                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-2468


ANGELLO A. D. OSBORNE,

                 Plaintiff - Appellee,

            v.

PETER GEORGIADES, Police Corporal,

                 Defendant – Appellant,

     and

DIONE WHITE, LGSW; MEREDITH LYNN PIPITONE,

                 Defendants.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:14-cv-00182-RDB)


Argued:    May 10, 2016                      Decided: February 8, 2017


Before GREGORY, Chief Judge, TRAXLER, Circuit Judge, and Joseph
F. ANDERSON, Jr., Senior United States District Judge for the
District of South Carolina, sitting by designation.


Affirmed by unpublished opinion. Chief Judge Gregory wrote the
opinion, in which Judge Anderson joined. Judge Traxler wrote a
dissenting opinion.


ARGUED:   Deborah Street Duvall, HARFORD COUNTY DEPARTMENT OF
LAW, Bel Air, Maryland, for Appellant. Robert Louis Smith, Jr.,
LAW OFFICE OF ROBERT L. SMITH, JR., Baltimore, Maryland,
for Appellee.    ON BRIEF:    Melissa Lambert, County Attorney,
Kristin L. Lewis Noon, Assistant County Attorney, HARFORD COUNTY
DEPARTMENT OF LAW, Bel Air, Maryland, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Chief Judge:

      Plaintiff-appellee Angelo Osborne sued Defendant-appellant

Corporal Peter Georgiades, as well as Dione White and Meredith

Lynn Pipitone, alleging violations of his constitutional rights

under      42   U.S.C.      §§   1983    and       1985.       Specifically,    Osborne

contends that Georgiades, in the process of investigating him

for alleged sexual abuse of his minor child, unreasonably seized

him   in     violation      of   the     Fourth       and   Fourteenth      Amendments.

Georgiades moved for summary judgment on grounds of qualified

immunity.       The district court denied the motion, holding that

Georgiades      is    not    entitled     to       qualified    immunity.      For   the

reasons stated below, we affirm the judgment of the district

court.



                                              I.

                                              A.

      As a preliminary matter, we view the facts in the light

most favorable to Osborne, the nonmoving party.                          See ACLU of

Md., Inc. v. Wicomico County, 999 F.2d 780, 784 (4th Cir. 1993).

Osborne and Pipitone are the parents of two minor children—a

daughter (“JMLO”), five years old at the time of the events in

question, and a son (“CJP”), then two years old.                      On November 1,

2010,      Pipitone    contacted        the    Harford      County   Child     Advocacy

Center to report the alleged sexual assault of JMLO.                           Pipitone

                                               3
claimed        that    JMLO    did   not    want     to    spend     Halloween   with    her

father.        JMLO purportedly told Pipitone that a few weeks prior,

Osborne had

                 Sealed App. 63. *

     Later that day, White, a licensed social worker for the

Harford        County     Child      Advocacy       Center,       interviewed    Pipitone.

After speaking with Pipitone, White interviewed JMLO.                            Although

Georgiades was not present, he remained in telephone contact

with White and observed the interview from a nearby room via

live video feed for purposes of investigating the allegations.

White    employed        the    Rapport,     Anatomical           Identification,      Touch

Inquiry,         Abuse        Scenario,      Closure           (“RATAC”)    method      when

questioning           JMLO.      RATAC     focuses        on    reducing   any   potential

trauma to the child during the interview.

        In     her     initial       responses       to        White’s   questions,     JMLO

consistently denied that Osborne, or anyone else, had touched

her on parts of her body covered by a bathing suit.




                                                                                 Id.      In

        *The
          Court will cite to the audio and video recording of
JMLO’s interview because the transcript, Sealed App. 36-56,
contains numerous errors.



                                                4
total, JMLO denied abuse six times.            See J.A. 250, 252, 255

(classifying JMLO’s responses as “denials”).




                Id.   After   approximately   three   minutes   of   similar

questions, JMLO changed course and finally replied, “He did.”

Id.

      JMLO went on to state

Id.



                                                                         Id.

JMLO also described




                      She then referred to an incident at Osborne’s

house in which CJP got in “trouble” with Osborne’s girlfriend.

Id.     Although it is not entirely clear what CJP did, JMLO stated

“that’s why I’m never going over there again.”           Id.    White never

asked     any    follow-up    questions   concerning     that     incident.

                                     5
Instead,      White    asked     several    questions   regarding    whether

Osborne’s girlfriend and CJP “saw it happen.”               Id.   JMLO again

changed    course     and   stated   that   Osborne’s   girlfriend   was   not

present when the alleged abuse occurred and that CJP was asleep.

Id.

      After    JMLO    described     and    demonstrated   with   dolls    the

alleged acts of abuse, White placed a phone call to Georgiades,

who suggested other topics to discuss.             J.A. 226, 237.         After

this call, she asked JMLO whether CJP was present during the

second instance of abuse.            JMLO stated that CJP was asleep in

the bed next to her.            Id. at 54.      JMLO also stated Osborne



Id. at 55.       White then asked

                                                           Id.

      Their conversation was then interrupted by a second phone

call from Georgiades.          After this conversation, White asked JMLO

a series of questions regarding




                      At this point, Georgiades immediately placed a

third phone call, resulting in White terminating the interview.

White and Georgiades spoke on three occasions throughout the

interview.



                                        6
       After     White   completed        the     interview,         Pipitone       called

Osborne to accuse him of sexually assaulting their daughter.

With Pipitone’s consent, Georgiades listened in on the call.

During that conversation, Osborne consistently denied Pipitone’s

accusations.         Osborne     also     told     Pipitone        he     would    take   a

polygraph test if she took one.                J.A. 318, 319-20.

       The most recent assault allegedly occurred on October 16,

2010.       Dr. Paul Lomonico conducted a thorough physical exam of

JMLO on November 3, 2010, for evidence of sexual assault.                                 He

examined her entire body,




                                                                        Sealed App. 58.

His medical report indicated “no physical signs . . . of sexual

abuse” but noted, “This does not rule out abuse.”                         Id.

       On    December    15,    2010,    Georgiades       met      with     Diane    Tobin

(“Tobin”),       a   Deputy     State’s        Attorney      for     Harford      County,

Maryland.        After   reviewing      the     video   of    the       JMLO    interview,

Tobin accepted the case for prosecution.                        For over a month,

Georgiades attempted to contact Osborne, but was unsuccessful.

On January 21, 2011, Georgiades spoke to Osborne, who stated

that    he   would   only      speak    with    Georgiades         with    his    attorney

present.       Id. at 68.



                                           7
     On    January      24,   2011,   Georgiades          applied      for    an   arrest

warrant.         Georgiades’s         affidavit          disclosed       only      JMLO’s

accusations of sexual abuse but not her repeated denials, nor

the results of the medical examination.                     An arrest warrant was

issued, and Osborne was arrested on the same day.                            Osborne was

charged with eight counts of sexual—assault-based offenses.                            On

January 25, 2011, Osborne was detained in the Harford County

Detention Center, with bail set for $500,000.                            A grand jury

subsequently indicted Osborne on February 15, 2011, on sixteen

counts     of     sexual-assault-related              crimes.            Osborne      was

incarcerated without bond for over eight months, until October

3, 2011, when a bond was set for $25,000.                       The state eventually

declined   to    prosecute      Osborne    on      December      13,    2011,      instead

placing his case on the inactive “stet” docket.

                                          B.

     Osborne initiated the present action on January 23, 2014.

Osborne     claims      that     White,        with      Georgiades’s           guidance,

fabricated      evidence       against     him      by      asking       JMLO      “unduly

suggestive      and   leading”    questions        “designed       and    intended     to

cajole    the   minor    child    into    making       up   a    story    to    support”

Pipitone’s      accusations.       J.A.       9.      Osborne     also    claims      that

Georgiades knowingly omitted relevant facts from his application

for Osborne’s arrest warrant.             Osborne denies ever assaulting or

even attempting to assault the minor child.                      He argues that his

                                          8
arrest    and    ensuing     incarceration           were   “without        justification,

without    probable       cause,       and    were     motivated       by    [Defendants’]

wanton,     malicious[,]         and    reckless        desire     to       inflict     great

emotional and physical distress and pain and suffering upon”

him.    Id. at 11.

