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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-60176               United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                     April 5, 2019
CARLA BLAKE,
                                                                   Lyle W. Cayce
                Plaintiff–Appellee,                                     Clerk


v.

DON LAMBERT, in his individual capacity,

                Defendant–Appellant.


                    Appeal from the United States District Court
                      for the Northern District of Mississippi


Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      Don Lambert, a Mississippi school attendance officer, swore an arrest
warrant affidavit against Carla Blake for failing to ensure a child attended
school. Blake contends that Lambert violated her Fourth Amendment rights
because the affidavit lacked probable cause under Malley v. Briggs 1 and was
untruthful under Franks v. Delaware. 2 Lambert moved to dismiss or for
summary judgment based on qualified immunity, which the district court
denied.




      1   475 U.S. 335 (1986).
      2   438 U.S. 154 (1978).
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       We AFFIRM as to the Malley claim because the affidavit lacked any facts
to establish probable cause. But we REVERSE as to the Franks claim because
it is incompatible with a Malley theory.

                                    I. BACKGROUND
A.     Factual
       Lambert is a school attendance officer at the Mississippi Department of
Education. 3 Under the state’s Compulsory School Attendance Law, his duties
include investigating student absences; giving notice of absences to parents,
guardians, or custodians; and eventually initiating legal process with a court
of competent jurisdiction. 4 S.W. was a six-year-old child enrolled in Prentiss
County, Mississippi public schools. Blake is S.W.’s aunt. Blake was the
“contact” for S.W. according to school records, which normally meant that S.W.
lived with her. 5 The school records are generally reliable, particularly
compared with parents’ or guardians’ informal statements. Only the school
district and the responsible adults may update the school records, not the
school attendance officer.
       In September 2013 the school reported to Lambert that S.W. had five
unexcused absences since school began a month earlier. Lambert sent Blake a
form letter informing her of the absences. The letter said it was Blake’s
responsibility to see that S.W. was attending school, cited the Compulsory
School Attendance Law, and listed potential penalties. S.W. continued to
accumulate unexcused absences. So Lambert called Blake. Blake said she was


       3  The facts set out are undisputed unless otherwise noted and are viewed in the light
most favorable to Blake, the nonmovant. See Hart v. O’Brien, 127 F.3d 424, 432 n.1 (5th Cir.
1997), abrogated on other grounds by Kalina v. Fletcher, 522 U.S. 118 (1997).
        4 MISS. CODE ANN. §§ 37-13-89(4)(g), 37-13-91(7).
        5 Blake appears to disagree that the “Contact Information” field where her name

appears indicates responsibility for the child. But she offers no evidence for this besides
conclusory statements. Lambert, on the other hand, submitted evidence that the school
notified him that S.W. lived with Blake.
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S.W.’s aunt, and had also been his foster parent, but she did not have custody,
care, or control of S.W. during that school year. She said S.W. lived with his
mother, Tracey Perry. Lambert apologized for sending Blake the letter. He also
said Blake should contact the school to update its records. Later that day
Lambert talked to Perry and her husband on the phone, but the record does
not show that they directly addressed who had custody of S.W.
      In June 2014, at the end of the school year, S.W. had sixteen total
unexcused absences. And school records continued to show that S.W. lived with
Blake. Lambert prepared an affidavit stating that Blake had contributed to the
delinquency of S.W. by refusing or willfully failing to ensure he enrolled in and
attended school. The affidavit did not mention Lambert’s conversations with
Blake or the Perrys. Lambert submitted the affidavit to the Prentiss County
Justice Court, which issued a warrant for Blake’s arrest. A sheriff’s deputy
arrested Blake at her home. Blake was handcuffed, taken to jail, strip
searched, and detained for a short time before being released on bond.
      Meanwhile, the Justice Court judge received a call from someone at the
Mississippi Department of Human Services suggesting that the warrant
affidavit was inaccurate because the child did not live with Blake. The judge
called Lambert and asked him to “review[]” the matter. Lambert submitted a
request to drop the charge, which stated, “I filed an affidavit on the wrong
person by mistake.” Lambert also admitted to a witness that he was wrong to
have Blake arrested and was aware that S.W.’s mother now had custody. But
later Lambert rechecked the school records and saw that Blake was still listed
as the contact for S.W. He also confirmed with his supervisor that the school
records were the most reliable source of information. He now believes that his
initial affidavit was supported by probable cause.




