     Case: 17-40597   Document: 00514888033        Page: 1   Date Filed: 03/26/2019




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

                                                                        FILED
                                    No. 17-40597                     March 26, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
BLANCA ARIZMENDI,

             Plaintiff - Appellee

v.

PATRICK GABBERT, Individually and in his official capacity as Criminal
Investigator,

             Defendant - Appellant




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


Before HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Blanca Arizmendi teaches high school French in Brownsville, Texas.
Patrick Gabbert, the school district’s criminal investigator, swore out an
affidavit in support of a warrant for the arrest of Arizmendi for allegedly
communicating a false report. Arizmendi now sues Gabbert for false arrest
under 42 U.S.C. § 1983, contending that Gabbert knowingly or recklessly
misstated material facts in the affidavit. Gabbert argues that he is entitled to
summary judgment because even if he made material false allegations in his
affidavit, the allegations also established probable cause to arrest Arizmendi
for a different offense than the one for which he sought a warrant. We conclude
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                                  No. 17-40597
that the validity of the arrest could not be saved by facts stated in the warrant
sufficient to establish probable cause for a different charge from that sought in
the warrant, but Gabbert is entitled to qualified immunity because this was
not clearly established at the time of his conduct. We will therefore reverse the
district court’s denial of Gabbert’s motion for summary judgment.
                                          I
        The arrest stemmed from a multi-year investigation into a high school
“grade change form.” Arizmendi taught the school principal’s niece. She alleges
that beginning in January 2013, the principal and the student’s mother began
pressuring her to raise the student’s grade. A later review of the student’s
grades found that a grade change form—appearing to have been completed and
signed by Arizmendi—had been submitted to raise the student’s grade
considerably in Arizmendi’s class, tying her for the second-highest GPA in her
year.    Arizmendi    maintains    that       she   “never     authorized,   accepted,
[ ]adopted . . . . [or] signed any grade change form.”
        On June 14, 2013, Arizmendi filed an administrative grievance form
alleging that the school principal forged Arizmendi’s signature, falsified
records, and illegally changed his niece’s grade. An unknown source leaked this
information to the local media, which covered the issue and the resulting
controversy.
        On request by the school district’s director of human resources in July
2013, Gabbert began investigating whether someone had illegally tampered
with government records, as prohibited by Texas Penal Code § 37.10. As part
of his investigation, he seized documents and computers from the school. He
also interviewed Arizmendi on September 24, 2013. According to his case notes,
when he showed Arizmendi the original grade change form, Arizmendi stated
that she had never signed the form and her signature had been forged. A few


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                                   No. 17-40597
days later, Arizmendi submitted a sworn statement to Gabbert reiterating
these statements.
      In December 2013, Gabbert sent the grade change form and samples of
Arizmendi’s handwriting to the Texas Department of Public Safety Crime Lab.
The lab requested additional handwriting samples and ultimately issued a
report stating that Arizmendi’s signature on the form was legitimate. Upon
receiving this information, Gabbert “reclassified” his investigation to one
involving whether Arizmendi had filed a false report in violation of Texas Penal
Code § 42.06. Section 42.06, titled “False Alarm or Report,” states that “[a]
person commits an offense if he knowingly initiates, communicates or
circulates a report of a present, past, or future bombing, fire, offense, or other
emergency that he knows is false or baseless and that would ordinarily . . .
cause action by an official or volunteer agency organized to deal with
emergencies; . . . place a person in fear of imminent serious bodily injury; or . . .
prevent or interrupt the occupation of a building, room, place of assembly,
place to which the public has access, or aircraft, automobile, or other mode of
conveyance.” “False alarm or report” is a Class A misdemeanor punishable by
up to a year in jail.
      Gabbert submitted an affidavit seeking an arrest warrant for Arizmendi
“for the offense of False Report, a Class A misdemeanor.” He stated that “on or
about” February 11, 2013, Arizmendi “intentionally and knowingly [c]omitt[ed]
the offense of False Report . . . by initiating and communicating a report that
[she] knew was ‘false and baseless’ and causing the reaction of Law
Enforcement to initiate an investigation into the allegation of [ ]Tampering
with Governmental Records (school records).” He also stated in the affidavit
that on September 24, 2013, Arizmendi told him that her signature had been
forged on the grade change form, and the Public Safety Crime Lab had later
“determin[ed] that Blanca Arizmendi signed [her own] signature” on the form.
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                                      No. 17-40597
In sum, Gabbert swore that Arizmendi had “circulated a report that was false
and baseless which in turn caused [school district police investigators] to seize
several public school computers and documents for forensic reviews.”
       Upon approval of the warrant for Arizmendi’s arrest for the crime of
“false report” committed on February 11, 2013, 1 Gabbert arrested Arizmendi.
She was processed into jail and released the same day. Six months later, the
District Attorney’s Office dismissed the charges as barred by the applicable
two-year statute of limitations.
       Arizmendi then sued Gabbert for false arrest, alleging that he
“knowingly and intentionally submitted an affidavit for an arrest warrant that
contained false and misleading information in order to manipulate the
Magistrate Judge” into issuing the warrant. 2 Gabbert moved for summary
judgment, invoking qualified immunity. The district court found a triable issue
of material fact as to whether Gabbert submitted a false statement in his
warrant affidavit with knowing or reckless disregard for the truth; it therefore
denied him qualified immunity on Arizmendi’s false arrest claim. Gabbert
appeals.
                                             II
       “Summary judgment is required if the movant establishes that there are
no genuine issues of material fact and the movant is entitled to judgment as a
matter of law.” 3 When a public official pleads a qualified immunity defense,