       After the district court dismissed all claims against White

and Pipitone, Georgiades moved for summary judgment on the sole

remaining       claim    that    he    violated        Osborne’s       Fourth      Amendment

right     against       unreasonable         seizure    under     42    U.S.C.        § 1983.

Georgiades argued that he is entitled to qualified immunity for

his actions.         The district court concluded that Georgiades is

not entitled to immunity for the acts underlying Osborne’s §

1983    claim—fabrication         of     evidence       and    omission       of    material

facts from the warrant application.                    First, the court held that

because    the    contents       of    the    conversations        between         White    and

Georgiades       were     not    “disclosed,”          a    reasonable        jury     could

conclude that Georgiades exerted pressure that resulted in the

fabrication of evidence against Osborne.                       J.A. at 331.           Second,

the    court    found     that   a     reasonable       jury    could       conclude       that

Georgiades’s        warrant      application           contained        omissions          made

deliberately        or    with   reckless          disregard     for    any     misleading

effect and that the omitted evidence had the potential to negate

probable cause.          Id. at 333.         This appeal timely followed.



                                               9
                                             II.

      We review an award of summary judgment on the basis of

qualified immunity de novo.                Durham v. Horner, 690 F.3d 183, 188

(4th Cir. 2012).              In reviewing the district court’s denial of

summary judgment based on qualified immunity, “we accept as true

the facts that the district court concluded may be reasonably

inferred from the record when viewed in the light most favorable

to the plaintiff.”             Yates v. Terry, 817 F.3d 877, 884 (4th Cir.

2016) (citation         omitted).           “To    the   extent    that    the   district

court has not fully set forth the facts on which its decision is

based, we assume the facts that may reasonably be inferred from

the   record    when      viewed      in    the    light   most    favorable      to    the

plaintiff.”         Id.       (citation     omitted).       “[T]his       usually    means

adopting . . . the plaintiff’s version of the facts.”                               Iko v.

Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (quoting Scott v.

Harris, 550 U.S. 372, 378 (2007)).



                                            III.

      Qualified         immunity      shields        government      officials         from

liability      in   a     §    1983   suit        unless   their    conduct      violated

“clearly established statutory or constitutional rights of which

a reasonable person would have known.”                       Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).                  To determine whether an official is

entitled to qualified immunity, we ask (1) whether the facts

                                             10
illustrate      that      the     official             violated     the       plaintiff’s

constitutional      right;      and    (2)    whether      the     right     was    clearly

established law at the time of the alleged event such that “a

reasonable     officer     would       have       understood       that      his    conduct

violated the asserted right.”                Miller v. Prince George’s County,

475 F.3d 621, 627 (4th Cir. 2007) (quoting Saucier v. Katz, 533

U.S. 194, 201-02 (2001)).             The answer to both questions must be

in the affirmative to defeat the official’s motion for summary

judgment on qualified immunity grounds.                   Id.

                                              A.

     First,    we    consider         whether      the    facts     demonstrate        that

Georgiades     violated      Osborne’s        asserted      constitutional          right.

Osborne maintains that the facts outlined above, considered in

the light most favorable to him, allege a claim that he was

seized   without       probable       cause       in    violation       of    the   Fourth

Amendment.      “The     Fourth       Amendment         prohibits    law      enforcement

officers from making unreasonable seizures, and seizure of an

individual    effected     without       probable         cause    is     unreasonable.”

Brooks v. City of Winston–Salem, 85 F.3d 178, 183 (4th Cir.

1996).    Osborne       specifically          contends      that    his      seizure   was

unreasonable     because         it     resulted          from     (1)       Georgiades’s

fabrication of evidence and (2) the omission of material facts

from the warrant application.



                                             11
                                       1.

       Osborne   alleges     that    Georgiades      fabricated      evidence   by

directing     White     to   ask    JMLO    misleading   questions,       thereby

resulting in JMLO’s false account of sexual abuse.                The district

court held that a reasonable jury could conclude that Georgiades

committed a constitutional violation by exerting pressure that

caused the fabrication of evidence against Osborne and directly

resulted in his unreasonable seizure.                J.A. 331.    The district

court further held that the right to be free from deprivation of

liberty due to an officer’s fabrication of evidence was clearly

established at the time of Georgiades’s alleged conduct.                    J.A.

332.    As such, the district concluded that Georgiades was not

entitled to qualified immunity for the alleged fabrication.

       Georgiades has waived his challenges to these holdings by

raising them for the first time in his reply brief.                   See Metro.

Reg’l Info. Sys., Inc. v. Am. Home Realty Network, 722 F.3d 591,

602 n.13 (4th Cir. 2013) (stating that appellant’s failure to

address    issue   in    opening     brief    will    deem   issue    waived    or

abandoned).      Therefore, Georgiades’s challenges are not properly

before us, and we will not address the district court’s holdings

on the fabrication claim.

                                       2.

       Osborne, arrested pursuant to a warrant, also contends that

Georgiades unlawfully omitted certain key facts from the warrant

                                       12
application.          Relying on the two-prong standard set forth in

Franks    v.    Delaware,       438    U.S.    154,     155-56     (1978)      (requiring

intent and materiality), the district court held that Osborne

must     show    that       Georgiades       “deliberately        or    with    reckless

disregard for the truth made material false statements in his

affidavit, . . . or omitted from that affidavit material facts

with the intent to make, or with reckless disregard of whether

they thereby made, the affidavit misleading.”                      J.A. 332 (quoting

Miller, 475 F.3d at 627).

       Below, we consider the district court’s holdings as to the

intent and materiality prongs to determine whether Georgiades’s

omissions amount to a constitutional violation.

                                              a.

       Initially,       we     conclude      that     Georgiades       has   waived     any

challenge to the district court’s holding regarding his intent

to mislead.           The district court held that a reasonable jury

could conclude that Georgiades’s warrant application contained

omissions made deliberately or with reckless disregard for any

misleading effect.             J.A. 332.       Georgiades only makes a passing

reference       to    the     district      court’s    holding,     contending         in   a

footnote       that    “Osborne       has    failed     to    demonstrate       that    the

omissions were made with reckless disregard for the truth. . . .

However,    the       Court    need   not    reach     this   issue     since    probable

cause existed for the warrant against Osborne.”                        Appellant’s Br.

                                              13
15 n.4.     Georgiades makes no attempt to explain the basis for

his belief, nor does he present any argument on why summary

judgment should have been granted in his favor on this issue.

The issue is therefore waived.                  See, e.g., Belk, Inc. v. Meyer

Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (concluding that

defendant      waived    issue     for    failure       to    develop    argument       in

brief).

                                          b.

      Next, we consider the district court’s holding regarding

the materiality of the omitted facts.                    Id. at 333.          Georgiades

argues that      the    district    court       erred    by    concluding      that    the

omitted   facts    “could”       and     “had    the    potential”      to     negate    a

finding   of    probable    cause.            J.A.    333.       We   agree    that    the

district court employed the wrong standard, but the error was

harmless because the omissions met the proper standard under

Franks.

      The correct materiality standard under Franks requires that

the   omissions    be    necessary       to     the    neutral    and   disinterested

magistrate’s finding of probable cause.                      Evans v. Chalmers, 703

F.3d 636, 650 (4th Cir. 2012) (quoting Miller, 475 F.3d at 628).

The omission “must be such that its inclusion in the affidavit

would   defeat    probable       cause    for     arrest.”        United      States    v.

Colkley, 899 F.2d 297, 301 (4th Cir. 1990).                           The court must

insert the facts recklessly omitted and determine whether or not

                                          14
the     “corrected”   warrant       affidavit        would       establish    probable

cause.     Miller, 475 F.3d at 628.                 If the “corrected” warrant

affidavit      establishes      probable         cause,    the    omissions    do    not

amount to a constitutional violation.                Id.

      Probable cause for an arrest “exists where the facts and

circumstances within [the officer’s] knowledge and of which [he

or she] had reasonably trustworthy information are sufficient in

themselves to warrant a man of reasonable caution in the belief

that an offense has been . . . committed by the person to be

arrested.”      Clipper v. Takoma Park, Md., 876 F.2d 17, 19 (4th

Cir. 1989) (citing Dunaway v. New York, 442 U.S. 200, 208 n.9

(1979)).