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B.     Procedural
       Blake sued Lambert under 42 U.S.C. § 1983 for violating her Fourth
Amendment rights. Lambert moved to dismiss the claims, or for summary
judgment, based on qualified immunity and failure to state a claim. The
district court treated Lambert’s motion as one for summary judgment because
both parties relied on matters outside the pleadings and were on notice of
summary judgment adjudication.
       The district court denied qualified immunity. It held that “a reasonable
jury could conclude that Blake’s arrest violated the Fourth Amendment
because Lambert knowingly or recklessly applied for her arrest warrant
without probable cause or because the warrant application lacked any indicia
of probable cause.” The district court also denied that part of the motion based
on failure to state a claim. Lambert appealed the district court’s order.

                  II. JURISDICTION AND STANDARD OF REVIEW
       Jurisdiction to review denial of qualified immunity at summary
judgment is limited. “[W]e can review the materiality of any factual disputes,
but not their genuineness.” 6 That is, we “have jurisdiction ‘to decide whether
the district court erred in concluding as a matter of law that officials are not
entitled to qualified immunity on a given set of facts.’” 7 So taking Blake’s
allegations and summary judgment evidence as true, we may decide if
Lambert’s “course of conduct would be objectively unreasonable in light of
clearly established law.” 8 And “[w]ithin that narrow universe, our review is de
novo.” 9



       6 Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc) (quoting Wagner v. Bay
City, 227 F.3d 316, 320 (5th Cir. 2000)).
       7 Perniciaro v. Lea, 901 F.3d 241, 251 (5th Cir. 2018) (quoting Kinney, 367 F.3d at

347).
       8 Kinney, 367 F.3d at 347.
       9 Perniciaro, 901 F.3d at 251; see Kinney, 367 F.3d at 349.

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       As to Lambert’s failure-to-state-a-claim argument, we do ordinarily
“have ‘jurisdiction to pass on the sufficiency of [the] pleadings’” when reviewing
denial of qualified immunity. 10 But here the district court properly treated
Lambert’s motion as one for summary judgment. So this part of the decision
was based on the summary judgment standard, not the “sufficiency of [the]
pleadings.” 11 Federal Rule of Civil Procedure 12(d) required this because
“matters outside the pleadings [we]re presented to and not excluded by the
court.” We lack jurisdiction to review interlocutory denial of summary
judgment on the merits of a claim—as opposed to an immunity defense—and
so do not address this issue. 12

                                    III. DISCUSSION
       We evaluate Lambert’s qualified immunity arguments under the
familiar two-part standard. “Once invoked, a plaintiff bears the burden of
rebutting qualified immunity by showing two things: (1) that the officials
violated a statutory or constitutional right and (2) that the right was ‘clearly
established at the time of the challenged conduct.’” 13
A.     Lambert Does Not Have Qualified Immunity from the Malley
       Claim at Summary Judgment.
       Blake says that Lambert violated her Fourth Amendment right,
recognized in Malley v. Briggs, to be free from arrest based on a “warrant
application . . . so lacking in indicia of probable cause as to render official belief
in its existence unreasonable.” 14 “The Malley wrong is not the presentment of


       10 Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 672–73 (2009)).
       11 Id. (quoting Iqbal, 556 U.S. at 673).
       12 See Kinney, 367 F.3d at 346 (“[A] denial of a defendant’s motion for summary

judgment is ordinarily not immediately appealable, [but] the Supreme Court has held that
the denial of a motion for summary judgment based upon qualified immunity is a collateral
order capable of immediate review.”).
       13 Perniciaro, 901 F.3d at 255 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
       14 475 U.S. at 344–45.

