                                                                F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                                  PUBLISH
                                                                 OCT 10 1997
                    UNITED STATES COURT OF APPEALS
                             TENTH CIRCUIT                  PATRICK FISHER
                                                                      Clerk


EDWARD A. BREIDENBACH,
MARY ELLEN BREIDENBACH,
FRANK D. BREIDENBACH,
GERALDINE E. BREIDENBACH,
EDWARD JOHN BREIDENBACH,                    No. 96-1270
SCOTT A. HARMS, GINA L.
BULLOCK, JASON BULLOCK,
CHRISTOPHER HARMS, NICOLE
HARMS, FRANCISCO SERRANO,
STEVEN G. HARMS, JENNIFER
HARMS, and CHAD HARMS,

      Plaintiffs-Appellees,
v.

DON BOLISH, Sheriff of Logan
County, RAY NEVILLE, Deputy
Sheriff with Logan County Sheriff’s
Department, COUNTY OF LOGAN, a
county of the State of Colorado, and
JOHN DOES I THROUGH XL,
officers and agents of various
governmental entities including
Colorado National Guard,

      Defendants,

             and

NICOLA GESI, Drug Enforcement
Administration Special Agent, in his
official capacity,

     Defendant-Appellant.
           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                         (D.C. No. 95-K-2148)


Nathan D. Chambers, Chambers, Dansky & Hansen, P.C., Denver, CO, for
Plaintiffs-Appellees.

Barbara L. Herwig and Edward Himmelfarb, United States Department of Justice,
Washington, D.C., for Defendant-Appellant Nicola Gesi.


Before EBEL, HENRY, and BRISCOE, Circuit Judges.


HENRY, Circuit Judge.


      This appeal arises from the plaintiffs’ civil rights action against Nicola

Gesi, a special agent of the Drug Enforcement Agency, alleging that Agent Gesi

knowingly or recklessly submitted false information in an affidavit used to obtain

warrants to search the plaintiffs’ homes. Agent Gesi moved to dismiss the action

on qualified immunity grounds, arguing that the plaintiffs failed to allege facts

sufficient to demonstrate that Agent Gesi violated a clearly established

constitutional right. The district court denied Agent Gesi’s motion to dismiss and

allowed discovery to proceed to resolve the qualified immunity question. We

have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1291. See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We reverse and remand.

                               I. BACKGROUND

                                          2
      The plaintiffs are residents of six homes in Logan County, Colorado. On

August 21 and 22, 1993, in a series of pre-dawn raids, federal, state, and local law

enforcement agents executed warrants to search the plaintiffs’ homes and other

homes in Logan County. The searches of the plaintiffs’ homes failed to produce

any evidence of marijuana or contraband, and none of the plaintiffs were

criminally charged.

      As a result of the events surrounding the searches, the plaintiffs filed this

civil rights action against the law enforcement agents, Logan County, and the City

of Sterling, Colorado, alleging the searches violated their Fourth, Fifth, and

Fourteenth Amendment rights under the United States Constitution. Among other

things, the plaintiffs brought a federal action under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against DEA

agent Gesi who submitted the affidavit (or affidavits) to procure the warrants.

The plaintiffs allege that Agent Gesi “knowingly included false information in the

affidavit(s) or recklessly disregarded the substantial probability that certain

information in the affidavit was false.” Aplts’ App., doc. 1, at 3 (First Amended

Complaint dated Feb. 2, 1996). 1 However, because the warrant affidavit was


      1
           The full text of the plaintiffs’ factual allegations against Agent Gesi
state as follows:
                 23. Sometime before August 21, 1993, defendant
                 Nicola Gesi submitted affidavit(s) in connection with

                                          3
sealed by the issuing judge as part of the defendants’ continuing criminal

investigation in Logan County, the plaintiffs have never seen Agent Gesi’s

warrant affidavit and did not offer specific facts related to the affidavit.

      Agent Gesi moved to dismiss the plaintiffs’ complaint on qualified

immunity grounds. He argued that he was entitled to qualified immunity because

the plaintiffs had failed to allege the violation of a clearly established

constitutional right in sufficient detail to meet the “heightened pleading” standard

required in qualified immunity cases. In response, the plaintiffs offered affidavits

from Edward Breidenbach and Mary Ellen Breidenbach swearing that they had

never been involved in the cultivation or distribution of any controlled

substances, or had controlled substances in their residences or on their property.