      Osborne     contends   that      a    “corrected”      affidavit       would   not

have established probable cause for his arrest.                       As corrected,

Georgiades’s warrant application would have shown that (1) JMLO

repeatedly denied (six times in total) that she was sexually

abused    by   Osborne;   (2)    she       then    stated,   and    demonstrated      by

using    dolls,




      ; (3) the most recent acts of abuse occurred on October 16,

2010; and (4) a thorough medical exam conducted on November 3,

2010 revealed no physical signs of sexual abuse.                         Considering

the totality of the circumstances presented by this information,

                                            15
the “corrected” warrant application would not have established

probable cause to arrest Osborne.

      The facts and circumstances presented by the “corrected”

warrant application are not sufficient in themselves to warrant

a   person   of     reasonable     caution     in   the   belief     that    Osborne

committed the offense stated in the application.                     The corrected

warrant application would have asked the magistrate to issue a

warrant for Osborne’s arrest in spite of JMLO’s inconsistent

allegations of abuse and direct evidence that may contradict

that any abuse occurred-Dr. Lomonico’s medical examination and

report.



                                                    As such, the omitted facts

are     material    because      their   inclusion        would     have    defeated

probable cause.

                                         B.

      Georgiades has never contended that the right asserted by

Osborne was not clearly established.                  For the reasons stated

above,    this     issue   is    undoubtedly    waived.       And    even    if    not

waived, this contention is without merit.

      The Fourth Amendment right to be arrested only on probable

cause was clearly established at the time of the events at issue

here.     Miller, 475 F.3d at 632; Brooks, 85 F.3d at 183.                        More

specifically,       it     was    also   clearly      established      “that       the

                                         16
Constitution did not permit a police officer deliberately, or

with reckless disregard for the truth, to make . . . omissions

to   seek   a    warrant     that       would       otherwise       be   without   probable

cause.”     Miller, 475 F.3d at 631-32 (collecting cases).                               The

objective       standard        for    qualified        immunity         accommodates    the

allegation of material omissions “because a reasonable officer

cannot believe a warrant is supported by probable cause if the

magistrate is misled by [omitted facts] that the officer knows

or should know [would negate probable cause].”                            Smith, 1010 F.3d

at 355.

       We therefore conclude that Georgiades is not entitled to

qualified immunity.



                                               IV.

       Georgiades also argues that the February 15, 2011, grand

jury     indictment       “conclusively              determined      the     existence   of

probable    cause,        which       unless    rebutted       by    Osborne,      nullifies

Osborne’s       claims     of     false        arrest    and    false       imprisonment.”

Appellant’s Br. 9.              Georgiades, however, failed to raise this

argument in the district court.

       This Court has repeatedly held that issues raised for the

first time on appeal generally will not be considered.                              Muth v.

United    States,     1    F.3d       246,     250    (4th   Cir.        1993)   (collecting

cases).     “The matter of what questions may be taken up and

                                               17
resolved for the first time on appeal is one left primarily to

the discretion of the courts of appeals, to be exercised on the

facts of individual cases.”             In re Under Seal, 749 F.3d 276, 285

(4th Cir. 2014) (quoting Singleton v. Wulff, 428 U.S. 106, 121

(1976)).         In     this   circuit,         we    exercise         that       discretion

sparingly.         Exceptions to this general rule are made only in

very     limited      circumstances,       such      as    when       the    newly    raised

argument     establishes        “fundamental          error”         or     a     denial   of

fundamental justice.           Stewart v. Hall, 770 F.2d 1267, 1271 (4th

Cir. 1985).        The error must be “so serious and flagrant that it

goes to the very integrity of the trial.”                      Id.

       Because fundamental error is a more limited standard than

the plain-error standard applied in criminal cases, we use the

plain-error standard “as something of an intermediate step in a

civil case.”        In re Under Seal, 749 F.3d at 285-86.                         If a party

in a civil case fails to meet the plain-error standard, it is

clear that he also fails to establish fundamental error.                             Id.

       Under the plain-error standard, we may correct an error not

raised    before      the   district      court       only      where       the    appellant

demonstrates:         (1) there is in fact an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute;

(3) the     error      affected     the    appellant’s          substantial          rights,

meaning     it     affected       the     outcome         of    the       district     court

proceedings; and (4) the error seriously affects the fairness,

                                           18
integrity, or public reputation of judicial proceedings.     United

States v. Marcus, 560 U.S. 258, 262 (2010).      We have refused,

however, to conduct plain error review where the party “failed

to make its most essential argument in its briefs or at oral

argument: . . . that the district court fundamentally or even

plainly erred.”   In re Under Seal, 749 F.3d at 292.

     Here, Georgiades has not made his most essential argument.

His “failure to argue for plain error and its application on

appeal surely marks the end of the road for [his] argument for

reversal not first presented to the district court.”   Id.    Thus,

Georgiades’s argument is waived.



                                V.

     For the foregoing reasons, the district court’s denial of

Georgiades’s summary judgment motion is



                                                        AFFIRMED.




                                19
TRAXLER, Circuit Judge, dissenting:

       We are talking about a five year old little girl.                                She

described how her father sexually molested her to a trained and

experienced      forensic       interviewer,      using       anatomically       correct

drawings and dolls to demonstrate what he did to her.                                  The

majority holds it was illegal to arrest the father.

       The little girl initially denied being abused during the

interview and a medical examination conducted over two weeks

after     the    abuse      showed     no       signs     of     physical         injury.

Notwithstanding the fact that a trained and experienced social

worker    and     interviewer,       with       full    knowledge        of     the    two

additional      facts,    determined       that   sexual       abuse    was    indicated

under Maryland law, the majority holds there can be no arrest

because there was no probable cause.                    If this were a published

case which would set precedent for this circuit, you could say

goodbye to the prosecution of many child sexual abuse cases,

because    those    two     facts    are    common       to    sexual     abuse       cases

involving children.

         This little girl is like most five year olds who have

been sexually abused.           She does not want to talk about it.                    The

video of her forensic interview makes that plain.                              There are

many reasons why this occurs and why children, more often than

not,      initially      deny    sexual    abuse,      particularly          abuse    by   a

parent    or    other     trusted    adult.         The    child       may    have    been

                                           20
threatened not to talk by her abuser.               She may have been told

not to tell (as was the case with this little girl) or led into

a promise to “keep our secret.”             She may be simply embarrassed.

A child’s reluctance to talk about sexual abuse happens all the

time.     But such initial denials do not mean the abuse did not

occur and they cannot be accepted at face value.                More questions

must    be   asked   and   different        interview   approaches      must   be

explored.      It takes a trained and skilled interviewer to get

past these initial denials to uncover the truth of what happened

in a reliable way.       That is precisely what happened here.

       Likewise, the absence of physical trauma is not unusual,

because there are degrees of sexual abuse.                 A lack of injury

does not mean no sexual abuse occurred.                 This child told the

interviewer                                                               S.J.A.

46.     The particular incident caused pain to her but not physical

injury.      Hence the validity of the examining doctor’s conclusion

that the absence of physical trauma did not mean that no sexual

abuse occurred.

        According to the majority’s holding in this case, if a

small child initially and briefly denies sexual abuse and the

medical      examination    shows     no      injury,    but    is     otherwise

inconclusive,     then   there   is   no    probable    cause   to   arrest    the

abuser.      Yet, in Maryland, a sex offender can be convicted at

trial solely on the testimony of his young victim.                   There is no

                                       21
requirement of corroboration, and initial denials by the child

do    not   affect     the    admissibility          of    her    testimony         about       what

happened.          It is for the jury to decide whether the child’s

statement is enough, or whether the initial denials render her

testimony unreliable.               The majority is requiring more evidence

for an arrest than Maryland requires for a conviction.

                                            I.

                                            A.

