     Case: 15-10604        Document: 00514235068        Page: 1    Date Filed: 11/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                        No. 15-10604                            FILED
                                                                        November 13, 2017
                                                                           Lyle W. Cayce
MICHAEL DAVID MELTON,                                                           Clerk

                Plaintiff - Appellee,

v.

KELLY D. PHILLIPS,

                Defendant - Appellant.




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


Before STEWART, Chief Judge, and JOLLY, JONES, SMITH, DENNIS,
CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,
HIGGINSON, and COSTA, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge, joined by STEWART, Chief
Judge, JOLLY, JONES, SMITH, CLEMENT, PRADO, OWEN, SOUTHWICK,
HAYNES, * and HIGGINSON, Circuit Judges:

      Michael David Melton alleges that he was arrested in violation of the
Fourth Amendment for an assault committed by another man with the same
first and last names. He seeks to hold Deputy Kelly Phillips, who took the
original incident report, liable for his arrest under 42 U.S.C. § 1983. Deputy
Phillips moved for summary judgment in district court, asserting the defense


      *   Judge Haynes concurs in the judgment and concurs as to Parts I and II.B only.
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                                       No. 15-10604
of qualified immunity. The district court determined that fact issues precluded
summary judgment on one of Melton’s Section 1983 claims. Because Deputy
Phillips is entitled to summary judgment even when construing all the facts in
the light most favorable to Melton, we REVERSE the district court’s order and
RENDER summary judgment on Melton’s remaining Section 1983 claim
against Deputy Phillips.
                                              I.
       In June 2009, Deputy Phillips interviewed an alleged assault victim and
filled out an incident report identifying the alleged assailant by the name
“Michael David Melton.” 1 After Deputy Phillips submitted the report, an
investigator with the Sheriff’s Office began investigating the assault. A year
later, the alleged victim provided the investigator with a sworn affidavit
identifying the alleged assailant as “Mike Melton.”                   The Hunt County
Attorney’s Office then filed a complaint against “Michael Melton.” The alleged
assailant’s first and last names are the only identifying information contained
in the complaint, and their accuracy is undisputed.                 Four days after the
complaint was filed, a Hunt County judge issued a capias warrant correctly
identifying the assailant as “Michael Melton.” 2 Two years after the judge



       1 Melton’s briefs argued that the incident report’s use of the middle name “David”
erroneously identified him as the assailant. However, the record does not show that this
information ever made its way to the judge who issued the warrant. As Melton has conceded,
the record does not show that the incident report itself was presented to the judge. OA at
41:51–42:11. Moreover, no erroneous information from the report was incorporated into the
complaint that was presented to the judge: Melton has conceded that the complaint is
accurate. OA at 40:55–41:51.
       2 The record does not contain any document labeled as a warrant application or

probable cause affidavit. The warrant appears to have issued based on a complaint filed by
an Assistant Hunt County Attorney. However, the briefing by both parties assumes that a
complaint that leads to a capias warrant is the equivalent of a warrant application for
purposes of Franks v. Delaware, 438 U.S. 154 (1978), and Hart v. O’Brien, 127 F.3d 424 (5th
Cir. 1997). We accept their assumption for purposes of deciding this case without reaching
the question because the issue has not been briefed, is not disputed by the parties, and would
not alter the outcome here.
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                                     No. 15-10604
issued the warrant, Melton was arrested on assault charges and detained for
sixteen days before being released on bond. It is undisputed that Deputy
Phillips’s involvement in the chain of events that led to Melton’s May 2012
arrest and detention ended with the incident report in June 2009. Melton v.
Phillips, 837 F.3d 502, 505 (5th Cir. 2016).
       The assault charges against Melton were ultimately dismissed for
insufficient evidence.     Melton then sued Deputy Phillips under 42 U.S.C.
§ 1983, alleging that Deputy Phillips was responsible for his arrest under
Franks and Hart because Deputy Phillips included false information in his
incident report. 3 Deputy Phillips asserted the affirmative defense of qualified
immunity and provided an affidavit stating broadly that the identifying
information in the incident report “would have been based solely on what I was
told by [the victim].” In his affidavit, Phillips also averred, as is stated in the
incident report, that the victim provided the assailant’s first name, last name,
gender, ethnicity, and date of birth.
       Melton responded by alleging that Deputy Phillips did not obtain any
identifying information from the victim other than the assailant’s first and last
names. Melton relied on an affidavit by former Hunt County Patrol Lieutenant
Brian Alford for his explanation of how Deputy Phillips obtained the
information in the incident report. According to Alford’s affidavit, victims
generally cannot provide the exact date of birth or driver’s license number of
an offender who is not a family relation. Therefore, Alford averred that Deputy
Phillips must have obtained the information from a database called a P.I.D.
used by the Hunt County Sheriff’s Office. Alford further stated that Melton


       3 Melton also brought numerous state-law claims against Deputy Phillips and a
variety of state-law and Section 1983 claims against Hunt County, the Hunt County Sheriff’s
Department, and the Hunt County Sheriff. However, the only claim at issue in this
interlocutory appeal based on qualified immunity is Melton’s Section 1983 claim based on
Franks.
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                                    No. 15-10604
and the true assailant have no identifying characteristics in common other
than their first and last names. Accordingly, Alford inferred that Deputy
Phillips must have obtained the information in the incident report from the
P.I.D. without asking the victim to verify any information other than first and
last names. Finally, Alford’s affidavit averred that a reasonable officer would
not rely on the P.I.D. without verifying additional information beyond first and
last names.
      The district court determined that Alford’s affidavit created a genuine
issue of material fact regarding whether Deputy Phillips obtained identifying
information from the victim, whether he cross-checked that information
against the P.I.D. results, whether he used the P.I.D. system at all, and
whether his use of the P.I.D. system was improper. The district court reasoned
that these questions were material to recklessness, which is an element of
liability under Franks. Accordingly, the district court denied Deputy Phillips’s
motion for summary judgment on qualified immunity with respect to Melton’s
Franks-based Section 1983 claim. 4
      Deputy Phillips appealed the district court’s denial of summary
judgment. Interlocutory appeal was appropriate in this case because Deputy
Phillips had raised the defense of qualified immunity, which is an immunity
from suit that must be considered at the earliest possible stage of litigation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). A divided panel of this court
affirmed the district court in part and dismissed the appeal for lack of
jurisdiction to the extent it challenged the genuineness of the factual dispute
over recklessness. Melton, 837 F.3d at 510. The panel majority further held
sua sponte that, although Jennings v. Patton, 644 F.3d 297 (5th Cir. 2011), and


