                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 95-8107.

                         Robert D. MASTROIANNI, Plaintiff-Appellee,

                                                 v.

            Michael J. BOWERS, Patrick D. Deering, et al., Defendants-Appellants.

                                          Nov. 13, 1998.

Appeal from the United States District Court for the Southern District of Georgia. (No. CV293-88),
Anthony A. Alaimo, Judge.

ON PETITION FOR REHEARING

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD, Senior Circuit Judge.

       HATCHETT, Chief Judge:

       On petition for rehearing, we file this revised opinion.

                                        BACKGROUND

       Appellants Michael J. Bowers, former Attorney General of Georgia, Patrick D. Deering,

Assistant Attorney General of Georgia, and Georgia Bureau of Investigation (GBI) Agents Joe B.

Jackson, Jr., Weyland Yeomans, and Lee J. Sweat, Jr. conducted an investigation into alleged

misconduct of Camden County Sheriff William E. Smith and Deputy Sheriff Robert Mastroianni.

Bowers supervised the investigation that lasted from the spring of 1991 to the summer of 1992. The

investigation of Mastroianni stemmed from allegations that he planted drugs on criminal suspects

and then falsely arrested them. Mastroianni believed, however, that the purpose of the investigation

was to damage the reputation of Sheriff Smith's department.

       On July 1, 1992, Deering filed a notice of indictment against Mastroianni, and grand jury

proceedings occurred on July 16 and 17. The grand jury indicted Mastroianni on one count for
planting drugs on and falsely arresting Leo Polumbo.           Law enforcement officials arrested

Mastroianni on July 17 and took him to the Glenn County Jail where he was booked and

subsequently released on a $5,000 bond the same day. Mastroianni was on bond with restricted

freedom of movement until April 9, 1993, when Deering and Bowers formally declared that they

would not seek to prosecute Mastroianni.

       On June 29, 1993, Mastroianni filed a complaint in the Southern District of Georgia against

Bowers, Deering, Yeomans, Jackson, and Sweat (appellants) for allegedly violating the Civil Rights

Act of 1871, 42 U.S.C. § 1983.1 Mastroianni sought compensatory and punitive damages. In his

complaint, Mastroianni alleged (1) that appellants conspired to violate his constitutional rights to

be free from malicious prosecution; (2) bad-faith prosecution; (3) abuse of process; (4) knowing

use of false and perjured testimony; (5) deprivation of a fair trial; and (6) false arrest. Mastroianni

claimed that the appellants violated his civil rights because he refused to assist them with an ongoing

investigation of Sheriff Smith. Appellants filed a motion to dismiss on August 2, 1993, and on

September 20, 1993. The district court granted appellants' motion to dismiss with respect to

Mastroianni's claims for deprivation of fair trial, use of false and improperly obtained evidence and

use of perjured testimony. The district court reasoned that Mastroianni could not maintain a fair trial

claim in the absence of a trial.

       The district court dismissed the claims for use of false and improperly obtained evidence and

perjured testimony because it determined that those claims were indistinguishable from claims of

malicious prosecution, abuse of process and false arrests. The district court, however, denied the



   1
   Mastroianni subsequently moved to have Sweat dismissed from this action. The district
court granted Mastroianni's motion on July 20, 1994.

                                                  2
appellants' motion to dismiss with respect to Mastroianni's constitutional claims in the nature of

malicious prosecution, abuse of process, false arrest, false imprisonment and conspiracy to commit

the same. The district court found that Mastroianni had pleaded sufficient facts to state a claim upon

which relief could be granted.

        In September 1994, appellants filed a motion for summary judgment claiming that they were

entitled to both qualified and absolute immunity. The district court denied appellants' motion for

summary judgment on the claims for false arrest and conspiracy to commit false arrest, but granted

their motion on the claims for false imprisonment, abuse of process, malicious prosecution and

conspiracy to commit the foregoing. The district court held that Mastroianni's claims of false

imprisonment and malicious prosecution were part of his broader claim of false arrest. The district

court also found that the tort of "abuse of process" was not clearly established law in this circuit at

the time of the arrest. The district court, viewing the facts in the light most favorable to Mastroianni,

found that the appellants were not entitled to qualified immunity for their arrest of Mastroianni

because "clearly established law dictate[d] that [appellants] acted without arguable probable cause."

This appeal is from the denial of the summary judgment motion based on absolute and qualified

immunity.