       Under    Maryland’s       child    abuse       and    neglect          statute,         local

social      services     departments           are        charged,          along       with    law

enforcement, with investigating allegations of child abuse.                                     See

Md.    Code     Fam.    Law     §      5-706.         At     the     conclusion            of    an

investigation, the department must determine whether child abuse

is “indicated,” “ruled out,” or “unsubstantiated.”                                See Md. Code

Regs. § 07.02.07.12.

       On   November     1,    2010,     Meredith          Pipitone         reported      to     the

Harford     County      Child       Advocacy     Center          that       her     5    year-old

daughter, “JMLO,” had been sexually abused by Osborne, JMLO’s

father.        Later that day, Pipitone brought JMLO to the child

advocacy      center    and    talked     to    Dion       White,       a    licensed      social

worker and trained forensic interviewer in child sexual abuse

cases.

       In     accordance        with     Maryland          law,      White          immediately

conducted      a    forensic     interview       of       JMLO.         White’s         interview

                                            22
followed the RATAC method.                  See Jennifer Anderson et al, The

Cornerhouse Forensic Interview Protocol:                         RATAC, 12 T.M. Cooley

J. of Prac. & Clinical L. 193, 202 (2010).                              RATAC, an acronym

for     “Rapport,     Anatomy     Identification,            Touch        Inquiry,      Abuse

Scenario,      and    Closure,”       see    id.,      is    a    well-recognized          and

widely-accepted model for interviewing and questioning children

about      sexual    abuse.       A   trained       interviewer           generally      goes

through     the     steps   sequentially         and    begins      by    establishing       a

rapport and gaining the child’s trust.                           The interviewer then

utilizes anatomical drawings “to identify different parts of the

body, to develop a common language,” for the child to use in

identifying body parts.           J.A. 210.            She then moves to the Touch

Inquiry, wherein the child is asked about “what parts of the

body may not be okay for someone to touch.”                        J.A. 211.          Finally,

the interviewer delves into whether the allegations of abuse

have occurred – the “Abuse Scenario” – and ultimately reaches

closure with the child.

      Of     particular       relevance       in    this         case     is    the    “Abuse

Scenario” component, pursuant to which the interviewer seeks to

determine if the allegations of abuse have actually occurred.

Generally, the interviewer “start[s] with open-ended questions”

and “use[s] the child’s spontaneity.”                       J.A. 211.          However, the

interviewers are also taught to use direct questions, or yes-no

questions,     or     multiple    choice      when      necessary.             According    to

                                            23
J.A.   46-47.        At    that     point,      JMLO     proceeded   to   describe   in




                                                                      S.J.A. 55.

       Based    on   the      results      of     the    RATAC   interview,   White’s

written assessment was “that th[e] child was sexually abused” as

described      in    detail       during    the     forensic     interview.     White

provided the following official disposition, pursuant to state

law:      “Sexual         Abuse    of      [JMLO]       is   ruled   ‘Indicated,’    in

accordance with the provisions of [Maryland] Family Law Article

5-701 and [the Code of Maryland Regulations] 07.02.07.12 (A-2).”

S.J.A. 63.

       Corporal Peter Georgiades of the Harford County Sheriff’s

Office was assigned to investigate the case and appeared at the

child advocacy center to monitor the interview of JMLO.                         There

is no evidence in the record that Corporal Georgiades talked to

JMLO before the interview. There is no evidence in the record

that he knew JMLO or her mother or her father.                            He was not

physically present in the room while White interviewed JMLO, but

instead observed what transpired from another room by means of a

                                             27
live video feed.          Georgiades and White were able to communicate

by phone during the interview, which they did three times during

the 37 minutes White talked to JMLO.

     Following the interview, JMLO’s mother called Osborne and

relayed what JMLO had described to White during the interview.

Law enforcement recorded the call.                Osborne denied JMLO’s story.

Rather    than     seek   a       warrant   immediately,   Corporal   Georgiades

elected to continue the investigation.                In particular, Corporal

Georgiades wanted to afford Osborne an opportunity to provide an

explanation for JMLO’s statements; however, Georgiades’ attempts

to contact Osborne were unsuccessful, despite Georgiades having

left his card at Osborne’s residence multiple times.

     On November 3, 2010, Dr. Lomonico was advised by DSS that

JMLO had reported

                                                                      S.J.A. 58.

Although Dr. Lomonico found “no physical signs in today’s exam

for sexual abuse,” he concluded that “[t]his does not rule out

abuse.”     S.J.A. 58.             Maryland law specifically provides that

“[p]hysical injury is not required for a finding of indicated

sexual abuse.”       Md. Code Regs. § 07.02.07.12(A)(2)(b); see also

Md. Code, Fam. Law § 5-701(b)(2) (defining “abuse” to include

“sexual     abuse    of       a    child,   whether   physical   injuries    are

sustained     or    not.”).           Moreover,    under   Maryland   law,   any

penetration, “however slight,” is sufficient to establish rape.

                                            28
Kackley v. State, 493 A.2d 364, 366 (Md. Ct. Spec. App. 1985).

White     later     testified     without      contradiction           that       “[i]n   my

experience there’s seldom trauma. . . . [W]hen a doctor, Dr.

Lomonico would look at a child, there is seldom evidence or an

observation       o[f]     physical     trauma.”          S.J.A.        34.         White’s

experience consisted of her investigation of an average of 100

cases a year, since 2004, amounting to over one thousand cases,

the majority of which were sexual abuse cases.

     On     December       15,    2010,     six    weeks        after       the     initial

statements by JMLO, Corporal Georgiades met with the prosecutor,

Deputy State’s Attorney Diane Tobin, to have his case assessed.

After viewing the entire video of White’s interview of JMLO and

discussing     the       merits   of    the    case      with    Georgiades,          Tobin

accepted the case for prosecution.

     Despite        the     go-ahead      from     the     prosecutor,             Corporal

Georgiades still persisted in his efforts to contact Osborne.

Even after leaving his card several more times, Georgiades was

not able to get Osborne to contact him.                     On January 14, 2011,

Georgiades        contacted       Osborne’s       girlfriend           by      telephone,

believing     her     to    be    a    possible     witness       to     the       reported

incidents.        The girlfriend told Georgiades that Osborne did not

trust the police and would not contact them, but she agreed she

would encourage Osborne to call.                 Finally, on January 24, 2011,

Osborne called Georgiades but explained that he wanted to talk

                                          29
with his attorney before saying anything else.                        Osborne then

ended the call.

       On January 24, 2011, Corporal Georgiades applied for an

arrest warrant.         After recounting the allegations from JMLO’s

mother in his warrant application, Georgiades expressly referred

to the recorded interview:              “[JMLO] was brought to the [child

advocacy center] on Monday 11/1/2010 and a forensic interview

was    conducted.       The    Interview   was     both   visually     and   audibly

recorded.”       J.A. 160.       Georgiades then briefly summarized the

portions of JMLO’s interview that supported probable cause to

believe that Osborne had sexually abused his daughter.

       The arrest warrant was issued and Osborne was charged with

8 sexual-assault counts.           Subsequently, a grand jury presented

with    the   evidence    issued    a    16-count     indictment      for    sexual-

assault offenses.         Osborne was held in jail for more than 8

months pending trial.          Ultimately, the State’s Attorney’s Office

placed Osborne’s case on the “stet docket” rather than moving

forward to trial and released Osborne.

                                         B.

       Osborne   sued    the    police   officer.         He    asserted    under   42

U.S.C. § 1983 that his arrest by Corporal Georgiades constituted

an unreasonable seizure in contravention of the Fourth Amendment

because Corporal Georgiades (1) included “fabricated” evidence

in     the    warrant     application         in   that        he   knowingly       and

                                         30
intentionally induced JMLO to invent facts supporting the sexual

abuse allegations, see J.A. 330-31, and (2) omitted from his

application        for    an    arrest      warrant     JMLO’s    initial    denials       of

sexual abuse as well as the fact that a medical examination did

not reveal any physical trauma, see J.A. 332-33.