      4   The district court granted Deputy Phillips’s motion for summary judgment on
Melton’s Section 1983 claims that were based on the Fifth Amendment, and those claims are
not at issue here.
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                                  No. 15-10604
Hampton v. Oktibbeha County Sheriff Department, 480 F.3d 358 (5th Cir.
2007), “grant[ed] qualified immunity to government officials who neither
signed nor drafted warrant applications,” these opinions lacked precedential
value because, in the panel majority’s view, they contradicted this court’s
earlier decision in Hart. Melton, 837 F.3d at 509. Accordingly, the panel
majority sua sponte overruled Jennings and Hampton. The panel majority also
rejected Deputy Phillips’s alternative argument that he was entitled to
qualified immunity under the independent intermediary doctrine.
      The dissenting opinion would have held that the requirement of
participation in preparing an application for a warrant in Jennings and
Hampton is consistent with Hart’s requirement that information be provided
“for use in an affidavit in support of a warrant.”         Id. at 513 (Elrod, J.,
dissenting). Because there was no evidence that Deputy Phillips provided
information for the purpose of having it used in obtaining a warrant, the
dissenting opinion would have held that Deputy Phillips was entitled to
summary judgment under Hart, Hampton, and Jennings.               Id. at 511–13.
Deputy Phillips petitioned for rehearing en banc, and we granted the petition.
                                       II.
      “The denial of a motion for summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine to the
extent that it turns on an issue of law.” Flores v. City of Palacios, 381 F.3d
391, 393 (5th Cir. 2004). “Accordingly, we lack jurisdiction to review the
genuineness of a fact issue but have jurisdiction insofar as the interlocutory
appeal challenges the materiality of [the] factual issues.” Allen v. Cisneros, 815
F.3d 239, 244 (5th Cir. 2016). We review the materiality of fact issues de novo.
Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).
Where the district court has identified a factual dispute, we ask whether the
officer is entitled to summary judgment even assuming the accuracy of the
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                                  No. 15-10604
plaintiff’s version of the facts. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.
2004) (en banc).
      “A good-faith assertion of qualified immunity alters the usual summary
judgment burden of proof, shifting it to the plaintiff to show that the defense
is not available.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016). To satisfy
this burden and overcome qualified immunity, the plaintiff must satisfy a two-
prong test. Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc).
First, the plaintiff must show “that the official violated a statutory or
constitutional right.” Id. Second, the plaintiff must show that “the right was
‘clearly established’ at the time of the challenged conduct.” Id. To avoid
summary judgment on qualified immunity, “the plaintiff need not present
absolute proof, but must offer more than mere allegations.” King, 821 F.3d at
654. Because the plaintiff is the non-moving party, we construe all facts and
inferences in the light most favorable to the plaintiff. Mullenix v. Luna, 136 S.
Ct. 305, 307 (2015); Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).
      As explained below, Melton’s claim fails under both prongs of the
qualified immunity analysis because, even assuming his version of the
disputed facts and construing all facts and inferences in his favor, the
connection between Deputy Phillips’s conduct and Melton’s arrest is too
attenuated to hold the deputy liable under the rule that we reaffirm today or
under any law that was clearly established at the time that Deputy Phillips
filled out the incident report.
                                       A.
      Melton’s argument that Deputy Phillips violated his Fourth Amendment
rights is based on the Supreme Court’s decision in Franks and our subsequent
application of Franks in Hart. The defendant in Franks was convicted of sexual
assault and sentenced to life imprisonment after the district court denied his
motion to suppress evidence that had been seized pursuant to a search
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                                  No. 15-10604
warrant. Franks, 438 U.S. at 160. The warrant affidavit in that case stated
that the affiant had personally spoken with two individuals who worked at the
defendant’s place of employment, who had both told him that the defendant
often wore clothing that matched the description offered by the victim. Id. at
157. At the suppression hearing, the defendant requested the right to call
these individuals to testify that they had never spoken personally with the
affiant and that if they had spoken to another police officer, any information
they would have provided about the defendant would have been “somewhat
different” from what was recited in the affidavit. Id. at 158. The district court
refused to hear testimony on this point and denied the defendant’s motion to
suppress. Id. at 160. The Supreme Court of Delaware affirmed, holding that
a defendant may never challenge the veracity of a warrant affidavit. Id.
      The Supreme Court of the United States reversed, determining that the
Fourth Amendment entitles a defendant to a hearing on the veracity of a
warrant affidavit if he can make a sufficient preliminary showing that the
affiant officer obtained the warrant by recklessly including material falsehoods
in a warrant application. Id. at 171–72. Particularly relevant to our analysis
here, the Supreme Court also observed in a footnote that an officer should not
be permitted to “insulate” a deliberate misstatement “merely by relaying it
through an officer-affiant personally ignorant of its falsity.” Id. at 163 n.6.
      Our decision in Hart applied this principle to allow Section 1983 claims
against an officer who “deliberately or recklessly provides false, material
information for use in an affidavit in support of [a warrant].” Hart, 127 F.3d
at 448–49 (citing Franks, 438 U.S. at 163 n.6) (holding that assistant county
attorney was entitled to qualified immunity because he did not act recklessly
when he erroneously told an officer who was filling out a warrant application
that the person to be arrested for suspected drug offenses was the wife of a
known marijuana cultivator). In Hampton, we clarified that the holding in
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                                  No. 15-10604
Hart does not extend to officers who neither prepared nor presented the
warrant affidavit. Hampton, 480 F.3d at 365 (holding that two officers who
did not prepare, present, or sign a warrant affidavit were entitled to qualified
immunity whereas a third officer who prepared the warrant affidavit could be
liable for falsely accusing the plaintiff of resisting another individual’s arrest).
We reaffirmed this principle in Jennings, holding again that an officer enjoys
qualified immunity if he does not prepare, present, or sign a warrant
application. Jennings, 644 F.3d at 300–01 (holding that judge who allegedly
fabricated corruption charges was entitled to qualified immunity because there
was no evidence that he prepared or presented the warrant application and the
independent intermediary doctrine shielded him from liability on other
grounds).
      The panel opinion treated Jennings and Hampton as in conflict with
Hart. Melton, 837 F.3d at 509. However, we, like the parties in this case,
interpret our precedents to be in one accord. Thus, an officer who has provided
information for the purpose of its being included in a warrant application
under Hart has assisted in preparing the warrant application for purposes of
Jennings and Hampton and may be liable, but an officer who has not provided
information for the purpose of its being included in a warrant application may
be liable only if he signed or presented the application.
      The parties have not asked us to overrule Jennings and Hampton in
favor of a broader rule of liability, and Franks counsels against such a course.
The Supreme Court expressly stated that the Franks rule is a narrow one and
that its narrowness reflects six concerns. Franks, 438 U.S. at 167. First, a
broad Fourth Amendment rule could interfere with criminal convictions and
be costly to society. Id. at 165–66. Second, a broad rule would have minimal
benefit in light of “existing penalties against perjury, including criminal
prosecutions, departmental discipline for misconduct, contempt of court, and
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                                         No. 15-10604
civil actions.” Id. at 166. Third, magistrates have the ability to inquire into
the accuracy of an affidavit before a warrant issues, both by questioning the
affiant and by summoning others to testify at a warrant proceeding.                             Id.
Fourth, “[t]he less final, and less deference paid to, the magistrate’s
determination of veracity, the less initiative will he use in that task,” despite
the fact that the magistrate’s scrutiny is “the last bulwark preventing any
particular invasion of privacy before it happens.”                    Id. at 167.      Fifth, the
proliferation of challenges to the veracity of warrant applications could unduly
burden the court system and be abused by defendants as a source of discovery.
Id. Sixth, a broad rule would be in tension with the fact that “[a]n affidavit
may properly be based on hearsay, on fleeting observations, and on tips
received from unnamed informants whose identity often will be properly
protected from revelation,” so that “the accuracy of an affidavit in large part is
beyond the control of the affiant.” Id. Accordingly, in light of the Supreme
Court’s guidance, we decline to adopt a broad new rule of officer liability sua
sponte. 5


