississippi. Upon his return the next evening (15
August), Reed and Brandon were absent. According to Gliatta, he
was not concerned because Reed often left for several days at a
time.
On 17 August, Reed and Brandon were reported missing by Reed’s
cousin; they had last been seen the afternoon of 15 August. On 19
August, Lee County Sheriff’s Deputies found Reed’s and Brandon’s
bodies in a local lake and arrested Charles Walters for murder,
based upon incriminating statements Walters made to, and as
reported to the Sheriff’s Department by, Walters’ brother. While
in custody, Walters gave several statements to the Sheriff’s
Department concerning the murders, one of which detailed how his
friend Gliatta had committed them in Walters’ presence.
After Reed and Brandon were reported missing, Gliatta had
cooperated with the investigation by the Sheriff’s Department. On
19 August, the day the bodies were found and Walters was arrested,
Gliatta took a polygraph examination, which indicated he was not
being truthful when he answered that, inter alia: Reed was alive
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the last time he saw her; and he did not cause the disappearance of
Reed and Brandon. Based primarily on Walters’ statement
implicating Gliatta and the results of Gliatta’s polygraph
examination, Jones arrested Gliatta, without a warrant, on 20
August. Gliatta and Walters were charged with the murders of Reed
and Brandon.
On 21 August, a justice court judge issued a warrant for
Gliatta’s arrest, conducted an initial appearance, and set bond.
Gliatta did not post bond; he remained in custody for more than
five months until a grand jury indicted only Walters for the
murders.
Claiming he was arrested without probable cause, in violation
of the Fourth Amendment, Gliatta filed this 42 U.S.C. § 1983 action
against, among others, Jones (individual and official capacities)
and the Sheriff’s Department. Defendants moved for summary
judgment on the merits; Jones claimed qualified immunity for the
individual capacity claim against him.
The district court treated this action as raising three
claims: (1) arrest without probable cause; (2) failure to
investigate alibi witnesses; and (3) evidence tampering.
Concluding there were genuine issues of material fact, it denied
summary judgment.
II.
The complaint indicates Gliatta raised several claims; but, at
oral argument here, he stated that he presents only a probable
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cause claim: for arrest and continuing detention without probable
cause. Failure to release Gliatta after probable cause dissipated
(failure to release claim) is a separate claim with legal standards
distinct from one for arrest without probable cause.
Gliatta did not adequately assert his failure to release claim
until oral argument. (In his appellate brief, he made only passing
reference to continuing detention. The separate claim was not
adequately briefed.) Generally, for obvious reasons, we do not
address claims raised in this fashion. We decline to do so in this
instance. Likewise, we do not consider Jones’ contention, raised
for the first time on appeal, that he is entitled to qualified
immunity based on the intervening decision of the justice court
judge, after Gliatta had already been arrested, to issue a warrant
for Gliatta’s arrest.
A.
Although we do not generally have jurisdiction to review the
denial of summary judgment, a denial of qualified immunity in such
a proceeding is immediately appealable if based on an issue of law.
E.g., Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Gliatta
maintains we lack jurisdiction because factual issues are in
dispute. The district court’s concluding there are material fact
issues does not necessarily deprive us of jurisdiction; we review
whether those identified fact issues are material to qualified
immunity. See, e.g., Evett v. DETNFF, 330 F.3d 681, 686 (5th Cir.
4
2003); Lemoine v. New Horizons Ranch and Center, Inc., 174 F.3d
629, 633-34 (5th Cir. 1999). We review de novo the district
court’s legal conclusions as to the materiality of the identified
fact issues. Evett, 330 F.3d at 687 (citing Lemoine, 174 F.3d at
634).
For the only claim at issue, arrest without probable cause
claim, the only disputed issue of fact identified by the district
court was whether, before Jones arrested Gliatta, an assistant
district attorney advised Jones that probable cause did not exist
to do so. The existence vel non of probable cause, however, is an
objective inquiry, decided by the courts without regard to the
subjective beliefs of law enforcement officers. E.g., Whren v.