       Corporal Georgiades moved for summary judgment on the basis

of   qualified          immunity.        The    district      court      denied    summary

judgment, ruling that (1) a reasonable jury could conclude that

Corporal      Georgiades        manufactured         the   case   against    Osborne       by

directing White to pose questions designed to mislead or confuse

JMLO    and    (2)      the    omissions       from    Georgiades’       affidavit       were

material      to   the     probable      cause       determination.        The    district

court    reasoned         that       “the     presence      of    this     contradictory

evidence” such as the initial denials from JMLO and the lack of

trauma findings by the examining doctor “could certainly negate

a    finding       of     probable       cause,”       meaning    that      “a    neutral,

reasonable judicial officer could choose to credit this evidence

over    the    evidence         of   JMLO’s     account     of    abuse.”         J.A.    333

(emphasis added).              As to its first decision, for reasons I will

show,   the    district         court    was    clearly     incorrect.       As     to    the

second ruling, the district court was wrong on the law, a point

acknowledged by the majority.

                                               II.



                                               31
       We review de novo a district court’s decision to deny a

summary judgment motion based on qualified immunity.                         See Danser

v.   Stansberry,    772     F.3d     340,    345    (4th   Cir.   2014).           Summary

judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”               Fed. R. Civ. P. 56(a).

       In § 1983 actions, government officials are entitled to

qualified immunity so long as they have not violated “clearly

established     statutory       or     constitutional        rights     of        which    a

reasonable person would have known.”                  Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).           “Officials are not liable for bad guesses

in gray areas; they are liable for transgressing bright lines.”

S.P. v. City of Takoma Park, Md., 134 F.3d 260, 266 (4th Cir.

1998)   (internal     quotation        marks     omitted).        The    doctrine         of

qualified immunity protects “all but the plainly incompetent or

those who knowingly violate the law.”                      Malley v. Briggs, 475

U.S. 335, 341 (1986).              This doctrine “balances two important

interests—the      need    to   hold    public      officials     accountable         when

they    exercise    power       irresponsibly        and    the   need       to     shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.”                  Pearson v. Callahan, 555 U.S.

223, 231 (2009).          It “gives government officials breathing room

to make reasonable but mistaken judgments.”                       Stanton v. Sims,

134 S. Ct. 3, 5 (2013) (per curiam) (internal quotation marks

                                            32
omitted).      The   application    of    the    qualified      immunity       doctrine

serves   two     purposes:      first,   to     protect    an    officer       from   an

unnecessary      trial   where    the    doctrine      plainly     applies      at    the

pretrial stage, see Johnson v. Jones, 515 U.S. 304, 312 (1995),

and   second    to    prevent    liability      when   a   trial      resolves   facts

establishing that qualified immunity is applicable, see Merchant

v. Bauer, 677 F.3d 656, 665 n.6 (4th Cir. 2012).

      In determining whether an officer is entitled to summary

judgment on the basis of qualified immunity, we employ a two-

part inquiry.        See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014)

(per curiam).          Courts are “permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified

immunity    analysis     should    be    addressed     first     in    light    of    the

circumstances in the particular case at hand.”                          Pearson, 555

U.S. at 236.         The first question is “whether the facts, viewed

in the light most favorable to the plaintiff, show that the

officer’s conduct violated a federal right.”                    Smith v. Ray, 781

F.3d 95, 100 (4th Cir. 2015); see Saucier v. Katz, 533 U.S. 194,

201 (2001).          “The second [question] of the qualified-immunity

inquiry asks whether the right was clearly established at the

time the violation occurred such that a reasonable person would

have known that his conduct was unconstitutional.”                          Ray, 781

F.3d at 100; see Ridpath v. Bd. of Governors Marshall Univ., 447

F.3d 292, 306 (4th Cir. 2006).                  “The answer to both . . .

                                         33
questions must be in the affirmative in order for a plaintiff to

defeat a defendant police officer’s motion for summary judgment

on qualified immunity grounds.”                       Miller v. Prince George’s Cty.,

Md., 475 F.3d 621, 627 (4th Cir. 2007) (internal alteration and

quotation marks omitted).                  As neither question can be answered

in the affirmative in this case, Corporal Georgiades is entitled

to summary judgment based on qualified immunity.

                         A.    No Constitutional Violation

      Osborne claims that he was arrested without probable cause

in   violation          of    the     Fourth      Amendment’s           guarantee       against

unreasonable        seizures.          “The      Fourth       Amendment        prohibits       law

enforcement         officers        from    making         unreasonable        seizures,       and

seizure    of      an   individual         effected        without      probable       cause    is

unreasonable.”           Brooks v. City of Winston–Salem, N.C., 85 F.3d

178, 183 (4th Cir. 1996).                   Osborne was arrested pursuant to a

warrant, and the Fourth Amendment does not permit the issuance

of a warrant “but upon probable cause.”                           U.S. Const. amend. IV.

An   arrest     made     pursuant      to    a    facially        valid       warrant    may    be

presumed      to    rest      upon    probable         cause,     and    Osborne       does    not

contend that the arrest warrant was invalid on its face.

      Rather, Osborne claims that Corporal Georgiades misled the

magistrate         by   including      facts          he   knew   to     be    false    and     by

omitting      material        facts    from      the       warrant      application.           Our

analysis, therefore, is guided by Franks v. Delaware, 438 U.S.

                                                 34
154 (1978), “as to whether asserted material false statements

and omissions in the . . . supporting affidavit[] . . . state a

constitutional claim.”        Evans v. Chalmers, 703 F.3d 636, 649-50

(4th Cir. 2012).        To succeed on his claim, Osborne must prove

that     Corporal   Georgiades      deliberately       or    with   a   “reckless

disregard for the truth” made false statements of material fact

in his affidavit, Franks, 438 U.S. at 171, or omitted from that

affidavit    “material    facts     with    the   intent      to    make,    or   in

reckless disregard of whether they thereby made, the affidavit

misleading,” United States v. Colkley, 899 F.2d 297, 300 (4th

Cir. 1990) (internal quotation marks omitted).                  Furthermore, to

establish his claim, Osborne must prove that the fabricated or

omitted facts were material.            “It is well-established that a

false or misleading statement in a warrant affidavit does not

constitute a Fourth Amendment violation unless the statement is

necessary to the finding of probable cause.”                  Wilkes v. Young,

28 F.3d 1362, 1365 (4th Cir. 1994) (emphasis added) (internal

quotation marks omitted).

    1.    The Alleged False Statements in the Warrant Affidavit

       Osborne contends that JMLO’s account of sexual abuse was

false, resulting from coercive interview techniques and pressure

applied by Corporal Georgiades.             And, according to Osborne, the

inclusion of this manufactured account in Georgiades’ warrant

affidavit    resulted    in   the    issuance     of   the    warrant       and   his

                                       35
unreasonable            seizure.         The     district       court     found     that    “a

reasonable          jury        could        certainly    conclude           that   Corporal

Georgiades exerted pressure that resulted in the fabrication of

evidence against [Osborne]” based solely on the following:                                 that

Corporal Georgiades spoke by phone with White three times during

the interview and that Corporal Georgiades ended the interview

after JMLO indicated

        J.A. 331.

       The        district       court’s       conclusion,        in    my     view,     finds

absolutely         no    support        in    the     record    and     amounts     to     rank

speculation.            To survive summary judgment here, Osborne must

adduce    evidence            showing   that     Corporal      Georgiades      deliberately

caused      fabricated          or   falsified        evidence.        See     Devereaux     v.

Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc); Myers v.

Morris,      810     F.2d       1437,    1458    (8th    Cir.     1987)      (requiring      “a

specific affirmative showing of dishonesty”), abrogated on other

grounds, Burns v. Reed, 500 U.S. 478 (1991).                              It is Osborne’s

burden       to    produce       evidence       of    fabrication,       not    Georgiades’

burden to negate it.

       Georgiades asserted a general right to qualified immunity

in his opening brief to this court, but the majority is correct

that   he     did       not    specifically         challenge    the    district       court’s

ruling on the fabrication allegation. I think nevertheless we

should reach this issue for several reasons. First, Georgiades

                                                 36
in his brief did claim the defense of qualified immunity. When

this defense is presented, a court may determine whether there

is     proof     that      the         official       violated         the     plaintiff’s

constitutional         rights.         Second,      the    record     irrefutably          shows

there was no fabrication of evidence.                       There is not a shred of

evidence of any coercion or any fabrication of any type.                                  Third,

Georgiades’s      lawyer        used    a   substantial         portion       of    her     oral

argument to challenge the allegations of fabrication and she was

thoroughly      questioned       by     judges      on    the   panel       about    it,     all

without anyone objecting to its relevance or suggesting that

waiver precluded counsel from adressing the fabrication issue.