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false evidence, but the obvious failure of accurately presented evidence to
support the probable cause required for the issuance of a warrant.” 15 On this
claim, Lambert’s “determination that the warrant was valid entitles [him] to
qualified immunity from suit unless, ‘on an objective basis, it is obvious that
no reasonably competent officer would have concluded that a warrant should
issue’ under the circumstances.” 16
       We hold that Blake established a Malley violation at the summary
judgment stage. Lambert’s affidavit simply identifies Blake, recites the
charged offense, and cites the corresponding Mississippi statutes. 17 It does not
provide any supporting facts from which a magistrate could independently
determine probable cause. For example, it does not describe Lambert’s
experience, the sources of his information and their reliability, his
conversations with Blake and the Perrys, Blake’s relationship to S.W., or


       15 Melton v. Phillips, 875 F.3d 256, 264 (5th Cir. 2017) (en banc).
       16 Spencer v. Staton, 489 F.3d 658, 661 (5th Cir.) (quoting Malley, 475 U.S. at 341),
modified on other grounds on reh’g, 489 F.3d 666 (5th Cir. 2007).
       17 It reads in full:


       GENERAL AFFIDAVIT
       THE STATE OF MISSISSIPPI
       Before me, Misty Harris a Justice Court Deputy of Prentiss County, in Justice
       District No. __ School Attendance Officer, Don Lambert, 300B West George E.
       Allen Drive, Booneville MS makes affidavit that CARLA BLAKE, on or about
       05/22/2014 in the County aforesaid, in said Justice’s District:
       DID WILLFULLY AND LAWFULLY CONTRIBUTE TO THE
       DELINQUENCY OF S__W__ A CHILD 6 YEARS OF AGE, BY REFUSING
       TO OR WILLFULLY FAILING TO MAKE SURE THAT SAID CHILD
       ENROLLS IN AND ATTENDS SCHOOL AS REQUIRED BY MISSISSIPPI
       COMPULSORY SCHOOL ATTENDANCE LAW IN VIOLATION OF 97-5-
       39(1) (37-13-91)
       Against the peace and dignity of the State of Mississippi.
       [Signature of affiant]
       Don Lambert
       School Attendance Officer
       [Address and phone numbers]
       Sworn to and subscribed before me, this 10th day of June 2014
       [Signature of clerk]
       Justice Court Clerk/Deputy Clerk
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S.W.’s absence record. Lambert’s affidavit is indistinguishable from what we
called the “textbook example” of a facially invalid affidavit in Spencer v.
Staton. 18 The affidavit in Spencer, like Lambert’s, stated that the named
person committed the offense but did not provide factual support. 19
       We also hold that this was clearly established when Lambert swore his
affidavit. The general Malley rule dates from the 1980s. And our 2007 decision
in Spencer shows Lambert’s affidavit violated that rule. It has also been clear
since the 1980s that the Fourth Amendment applies to school officials. 20
       Lambert’s principal contrary argument is that no court has applied
Malley to school attendance officers. He contends this is significant because
different Fourth Amendment standards sometimes apply in non-police
contexts, like schools or social worker investigations. 21 And Lambert says he
has less experience and training than the police officers who were liable in
previous Malley cases.
       But the right against arrest on a “barebones” affidavit was well known,
and there is no reason to distinguish Blake’s right from that of someone
arrested on a police officer’s affidavit. 22 Initially, the rule that “no Warrants
shall issue, but upon probable cause” is quite uniform. 23 The school and social
worker cases are distinguishable because they define what Fourth Amendment
rights exist in certain contexts. For example, in Roe we held for the first time



       18 489 F.3d at 661; see id. at 661 n.2 (quoting affidavit in full).
       19 See 489 F.3d at 661 n.2.
       20 See New Jersey v. T.L.O., 469 U.S. 325, 333–36 (1985) (applying Fourth Amendment

to “public school officials,” specifically Assistant Vice Principal).
       21 See id. at 340–41 (holding that warrant and probable cause requirements do not

apply to public school searches); Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d
395, 401 (5th Cir. 2002) (“We have held that the Fourth Amendment regulates social workers’
civil investigations, but we have not fleshed out the relevant Fourth Amendment
standards.”).
       22 Spencer, 489 F.3d at 661.
       23 U.S. CONST. amend. IV.