United States, 517 U.S. 806, 813 (1996); Craig v. Singletary, 127
F.3d 1030, 1042 (11th Cir. 1997), cert. denied, 523 U.S. 1031(1998). Therefore, Jones’ belief about probable cause as a result
of his conversation with the assistant district attorney is not
material.
Further, Gliatta does not point to any disputed facts that
would preclude our jurisdiction, nor are any revealed by our
review of the summary judgment record. Gliatta asserts that Jones
made deliberate attempts to implicate him and urged Walters to make
statements incriminating him; but, no summary judgment evidence
supports such assertions.
5
The material facts for the arrest without probable cause claim
are not in dispute. Accordingly, we have jurisdiction over this
interlocutory appeal.
B.
Law enforcement officers, like other government officials
acting within their discretionary authority, are immune, in their
individual capacity, from civil liability if their conduct does not
violate clearly established rights of which a reasonable person
would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 815
(1982); Evett, 330 F.3d at 687. When a defendant claims qualified
immunity, the plaintiff has the burden to demonstrate its
inapplicability. E.g., McClendon v. City of Columbia, 305 F.3d
314, 323 (5th Cir. 2002) (en banc).
To defeat qualified immunity, a plaintiff must satisfy a well-
established, two-prong test. First, he must assert the violation
of a clearly established constitutional right; second, he must
demonstrate that, at the time of the claimed violation, the
officer’s conduct was objectively unreasonable in the light of then
clearly established law. E.g., Morris v. Dillard Dep’t Stores,
Inc., 277 F.3d 743, 753 (5th Cir. 2001) (citing Chiu v. Plano
Indep. Sch. Dist., 260 F.3d 330, 343 (5th Cir. 2001)).
Concerning the first prong, the right to be free from arrest
without probable cause by a state official is a clearly established
constitutional right secured by the Fourth, through the Fourteenth,
6
Amendment. E.g., Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir.
1998). Along this line, “[p]robable cause exists when the facts
available at the time of the arrest would support a reasonable
person’s belief that an offense has been, or is being, committed
and that the individual arrested is the guilty party”. Blackwell
v. Barton, 34 F.3d 298, 303 (5th Cir. 1994) (emphasis added).
Probable cause is determined on the basis of facts available to the
officer at the time of the arrest and may be supported by the
collective knowledge of law enforcement personnel who communicate
with each other prior to the arrest. Evett, 330 F.3d at 688.
Although officers may rely on the totality of facts available to
them for probable cause, “they also may not disregard facts tending
to dissipate probable cause”. Id. (quoting Bigford v. Taylor, 834
F.2d 1213, 1218 (5th Cir.), cert. denied, 488 U.S. 851 (1988)).
Because Gliatta satisfies the first prong for testing
qualified immunity, Jones’ entitlement vel non to such immunity
turns on the second prong — whether his conduct was objectively
unreasonable in the light of then clearly established law. The
reasonableness standard for qualified immunity differs from that
for probable cause. Evett, 330 F.3d at 688 (quoting Wren v. Towe,
130 F.3d 1154, 1160 (5th Cir. 1997)). For qualified immunity, the
test is “whether a reasonably competent officer in [the
defendant’s] position could reasonably have thought his actions to
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be consistent with the rights he is alleged to have violated”. Id.(emphasis added).
Therefore, if an officer has arguable probable cause to
arrest, he is entitled to qualified immunity. Brown v. Lyford, 243
F.3d 185, 190 (5th Cir. 2001). In sum, “[a]n officer’s entitlement
to qualified immunity based on probable cause is difficult for a
plaintiff to disturb”. Morris, 277 F.3d at 753 (citing Brown, 243
F.3d at 190, n.7).
1.
Gliatta was arrested at 4:00 p.m. on 20 August. By that time,
Walters had made several statements to the Sheriff’s Department.