Fourth, given the importance of the interest the court has in

eliminating       baseless       claims       early       on,   I     would        take     this

opportunity to address and get rid of this allegation.

       Osborne    presented       absolutely         no    evidence        suggesting       that

Georgiades       somehow     manipulated            JMLO    into       falsely       accusing

Osborne    of    sexual    abuse,       and   the     district       court     relied       upon

sheer speculation in concluding otherwise.                             The sole factual

basis     for    the    district        court’s      opinion         was    that     Corporal

Georgiades and White spoke by telephone during the interview.

From     that    fact     and     that      fact     alone,      the       district        court

conjectured      that     Georgiades        directed       White      to     ask    questions

designed to manipulate JMLO into falsely accusing Osborne of

abuse.    The    majority       apparently         believes     we    are    bound    by     the

                                              37
opinion of the district court. If there were any facts in the

record to support his conclusion, I might agree. But this record

is completely devoid of any evidence that Officer Georgiades

exerted any pressure or fabricated any evidence.

      First and foremost, the child had already told White about

Osborne’s       molestation     of     her     and    described    in    detail     what

Osborne       had   done   to   her    before        there   was   the    first   phone

conversation between Corporal Georgiades and White.                         This fact

alone renders the fabrication claim frivolous.                     Second, there is

absolutely no evidence in the record at all as to what was said

during    those      phone   conversations.             And,   third,     neither    the

district court in its order nor Osborne on appeal identified a

single improper question posed to JMLO during the interview,

which was recorded from start to finish and followed the widely-

accepted RATAC forensic interview model.                     Thus, there is simply

no   evidence       that   Georgiades        violated   Osborne’s       constitutional

rights by causing fabricated evidence to be elicited during that

interview and this claim should be eliminated.

         2.    Information Omitted from the Warrant Application

      Osborne also claims that Corporal Georgiades deliberately

or with a reckless disregard for the truth omitted important

“contradictory        evidence”       from    the    warrant   application--namely

JMLO’s initial denials of abuse and the “dearth of any physical

evidence of abuse,” J.A. 333—in order to mislead the magistrate

                                             38
into   issuing      a   warrant.        The       district         court    denied    summary

judgment,     concluding       (1)     that    a       reasonable        factfinder     could

decide   that     Corporal     Georgiades           had      the    requisite       intent    to

mislead the magistrate, and (2) that the omitted “contradictory

evidence”     was    material    because          it    “could       certainly       negate    a

finding of probable cause.”                   Id.         In my view, and with due

respect for the district court, these decisions were clearly in

error.

                                       a.    Intent

       “To   satisfy     the   Franks’        intentional           or    reckless    falsity

requirement for an omission, the defendant must show that facts

were omitted with the intent to make, or in reckless disregard

of whether they thereby made, the affidavit misleading.”                               United

States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008) (internal

quotation     marks      omitted).          That       is,    “the       omission    must     be

designed to mislead or must be made in reckless disregard of

whether it would mislead.”                  Id. (internal quotation marks and

alteration     omitted).        To     establish          “reckless        disregard,”       the

defendant     must      show   that    the     “officer        failed       to   inform      the

judicial officer of facts he knew would negate probable cause.”

Miller, 475 F.3d at 627 (internal question marks and alteration

omitted).

       Officers     applying     for    a     warrant         “cannot      be    expected     to

include in an affidavit every piece of information gathered in

                                             39
the course of an investigation,” Colkley, 899 F.2d at 300, and

they are “not required to include every piece of exculpatory

information in [such] affidavits,” Evans, 703 F.3d at 651.                Not

every omission amounts to a constitutional violation:

     [B]ecause   every  piece  of  information   cannot  be
     expected to be included, the very process of selecting
     facts to include for the demonstration of probable
     cause must also be a deliberate process of omitting
     pieces of information. Certainly, such intentional
     omissions do not satisfy the requirement of Franks. .
     . .    [If] this type of intentional omission is all
     that Franks requires, the Franks intent prerequisite
     would be satisfied in almost every case. Accordingly,
     merely showing an intentional omission of a fact from
     a   warrant   affidavit  does   not  fulfill   Franks’
     requirements.

Tate, 524 F.3d at 455 (internal quotation marks and citations

omitted).

     Other than the mere fact that Corporal Georgiades omitted

JMLO’s initial denials and the inconclusive medical report, the

record   is   bereft   of   evidence    suggesting   that   he   misled   the

issuing magistrate intentionally or recklessly. In fact, all of

the evidence is to the contrary. Neither the district court nor

Osborne point to any evidence of the required intent other than

the fact that allegedly contradictory evidence was omitted.               The

district court concluded that a jury could infer the requisite

intent or recklessness from the mere fact of omission itself.

This court, however, has refused to embrace “the validity of

inferring bad motive under Franks from the fact of omission [of


                                       40
contradictory        information]           alone,       for      such        an      inference

collapses       into         a     single      inquiry           the     two         elements—

‘intentionality’         and       ‘materiality’—which            Franks           states       are

independently        necessary.”            Colkley,       899    F.2d        at    301.         In

Colkley, we concluded that the defendant failed to show that the

officer      applying       for     the    warrant       intended        to    mislead          the

magistrate even though he omitted from his affidavit the fact

that    none    of     the       six     eyewitnesses      were        able    to      identify

defendant out of a photo lineup and that he used only the height

description provided by one eyewitness but did not mention that

other witnesses indicated the bank robber was shorter than the

defendant.      See id. at 300-01.             Likewise, in Simmons v. Poe, we

held that an officer had not acted with a reckless disregard for

the truth where he included in his affidavit only the profile

factors      that    were        consistent    with      the     suspect        and       omitted

several inconsistent profile factors as well as the victim’s

initial belief that her attacker was of a different race.                                       See

47 F.3d 1370, 1383-84 (4th Cir. 1995).

       The   record     does       not    create   any     question       of       fact    as    to

whether Georgiades omitted JMLO’s initial denials or the results

of   the     medical    examination         with     the    intent       to        mislead      the

magistrate or with a reckless disregard for the truth.                                In fact,

I am unable to find any evidence in the record showing that

Georgiades      even    knew       about    the    existence       of     Dr.       Lomonico’s

                                              41
report before he applied for the warrant.                 Actually, insofar as

the   record     contains     facts    relating     to    Corporal       Georgiades’

intent with regard to the arrest warrant, they suggest that he

harbored no deceit and wanted to make sure he covered all his

bases before arresting Osborne.                He had seen the interview of

the little girl.          The opinion of Dion White, the experienced

social worker who interviewed JMLO, was that sexual abuse of

JMLO had indeed occurred.             He knew the child’s father had told

her not to tell anybody about what he had done.                       In addition,

prior to applying for the arrest warrant, Georgiades took the

recording of the interview to Tobin, the prosecutor, for her

assessment of the case.              After watching the interview, which

included JMLO’s initial denials, and discussing the merits of

the case with Georgiades, Tobin wanted to move forward with the

prosecution.         Only    after     receiving    the       go-ahead      from      the

prosecutor     did     Georgiades      prepare     and    submit      his     warrant

application,      which      specifically       stated    that     there        was     a

recording of JMLO’s interview.              Thus, he disclosed the video to

the magistrate who could have watched and seen for himself what

JMLO said if he so desired.

      The   consultation      with     Tobin    shows,    at    the   least,        that

Georgiades fully disclosed his evidence to the legal expert who

was   assigned    by   the    State    of     Maryland   to    handle     the      case.

Georgiades also extended to Osborne numerous invitations to tell

                                         42
his side of the story.             None of the evidence points to an intent

to   “railroad”      Osborne.            Accordingly,           Osborne      has    failed   to

establish the requisite intent required to sustain his claim

that Georgiades violated his constitutional rights.