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that the warrant and probable cause requirements apply to a social worker’s
body cavity search of a child. 24 Here, in contrast, Lambert does not dispute that
probable cause governs arrest warrant affidavits. As the Supreme Court
teaches, “[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” 25
      And Lambert’s distinction from a police officer is unconvincing. First,
Lambert has some understanding of warrant affidavits. He routinely
submitted them to the court and was aware they could lead to arrests. He even
had a statutory duty to “file a petition with the youth court . . . or . . . a court
of competent jurisdiction as it pertains to parent or child” after exhausting
other efforts to secure school attendance. 26 Second, Lambert’s claim to limited
experience and training goes to subjective good faith, not objective legal
reasonableness. “[A] reasonably competent public official should know the law
governing his conduct.” 27
      There is some evidence that Lambert’s affidavit followed a standard
practice for local school attendance officers. But even if proven, this fact also
goes to subjective good faith. The Supreme Court has held that agency policy
may support an action’s reasonableness if Fourth Amendment law is
“undeveloped.” 28 But “[s]uch a policy, of course, could not make reasonable a
belief that was contrary to a decided body of case law.” 29 That was exactly the
situation here. Malley, as applied in Spencer, was a decided body of law. We




      24 299 F.3d at 407–08. And although T.L.O. held that warrants and probable cause
were not required for ordinary searches in public schools, it still made new Fourth
Amendment law—in contrast to the issue here. See 469 U.S. at 340–41.
      25 Anderson v. Creighton, 483 U.S. 635, 640 (1987) (emphasis added).
      26 MISS. CODE ANN. § 37-13-91(7).
      27 Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
      28 Wilson v. Layne, 526 U.S. 603, 617 (1999).
      29 Id. Plus, we have no indication Lambert adhered to a formal “policy.”

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are bound not to “reintroduce into qualified immunity analysis the inquiry into
officials’ subjective intent that Harlow [v. Fitzgerald] sought to minimize.” 30
       Nor does the judge’s warrant approval insulate Lambert. “Although we
accord great deference to a magistrate’s determination of probable cause, we
will not ‘defer to a warrant based on an affidavit that does not provide the
magistrate with a substantial basis for determining the existence of probable
cause.’” 31 The district court correctly denied summary judgment on the Malley
claim based on qualified immunity.
B.     Lambert Has Qualified Immunity from the Franks Claim.
       Blake also alleges that Lambert violated her Fourth Amendment right,
recognized in Franks v. Delaware, 32 to “be free from police arrest without a
good faith showing of probable cause.” 33 An official violates this right if he
“swear[s] to false information in an affidavit in support of a search [or arrest]
warrant, provided that: (1) the affiant knew the information was false or would
have known it was false except for the affiant’s reckless disregard for the truth;
and (2) the warrant would not establish probable cause without the false
information.” 34    A   similar    standard      applies    to   omitting     exculpatory
information. 35
       But a facially deficient affidavit can’t trigger this analysis. In Kohler v.
Englade we held that “a plaintiff cannot hold an officer liable under Franks for
intentionally omitting important exculpatory information from a warrant


       30 Anderson, 483 U.S. at 641 (citing Harlow, 457 U.S. at 815–20).
       31 Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir. 2006) (quoting United States v.
Leon, 468 U.S. 897, 914–15 (1984)); cf. Messerschmidt v. Millender, 565 U.S. 535, 556 (2012)
(“The question . . . is not whether the magistrate erred in believing there was sufficient
probable cause . . . . It is instead whether the magistrate so obviously erred that any
reasonable officer would have recognized the error.”).
       32 438 U.S. at 171.
       33 Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018).
       34 Hart, 127 F.3d at 442 (citing Franks, 438 U.S. at 171).
       35 See Winfrey, 901 F.3d at 494; Melton, 875 F.3d at 264.

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affidavit when the officer has also committed a Malley violation by presenting
a facially deficient warrant affidavit to the issuing judge.” 36 We reach the same
result here. 37

                                 IV. CONCLUSION
         We AFFIRM as to the Malley claim and REVERSE as to the Franks
claim.




      36 470 F.3d at 1113–14.
      37  See Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 426 (5th Cir. 1987)
(holding that “one panel cannot overturn another panel”).
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