                                           CONTENTIONS

        First, appellants Deering and Bowers contend that they are entitled to absolute immunity

because their conduct fell within the scope of their prosecutorial duties. They assert that absolute

immunity for some of their conduct extends to cover all of their conduct relating to seeking an

indictment against Mastroianni. Similarly, Yeomans contends that he is entitled to absolute

immunity for his testimony before the grand jury. Second, appellants contend that even if absolute


                                                   3
immunity does not protect them, they are entitled to qualified immunity because they did not violate

any clearly established law in arresting Mastroianni. Third, appellants contend that the intervening

act of the grand jury indictment breaks the chain of causation with respect to any alleged illegal

conduct and shields all of them from liability on Mastroianni's false arrest claim. Fourth, appellants

contend that Mastroianni failed to present evidence sufficient to support his conspiracy claim.

        First, Mastroianni contends that even though Deering, Bowers and Yeomans enjoy absolute

immunity for some of their activity, they are not entitled to absolute immunity for actions that were

not intimately associated with the judicial phase of the criminal process. Second, Mastroianni

contends that none of the appellants are entitled to qualified immunity because no reasonable officer

could have believed that his arrest of Leo Polumbo was illegal and therefore legally sufficient basis

existed for Mastroianni's arrest. Third, Mastroianni contends that since evidence exists showing

misdirection of the grand jury, the grand jury indictment did not break the chain of causation with

respect to the appellants' initial illegal conduct of conspiring to violate his constitutional rights.

Fourth, Mastroianni contends that his conspiracy claim was both legally and factually sufficient to

survive the appellants' summary judgment motion.

                                              ISSUES

        We address the following issues:

        (1) whether Deering, Bowers and Yeomans's entitlement to absolute immunity for some of

their conduct shields them for all of their actions relating to the arrest of Mastroianni;

        (2) whether all of the appellants are entitled to qualified immunity on Mastroianni's claim

for false arrest;




                                                  4
       (3) whether the intervening act of the grand jury broke the chain of causation removing the

taint of any earlier misconduct; and

       (4) whether Mastroianni alleged and established sufficient facts to withstand appellants'

summary judgment motion on the conspiracy to commit false arrest claim.

                                           DISCUSSION

I. Denial of summary judgment

        We review denial of summary judgment motions de novo. Swint v. City of Wadley, 51 F.3d

988, 994 (11th Cir.1995).

        When a lower court denies a motion for summary judgment based on qualified immunity,

this court has interlocutory appellate jurisdiction. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct.

2806, 86 L.Ed.2d 411 (1985). According to Mitchell, this court may properly entertain an

interlocutory appeal from a district court's denial of a defendant's motion for summary judgment

when (1) the defendant is a public official claiming qualified immunity as a defense, and (2) the

issue on appeal is whether the facts, viewed in the light most favorable to the plaintiff, show a

violation of clearly established law. Mitchell, 472 U.S. at 528, 105 S.Ct. 2806. This court also has

appellate jurisdiction over denials of summary judgment based on absolute immunity. Winfrey v.

School Bd. of Dade County, 59 F.3d 155, 158 (11th Cir.1995). Summary judgment is appropriate

when no genuine issues of material fact exist and the moving party is entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(c).

II. Absolute immunity

       Appellants Bowers and Deering claim they are entitled to absolute immunity because they

are prosecutors, and their conduct in initiating the prosecution and seeking the indictment against


                                                  5
Mastroianni is absolutely immune from suit. Similarly, appellant Yeomans asserts that his act of

testifying before the grand jury is entitled to absolute immunity. Furthermore, Bowers, Deering and

Yeomans argue that the shield of absolute immunity protects them from any liability for all of their

actions leading to the indictment and arrest of Mastroianni because their conduct fell within the

"band of prosecutorial immunity." We disagree.

        Absolute immunity, notwithstanding its connotation, does not protect prosecutors for all of

their actions performed as prosecutors. E.g., Burns v. Reed, 500 U.S. 478, 493, 111 S.Ct. 1934, 114

L.Ed.2d 547 (1991). Rather, the protection of absolute immunity is contingent on the "function" the

prosecutors are performing and not their status as prosecutors. In Burns, the Supreme Court clarified

the scope of absolute immunity's protection when it found that activities not "intimately associated

with the judicial phase of the criminal process" are not entitled to absolute immunity. Burns, 500

U.S. at 493, 111 S.Ct. 1934 (quoting Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d

128 (1976)); compare Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 2616-2617, 125

L.Ed.2d 209 (1993) (finding that absolute immunity does not protect prosecutors for fabrication of

evidence during the investigative stage or for making statements to the media).

