                                                                   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. § 1983

and 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.

                                               2
              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”).


                                              3
             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

                                6
    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

                                    7
          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.




                                         8