                                    b.    Materiality

       “It    is    well-established            that        a    false       or     misleading

statement in a warrant affidavit does not constitute a Fourth

Amendment violation unless the statement is necessary to the

finding of probable cause.”                 Wilkes, 28 F.3d at 1365 (emphasis

added) (internal quotation marks omitted).                             Where a plaintiff

alleges      that   an    officer    has       omitted      material        facts,    he   must

establish that without such omissions there would have been no

probable      cause.         See     Miller,          475       F.3d    at     632     (“[T]he

Constitution [does] not permit a police officer deliberately, or

with    reckless         disregard       for    the     truth,         to    make    material

misrepresentations or omissions to seek a warrant that would

otherwise be without probable cause.”).

       In    concluding      that    the       facts     omitted        from       Georgiades’

affidavit were material, the district court did not apply the

correct standard of materiality.                    The district court stated that

the omitted facts had the “potential to negate probable cause”

and that a “reasonable judicial officer could choose to credit

this evidence over the evidence of JMLO’s account of abuse.”

J.A. 333.

                                               43
      This   court     rejected    virtually      this     same   formulation       of

materiality in Colkley, where the district court “believed that

the   affiant’s      omission     was    material     because     it    ‘may    have

affected the outcome’ of the probable cause determination.”                      899

F.2d at 301.        We explained that the court had “misstated” the

Franks materiality standard, under which “an omission must do

more than potentially affect the probable cause determination:

it must be necessary to the finding of probable cause.”                          Id.

(emphasis     added)    (internal       quotation    marks     omitted). *       The

possibility    that     the   omitted     facts     could    be   credited     by    a

magistrate over the facts included in the warrant affidavit does

not   make   such    facts    material    under     this    standard.     For    the

omitted facts to be material, their inclusion in the warrant

affidavit must necessarily defeat probable cause.                 See id.

      In order to assess the materiality of an omission, we must

insert the omitted information “and then determine whether or

      *Wefurther noted that the idea that a warrant affidavit
must include “potentially exculpatory evidence” was akin “to
import[ing] the rule of Brady v. Maryland into the warrant
application process.”   United States v. Colkley, 899 F.2d 297,
302 (4th Cir. 1990) (internal citation omitted).       Brady is
concerned with the fairness of criminal trials and “with the
justice of the finding of guilt that is appropriate at trial,”
while Franks “recognizes that the information an affiant reports
. . . may not ultimately be accurate . . . so long as the
affiant did not deliberately mislead the magistrate.”     Id. at
303 (internal quotation marks omitted).     Thus, “a requirement
that all potentially exculpatory evidence be included in an
affidavit would severely disrupt the warrant process.” Id.



                                         44
not the ‘corrected’ warrant affidavit would establish probable

cause.”        Miller,       475       F.3d        at    628     (internal         quotation    marks

omitted).          Even if JMLO’s initial denials and the result of Dr.

Lomonico’s          examination              had        been     inserted           into    Corporal

Georgiades’ affidavit, there was still a sufficient basis for a

reasonable          jurist       to    find        probable        cause.           The    affidavit

described          the   statements           made       by     JMLO    during       her    forensic

interview          and   included        details           from     JMLO       regarding       sexual

activity      that       would        have    been        beyond       the    understanding       and

experience of a typical five-year old.                                 And the medical report

did    not     necessarily            negate        JMLO’s       claims,       as    Dr.    Lomonico

himself seemed to recognize, expressly stating that his exam did

not    rule    out       abuse.         The        conflicting          evidence       presented    a

question for the jury as to JMLO’s credibility and the ultimate

guilt of Osborne, but it did not necessarily defeat probable

cause for an arrest.

              B.    No Clearly Established Constitutional Right

       Because “[q]ualified immunity shields an officer from suit

when    []he        makes    a    decision              that,    even    if        constitutionally

deficient,          reasonably          misapprehends             the        law    governing     the

circumstances,” we focus our inquiry on the body of law at the

time of the police conduct to determine “whether the officer had

fair   notice        that    [the]       conduct           was    unlawful.”           Brosseau    v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam).                                        The clearly-

                                                    45
established inquiry “must be undertaken in light of the specific

context      of    the   case,    not   as    a   broad     general   proposition.”

Saucier, 533 U.S. at 201.                 But “[w]e do not require a case

directly on point” to find the requirement satisfied so long as

“existing precedent [has] placed the statutory or constitutional

question beyond debate.”            Ashcroft v. al–Kidd, 131 S. Ct. 2074,

2083 (2011) (internal quotation marks omitted).

       In deciding whether an officer’s conduct violated clearly

established law, “we have long held that it is case law from

this   Circuit       and    the   Supreme     Court   that     provide   notice    of

whether a right is clearly established.”                  Hill v. Crum, 727 F.3d

312,    322       (4th     Cir.   2013)      (internal      quotation    marks    and

alteration omitted).

       In determining whether a right was clearly established
       at the time of the claimed violation, courts in this
       circuit ordinarily need not look beyond the decisions
       of the Supreme Court, this court of appeals, and the
       highest court of the state in which the cases arose. .
       . . If a right is recognized in some other circuit,
       but not in this one, an official will ordinarily
       retain the immunity defense.

Id. (internal quotation marks omitted).

       The    district      court   determined,       and    my   friends   in    the

majority agree, that Corporal Georgiades should have understood

that his conduct was unlawful because it was clearly established

in 2010 under Franks v. Delaware that an officer violates the

constitution by deliberately, or with a “reckless disregard for


                                             46
the   truth,”    omitting       material   facts      from   an   arrest   warrant

affidavit.      438 U.S. at 155-56.

      Although       the   general   Franks    principle     is   unquestionably

well-established, we do not stop there.                 The law requires that

we go farther and assess the right in a more particularized

sense in the context of the specific facts of this case.                   As the

Supreme Court has admonished, courts must not “define clearly

established law at a high level of generality,” al-Kidd, 131 S.

Ct. at 2084, but rather must identify a constitutional right

that was “‘clearly established’ in a more particularized, and

hence more relevant, sense,” Anderson v. Creighton, 483 U.S.

635, 640 (1987).

      Thus, even though it was clearly established on a general

level   that    an    officer    could   not   omit    material    facts   from   a

warrant application with a reckless disregard for the truth, the

contours of this right were not clearly established by Supreme

Court or Fourth Circuit precedent in the particularized context

of this case.        In light of cases such as Colkley and Simmons, it

was not clear that Officer Georgiades’ omissions, which would

not have defeated probable cause, were unconstitutional.                      The

majority cannot cite a single case to show that the right they

claim was clearly established.             The general rule established by

Franks did not afford Corporal Georgiades fair notice that his

specific conduct was unlawful, and my friends in the majority

                                         47
cannot      show        that      such     conduct       was      contrary       to    clearly

established law.

                                                III.

                                                 A.

       Georgiades         argued        that    the    issuance      of   the     indictment

settled the question of whether there was probable cause for the

prior arrest of Osborne.                 The indictment is regular on its face

and there are absolutely no allegations in Osborne’s complaint

asserting         any    wrongdoing       or    improprieties       in    the    proceedings

before the Grand Jury.                   Likewise there is no evidence in the

Joint Appendix regarding what evidence the Grand Jury had before

it.     There being nothing out of the ordinary regarding the Grand

Jury proceedings or the indictment, I would not speculate about

what might have happened or what could have happened in the

Grand      Jury    room.        I   would      hold    at   the    very   least       that   the

indictment broke any chain of causation that might have existed.

See Durham v. Horner, 690 F.3d 183, 189-90 (4th Cir. 2012).

       Besides,         there     was    an    independent        decision      made    by   the

prosecutor that the evidence was strong enough to go forward

with the case before Officer Georgiades ever sought a warrant.

It    is    uncontradicted          that       Officer      Georgiades    went        over   the

merits      of     his     case     with       Diane     Tobin,     the   Deputy       State’s

Attorney, before making an arrest.                          Tobin watched the entire

video of the child’s statements, including the “denials” at the

                                                 48
beginning of the interview and nevertheless accepted the case

for prosecution. We should remember here that in a malicious

prosecution context, similar in principle to the issues before

us, we quoted with approval the following statement:

       A law enforcement officer who presents all relevant
       probable cause evidence to a prosecutor . . . is
       insulated from a malicious prosecution claim where
       such intermediary makes an independent decision . . .
       unless the officer (1) concealed or misrepresented
       facts or (2) brought such undue pressure to bear on
       the intermediary that the intermediary's independent
       judgment was overborne.

