New v. Fleming , 170 F. App'x 298 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 8, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-60088
Summary Calendar
JONATHAN P. NEW; ROBERT E. STROUPE, II;
MICHAEL P. TROUARD; SCOTT M. WALLE;
BROCK L. WHITSON,
Plaintiffs-Appellants,
versus
HORACE FLEMING, et al.,
Defendants,
CECIL WILSON, Chief, University Police Department, In his
Official and Individual Capacities; RANDY JOHNSON, in his
Official and Individual Capacities; JOHN SMITH, in his
Official and Individual Capacities; CONNIE PITTMAN, in her
Official and Individual Capacities,
Defendants-Appellees.
Appeal from the United States District Court for
the Southern District of Mississippi, Hattiesburg
(USDC No. 2:00-CV-94)
_________________________________________________________
Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Fraternity brothers (the “fraternity plaintiffs”), who were arrested for alleged
sexual battery and whose residences were searched, appeal the summary judgment
dismissal of their claims against University of Southern Mississippi (“USM”) police and a
state narcotics officer for unlawful arrest, unlawful detention, unlawful search and
seizure, defamation, and infliction of emotional distress claims under 42 U.S.C. § 1983and Mississippi state law. Reviewing the record de novo and applying the same
standards as the district court, we affirm the judgment of the district court as to all
appellees with respect to the fraternity plaintiffs’ claims of defamation and intentional
infliction of emotional distress, and as to all appellees except Mississippi Bureau of
Narcotics officer Randy Johnson with respect to fraternity plaintiffs’ remaining claims.
1. We agree with the district court that the fraternity plaintiffs failed to
provide sufficient evidence to establish the existence of all essential
elements of their claims of defamation and intentional infliction of
emotional distress. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 2552 (1986).
2. Underpinning the remaining claims is the issue of whether probable cause
existed at the time of the arrest and procurement of the search warrant. If
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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probable cause existed, the university and state officers are entitled to
qualified immunity for their actions and summary judgment in their favor
was proper. In reviewing the issue of probable cause with respect to the
issue of qualified immunity, we must determine whether the facts, viewed
in the light most favorable to the fraternity plaintiffs, support a finding that
a reasonable officer could have believed probable cause existed to arrest the
plaintiffs on charges of sexual battery and search their residences for
evidence thereof.1 Mendenhall v. Riser, 213 F.3d 226, 230-31 (5th Cir.
2000). We have recognized that this is a practical, common-sense
determination as to whether given all of the circumstances, a reasonable
officer could have believed there is a fair probability that the plaintiffs
committed the crime charged. Id. A qualified immunity defense cannot
succeed where it is obvious that a reasonably competent officer would find
no probable cause. Id.
3. We find that, with respect to Randy Johnson, enough material issues of fact
1
The fraternity plaintiffs raised Mississippi state law claims for unlawful arrest,
detention, search, and seizure parallel to their section 1983 claims for the same offenses.
The Mississippi Tort Claims Act confers immunity to protect law enforcement personnel
from lawsuits arising out of performance of their duties in law enforcement. Maldonado
v. Kelly, 768 So.2d 906, 909 (Miss. 2000). Only when the officer’s actions rise to the
level of reckless disregard of the rights of others is the immunity to which he is entitled
lost. Id. at 909, 911 (defining reckless disregard as wantonness — “a failure or refusal to
exercise any care”).
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exist regarding probable cause such that genuine factual dispute remains as
to whether he is entitled to qualified immunity. Through an anonymous tip,
a circumstantial statement from the alleged victim,2 and information
gathered by the director of Greek life at USM, the university police
identified the plaintiffs as fraternity members who were possibly involved
in a sexual incident, which probably involved alcohol, speculatively
involved drugs, and might have been photographed. Randy Johnson
presented the suspects’ names to two confidential informants. Johnson
reported to university police chief, Cecil Wilson, that the informants
confirmed a sexual battery had occurred at the fraternity house and that all
of the fraternity plaintiffs had participated in the crime. Johnson told Chief
Wilson that he had used the informants, sons of a local sheriff known to
Wilson and members of the fraternity, before in previous drug
investigations and had confidence in them. Johnson confirmed that he had
known the confidential informants for several years and that they had
provided reliable information on a number of occasions.
However, the two informants provided affidavit testimony that
denies providing any information about the battery incident to Johnson.