       1  The warrant authorized Arizmendi’s arrest for committing the offense of “false
report” on February 11, 2013. It did not identify the specific section number under which
Arizmendi was to be arrested.
       2 Arizmendi initially sued the school district in addition to Gabbert and included

claims for several other constitutional violations. The district court granted summary
judgment to the defendants on every claim except the § 1983 false arrest claim against
Gabbert, including Arizmendi’s claims for malicious prosecution, First Amendment
retaliation, and conspiracy. Arizmendi does not cross-appeal the denial of summary judgment
on those claims.
       3 Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing Fed. R. Civ. P. 56(c)).

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“[t]he plaintiff bears the burden of negating qualified immunity, but all
inferences are drawn in [the plaintiff’s] favor.” 4
       “The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed
to be legal.” 5 It “protects all but the plainly incompetent or those who
knowingly violate the law,” and applies “unless existing precedent . . . placed
the statutory or constitutional question beyond debate.” 6 “To overcome an
official’s qualified immunity defense, a plaintiff must show that the evidence,
viewed in the light most favorable to him, is sufficient to establish a genuine
dispute ‘(1) that the official violated a statutory or constitutional right, and (2)
that the right was clearly established at the time of the challenged conduct.’” 7
       “Although a denial of summary judgment is typically unappealable,
defendants have a limited ability to appeal a denial of qualified immunity
under the collateral order doctrine.” 8 We have jurisdiction over such appeals
only “to the extent that the district court’s order turns on an issue of law.” 9 In
other words, we may “decide whether the factual disputes are material . . . [and
review] the district court’s legal analysis as it pertains to qualified immunity,”
but may not “review the genuineness of any factual disputes.” 10 “An officer
challenges materiality [by contending] that taking all the plaintiff’s factual
allegations as true[,] no violation of a clearly established right was shown.” 11



       4 Id. (citations omitted).
       5 Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
       6 Id. at 371 (internal quotation marks omitted) (emphasis in original).
       7 Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)) (internal quotation marks omitted).
       8 Id. at 467 (emphasis in original).
       9 Id. at 467–68 (quoting Kovacic v. Villareal, 628 F.3d 209, 211 (5th Cir. 2010)).
       10 Id. at 468 (quoting Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013), and Kovacic,

628 F.3d at 211 n.1).
       11 Winfrey v. Pikett, 872 F.3d 640, 643–44 (5th Cir. 2017) (internal quotation marks

omitted) (emphasis in original).
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                                      No. 17-40597
                                            III
      Arizmendi argues that she has raised a triable factual dispute over
whether Gabbert violated her Fourth Amendment rights. She contends that
once false statements are excised from Gabbert’s warrant affidavit, it did not
support probable cause for the offense for which she was arrested.
                                             A
      The Fourth Amendment guarantees “the right of the people to be secure
in their persons . . . against unreasonable searches and seizures . . . and [that]
no warrants shall issue, but upon probable cause.” 12 A constitutional claim for
false arrest, which Arizmendi brings through the vehicle of § 1983, “requires a
showing of no probable cause.” 13 Probable cause is established by “facts and
circumstances within the officer’s knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit
an offense.” 14
      In general, “[i]t is well settled that if facts supporting an arrest are
placed before an independent intermediary such as a magistrate or grand jury,
the intermediary’s decision breaks the chain of causation for false arrest,
insulating the initiating party.” 15 There is a qualification: the initiating party
may still be liable for false arrest “if the plaintiff shows that the ‘deliberations
of the intermediary were in some way tainted by the actions of the
defendant.’” 16 Chiefly relevant here, thirty-five years before Gabbert obtained
his warrant, Franks v. Delaware established that even if an independent
magistrate approves a warrant application, “a defendant’s Fourth Amendment