Evans v. Chalmers, 703 F.3d 636, 648 (4th Cir. 2012) (internal

quotation marks omitted).

       Here, there is no evidence either exception applies, and

the approval of the case for prosecution by the Deputy State’s

Attorney and her subsequent submission of the case to the Grand

Jury   should     insulate      Officer     Georgiades     from   any    liability

because    he    sought   and   obtained       this   prosecutor's      independent

evaluation before he ever applied for an arrest warrant.                        She

saw the “denials” and still advised Officer Georgiades she would

go forward with the case.            Under these circumstances, no fault

can be attributed to the officer, and he should receive the

benefits    of    immunity      as   well      as   our   commendation    for   the

appropriate steps he took.

       The majority would not reach this issue because it was not

argued to the district court. Although it does appear to be


                                          49
raised for the first time on appeal, I would reach it for two

reasons: First, Osborne did not object to this question being

before us and in fact briefed the issue for our consideration.

Second, there is no evidence, or even any allegations, of any

wrongdoing       with       regard     to     the      grand     jury    indictment            or   the

submission of the case to the prosecutor for a legal evaluation.

                                                  B.

     My friends in the majority and I agree that the district

court used the wrong standard to evaluate the effect of the

omissions on the question of probable cause. The correct test is

whether    the    omissions          necessarily           negated      probable       cause.        My

friends    do    not        believe     the      child’s       responses       are    reasonably

reliable    to    establish          even        probable      cause     because,         in    their

view,    what    five-year-old              JMLO       relates     about     the     two       nights

cannot be squared with her initial denials and lack of physical

injury.     I must be watching a different interview video because

I see nothing that negates probable cause or warrants such a

dismissal of a five-year-old victim’s account of her abuse.

     The events the child described happened on two separate

nights    that    her       father      had      her    in   his   bed,      and     it    was      not

necessary       for    the     interviewer            to   try   to     make   JMLO       pinpoint

exactly    what       action      or    what          statements      were     made       on    which

nights.      What       I    do   see       is    a    five-year-old         girl     telling        an

experienced            forensic              interviewer—both                verbally               and

                                                  50
demonstratively with dolls—about sex acts committed on her.                                And

it   strains      reason       to     conclude        that     she      was    coached     or

manipulated       by     anyone       into       making      these       graphic        sexual

statements during the interview.                   As I pointed out earlier, the

“denials” that my friends make so much of do not bother me in

the least.        I frankly do not see how a five year old child’s

initial    refusal      to    talk     to    a    stranger       about   being     sexually

abused by her father, who has told her not to tell anyone about

what he did, can have anything more than a fleeting effect on an

evaluation       of    the    truthfulness         of    her     description       of    what

happened to her.             And the doctor’s report does not count for

much, as it is equivocal and expressly does not exclude the

prior    occurrence      of    some    type      of     sexual    abuse.       Given     that

sexual abuse does not necessarily result in trauma, I would not

hesitate    in    saying      the     doctor’s        report     does    not   negate     the

probable     cause      established         by     JMLO’s      descriptions        of     what

happened.      In short, the so-called omissions were not material

and do not come close to preventing the arrest of Osborne.

                                             IV.

        The majority relies on the prudential doctrine of waiver to

dispose of virtually every issue in this appeal, including the

question of whether the law was clearly established at the time

of Corporal Georgiades’s alleged constitutional violations.                                An

appellate court, of course, always possesses discretion to reach

                                             51
an otherwise waived issue.                     See United States v. Vinson, 805

F.3d 120, 122 n.1 (4th Cir. 2015).                      But the circumstances in the

case before us make it particularly appropriate that we exercise

our     discretion         to       decide     whether       the     law       was      clearly

established.

       First,       it   is     especially      proper      that    an     appellate       court

reach    an    otherwise         waived      issue    if   that     issue      is    logically

antecedent to, and ultimately dispositive of, the dispute before

it.     For example, in United States National Bank of Oregon v.

Independent         Insurance         Agents    of    America,       the      Supreme      Court

concluded       that       the      Eleventh     Circuit     Court       of    Appeals       had

properly decided an issue first raised in supplemental post-

argument      briefing,          even   though       the   appellants       had     failed    to

raise it in either their opening or reply brief.                               See 508 U.S.

439, 447 (1993).              The Court reached this conclusion because the

issue    which       had      not     been     raised      was     “antecedent       to”     and

“dispositive of” the question addressed in the opening brief.

Id.

       The same reasoning applies here. The question of whether

the    law    was    clearly        established       is    “antecedent        to”    and,    if

decided in the appellants’ favor, “dispositive of” the issue

that    is    before       us    on     appeal—whether       Corporal         Georgiades      is

shielded from trial by qualified immunity.                           If the law was not

clearly established, then it is irrelevant whether or Corporal

                                               52
Georgiades         actually    violated      the    law        because       he    would   be

shielded by qualified immunity and, as a result, entitled to

judgment as a matter of law.                See Behrens v. Pelletier, 516 U.S.

299, 306 (1996) (“Unless the plaintiff's allegations state a

claim    of    violation       of   clearly      established          law,    a     defendant

pleading qualified immunity is entitled to dismissal before the

commencement of discovery.” (internal quotation marks omitted)).

       Second, the standard policy bases for applying the waiver

doctrine      do    not    apply    with   the   same         force   in     the    qualified

immunity context.             Much like the final judgment rule, see 19

James Wm. Moore, Moore’s Federal Practice § 201.10[1] (3d ed.

2011) (“The purposes of the final judgment rule are to avoid

piecemeal litigation, [and] to promote judicial efficiency . . .

.”),     the       waiver     doctrine       aims        to     “preserve[]          judicial

resources,” United States v. Benton, 523 F.3d 424, 428 (4th Cir.

2008).     Qualified immunity 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.”        Mitchell       v.    Forsyth,       472        U.S.    511,    526     (1985).

Accordingly,        even    though    interlocutory            appeals       are    generally

disfavored, immediate review of a district court’s denial of a

claim of qualified immunity is permitted “to the extent that it

turns on an issue of law.”                 Id. at 530.          Likewise, in light of

the strong policy favoring an official’s “entitlement not to

                                            53
stand trial or face the other burdens of litigation,” id. at

526, we should exercise our discretion here and decide whether

the    law   was    clearly    established         at    the    time    of   the    alleged

violation—all the more so where, as here, the question is not

even close on the merits.

       Finally,      the     majority’s       dogged       application        of    waiver

produces an ironic result.                  Even if Georgiades did not raise

qualified     immunity        in     this    appeal,       he     raised      it    as    an

affirmative defense in his answer to the complaint and will thus

be permitted to press the defense when the case goes to trial.

In my view, the majority’s insistence on avoiding the merits and

applying the waiver rule in this case does nothing except kick

the can down the road.

                                            V.

       The   initial       denials    by    JMLO    are    consistent        with   common

experience     in     child    sexual       abuse       cases    where       threats,     or

innocent promises by children to keep a secret, are the norm and

easily account for the denials that are so familiar to those who

work    in   this    area.         Likewise,     the     fact    that    there      was   no

physical trauma.           The absence of this information in a warrant

application does not undermine the probable cause established by

this    five-year-old       girl’s     detailed         description     of    the    sexual

abuse by her father.



                                            54
       Finally, the majority has elected not to publish this case.

The redeeming feature of this choice is that under our law this

case   cannot    be     used   in   the    future      as   legal   authority     for

qualified     immunity    purposes.       In   that    context,     thankfully,    it

will be irrelevant.            See Hogan v. Carter, 85 F.3d 1113, 1118

(4th Cir. 1996) (en banc) (“Since unpublished opinions are not

even regarded as binding precedent in our circuit, such opinions

cannot   be    considered      in   deciding     whether     particular     conduct

violated      clearly    established      law    for    purposes     of   adjudging

entitlement to qualified immunity.”).                  Nevertheless, I dissent

because, in my view, the lower court decision must be reversed.




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