       5  We observe that none of our sister circuits has applied Franks to circumstances in
which an officer’s connection to the plaintiff’s arrest is as attenuated as in this case. See, e.g.,
KRL v. Moore, 384 F.3d 1105, 1118 (9th Cir. 2004) (holding that, “because he had no role in
the preparation of the . . . warrant,” an officer who was involved at every stage of an
investigation was entitled to qualified immunity for material omissions in a warrant
application); see also United States v. Brown, 631 F.3d 638, 640–42 (3d Cir. 2011) (applying
Franks where non-affiant helped prepare the warrant affidavit); Burke v. Town of Walpole,
405 F.3d 66, 86 (1st Cir. 2005) (applying Franks where officer who “was centrally involved in
the collection of evidence to be used to secure an arrest warrant” withheld evidence from the
affiant); United States v. Wapnick, 60 F.3d 948, 950, 955–56 (2d Cir. 1995) (applying Franks
where non-affiant “knowingly or recklessly made false statements to [the affiant] in
connection with [the affiant’s] preparation of the affidavit”); United States v. DeLeon, 979
F.2d 761, 762–63 (9th Cir. 1992) (applying Franks where the affiant was present during the
non-affiant investigator’s telephone interviews and based same-day affidavit on those
interviews); United States v. Calisto, 838 F.2d 711, 712–13 (3d Cir. 1988) (applying Franks
where non-affiant informants provided information regarding a drug investigation to a police
officer who then obtained a warrant); United States v. Pritchard, 745 F.2d 1112, 1118–19 (7th
Cir. 1984) (applying Franks where non-affiant provided information to affiant and noting
that Franks applies “when one government agent deliberately or recklessly misrepresents
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                                      No. 15-10604
       Because we interpret our precedents to be consistent and do not choose
to announce a broad new rule of liability, we apply the requirement that an
officer must have assisted in the preparation of, or otherwise presented or
signed a warrant application in order to be subject to liability under Franks. 6
It is undisputed that Deputy Phillips did not present or sign the complaint on
the basis of which the capias warrant issued. Thus, Deputy Phillips can be
subject to liability only if he helped prepare the complaint by providing
information for use in it. See Jennings, 644 F.3d at 300–01; Hampton, 480 F.3d
at 365.
       To the extent that Jennings or Hampton could be read to immunize the
provision of information for use in preparing a warrant application, we do not
read them that broadly. As explained above, Franks liability can reach not
only those fully responsible for preparing a warrant application, but also those
who “deliberately or recklessly provide[] false, material information for use in
an affidavit.” Hart, 127 F.3d at 448. Likewise, “an officer who makes knowing
and intentional omissions that result in a warrant being issued without
probable cause” is also liable under Franks. Michalik v. Hermann, 422 F.3d
252, 258 n.5 (5th Cir. 2005) (citing Hart, 127 F.3d at 448).
       Separate from a Franks liability context, an officer could be held liable
for a search authorized by a warrant when the affidavit presented to the
magistrate was “so lacking in indicia of probable cause as to render official
belief in its existence unreasonable.” Malley v. Briggs, 475 U.S. 335, 344 (1986)




information to a second agent, who then innocently includes the misrepresentations in an
affidavit”). Moreover, Hart fully addresses the panel’s concern that an officer might seek to
insulate a misstatement “merely by relaying it through an officer-affiant personally ignorant
of its falsity” because it applies Franks to officers who provide information for use in a
warrant application. See Hart, 127 F.3d at 448 (citing Franks, 438 U.S. at 163 n.6).
        6 As noted above, Melton has not requested a broad new rule but only asserts that

Deputy Phillips is liable under our circuit’s existing case law.
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                                        No. 15-10604
(citing United States v. Leon, 468 U.S. 897, 923 (1984)). The Malley wrong is
not the presentment of false evidence, but the obvious failure of accurately
presented evidence to support the probable cause required for the issuance of
a warrant. In this situation, we have rightly recognized that liability should
attach only to the “affiant and person who actually prepared, or was fully
responsible for the preparation of, the warrant application.” Michalik, 422
F.3d at 261. That is because an officer who only provides a portion of the
information included in the affidavit has no way of knowing whether the
“whole picture” painted by the evidence establishes probable cause. Id. As
discussed above, Franks liability—our concern here—addresses the distinct
issue of false information in a warrant application.
       Here, the fact issue that the district court identified was whether Deputy
Phillips used the P.I.D. in an improper way while preparing the incident
report. The district court determined that this fact issue was material to
recklessness and that Deputy Phillips’s immunity depended on whether he was
reckless because, as the district court understood it, Franks applies to “any
government official who makes a reckless misstatement.”                      However, even
assuming arguendo that Deputy Phillips was reckless in completing the
incident report, 7 he is still entitled to summary judgment unless there is a
question of fact as to whether he assisted in the preparation of the complaint