      The district court denied Agent Gesi’s motion. The district court first

determined under the qualified immunity doctrine that the law was clearly

established at the time of the alleged violation that the submission of false




               a request for the issuance of approximately sixty-six
               (66) search warrants. Defendant Gesi knowingly
               included false information in the affidavit(s) or
               recklessly disregarded the substantial probability that
               certain information in the affidavit(s) was false. In
               reliance upon this affidavit(s), approximately sixty-
               six (66) search warrants were issued, including
               warrants authorizing the entry and search of certain
               plaintiffs’ property, as set forth more fully below.
      Aplts’ App., doc. 1, at 3 (First Amended Complaint dated Feb. 2, 1996).

                                           4
information in a warrant affidavit violated an individual’s Fourth Amendment

rights. Aplts’ App. doc. 4, at 3 (Dist. Ct. Order dated May 6, 1996). The court

then held that because the plaintiffs have been refused all discovery and have not

seen the sealed affidavit, their allegations were “sufficient to withstand a motion

to dismiss.” Id. at 4. The court ruled that the plaintiffs could proceed with

discovery limited to resolving the qualified immunity question. The court added

that if the plaintiffs failed “to adduce evidence to support their allegations of

Gesi’s falsity or reckless disregard for the truth in preparing the affidavit at issue,

summary judgment [would] enter forthwith.” Id.



                                  II. DISCUSSION


      We review the denial or grant of a motion to dismiss de novo, applying the

same standard used by the district court. See Liebson v. New Mexico Corrections

Dep’t, 73 F.3d 274, 275 (10th Cir. 1996). In the context of a qualified immunity

defense, however, the standard is somewhat different than in the typical Fed. R.

Civ. P. 12(b)(6) context. Once the defendant raises a qualified immunity defense,

the plaintiff assumes the burden of showing that the defendant has violated

clearly established law. See Pueblo Neighborhood Health Ctrs., Inc. v. Losavio,

847 F.2d 642, 645 (1988). To overcome the qualified immunity defense, the

plaintiff must identify a clearly established statutory or constitutional right of

                                           5
which a reasonable person would have known, and then allege facts to show that

the defendant’s conduct violated that right. See Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Pueblo Neighborhood Health Ctrs., Inc., 847 F.2d at 645.

      The qualified immunity defense extends to government officials performing

discretionary functions. See Harlow, 457 U.S. at 818. As explained by the

Supreme Court in Mitchell, qualified immunity represents

      an entitlement not to stand trial or face the other burdens of
      litigation, conditioned on the resolution of the essentially legal
      question whether the conduct which the plaintiff complains violated
      clearly established law. The entitlement is an immunity from suit
      rather than a mere defense to liability; and like an absolute immunity,
      it is effectively lost if a case is erroneously permitted to go to trial.

472 U.S. at 526.

      The qualified immunity analysis is the same whether the claims are brought

under Bivens or pursuant to the post-Civil War Civil Rights Acts. See Butz v.

Economou, 438 U.S. 478, 504 (1978) (“[W]e deem it untenable to draw a

distinction for purposes of immunity law between suits brought against state

officials under § 1983 and suits brought directly under the Constitution against

federal officials.”). Thus, in assessing whether the qualified immunity defense

should apply, we must make two inquiries: First, we must ask what was the

clearly established law with regard to the plaintiffs’ constitutional rights at the

time those rights were allegedly violated by Agent Gesi. If the law was not

clearly established at the time, then Agent Gesi is entitled to dismissal of the

                                          6
action because he could not have known that he was violating that right. Second,

if the law was clearly established, we must ask whether Agent Gesi’s conduct was

“objectively reasonable” in light of this clearly established law.



                            A. Clearly Established Law


      The first question under Harlow is whether the law regarding the

submission of false information in a warrant affidavit was clearly established at

the time of the alleged violation in August 1993. Neither party disputes that the

law was clearly established. As pointed out by the district court, the appropriate

standard for determining whether a constitutional violation occurred in this

instance is set out in Franks v. Delaware, 438 U.S. 154 (1978). This court has

previously held that “the law [is] clearly established that an officer would violate

a plaintiff’s Fourth and Fourteenth Amendment rights by knowingly or recklessly

making a false statement in an affidavit in support of [a] . . . warrant, if the false

statement were material to the finding of probable cause.” Bruning v. Pixler, 949

F.2d 352, 357 (10th Cir. 1991) (citing Franks, 438 U.S. at 155-56). Accordingly,

we hold that the law concerning the plaintiffs’ claim against Agent Gesi was

clearly established at the time of the alleged violation.