        In determining whether prosecutors are entitled to absolute immunity, it is important to

distinguish between prosecutors' role as an "advocate" for the state versus their role as an

administrator or investigative officer. When prosecutors are engaged in activities intimately

associated with the judicial phase of the criminal process such as initiating a prosecution or

presenting the state's case, then they are acting as advocates of the state and are entitled to absolute

immunity for that conduct. Buckley, 113 S.Ct. at 2616, 113 S.Ct. 2606; Burns, 500 U.S. at 493, 111

S.Ct. 1934. Prosecutors are not entitled to absolute immunity, however, for activities not intimately


                                                   6
associated with the judicial process such as giving advice to police during the preliminary

investigative stage, Burns, 500 U.S. at 493, 111 S.Ct. 1934, or fabricating evidence during the

preliminary investigative stage to present to a grand jury or making comments to the press, Buckley,

509 U.S. 259, 113 S.Ct. at 2616-2617. Therefore, our determination of whether prosecutors are

entitled to absolute immunity hinges on the function they are performing.2

        Likewise, we note that witnesses testifying in judicial proceedings are also protected for

their conduct. When persons testify before a grand jury, they are entitled to absolute immunity for

testimony provided during the grand jury proceedings. Strength v. Hubert, 854 F.2d 421, 424-25

(11th Cir.1988).

A. Deering and Bowers

        The district court granted appellant Deering absolute immunity for his action in filing a

notice of indictment against Mastroianni.3 The district court also extended absolute immunity to

Deering for his grand jury testimony on July 16 and 17, 1992. The district court decided, however,

that none of the appellants' other acts as alleged in Mastroianni's complaint was entitled to absolute

immunity. Mastroianni claimed that both Deering and Bowers provided legal advice to Jackson and

Yeomans during the preliminary investigation of Mastroianni and provided advice to them prior to

presenting their case to the grand jury.       Mastroianni asserted that during the preliminary


   2
    The Burns decision aptly recognized the anomaly inherent in suggesting that courts should
extend absolute immunity to all actions of prosecutors such as giving legal advice to police while
only providing qualified immunity to the police officers for following that same advice. Burns,
500 U.S. at 495, 111 S.Ct. 1934.
   3
    The district court did not explain its disposition of Bowers's claim for absolute immunity.
Therefore, to the extent that Bowers was involved in filing the notice of indictment or presenting
evidence against Mastroianni, we find that Bowers was entitled to absolute immunity for that
conduct. Burns, 500 U.S. at 493, 111 S.Ct. 1934.

                                                  7
investigative stage Bowers, Deering, Jackson, and Yeomans conspired (1) to coerce Mastroianni into

testifying against his superior, Sheriff Smith; (2) to fabricate evidence against Mastroianni; and (3)

to present fabricated evidence to secure Mastroianni's arrest in the event Mastroianni refused to

cooperate with them.4

       As previously discussed, prosecutorial functions not intimately associated with the judicial

phase of the criminal process are not entitled to absolute immunity. Buckley, 509 U.S. 259, 113

S.Ct. at 2616; Burns, 500 U.S. at 493, 111 S.Ct. 1934. Therefore, the absolute immunity protection

that Deering and Bowers received for initiating the prosecution and presenting the state's case

against Mastroianni does not relate backwards to shield their preliminary activity of giving advice

to Jackson and Yeomans or for allegedly conspiring to bring about Mastroianni's arrest unless he

cooperated with them. Buckley, 509 U.S. 259, 113 S.Ct. at 2616; Burns, 500 U.S. at 478, 111 S.Ct.

1934. This circuit has recognized that providing absolute immunity to officials for one aspect of a

claim against them does not necessarily extend the protection of absolute immunity to other claims

against them. Strength, 854 F.2d at 425 (finding that providing absolute immunity to a witness for

grand jury testimony does not necessarily protect the witness for alleged pretestimonial acts in

furtherance of a conspiracy).

       The appellants urge this court to find that since they have absolute immunity for some of

their actions, then their entitlement to absolute immunity should shield them from any liability for

their alleged conspiracy to violate Mastroianni's rights. We hold that neither Deering nor Bowers

is entitled to absolute immunity for alleged involvement in conspiring with Jackson and Yeomans


   4
    The record shows that Deering and Bowers provided legal advice to the GBI agents
investigating Mastroianni prior to the initiation of grand jury proceedings. Moreover, Bowers
personally supervised the investigation.

                                                  8
to bring about Mastroianni's arrest because of his refusal to assist in their investigation of Sheriff

Smith. We find that genuine issues of material fact exist surrounding Deering and Bowers's alleged

conduct prior to the judicial phase of the criminal process. Therefore, the district court properly

denied summary judgment based on absolute immunity.

B. Yeomans

       The district court ruled that Yeomans was entitled to absolute immunity for his testimony

before the grand jury on July 16 and 17, 1992. Although Yeomans received absolute immunity for

his grand jury testimony, that immunity does not reach back to protect him for any activities he

allegedly engaged in prior to taking the witness stand for his grand jury testimony. See Strength v.