       7 In the alternative, the fact issues identified by the district court are not material to
recklessness as defined in Hart. For purposes of liability under Franks, Hart defined
recklessness to require that an officer “in fact entertained serious doubts as to the truth” of
the information included in the warrant application. Hart, 127 F.3d at 449. Even assuming
arguendo that Alford correctly surmised that Deputy Phillips used the P.I.D. system without
having the victim verify any identifying information other than first and last names and that
a reasonable officer would not have relied on information so obtained, this would not satisfy
the requirement that Deputy Phillips entertained serious doubts as to the truth of the
information in the report. Melton has not pointed to any evidence on this requirement.
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                                       No. 15-10604
on the basis of which the capias warrant issued. See Jennings, 644 F.3d at
300–01; Hampton, 480 F.3d at 365.
       Melton seeks to create a fact issue as to whether Deputy Phillips helped
prepare the complaint by providing information for use in it, asserting that
“[a]ny investigator would know” an incident report will be used to obtain a
warrant. However, there is no record evidence of a policy or practice at the
Hunt County Sheriff’s Office that would have allowed Deputy Phillips to
anticipate that the incident report would be used to obtain a warrant. See OA
at 38:25–40:40.       Nor, as Melton has conceded, is there record evidence
suggesting that Deputy Phillips knew this specific report would be used to
obtain a warrant. OA at 38:11–38:23. Moreover, unchecked boxes at the end
of the incident report show that Deputy Phillips chose not to file the report
with a justice of the peace, a county attorney, or a district attorney. Because
the record does not contain evidence that the information in the incident report
was provided for the purpose of use in the complaint, Deputy Phillips did not
participate in preparing the complaint. See Hart, 127 F.3d at 448–49.
Accordingly, because he did not assist in preparing, present, or sign the
complaint, Deputy Phillips cannot be held liable under Franks. See Jennings,
644 F.3d at 300–01; Hampton, 480 F.3d at 365. Accordingly, Deputy Phillips
is entitled to summary judgment on this claim.
                                              B.
       Even assuming arguendo that Melton could demonstrate that a fact
issue exists on his claim that Deputy Phillips recklessly filled out the incident
report, Melton bears the burden of demonstrating that Deputy Phillips violated
his clearly established rights. 8 See Morgan, 659 F.3d at 371. “Abstract or



       8 “This circuit follows the rule that alternative holdings are binding precedent and not
obiter dictum.” United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011).
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                                        No. 15-10604
general statements of legal principle untethered to analogous or near-
analogous facts are not sufficient to establish a right ‘clearly’ in a given context;
rather, the inquiry must focus on whether a right is clearly established as to
the specific facts of the case.” Vincent v. City of Sulphur, 805 F.3d 543, 547
(5th Cir. 2015); see also Kinney, 367 F.3d at 350. “Although a case directly on
point is not necessary, there must be adequate authority at a sufficiently high
level of specificity to put a reasonable official on notice that his conduct is
definitively unlawful.” Vincent, 805 F.3d at 547; see also Kinney, 367 F.3d at
350. 9 Thus, “[a] clearly established right is one that is sufficiently clear that
every reasonable official would have understood that what he is doing violates
that right.” Luna, 136 S. Ct. at 308.
       Rather than attempting to demonstrate that his rights were clearly
established by cases addressing analogous or near-analogous facts, Melton has
repeatedly emphasized that the facts of his case are unique. See, e.g., Red Brief
at 20; OA at 28:38–29:09; OA at 36:09–37:33; OA at 56:54–57:24. Moreover,
Melton conceded at oral argument that he could not identify a single case
applying Franks to a situation in which there was no error in the complaint
and no false statement that made its way into the warrant. OA at 55:26–56:05.
Indeed, Franks expressly requires a falsehood to be included in the warrant
application for there to be a Fourth Amendment violation. Franks, 438 U.S. at



       9  Although neither Melton nor Deputy Phillips has briefed this prong of the qualified
immunity analysis, Deputy Phillips’s good-faith assertion of qualified immunity has placed
the burden on Melton to demonstrate that neither prong of the defense applies. King, 821
F.3d at 653. Moreover, both parties have briefed their understanding of the law that existed
at the time Deputy Phillips prepared the incident report, and reaching prong two of qualified
immunity does not result in unfair prejudice. It is important to consider the defense at the
earliest possible stage of litigation because qualified immunity is an immunity from suit that
“is effectively lost if a case is erroneously permitted to go to trial.” Pearson, 555 U.S. at 231;
see also White v. Pauly, 137 S. Ct. 548, 551 (2017) (noting that qualified immunity is
“important to society as a whole”); Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (noting that
qualified immunity is “too important to be denied review” on interlocutory appeal).
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                                       No. 15-10604
155–56. Particularly in light of Franks’s detailed discussion of why its rule
must be narrowly construed, we cannot say Franks clearly established the
unconstitutionality of Deputy Phillips’s conduct. See id. at 165–67.
       Moreover, even if Melton had attempted to satisfy his burden rather
than conceding that his case is unique and that no case applies Franks in
similar circumstances, Melton could not have shown that Deputy Phillips
violated his clearly established rights without assisting in preparing,
presenting, or signing the complaint. Hart and Hampton had been decided at
the time Deputy Phillips prepared the incident report. As discussed above,
Hampton held that an officer is entitled to qualified immunity if he does not
prepare, present, or sign a warrant application. Hampton, 480 F.3d at 365.
Hart held that an officer is not entitled to qualified immunity if he “deliberately
or recklessly provides false, material information for use in an affidavit in
support of [a warrant].” Hart, 127 F.3d at 448–49 (emphasis added). Because
Melton cannot show that Deputy Phillips prepared, presented, signed, or
provided information for use in the complaint, he cannot show that Deputy
Phillips violated clearly established law. 10
                                             III.
       For the reasons explained above, we REVERSE the district court’s order
and RENDER summary judgment for Deputy Phillips on Melton’s claim of
liability under Franks.