2
The alleged victim passed out prior to the occurrence of any alleged criminal
sexual contact. She stated that she woke up at home after an evening at the fraternity
house with soreness in her “private parts” and a torn dress strap.
4
The men also aver that, while they have known Johnson socially for some
time, they have never been informants for him. Further, while Johnson
identified his informants to Chief Wilson, he refused to name them in this
lawsuit until compelled to do so by the court. At that point, he averred that
he could not actually name his informants except to say that they were two
of three identical triplets, whom he could not tell apart. We note that, even
if all of Johnson’s testimony on the informant issue is true, since Johnson
could not tell one triplet from the others, it is difficult to discern how he
could have known whether he had used those two or even one of the two as
confidential drug informants in the past. That being the case, questions
remain as to how he could have known whether the specific triplet to whom
he was talking was reliable.
The inquiry into the veracity of Johnson’s testimony is an important
one. The requirement that a warrantless arrest and procurement of a
warrant for search be predicated on probable cause would be reduced to a
nullity if a law enforcement officer was able to use deliberately falsified
allegations to demonstrate probable cause. Franks v. Delaware, 438 U.S.
154, 168, 98 S. Ct. 2674, 2682 (1978). If Johnson acted with such
disregard of the fraternity plaintiffs’ clearly established constitutional rights
that his actions cannot be reasonably be characterized as being in good
faith, he is not entitled to qualified immunity as to the section 1983 claims.
5
Rodriguez v. Ritchey, 539 F.2d 394, 402 (5th Cir. 1976). If Johnson
intentionally acted in reckless disregard of the adverse effect of the
wrongful arrest, search, and seizure on the fraternity plaintiffs, state law
immunity also does not shield him. Foster v. Noel, 715 So.2d 174, 179
(Miss. 1998). Factual disputes remain as to whether Johnson acted in
disregard or in good faith as a reasonably competent officer in the
determination of probable cause. On this record, the case against him
should not have been dismissed on summary judgment, for reasonable
minds could differ on his entitlement to a qualified immunity defense.
We are not persuaded by Johnson’s argument that he is entitled to
summary judgment because of his limited involvement as an investigating
officer. We have recognized that investigating officers may be subject to
liability for unlawful arrest even where they did not participate in the actual
arrest. Rodriguez, 539 F.2d at 400. The record reflects that Johnson played
a major role in investigating the incident and actively participated in the
decision making process regarding the arrest. In addition to supplying the
most damning information against the fraternity plaintiffs, Johnson was
involved in the questioning of at least some of the plaintiffs at the police
department prior to the arrest and participated in the meeting at which the
determination of whether there was probable cause to arrest was made.
We likewise disagree that Johnson is absolved because his input was
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inconsequential to the final determination to arrest, detain, and search. All
of the university officers involved in the arrest cite to the information that
Johnson said he obtained from his confidential informants as one of the
bases for probable cause. Based on the substance of the information
provided from all of the sources relied upon by the university officers and
Johnson in determining probable cause, it is clear that the information
received from Johnson was the balance-tipping factor. Only after the
informants’ corroboration were the university officers satisfied they had
correctly identified the proper suspects and that they had probable cause to
proceed with their arrest and the search of their residences.
4 With respect to the university officers, we find that the long professional
and personal relationship between Chief Wilson and agent Randy Johnson,
coupled with Johnson’s status as a veteran member of the state narcotics
board and an adjunct professor at USM, justified Wilson’s reliance upon
the truth and veracity of the corroborating information Johnson supplied.
Chief Wilson made specific inquiry about Johnson’s information, including
whether he had used these confidential informants before and relied upon
them, and was assured by Johnson that he had. Wilson personally knew the
two men Johnson named to him and their family.
Based upon Wilson’s knowledge of the informants and their
reputations, he was justifiably satisfied that they would provide reliable
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information, without making an extended independent examination. Under
the circumstances of this case, there is no reason why the university police
could not “rely without investigation on information” provided by Randy
Johnson. Hart v. Obrien, 127 F.3d 424, 443 (5th Cir. 1997) (holding that a
reasonably competent officer might rely without investigation on
information from a trustworthy source) abrogated on other grounds as
recognized by Spivey v. Robertson, 197 F.3d 772, 775 (5th Cir. 1999)
(citing Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 102 (1997)).
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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