Hubert, 854 F.2d at 425. In Strength, the court stated that the determination that a witness has

absolute immunity from civil liability based on the witness's grand jury testimony does not end the

court's inquiry. Strength, 854 F.2d at 425. The court went on to state that pretestimonial acts in the

furtherance of an alleged conspiracy may form the basis for a cause of action under section 1983 for

deprivation of constitutional rights. Strength, 854 F.2d at 425. Therefore, even though Yeomans

is entitled to absolute immunity for his testimony before the grand jury, that immunity cannot extend

backwards to protect him for his alleged involvement in conspiring to violate Mastroianni's

constitutional rights. Strength, 854 F.2d at 425; Dennis v. Sparks, 449 U.S. 24, 29, 101 S.Ct. 183,

66 L.Ed.2d 185 (1980).

        Mastroianni alleged that in October 1991, Jackson and Yeomans met with him at the GBI

office and threatened to indict him if he did not give them "something" on Sheriff Smith. Moreover,

Mastroianni claimed that Yeomans possessed information indicating that Mastroianni properly

conducted the reverse sting operation that formed the basis for his grand jury indictment. Therefore,


                                                  9
Yeomans's false testimony before the grand jury contradicting exculpatory evidence contained in

his own file suggests that he may have agreed to facilitate an illegal arrest of Mastroianni.5

According to Mastroianni, Yeomans conspired with the other appellants to fabricate evidence to aid




   5
     The appellants contend that given Yeoman's absolute immunity as a grand jury witness, any
use of that testimony as evidence of unimmunized pretestimonial acts is forbidden. That is not
and should not be so. The defendants are not being charged with liability for their participation
in the grand jury proceedings, but for pretestimonial conduct. The grand jury testimony simply
provides evidence of inconsistencies in the defendants' actions which bolster the conclusion that
they were conspiring. A recent Ninth Circuit case examined this very issue. Harris v. Roderick,
126 F.3d 1189 (9th Cir.1997), recognized that perjured grand jury testimony was immune, but
that

               the subsequent official testimony was simply a part of the implementation of that
               conspiracy, a step in the overall plan. We do not believe that the general policy
               that immunizes false official testimony requires that we preclude [plaintiff] from
               showing the full range of occasions on which [defendants'] falsehoods were
               uttered, simply because some of them occurred before a grand or petit jury.

       Harris, 126 F.3d at 1189.

               Additionally, while the Supreme Court in Dennis v. Sparks, 449 U.S. 24, 30, 101
       S.Ct. 183, 66 L.Ed.2d 185 (1980), did hold that a judge was immune from suit based on
       conspiracy, the Court found that private parties who had conspired with the judge were
       not. The Court even anticipated that the judge might possibly have to testify about his
       actions—actions for which he was immune—in order to establish the conspiracy. As in
       the situation at hand, the grand jury testimony is immunized, but can be used as evidence
       of a conspiracy.

               Moreover, a body of law has been established that, in the criminal context, creates
       an exception to testimonial immunity where the immunized witness lies under oath. See
       United States v. Veal, 153 F.3d 1233 (11th Cir.1998) (cases collected therein). However,
       the Supreme Court in Briscoe v. LaHue, 460 U.S. 325, 339-41, 103 S.Ct. 1108, 75
       L.Ed.2d 96 (1983), while limiting its holding to perjury during trial, makes a distinction
       in dicta between civil and criminal penalties for perjury in all judicial proceedings. The
       dissent posits that "[t]o assume that Congress, which had enacted a criminal sanction
       against state officials, intended sub silentio to exempt those same officials from the civil
       counterpart approaches the incredible." Briscoe, 460 U.S. at 362, 103 S.Ct. 1108.

                                               10
in his prosecution.6 Those alleged actions would not be protected under absolute immunity. Since

genuine issues of material fact exist regarding Yeomans's alleged actions falling outside of the

protection of absolute immunity, the district court properly denied Yeomans's motion for summary

judgment based on absolute immunity.

III. Qualified immunity

A. False arrest

        Qualified immunity protects government officials from liability for civil damages arising

out of the government officials performing their discretionary functions as long as their conduct does

not violate clearly established statutory or constitutional rights that a reasonable person would have

known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Rogers

v. Miller, 57 F.3d 986, 988 (11th Cir.1995). Since the parties here do not dispute that the appellants

were acting within the scope of their discretionary authority, we limit our discussion to determining

whether the appellants' alleged actions violated clearly established constitutional law. Rich v.