       10 Because we decide the case on the grounds explained above, we do not reach Deputy
Phillips’s additional alternative argument that he is entitled to qualified immunity under the
independent intermediary doctrine.
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                                  No. 15-10604
GREGG COSTA, Circuit Judge, concurring in the judgment:
      There are now so many strands of Fourth Amendment law that it is not
surprising they sometimes get tangled. As Judge Dennis’s dissent explains,
that is what has happened to our caselaw addressing two different situations
in which an officer can be held liable for an unlawful search even when a
warrant was obtained. The first—and the one that is the claim alleged against
Phillips—is when an officer provides false information to the magistrate
issuing the warrant. See Franks v. Delaware, 438 U.S. 154 (1978). Because
the wrongful act is misleading the magistrate, our original view in this area
rightly focused on whether the officer “deliberately or recklessly provides false,
material information for use in an affidavit in support of a search warrant,
regardless of whether he signs the affidavit.” Hart v. O’Brien, 127 F.3d 424,
448–49 (5th Cir. 1997) (emphasis added). As long as the officer knows his false
information will be used in an attempt to mislead a magistrate, that officer
should be liable under Franks. See 438 U.S. at 164 n.6 (explaining that officers
should not be able to “insulate one officer’s deliberate misstatements merely
by relaying it through an officer-affiant personally ignorant of its falsity”).
      An officer can also be held liable for a search authorized by a warrant
when the affidavit presented to the magistrate was “so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable.” Malley v. Briggs, 475 U.S. 335, 344 (1986) (citing United States
v. Leon, 468 U.S. 897, 923 (1984)). The Malley wrong is not the presentment
of false evidence, but the obvious failure of accurately presented evidence to
support the probable cause required for the issuance of a warrant. In this
situation, we have rightly recognized that liability should attach only to the
“affiant and person who actually prepared, or was fully responsible for the
preparation of, the warrant application.” Michalik v. Hermann, 422 F.3d 252,
262 (5th Cir. 2005). That is because an officer who only provides a portion of
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                                 No. 15-10604
the information included in the affidavit has no way of knowing whether the
“whole picture” painted by the evidence establishes probable cause. Id. 261.
      Michalik’s sensible standard for “no probable cause” cases cross-
pollinated with the Franks line of falsity cases in Hampton v. Oktibbeha Cty.
Sheriff Dep’t., 480 F.3d 358 (2007). See Leon, 468 U.S. at 914–15 (recognizing
these as separate doctrines).    Hampton was a falsity case, yet it readily
dismissed claims against two officers who allegedly provided false information
that was later presented to the magistrate because neither signed the affidavit
or prepared the warrant application. 480 F.3d at 365. Importing the Michalik
limitation into Franks cases and ignoring Hart was error.             There is no
principled reason why Franks liability should be limited to the affiant or a
person “fully responsible” for preparing the warrant application. See United
States v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (“If we held that the conduct
of . . . the affiant[] was the only relevant conduct for the purpose of applying
the teachings of Franks, we would place the privacy rights protected by that
case in serious jeopardy.”). That requirement would preclude liability in the
case of an officer who provides to a warrant affiant a doctor’s inculpatory
opinion about bite mark evidence while failing to disclose exculpatory DNA
results. Burke v. Town of Walpole, 405 F.3d 66, 87 (1st Cir. 2005) (denying
qualified immunity on those facts).      It would also defeat a claim brought
against an officer who conveyed to an affiant the inculpatory comments of one
informant but not the contradictory account of another.           United States v.
DeLeon, 979 F.2d 761, 762-63 (9th Cir. 1992). In both of these scenarios, Hart’s
“for use in an affidavit” standard would support liability.
      The majority opinion tries to harmonize Hart with Hampton (and
Jennings v. Patton, 644 F.3d 297 (5th Cir. 2011), which followed Hampton in a
Franks case) by saying that “an officer who has provided information for the
purpose of its being included in a warrant application under Hart has assisted
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                                 No. 15-10604
in preparing the warrant application for purposes of Jennings and Hampton
and may be liable.” Maj. Op. at 8.       But if Hart’s “for use in a warrant”
requirement is sufficient, why overlay it with the additional requirements that
“an officer must have assisted in the preparation of, or otherwise presented or
signed a warrant application in order to be subject to liability under Franks”?
Id. at 10. More problematic than the merged test being cumbersome, the Hart
standard for Franks liability is irreconcilable with Hampton’s endorsement of
the requirement that the officer must have “prepared or presented the warrant
or [have been] fully responsible for its preparation or presentation.” Hampton,
480 F.3d at 365 (quoting Michalik, 422 F.3d at 261) (emphasis added); see also
Jennings, 644 F.3d at 300 (reciting same requirement). That language was
wrongly imported from the “no probable cause” caselaw and is not used by any
other circuit in Franks cases.
      The en banc court’s attempt to reconcile rather than correct our caselaw,
with Hart apparently now being a subpart of the Hampton standard, will
continue to result in confusion. That confusion is especially problematic for a
claim in which individuals can assert a qualified immunity defense as a lack
of clarity in the law provides a defense. In a future Franks case, an officer who
provided false information “for use in” an affidavit will no doubt argue he was
not “fully responsible” for the warrant application and thus is immune under
the Hampton and Jennings decisions that we reaffirm today.
      Such a conflict in the caselaw will support an easy defense of qualified
immunity as this case demonstrates.         Although the “violation of clearly
established law” standard is increasingly being questioned, see Ziglar v.
Abbasi, 137 S. Ct. 1843, 1870–72 (2017) (Thomas, J., concurring) (citing Baude,
Is Qualified Immunity Unlawful?, 106 CAL. L. REV. (forthcoming 2018)), it is
hard to imagine that any immunity threshold should hold law enforcement to
a higher standard than judges when it comes to interpreting the law. If judges
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                                      No. 15-10604
thought (and apparently still think) that the Michalik standard should extend
to Franks cases, then an officer like Phillips who has neither the legal training
of judges nor the time we can devote to parsing caselaw should not face civil
liability for that error. So I join the majority opinion in concluding that Phillips
is immune from this suit. 1
       But I would use the en banc process to recognize the dubious provenance
of the “sign or prepare” requirement in our Franks case. Hart alone should
provide the appropriate standard for Franks claims.                     Its “for use in”
requirement is more straightforward, consistent with the law in other circuits,
and fully captures Franks’s concern that an officer’s misrepresentations to a
court should not be a basis for interfering with citizens’ privacy and liberty
interests. Our failure to straighten out the strands of Fourth Amendment law
that got tangled in Hampton means that the next time one of these cases comes
along, perhaps with a stronger case for liability than this one, the important
Fourth Amendment concerns that Franks protects might not be vindicated.




       1  The dissent raises legitimate concerns about whether the defendant raised the
“clearly established” aspect of qualified immunity as a ground for summary judgment. But
even without getting to the “clearly established” question, Melton has not established a
constitutional violation under the proper Franks inquiry. That is because he cannot show
that Phillips knowingly or recklessly presented false information. Assuming the truth of
Melton’s theory that the inaccurate identification came from Phillips’s use of a law
enforcement database, there is no evidence indicating that Phillips “entertained serious
doubts as to the truth” of that information on which law enforcement frequently relies. Hart,
127 F.3d at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).