         B. The Objective Reasonableness of the Defendant’s Actions


                                           7
      The dispute in this case focuses on the second prong of the Harlow test —

that is, whether the plaintiffs have alleged facts sufficient to demonstrate that

defendants’ conduct was “objectively unreasonable” in light of clearly established

law. On appeal, Agent Gesi argues that the district court erred in denying his

motion to dismiss because the plaintiffs failed to allege any facts to support their

allegation that he knowingly or recklessly submitted false information in his

warrant affidavit. Because this appeal arises on a motion to dismiss, we construe

the facts, and reasonable inferences that might be drawn from them, in favor of

the plaintiff. See Beard v. City Northglenn, Colo., 24 F.3d 110, 115 (10th Cir.

1994).

      Agent Gesi correctly notes that in the context of a qualified immunity

defense, this court has traditionally required plaintiffs to meet a heightened

pleading standard. See Sawyer v. County of Creek, 908 F.2d 663, 667 (10th Cir.

1990) (“Once a qualified immunity defense has been raised . . . , the plaintiff is

held to a heightened standard of pleading.”). The purpose of the heightened

pleading requirement is rooted in the purpose of the qualified immunity doctrine

itself. When the Supreme Court reformulated its qualified immunity test in

Harlow to focus on the “objective reasonableness” of an officer’s actions as

opposed to his or her subjective intent, the Court sought to shield government

officials not only from the “substantial costs” of subjecting officials to the risks

                                          8
of trial, but also from “[j]udicial inquiry into subjective motivation,” including

“broad-ranging discovery and the deposing of numerous persons.” 457 U.S. at

816. The Court held that such inquiries “can be peculiarly disruptive of effective

government.” Id. In keeping with this important concern for shielding

government officers from burdensome discovery in cases where subjective intent

is at issue, this court and several other circuits have imposed a more stringent

pleading requirement where a qualified immunity defense is asserted. 2 See

Pueblo Neighborhood Health Ctrs., Inc., 847 F.2d at 646. See also Crawford-El

v. Britton, 93 F.3d 813, 816-17 (D.C. Cir. 1996) (en banc), petition for cert.

granted, No. 96-827 (June 16, 1997); Branch v. Tunnell, 14 F.3d 449, 452 (9th



      2
          We disagree with the plaintiffs’ argument that the Supreme Court
altered this heightened pleading requirement with regard to civil rights actions
against individual officers in its decision in Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). In
Leatherman, the Court rejected the Fifth Circuit’s heightened pleading standard in
a section 1983 action alleging municipal liability because it held such a standard
was inconsistent with the liberal standard of “notice pleading” required under the
Federal Rules of Civil Procedure. In doing so, however, the Court expressly
stated that “[w]e . . . have no occasion to consider whether our qualified immunity
jurisprudence would require a heightened pleading standard in cases involving
individual government officials.” Id. at 166-67. In declining to extend its
holding to suits against individual officers, the Court emphasized that, “unlike
various government officials, municipalities do not enjoy immunity from suit —
either absolute or qualified — under § 1983.” Id. at 166. Because the Court
declined to rule that its holding applied to individual government officers and we
find no reason to do so here, we are compelled under the doctrine of stare decisis
to continue to apply our heightened pleading standard in cases concerning
individual government officers.

                                          9
Cir. 1994); Gooden v. Howard County, Md., 954 F.2d 960, 969-70 (4th Cir. 1992)

(en banc); Elliott v. Thomas, 937 F.2d 338, 344-45 (7th Cir. 1991);Dominque v.

Telb, 831 F.2d 673, 677 (6th Cir. 1987).

      The heightened pleading standard requires that a plaintiff do more than

assert bare allegations of a constitutional violation. As we explained in Sawyer,

“[t]he complaint must include ‘all the factual allegations necessary to sustain a

conclusion that defendant violated clearly established law.’” 908 F.2d at 667

(quoting Dominque, 831 F.2d at 676). If the original complaint is deficient, the

plaintiff must amend his or her complaint to include specific, non-conclusory

allegations of fact sufficient to allow the district court to determine that those

facts, if proved, demonstrate that the actions taken were not objectively

reasonable in light of the clearly established law. In the context of a Franks claim

alleging the knowing or reckless submission of false information in a warrant

affidavit, this court has previously held that if the plaintiff “is able to prove the

necessary deliberate falsehood or reckless disregard to impeach a facially valid

warrant, the reasonableness inquiry has to be resolved against the defendant since

no reasonably competent officer could believe [a search] legal where it was his

deliberate reckless deception that led the magistrate to issue the warrant.” Beard,

24 F.3d at 115. On the other hand, if the plaintiff fails to allege facts sufficient to

demonstrate a Fourth Amendment violation, “there is no need to proceed any


                                          10
further; [and] the case ends in defendant’s favor.” Id. at 115.