Dollar, 841 F.2d 1558, 1563-64 (11th Cir.1988). Therefore, under this analysis we review the

record taken in the light most favorable to Mastroianni to determine whether a violation of clearly

established law has occurred. Bennett v. Parker, 898 F.2d 1530, 1532, 1535 (11th Cir.1990)

(Tjoflat, C.J., concurring) (when evaluating the qualified immunity defense in the context of a

motion for summary judgment, the court must consider all facts fairly inferable from the record in

favor of the plaintiff even if in dispute and decide whether under those facts the defendant's conduct

violated law clearly established at the time), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112



   6
    Yeomans was the GBI agent in charge of Mastroianni's investigation and in that capacity he
gathered evidence to be used against Mastroianni.

                                                 11
L.Ed.2d 1085 (1991). In determining whether the law was clearly established so that qualified

immunity would not apply, "the law must have earlier been developed in such a concrete and

factually defined context to make it obvious to all reasonable government actors, in the defendant's

place, that "what he is doing' violates federal law." Lassiter v. Alabama A & M University, 28 F.3d

1146, 1149 (11th Cir.1994) (en banc ) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.

3034, 97 L.Ed.2d 523 (1987)). This does not mean that a court must have found the "very action

in question unlawful." Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.1994). Rather, the court must

find that "in light of preexisting law the unlawfulness must be apparent." Anderson v. Creighton,

483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The district court determined that the

appellants were not entitled to qualified immunity for their arrest of Mastroianni because viewing

the facts in the light most favorable to Mastroianni demonstrates they violated clearly established

law in arresting Mastroianni without having arguable probable cause.

       Mastroianni was arrested for violating O.C.G.A. § 16-5-42 for allegedly planting drugs on

and falsely arresting Leo Polumbo. The statute reads in part:

       When the arrest, confinement, or detention of a person by warrant, mandate, or process is
       manifestly illegal and shows malice and oppression, an officer issuing or knowingly and
       maliciously executing the same shall, upon conviction thereof, be removed from office and
       punished by imprisonment for not less than one nor more than five years.

O.C.G.A. § 16-5-42 (Michie 1988) (emphasis added). Mastroianni claims that his arrest was without

arguable probable cause because he was arrested for conducting a legitimate reverse sting operation.

He argues that since his reverse sting operation was legitimate his conduct could not have been

"manifestly illegal" under O.C.G.A. § 16-5-42. Under Mastroianni's version of the facts, the

following occurred. Preston Kirkland was arrested for possession of marijuana on March 5, 1991.

Following Kirkland's arrest, Mastroianni enlisted Kirkland's assistance in helping to arrest a

                                                12
suspected drug dealer, Leo Polumbo. Kirkland was released from jail on March 5, 1991, at

approximately 3:00 p.m. Kirkland visited Polumbo's residence and saw marijuana in Polumbo's

home. During this visit, Kirkland agreed to deliver two ounces of marijuana to Polumbo with the

understanding that Polumbo would sell the marijuana for Kirkland. Kirkland then reported to

Mastroianni that he observed drugs at Polumbo's residence and that Polumbo agreed to receive two

ounces of marijuana.

       After meeting with Kirkland, Mastroianni sought and obtained a search warrant for

Polumbo's home. In furtherance of this reverse sting operation, Mastroianni picked up two ounces

of marijuana from a crime laboratory in Savannah, Georgia. Mastroianni released the two plastic

bags containing marijuana to Kirkland and told him to proceed with his plans to deliver the

marijuana to Polumbo. Kirkland took the marijuana to Polumbo's residence, but Polumbo was not

home. Kirkland left the marijuana with Polumbo's wife and informed Mastroianni that he had made

the delivery. Based on this information, Mastroianni executed his search warrant upon Polumbo's

home, but Polumbo was not present. Polumbo's wife was present, and during the search the officers

discovered other drugs in addition to the marijuana Kirkland delivered. Mastroianni found Polumbo

at another location and arrested him for possession.

       Based upon the foregoing facts, we must determine whether Mastroianni's conduct provided

the appellants with arguable probable cause to bring about his arrest. Swint v. City of Wadley,

Alabama, 51 F.3d 988, 995-96 (11th Cir.1995). It is well established in this circuit that law

enforcement officials may conduct reverse sting operations. United States v. Walther, 867 F.2d

1334, 1339 (11th Cir.1989); Owen v. Wainwright, 806 F.2d 1519, 1522 (11th Cir.1986); United

States v. Savage, 701 F.2d 867, 869-70 (11th Cir.1983). In conducting reverse sting operations, law


                                                13
enforcement officials' actions may not constitute entrapment, Sorrells v. United States, 287 U.S. 435,

444, 53 S.Ct. 210, 77 L.Ed. 413 (1932), or be carried out in an outrageous manner, United States v.