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                                  No. 15-10604
JAMES L. DENNIS, Circuit Judge, joined by GRAVES, Circuit Judge,
dissenting:

      The evidence of the nonmovant and the justifiable inferences drawn in
his favor by the district court—which we may not second-guess at this
interlocutory stage—establish a genuine dispute as to whether Officer Phillips
acted with reckless disregard for the truth in falsely identifying the plaintiff
as the perpetrator in his official report of a violent assault, resulting in the
plaintiff’s arrest without probable cause.       The majority opinion errs in
reversing the district court’s denial of qualified immunity and summary
judgment to Phillips and causes injustice to the plaintiff, who should be
allowed to proceed with his claim, and to future civil plaintiffs and criminal
defendants, who will be deprived of a legal remedy for similar violations of
their constitutional rights. What makes this case even more significant are
the legal and procedural maneuvers this court is employing in order to shield
a reckless officer, bending over backwards to revive bad decisions that violated
our rule of orderliness and raising arguments and defenses that the appellant
did not raise. I respectfully dissent.
                                         I
      In June 2009, the defendant, Kelly Phillips, then a deputy with the Hunt
County, Texas, Sheriff’s Office, was dispatched to a hospital in Greenville,
Texas, to interview the victim of an assault. The victim told Phillips that the
assailant was a man he knew named “Michael Melton.” There is no dispute
that the assailant was not the plaintiff, Michael David Melton, but a different
man, Michael Glenn Melton, who apparently was romantically involved with
the victim’s estranged wife at the time of the assault.          Phillips shortly
thereafter prepared an offense report in which he specifically identified the
plaintiff, Michael David Melton, as the assailant, and provided his middle
name, age, height, hair color, and eye color. As the district court noted, Phillips
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                                       No. 15-10604
did not explain how he came to identify the plaintiff, as opposed to the true
assailant, as the perpetrator in his report. 1 According to the plaintiff’s expert
witness, the only possible way Phillips could have identified the plaintiff
falsely as the assailant in his offense report was by entering the name “Michael
Melton” into a computer database, the “Personal Identification History
through net data” or “PID,” without conducting any investigation as to whether
the PID-generated result matched the person identified by the victim.
       Phillips forwarded his report to the Criminal Investigation Division of
the Hunt County Sheriff’s Office. In April 2010, another officer obtained a
sworn affidavit from the victim, who again identified his assailant only as
“Mike Melton,” his estranged wife’s boyfriend.                  In July 2010, the state
prosecutor filed a criminal complaint against the plaintiff, charging him with
the assault.     The complaint expressly stated that it was “based upon the
observations of K. Phillips, a peace officer, obtained by reviewing said officer’s
report,” and it provided no other basis for the information contained therein.
Shortly thereafter, a Hunt County judge issued a warrant for the plaintiff’s
arrest. The plaintiff was arrested in May 2012 and held in county jail for
sixteen days before he was released on bond. In August 2012, the charge
against the plaintiff was dismissed.
       The plaintiff sued Phillips for violation of his Fourth Amendment rights,
alleging that Phillips intentionally or with reckless disregard for the truth
misidentified him as the assailant in his offense report, thereby leading to his
arrest without probable cause.             Phillips moved for summary judgment,



       1 Phillips’ affidavit asserts only that, “[a]s standard practice,” the identity of the
suspect in his report “would have been” based on what he was told by the victim, but he does
not actually contend that the victim gave him the plaintiff’s middle name or physical
description, or that the victim even knew the plaintiff, let alone explain how or why the victim
would have given Phillips the plaintiff’s information instead of the information of the actual
assailant, who was known to the victim.
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                                 No. 15-10604
asserting qualified immunity. The district court denied summary judgment on
the plaintiff’s Fourth Amendment claims, finding a genuine dispute of fact
regarding whether Phillips was reckless in identifying the plaintiff in his
offense report.
                                       II
                                       A
      This court has recognized two different kinds of claims against
government agents for alleged Fourth Amendment violations in connection
with a search or arrest warrant: (1) claims under Franks v. Delaware, 438 U.S.
154 (1978), for which the agent may be liable if he “makes a false statement
knowingly and intentionally, or with reckless disregard for the truth that
results in a warrant being issued without probable cause,” Michalik v.
Hermann, 422 F.3d 252, 258 n.5 (5th Cir. 2005) (discussing Franks, 438 U.S.
at 155–56); and (2) claims under Malley v. Briggs, 475 U.S. 335 (1986), for
which the agent may be liable if he “fil[es] an application for an arrest warrant
without probable cause” and “a reasonable well-trained officer . . . would have
known that [the] affidavit failed to establish probable cause,” Michalik, 422
F.3d at 259–60 (citations and internal quotation marks omitted).
      As is apparent, these two kinds of claims involve very different legal
theories, and our controlling caselaw properly reflects our understanding of
those differences. In Hart v. O’Brien, 127 F.3d 424, 448–49 (5th Cir. 1997),
this court considered the scope of a government agent’s liability for Franks
claims and held, “A governmental official violates the Fourth Amendment
when he deliberately or recklessly provides false, material information for use
in an affidavit in support of a . . . warrant.” And in Michalik, we considered
the scope of a government agent’s liability for Malley claims. We held that, in
that context, only the “affiant and person who actually prepared, or was fully


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                                  No. 15-10604
responsible for the preparation of, the warrant application” may be liable for
seeking a warrant without probable cause. Michalik, 422 F.3d at 261.
      These different rules make sense. A government official who merely
provides information that is later included in a warrant application is not in a
position to “see the whole picture” and thus to fully “assess probable cause
questions” relevant to Malley claims of facially insufficient warrant
applications. See Michalik, 422 F.3d at 261. By contrast, an officer who
“deliberately or recklessly provides false, material information for use in an
affidavit” is certainly in a position to fully assess his own conduct, which forms
the entire basis for Franks claims of material misrepresentations in warrant
applications. See Hart, 127 F.3d at 448–49. At issue in this case is a Franks
claim alleging a Fourth Amendment violation resulting from material
misrepresentations in a warrant affidavit; thus, as the prudent reader will
easily recognize, this claim is controlled by Hart/Franks, and the
Michalik/Malley rule is inapplicable.
                                        B
      In Hampton v. Oktibbeha County Sheriff’s Department, 480 F.3d 358, 365
(5th Cir. 2007), and Jennings v. Patton, 644 F.3d 297, 301 (5th Cir. 2011), this
court confused the two theories described above and, in conflict with our earlier
holding in Hart, erroneously applied the Michalik/Malley rule to cases
involving Franks misrepresentation claims.        And it did so without ever
mentioning Franks or Hart. Under our rule of orderliness, when such conflict
occurs, the earlier precedent controls and subsequent, inconsistent cases are
disregarded. See, e.g., United States v. Puckett, 505 F.3d 377, 385 (5th Cir.
2007) (“A handful of this court’s cases, unfortunately, are inconsistent” with
earlier precedent, and they are therefore “not controlling”). The en banc court
now cements our confusion and error in Hampton and Jennings into law.