In the first, made very early that day (12:50 a.m.): Walters
admitted visiting Reed and Brandon at Reed’s home on 15 August and
leaving around 2:00 or 2:30 p.m.; he next remembered waking up at
a lake and finding Reed’s and Brandon’s floating bodies, before
going to his sister’s house and telling her and his brother-in-law
that he had just killed Reed and Brandon. (Almost two years later,
concerning this 20 August early morning time period, Jones
described a meeting with Walters then, during which Walters had
told Jones that he had “killed the woman and the baby and ...
wanted to go straight to prison and die”. Gliatta suggests that
Jones attempted to conceal this statement from other Deputies; but,
even if true, such concealment is irrelevant because we are
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examining probable cause based on information known to Jones at the
time of Gliatta’s arrest much later that day.)
Walters gave another statement at 10:40 a.m. on 20 August: he
had taken Gliatta to a pay telephone on 16 August (the day after
Reed was last seen alive) to call a woman (Criddle); and Gliatta
had told her to come to his house, “the Bitch [Reed] would not be
back”.
Walters gave his most detailed statement at 2:50 p.m. on 20
August: he went to Reed and Gliatta’s house on 15 August to meet
Gliatta; he left in Gliatta’s truck with Gliatta, Reed, and Brandon
and drove to the lake; during the drive, Reed and Gliatta were
arguing about Criddle (according to Walters’ above described
earlier statement, Criddle was the woman Gliatta telephoned the
next day (16 August)); Gliatta stopped the truck at the lake and
everyone exited; Walters observed a baseball bat in the back of the
truck, heard Gliatta and Reed arguing, and then heard a “clinging
noise”, followed by Reed saying “Oh, Anthony”; Walters turned to
see Gliatta with the bat in his hand and Reed on the ground, before
seeing Gliatta throw Brandon into the lake; Walters saw Reed’s body
in the lake before he drove away; and, the next day, when he
returned to the lake to “see if it [had] really happened”, he again
saw Reed’s and Brandon’s bodies in the lake.
Gliatta claims Walters’ last statement implicating Gliatta
cannot support probable cause because it is incredible on its face.
9
See, e.g., United States v. Booker, 334 F.3d 406, 410 (5th Cir.
2003) (defendant may be convicted on basis of uncorroborated
testimony of co-conspirator, even one who has accepted plea
bargain, unless testimony legally incredible); United States v.
Posada-Rios, 158 F.3d 832, 861 (5th Cir. 1998) (well settled that
uncorroborated testimony of accomplice sufficient to support
conviction unless insubstantial on its face). See also Craig, 127
F.3d at 1044 (Eleventh Circuit; uncorroborated testimony of co-
conspirator or accomplice sufficient to support conviction if not
incredible on its face or otherwise insubstantial; by extension,
testimony held sufficient to establish probable cause, id. at
1045).
According to Gliatta, Walters’ statement implicating him is
incredible on its face because: Walters had unequivocally
confessed in a previous statement; Walters had confessed to family
members; and Jones should have known the statement was suspicious
because Walters had changed his story several times. Walters’
implication of Gliatta is not incredible on its face. It is
internally consistent and a detailed account of riding with Gliatta
to the lake, hearing Gliatta hit Reed with a bat, and then seeing
Gliatta throw Brandon into the lake. Nothing within the statement
suggests that the events could not have happened as Walters
described. Moreover, the statement incriminated Walters by
revealing he was at the crime scene, which supports reliability.
10
On the other hand, Gliatta is correct that Walters’ earlier
statement claiming sole responsibility for the murders undercuts
the reliability of this later statement about Gliatta.
Accordingly, we will assume that the later statement was not
sufficient, in itself, to establish the requisite arguable probable
cause.
2.
Notwithstanding our assumption that Walters’ later statement
is not alone sufficient for the requisite arguable probable cause,
the totality of the facts known to Jones at the time of arrest are.