Russell, 411 U.S. 423, 431, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Law enforcement officials may

provide an opportunity and even facilitate the commission of a crime through artifice and stratagem

in order to arrest persons engaged in criminal enterprises. Sorrells, 287 U.S. at 441, 53 S.Ct. 210.

Law enforcement officials may not entrap those persons, however, but this court determines whether

entrapment has occurred through looking to see whether a trap has been set for an unwary innocent

or whether the trap was set for an unwary criminal. Sherman v. United States, 356 U.S. 369, 372,

78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

        In this case, under Mastroianni's version of the facts, we cannot find that Mastroianni

entrapped Polumbo or set a trap for an unwary innocent. Prior to Mastroianni making his arrest of

Polumbo, Mastroianni's informant, Kirkland, had observed drugs at Polumbo's home and had

participated in prior drug transactions with Polumbo. Mastroianni merely provided an unwary

criminal—Polumbo—an opportunity to continue to engage in criminal activity. We believe that in

viewing the facts in the light most favorable to Mastroianni he legitimately conducted a reverse sting

operation. Therefore, the appellants were aware or reasonable officers in their position would have

been aware that Mastroianni's conduct was not "manifestly illegal."

       The appellants argue, however, that Mastroianni's conduct was illegal because he lied in

order to procure a search warrant for Leo Polumbo's residence and planted evidence.7 The record

suggests otherwise. For example, the appellants told the grand jury that Mastroianni lied to obtain


   7
    It is important to note that in Count II of the indictment against Mastroianni, the appellants
alleged that Mastroianni committed perjury to obtain a search warrant for Polumbo's residence,
but the grand jury did not indict Mastroianni on this count.

                                                 14
the search warrant for Polumbo's residence because Mastroianni's informant could not have possibly

observed drugs at Polumbo's residence within twenty-four hours of Polumbo's arrest because the

informant was in jail. The record, however, reveals that Kirkland was out of jail the day before he

noticed drugs at Polumbo's residence. Moreover, the record indicates that Mastroianni discovered

other drugs and drug paraphernalia at Polumbo's home during his reverse sting operation. Perhaps

a more telling blow to appellants' contention that Mastroianni lied in order to obtain his search

warrant was the grand jury's refusal to indict him on Count II of the indictment for allegedly

committing perjury to obtain the search warrant for Polumbo. Therefore, in viewing the facts most

favorable to Mastroianni, his reverse sting operation was simply not illegal and the appellants

effected his arrest knowing that his conduct was proper. This violates Mastroianni's right to be free

from arrest without arguable probable cause. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1558

(11th Cir.1993).8 Consequently, the district court properly denied appellants' motion for summary

judgment based on qualified immunity.

B. Misdirection of the grand jury

       The appellants claim that the grand jury indictment against Mastroianni breaks the chain of

causation and protects them from liability for false arrest. Moreover, the appellants claim that it was

not clearly established at the time of Mastroianni's arrest that an arrest pursuant to a grand jury

indictment may violate the Fourth Amendment. Mastroianni claims, however, that the appellants

made misrepresentations to the grand jury, and therefore, the grand jury indictment did not establish


   8
    This finding does not mean that the appellants actually violated Mastroianni's constitutional
right. The appellants will have an opportunity at trial to produce evidence negating
Mastroianni's claims in order to prevent him from recovering. Our task at this stage is to
determine whether, in taking the facts in the light most favorable to Mastroianni, the appellants
violated a clearly established law in arresting Mastroianni.

                                                  15
prima facie evidence of probable cause to arrest him and did not break the chain of causation with

respect to the appellants' liability.

         Generally, an intervening act of a prosecutor, judge or grand jury will break the chain of

causation with respect to alleged illegal conduct of a police officer. Barts v. Joyner, 865 F.2d 1187,

1195 (11th Cir.1989). In Barts, the court held that:

        The intervening acts of the prosecutor, grand jury, judge and jury—assuming that these court
        officials acted without malice that caused them to abuse their powers—each break the chain
        of causation unless plaintiff can show that these intervening acts were the result of deception
        or undue pressure by the defendant policemen.

Barts, 865 F.2d at 1195 (emphasis added). According to the reasoning in Barts, a grand jury

indictment does not always break the chain of causation with respect to alleged illegal acts taking

place prior to securing the indictment. Therefore, if the grand jury was misdirected, then the grand

jury indictment cannot break the chain of causation relating back to the initial conspiracy and

fabrication of evidence against Mastroianni. Barts, 865 F.2d at 1195. We believe that chain of

causation was not broken with respect to the appellants' alleged acts of conspiring to violate

Mastroianni's rights.