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                                  No. 15-10604
      In an attempt to portray Hampton and Jennings as consistent with Hart,
the majority opinion misrepresents those cases and their holdings. Under
Hampton and Jennings, a government official who deliberately provides false,
material information for use in an affidavit does not violate the Fourth
Amendment if she is not the affiant and does not actually prepare the warrant.
See Hampton, 480 F.3d at 365; Jennings, 644 F.3d at 301. This rule is plainly
inconsistent with our earlier holding in Hart.
      In Hampton, the court “accepted the plaintiff’s version of the facts,
namely that the officers ‘conspired to submit false and incomplete information
in order to secure a warrant for the arrest of [Hampton].’” 480 F.3d at 364
(alteration in original).   Nevertheless, the Hampton court held that these
officials could not be held liable because the plaintiff did not allege that either
of them “was the affiant officer or the ‘officer who actually prepare[d] the
warrant application with knowledge that a warrant would be based solely on
the document prepared.’” 480 F.3d at 365 (quoting Michalik, 422 F.3d at 261).
      Jennings offers the same “actual preparation” requirement. In granting
qualified immunity to the relevant government official there, the court quoted
the following language from Michalik:
            Although issues of fact may exist as to the roles that
      [defendants] played in the investigation, and in providing some of
      the information to [the affiant], these issues of fact are not material
      to the [claim for causing a warrant to be issued without probable
      cause] because none of the evidence suggests that [defendants]
      prepared or presented the warrant or were fully responsible for its
      preparation or presentation.

      Jennings, 644 F.3d at 301 (emphasis added) (alteration in original)
(quoting Michalik, 422 F.3d at 261).       The Jennings court went on to cite
Hampton and describe it as “granting qualified immunity to defendants who
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                                       No. 15-10604
were neither the affiant nor the person who actually prepared the warrant
application.” Jennings, 644 F.3d at 301 (emphasis added) (citing Hampton,
480 F.3d at 364-65). This, too, is plainly inconsistent with Hart.
       There is no way to explain how the language of these two cases and their
reliance on Michalik could be consistent with Hart. So the majority opinion
does not quote or otherwise discuss their language and does not even mention
their reliance on Michalik.          The majority opinion’s attempt to argue that
Hampton and Jennings can be harmonized with Hart amounts to an endeavor
to square the circle.
                                              C
       The majority opinion’s holding that an officer who makes a deliberate or
reckless misrepresentation can only be held liable if he “assisted in the
preparation of, or otherwise presented or signed a warrant application” is
unsound and, unsurprisingly, is not the law in any other circuit. 2 See, e.g.,
United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997) (Fourth
Amendment violated by false statements “made not only by the affiant but also
[by] statements made by other government employees . . . insofar as such
statements were relied upon by the affiant in making the affidavit”); United
States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (“[W]e join the Third and
Seventh Circuits in holding that misstatements or omissions of government
officials which are incorporated in an affidavit for a search warrant are