Most significantly, Gliatta’s 19 August polygraph examination
(before the bodies were discovered) indicates his possible
involvement. That examination strongly indicated deception when
Gliatta responded affirmatively that Reed was alive when he last
saw her. It further indicated deception when Gliatta answered
that: he had not seen Reed since 14 August (the day before she was
last seen alive); he was not withholding any information concerning
her and Brandon’s disappearance; and he did not cause it.
Polygraph examination results may be considered for
determining probable cause. See Bennett v. City of Grand Prairie,
883 F.2d 400, 405-06 (5th Cir. 1989) (holding magistrates may
consider polygraph results when determining whether probable cause
exists for arrest warrant). Therefore, for qualified immunity
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purposes, Gliatta’s answers to the polygraph examination support
the requisite arguable probable cause to arrest.
3.
Additional evidence supports arguable probable cause.
Although Gliatta lived with Reed and Brandon, he never reported
them missing. The missing persons report by Dykes (Reed’s cousin)
stated: Reed’s automobile, her purse, and Brandon’s clothes and
diaper bag were left at the house; and Gliatta seemed unconcerned
about Reed’s and Brandon’s disappearance. Accepting as true that
Reed often left home for days at a time, the factual circumstances
surrounding Reed’s absence on this occasion suggest something other
than voluntary departure; and Gliatta’s failure to report it
supports arguable probable cause.
Further, Gliatta made contradictory statements concerning
whether he and Reed had argued the night of 14 August, the last
time Gliatta claimed to have seen her alive. Dykes reported that
Gliatta told her that he and Reed had argued, but Gliatta told
Deputies they had not done so. Because Dykes’ report indicated
Gliatta admitted he had argued with Reed, it was reasonable to
suspect he was lying when he said they had not. This supports
probable cause. E.g., United States v. Howard, 991 F.2d 195, 202
(5th Cir.), cert. denied, 510 U.S. 949 (1993) (stating that lies to
police established probable cause to search vehicle).
12
Lastly, on 19 August, the Sheriff’s Department received a
telephone call from a meter-reader who had been at Gliatta and
Reed’s house on 15 August and had spoken to Reed. The meter-reader
stated that Reed told him that her boyfriend had left to retrieve
a truck that was stuck in the mud. This suggests Gliatta was with
Reed during the day of 15 August, thereby giving him an opportunity
to commit the murders and supporting arguable probable cause for
his arrest.
Gliatta contests probable cause by claiming the evidence
relied upon by Jones was speculative and by supplying explanations
for it, including: Gliatta did not report Reed missing because she
frequently left home for days at a time; Gliatta cooperated with
the Sheriff’s Department and showed his concern for Reed’s and
Brandon’s whereabouts during the investigation; and Reed’s
statement to the meter-reader about Gliatta only being temporarily
absent could have been made because she was afraid to be alone with
the meter-reader. Probable cause vel non is based on the totality
of the circumstances, see Glenn v. City of Tyler, 242 F.3d 307, 313
(5th Cir. 2001); Gliatta’s contentions that there are innocent
explanations for the suspicious circumstances of Reed’s and
Brandon’s disappearance do not negate arguable probable cause.
In sum, the totality of the circumstances (Walters’
statements; Gliatta’s polygraph examination; his failure to report
Reed and Brandon missing; his inconsistent statements about whether
13
he had argued with Reed on the last night he claimed he saw her;
and the meter-reader’s statement) establish that it was not
objectively unreasonable for Jones to believe probable cause
existed to arrest Gliatta. Even “if officers of reasonable
competence could disagree on [probable cause], immunity should be
recognized”. Hart v. O’Brien, 127 F.3d 424, 445 (5th Cir. 1997)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Therefore,
Jones is entitled to qualified immunity against the arrest without
probable cause claim.
III.
For the foregoing reasons, the denial of qualified immunity
for Jones is VACATED; judgment is RENDERED for him in his
individual capacity.
VACATED and RENDERED
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