         In this case, Mastroianni has presented sufficient evidence to raise a genuine issue of

material fact regarding appellants' alleged misconduct in misdirecting the grand jury. For example,

it appears that Deering and Yeomans misrepresented information to the grand jury involving

whether Polumbo agreed to accept drugs from Kirkland, Mastroianni's confidential informant.

During Yeomans's testimony elicited from Deering, the following exchange occurred:

Q: All right. Based on your investigation, was it determined at anytime that Mr. Kirkland had an
        agreement to deliver that marijuana to Mr. Polumbo's house?

A: No, sir.


                                                  16
The record, on the other hand, reveals that an interview summary contained in Yeomans's personal

files included the following statement:

       At approximately 1:25 on Wednesday, May 29, 1991, ASAC W.J. Yeomans and Special
       Agent G.C. Harrell of the Georgia Bureau of Investigations interviewed Mr. Leo Charles
       Polumbo. Mr. Polumbo stated on March 5 or 6, 1991, at approximately 11 a.m. Preston
       Kirkland came to his residence and asked Mr. Polumbo if he could get rid of some weed
       (meaning marijuana) for him. Mr. Polumbo stated he did not have any money, and Kirkland
       stated he would front the marijuana for him. Mr. Polumbo stated okay and Mr. Kirkland told
       Mr. Polumbo he would bring approximately two ounces of marijuana at approximately 1:30
       to 2 p.m. on the same evening, this being either March 5 or March 6, 1991.

Additionally, during Yeomans's testimony he testified that Kirkland stated that he received orders

from Mastroianni to plant drugs in Polumbo's residence. Kirkland submitted an affidavit, however,

refuting Yeomans's testimony regarding that statement. Our review of the record leads us to

conclude that the grand jury indictment did not break the causal chain with respect to appellants'

alleged conspiracy to arrest Mastroianni for his refusal to testify against Sheriff Smith. Barts, 865

F.2d at 1195; see Kelly v. Curtis, 21 F.3d 1544, 1557 (11th Cir.1994); Hand v. Gary, 838 F.2d

1420, 1426-28 (5th Cir.1988) (finding that any misdirection of the magistrate or grand jury

perpetuates the taint of the original official behavior).

        We also believe that clearly established law dictates that an arrest pursuant to a grand jury

indictment may violate the Fourth Amendment if the grand jury was misled or experienced undue

pressure. Barts, 865 F.2d at 1195. We believe it is clear from both Supreme Court precedent and

this circuit's case law that an arrest pursuant to an arrest warrant or search warrant may offend the

Constitution under certain circumstances.9 Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89


   9
    Although the district court relied on Hand v. Gary, 838 F.2d 1420 (5th Cir.1988) for the
proposition that any misdirection of a magistrate or a grand jury perpetuates the taint of the
original impermissible conduct, we cannot rely on case law from another circuit to determine
whether the law was clearly established in this circuit. This circuit decided Barts prior to the

                                                  17
L.Ed.2d 271 (1986). In Malley, the Supreme Court held that police officers may be held liable for

damages resulting from an arrest or search under the authority of a warrant when no reasonable

officer could have believed that the affidavits established probable cause, and that the judge's

issuance of the warrant does not break the chain of causation. Malley, 475 U.S. at 344 n. 7, 106

S.Ct. 1092. Similarly, this circuit has held that the intervening act of a grand jury indictment breaks

the chain of causation "unless the plaintiff can show that these intervening acts were the result of

deception or undue pressure." Barts, 865 F.2d at 1195 (Edmondson, J.); compare Franks v.

Delaware, 438 U.S. 154, 156, 165-71, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (finding that the

constitution prohibits an officer from making perjurious or recklessly false statements in support of

a warrant). Therefore, we believe that the district court properly found that the chain of causation

was not broken and that the appellants were not entitled to qualified immunity because genuine

issues of material fact exist regarding the appellants' alleged agreement to violate Mastroianni's

constitutional rights through fabricating evidence and misleading the grand jury.10



conduct giving rise to this litigation and established the same proposition that the Fifth Circuit
established in Hand. Barts v. Joyner, 865 F.2d 1187 (11th Cir.1989). Therefore, it was clearly
established in the Eleventh Circuit at the time of the appellants' alleged conduct that officials
who engage in impermissible conduct prior to securing a grand jury indictment cannot rely on
the grand jury indictment to break the chain of causation with respect to their original
misconduct. As matter of policy, it makes little sense to allow police officers or prosecutors to
engage in fraudulent and deceitful conspiracies in order to secure a grand jury indictment and
then use the indictment to shield them from any possible causes of action for their tainted
behavior.
   10
     In reaching this conclusion, we note the ostensible anomaly of providing absolute immunity
for initiating the prosecution, presenting evidence, and testifying before a grand jury, while
denying any immunity for the alleged fabrication of evidence prior to the judicial phase of the
criminal process. The "function test" surrounding absolute immunity compels this result,
however. Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 2616, 125 L.Ed.2d 209 (1993).
We must be careful not "to conflate the question of whether a Section 1983 plaintiff has stated a
cause of action with the question whether the defendant is entitled to absolute immunity for his