       2 The majority opinion cites KRL v. Moore, 384 F.3d 1105, 1118 (9th Cir. 2004), as
“holding that ‘because he had no role in the preparation of the . . . warrant,’ an officer who
was involved at every stage of an investigation was entitled to qualified immunity for
material omissions in a warrant application.” Maj. Op. at 9 n.5. This misrepresents Moore’s
holding. In Moore, the plaintiffs challenged the omission of information that was known to
those who drafted and signed the affidavit. 384 F.3d at 1117. Thus, the official in question,
an investigator who was not involved in the preparation of the affidavit, bore no responsibility
for the misleading omission of any information from the affidavit. See id. at 1108–09, 1118.
By contrast, in the instant case, there is no dispute that Phillips was the source of the
material misrepresentations provided to the affiant.
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                                  No. 15-10604
grounds for a Franks hearing.”). Cf. United States v. Leon, 468 U.S. 897, 923
n.24 (1984) (admonishing that in applying the good-faith exception “[i]t is
necessary to consider the objective reasonableness . . . of the officers who
originally obtained [the warrant] or who provided information material to the
probable-cause determination”).
      The following cases further illustrate the majority opinion’s departure
from the holdings of our sister circuits. In United States v. Calisto, 838 F.2d
711, 712 (3d Cir. 1988), an officer relayed information to a second officer at a
second agency. The first officer’s “reason for relaying the information to [the
second officer] . . . was his belief that it would aid [that officer] in his
investigation.” Id. (emphasis added). The first officer requested not to be
revealed as the source of the information. Id. The second officer then relayed
the information to a third officer at a third agency, who then relayed
information to a fourth officer at a fourth agency, who then drafted and signed
a warrant application based on the information. In applying Franks, the Third
Circuit considered the information provided, and omitted, by all four agents,
ultimately concluding that any misrepresentation was not material. See 838
F.2d at 714–15 & n.2.
      In United States v. Davis, 471 F.3d 938, 942 (8th Cir. 2006), an officer
who conducted a protective sweep relayed false information to another officer
who participated in the sweep, and the latter officer relayed that information
to the affiant. Nothing in the facts or the court’s discussion suggests that the
misrepresenting officer was “involved in the preparation” of the warrant
affidavit, and the court concluded that his misrepresentation was reckless. Id.
at 946. The court stated, “The fact that the affiant . . . was not aware [of the
falsity] does not change the result under Franks, nor does the fact that [the
affiant’s] source of information . . . was also unaware of the truth.        [The
recklessly misrepresenting officer’s] statement cannot be insulated from a
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                                  No. 15-10604
Franks challenge simply because it was relayed through two officers who were
both unaware of the truth.” Id. at 947 n.6.
        In United States v. Lakoskey, 462 F.3d 965 (8th Cir. 2006), the court
considered alleged misrepresentations by an Arizona-based postal inspector,
Hirose, in an email to a Minnesota-based inspector, Nichols.          The email
informed Nichols that a Minnesota resident was apparently involved in a drug
trafficking operation using the mails. Id. at 970. Only after this email was
received, Nichols launched an investigation, which included multiple dog
sniffs, and, over two weeks later, applied for and obtained a search warrant
based in part on the information relayed in the email. Id. at 970–71. Nothing
in the facts or in the court’s discussion suggests that Hirose was “involved in
the preparation” of the warrant affidavit or intended for the information to be
used     in   an   affidavit.   Nonetheless,     the   court   recognized    that
misrepresentations by Hirose could give rise to a Franks claim, see id. at 978,
though it ultimately concluded that the misrepresentations were not material,
id.
        Our sister circuits’ caselaw reflects a common-sense understanding:
when an officer, acting with reckless disregard for the truth, includes false,
material information in an official report for further official use, leading to an
unlawful search or arrest of an innocent person, there is no justification to
insulate him from liability. A reasonable officer can certainly foresee that such
actions could lead to an unlawful search or arrest, as information relayed in
law enforcement agents’ reports routinely end up as support for warrant
applications even if the reports are not expressly designed exclusively for that
use. See, e.g., Calisto, 838 F.2d at 712; Davis, 471 F.3d at 942; Lakoskey, 462
F.3d at 970–71. Nor does the passage of time between the false report and the
warrant application justify ignoring that officer’s conduct. Whether the false
information is used within a week or a year is not within the misrepresenting
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                                  No. 15-10604
officer’s control—the majority opinion offers no basis for the proposition that
the existence of a constitutional violation depends on the passage of time
between the reckless misrepresentation and the resulting unlawful arrest.
There is thus no justification for the anomalous shield that this court has now
created.
      It is important to emphasize that the majority opinion’s erroneous
holding that only an officer who actually participates in preparing the warrant
affidavit can violate the Fourth Amendment through his reckless or intentional
misrepresentations is not limited to civil cases; that narrow reading of the
Fourth Amendment will limit criminal defendants’ ability to challenge search
warrants that are premised on fraudulent misrepresentations.              Say, for
example, that a patrol officer intentionally alters an assault victim’s statement
in his police report with the intent to lead detectives to an individual the officer
believes committed the crime. And say that this misrepresentation is later
included in a search warrant, leading to the recovery of evidence that this
individual possessed small amounts of marijuana in his home. Under the
majority opinion’s holding, that individual would not be able to challenge his
search warrant in his ensuing prosecution for possession of a controlled
substance simply because the culprit officer did not “participate” in the
preparation of the warrant affidavit, notwithstanding his intentional
misrepresentation.    Such a rule is untenable.
                                        III
      In addition to establishing an imprudent and unfounded rule of law, the
court makes serious procedural missteps. On appeal from the denial of a
motion for summary judgment based on qualified immunity, this court “lack[s]
jurisdiction to review the genuineness of a fact issue.” Allen v. Cisneros, 815
F.3d 239, 244 (5th Cir. 2016).       We have jurisdiction to review only the
materiality of the factual issues. See id. In this case, the district court found
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                                        No. 15-10604
that the plaintiff “has introduced evidence suggesting that Phillips’s
identification of [the plaintiff] in his incident report was reckless.”                     The
majority opinion acknowledges that recklessness is a question of fact, but in
the same breath, it concludes that the facts identified by the district court are
not “material” to recklessness. Maj. Op. at 11 n.8. In actuality, the majority
opinion simply overrules the district court’s determination that there is a
genuine dispute as to whether Phillips “in fact entertained serious doubts as
to the truth of the information included in the warrant application,” Hart, 127
F.3d at 449, and by so doing exceeds this court’s jurisdiction. 3
         The majority proceeds to absolve Phillips on the additional basis that,
even if he did violate the plaintiff’s constitutional rights, those rights were not
“clearly established.” Phillips never made such an argument—not before the
district court, not in his brief on appeal, and not in his supplemental en banc
brief.       The majority opinion states that Phillips’s assertion of qualified
immunity below “placed the burden on Melton to demonstrate that neither
prong of the defense applies.” Maj. Op. at 13 n.10. But it is the appellant’s
burden to show that the district court erred. See Santillana v. Williams, 599
F.2d 634, 635 (5th Cir. 1979) (“The burden of appellant on appeal is to persuade
the appellate court that the trial judge committed an error of law.”); Vetter v.
Frosch, 599 F.2d 630, 633 (5th Cir. 1979) (“The appellant has the burden of
persuading the appellate court that the district court erred.”); Murphy v. St.




         The district court’s conclusion was also correct. The plaintiff’s expert witness
         3

averred that Phillips simply entered the name “Michael Melton” into a computer database
and used the result of his search to identify the plaintiff in his report, without making any
attempt to corroborate that he was the right “Michael Melton.” A reasonable juror certainly
could conclude based on these facts that Phillips entertained doubts as to the truth of his
report. As previously discussed, Phillips could reasonably expect his false report to be used
in support of a warrant application, and his false report in fact led to the plaintiff’s wrongful
arrest. In my view, this is sufficient to establish a genuine dispute as to whether Phillips
violated the plaintiff’s constitutional rights.
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                                   No. 15-10604
Paul Fire & Marine Ins. Co., 314 F.2d 30, 31 (5th Cir. 1963) (“It is elementary
instead that the burden is on the appellants to show error.”).            It is not
appropriate for the court to attempt to shoulder this burden on Phillips’s
behalf.
         The majority opinion proceeds to assert on Phillips’s behalf that the
complaint contained no false information, Maj. Op. at 13, even though Phillips
never argued before the district court or before the panel on appeal that his
false identification of the plaintiff as the assailant in his report did not result
in the plaintiff’s wrongful arrest or that the complaint did not falsely identify
the plaintiff as the suspected assailant based on his report.         Phillips has
therefore forfeited these arguments that the majority opinion attempts to raise
for him. See, e.g., Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov’t,
849 F.3d 615, 626 (5th Cir. 2017) (citing In re Paige, 610 F.3d 865, 871 (5th Cir.
2010)) (“[T]his court generally does not consider arguments raised for the first
time on appeal.”); United States v. Brace, 145 F.3d 247, 261 (5th Cir. 1998) (en
banc) (holding that the en banc court cannot address an issue that was not
presented to the panel on appeal and stating, “It bears repeating—indeed,
cannot be overemphasized—that we do not address issues not presented to
us.”).
         Pro se litigants could only dream of receiving the judicial help that the
en banc court is giving an officer represented by a highly competent attorney.
See, e.g., Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (“Although pro se
briefs are afforded liberal construction, even pro se litigants must brief
arguments in order to preserve them.” (citation omitted)). This court’s zeal to
protect officers from the prospect of chilling liability cannot justify abandoning
our rules and reversing the district court’s judgment on the basis of arguments
that the appellant has not made.


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                                 No. 15-10604
                                        *
      Because I believe that the majority opinion errs in reversing the district
court’s denial of qualified immunity, I respectfully dissent.




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