      In the present case, the plaintiffs’ complaint fails to allege any facts to

support their claim that Agent Gesi knowing or recklessly submitted false

information in his warrant affidavit. The only statement supporting the plaintiffs’

Franks claim reads as follows: “Sometime before August 21, 1993, defendant

Nicola Gesi submitted affidavit(s) in connection with a request for the issuance of

approximately sixty-six (66) search warrants. Defendant Gesi knowingly included

false information in the affidavit(s) or recklessly disregarded the substantial

probability that certain information in the affidavit(s) was false.” Aplts’ App.,

doc. 1, at 3 (First Amended Complaint dated Feb. 2, 1996). This allegation is a

conclusory statement with no foundation in any specific facts arising from the

warrant affidavit on which the claim is predicated. While we recognize that the

plaintiffs have not had access to the warrant affidavit — which the issuing judge

sealed in an unrelated criminal proceeding — we cannot subject a government

official to discovery based on a complaint which is supported only by conclusory

allegations and speculation of a constitutional violation.

      Furthermore, the mere fact that no contraband was discovered during the

searches of the plaintiffs’ residences has nothing to do with whether or not Agent

Gesi knowingly or recklessly submitted false information in submitting his

warrant affidavit. The plaintiffs are incorrect that, because nothing was found,


                                          11
there could not have been probable cause to search the houses unless that

probable cause was based on false information. Probable cause need not be based

on actual guilt. Rather, probable cause to obtain a search warrant is based on a

showing of a reasonable degree of suspicion that the suspected items will be

found — not an actual showing that such items will be found. See Illinois v.

Gates, 462 U.S. 213, 238 (1983) (“The task of the issuing magistrate is simply to

make a practical, common-sense decision whether, given all the circumstances set

forth in the affidavit before him . . . there is a fair probability that contraband or

evidence of a crime will be found in a particular place.”). Therefore, we decline

to consider the plaintiffs’ actual innocence as related to the question of whether

or not Agent Gesi knowingly or recklessly submitted false information in his

warrant affidavit.

      In sum, the plaintiffs’ complaint fails to offer specific, non-conclusory

factual allegations sufficient to allow the district court to determine that those

facts, if proved, demonstrate that Agent Gesi violated the plaintiffs’ Fourth

Amendment rights. Accordingly, we conclude that Agent Gesi’s motion to

dismiss on qualified immunity grounds must be granted.

      Our conclusion, however, does not leave the plaintiffs without recourse.

We are sympathetic to the plaintiffs’ “Catch-22” situation in which they seek to

allege a constitutional violation based on a warrant affidavit but cannot offer any


                                           12
facts related to that affidavit because it has been sealed as a result of the

defendants’ on-going criminal investigation in Logan County. Not only does this

situation make it difficult for the plaintiffs to survive a motion to dismiss — such

as that presented in this instance — but it also exposes the plaintiffs’ counsel to

possible sanctions under Fed. R. Civ. P. 11 for presenting a pleading containing

allegations lacking evidentiary support. See Fed. R. Civ. P. 11(b)(3).

      In a case such as this, the plaintiffs should pursue every possible avenue to

obtain the necessary facts to support their legal claims prior to filing a complaint

in federal court. The plaintiffs have not done this. While the plaintiffs assert in

their answer brief that they “have been denied every opportunity to review or see

[the warrant affidavit],” Aples’ Br. at 8, the plaintiffs have never sought an order

from the judge who sealed the affidavit to allow an unsealing or limited unsealing

of the affidavit for use in preparing their civil complaint. The plaintiffs should

have sought to obtain the facts in this manner rather than filing a civil complaint

and asking another court to oversee the discovery of documents sealed in a

separate criminal matter. In the event that the plaintiffs’ efforts to unseal the

affidavit were to prove fruitless, the plaintiffs would have recourse by seeking

appellate review of that decision in this court. See generally Lawmaster v. United

States (In re Search of 1638 E. 2nd Street, Tulsa, Okla.), 993 F.2d 773 (10th Cir.

1993) (involving civil plaintiff’s appeal of denial of petition to unseal affidavit


                                           13
used to obtain search warrant). 3



                                III. CONCLUSION


      For the foregoing reasons, we reverse the decision of the district court

denying Agent Gesi’s motion to dismiss. We remand this matter to the district

court with instructions to dismiss the plaintiffs’ complaint without prejudice and

with leave to amend. Such disposition should provide the plaintiffs a reasonable

amount of time to obtain the necessary factual allegations, if such exist, to

support their Franks claim against Agent Gesi.




      3
          We noted in Lawmaster that a district court has various options
available to it in unsealing all or portions of affidavits or other documents. These
include: in camera hearings, findings under seal, and redacted versions of the
document. See 993 F.2d at 775-76 & n.3.

                                         14