                                                  18
C. Conspiracy

          Appellants claim that Mastroianni failed to establish a conspiracy among them to violate his

right. They claim that the evidence revealed a good-faith effort on their part to carry out their

official duties. First, we must determine whether it was clearly established in the Eleventh Circuit

that conspiracy to violate someone's constitutional right is actionable. We find that at the time of

the alleged activity against Mastroianni it was clearly established in the Eleventh Circuit that

conspiring to violate the constitutional rights of another is actionable under section 1983. Dennis,

449 U.S. at 29, 101 S.Ct. 183; Strength, 854 F.2d at 425. In Strength, an investigator from the

Office of the Attorney General for the State of Alabama received a tip from W.L. Hubert that

Hubert's former business partner, William Strength, was engaged in fraudulent activity relating to

use of corporate checks. After receiving information from Hubert, Carroll began an investigation

and after completing his investigation presented a report to the district attorney asking for an

indictment.     Carroll was the sole witness before the grand jury that eventually returned a

multiple-count forgery indictment against William Strength and his wife. Following the indictment,

a district attorney replacing the initial district attorney moved to dismiss the indictment. In a sworn

affidavit explaining her reasons for dismissing the indictment against Strength, the district attorney

stated:

          When I reviewed ATI's business record ... I was "floored." After reviewing these records
          it was apparent that the endorsements were not criminally made. To the extent that the
          records were produced, they completely exonerated the Strengths. None of the records
          produced indicated any criminal activity, but completely accounted for the money to which




actions." Buckley, 509 U.S. 259, 113 S.Ct. at 2612 n. 5. The misdirection of the grand jury
removes the protection that any pre-grand jury misconduct would have enjoyed after an
indictment was issued absent any misdirection of the grand jury.

                                                  19
        they related. I felt at the time and still feel that our office had been used and that we had
        been duped into indicting the Strengths.

Strength, 854 F.2d at 423. In finding that the Strengths could state a claim for conspiracy to violate

their constitutional rights, this circuit recognized that persons have a right to be free from capricious

prosecution, i.e., those prosecutions procured through false and misleading information that would

cause a prosecutor to believe probable cause existed. Strength, 854 F.2d at 425. Therefore, we

conclude that it was clearly established in the Eleventh Circuit that a conspiracy to violate the

constitutional rights of another such as using false and misleading information to cause a malicious

prosecution is actionable under section 1983. Strength v. Hubert, 854 F.2d 421 (11th Cir.l988).

        In order for a section 1983 conspiracy claim to survive a summary judgment motion, the

plaintiff must show specific facts indicating the existence or execution of the alleged conspiracy.

Granville v. Hunt, 411 F.2d 9, 11 (5th Cir.1969).11 The record reveals that sufficient evidence exists

to conclude that, in viewing the facts in the light most favorable to Mastroianni, appellants reached

an understanding to violate Mastroianni's constitutional rights. See Bailey v. Board of County

Comm'rs of Alachua County, 956 F.2d 1112, 1122 (11th Cir.1992). Mastroianni alleged that during

initial meetings with Jackson and Yeomans they made it clear that he had to cooperate in helping

them prosecute his superior, Sheriff Smith, or face prosecution himself. The record reveals

discrepancies between the contents of the GBI investigative file on Mastroianni and Yeomans's

testimony before the grand jury. Moreover, the record reveals that Yeomans received legal advice

from Deering and that all appellants communicated regarding this case. Bowers admitted to



   11
     The Eleventh Circuit adopts as binding precedent all decisions of the former Fifth Circuit
decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981).

                                                   20
personally supervising the case and spending approximately two hours per week on the case during

its duration. Deering advised Jackson and Yeomans during the investigation. We believe that these

facts, taken in the light most favorable to Mastroianni, raise a genuine issue of material fact

regarding his conspiracy claim. The district court properly denied appellants' motion for summary

judgment on this claim.

                                         CONCLUSION

        For the foregoing reasons, we affirm the district court's denial of summary judgment in this

case.

        AFFIRMED.




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