      12 U.S. Const. amend. IV.
      13 Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).
      14 Id. (quoting Piazza v. Mayne, 217 F.3d 239, 245–46 (5th Cir. 2000)).
      15 McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017).
      16 Id. (quoting Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009)).

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                                     No. 17-40597
rights are violated if (1) the affiant, in support of the warrant, includes ‘a false
statement knowingly and intentionally, or with reckless disregard for the
truth,’ and (2) the allegedly false statement is necessary to the finding of
probable cause.” 17
                                            B
      Arizmendi contends that even though an independent magistrate
approved the arrest warrant, Gabbert is liable for false arrest because he made
intentional    or   reckless   misrepresentations       in   his    warrant     affidavit.
Specifically, she contests two statements Gabbert swore to in his affidavit: that
Arizmendi “initat[ed] and communicat[ed] a report that [she] knew was ‘false
and baseless’” on February 11, 2013, causing law enforcement to “initiate an
investigation” into the grade change form, and that Arizmendi “circulated a
report that was false and baseless which in turn caused [school district] police
investigators to seize several public school computers and documents for
forensic reviews.”
      The district court found a genuine factual dispute over whether Gabbert
intentionally or recklessly submitted false statements in his affidavit. It
observed that while Arizmendi filed an internal grievance form on June 14,
2013, Gabbert instead alleged that Arizmendi initiated and communicated a
“report” on February 11, 2013, that caused law enforcement action including
the confiscation of files and computers. The district court ultimately found that
media attention spurred Gabbert’s investigation, not any action taken by
Arizmendi. As for Gabbert’s mental state, the court observed that “Gabbert
may have simply been mistaken when he submitted the warrant affidavit to



      17 Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018), on petition for rehearing
(quoting Franks v. Delaware, 438 U.S. 154, 155–56, 165 (1978)); see Hale v. Fish, 899 F.2d
390, 400–02 (5th Cir. 1990) (applying Franks to a § 1983 claim for arrest without probable
cause).
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                                     No. 17-40597
the magistrate judge, but the mix-up may have been purposeful, or a product
of reckless disregard.” Limited as we are in our jurisdiction to review the
district court’s denial of summary judgment, we accept its identification of a
genuine dispute over whether Gabbert knowingly or recklessly included false
statements in his warrant affidavit.
       But Franks also requires the allegedly false statements to have been
material to the finding of probable cause. We must “consider the faulty
affidavit as if [the] errors [or] omissions were removed[,] . . . [and then] examine
the ‘corrected affidavit’ and determine whether the probable cause for the
issuance of the warrant survives the deleted false statements and material
omissions.” 18 After correcting the affidavit to exclude the challenged
statements, the affidavit alleges that (1) on September 24, 2013, Gabbert met
with Arizmendi, who stated that her signature had been forged on the grade
change form and that she had previously filed a grievance against a school
administrator for falsifying her signature; and (2) a Department of Public
Safety handwriting analysis later determined that Arizmendi had signed her
own name on the form.
       It is unclear whether Gabbert argues on this appeal that once the
contested allegations are excised from his warrant affidavit, the affidavit
supports probable cause for the “false alarm or report” offense for which
Arizmendi was arrested. 19 To the extent that he does, we disagree. As relevant
here, a critical element of the “false alarm or report” offense is that the
defendant have initiated or circulated a false report of an “offense” or



      18 Winfrey, 901 F.3d at 495.
      19 In oral argument, for example, Gabbert’s counsel conceded that it was “obvious”
that Gabbert should not have sought to arrest Arizmendi for “false alarm or report” under
Texas Penal Code § 42.06 rather than “false report” under § 37.08. Gabbert also appears to
admit in his briefing that at least some of the challenged statements were “misleading” and
that he should have sought a warrant under § 37.08.
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                                       No. 17-40597
“emergency” that would ordinarily cause official action. 20 Excising the
statements that Arizmendi “initiat[ed] and communicat[ed] a report that [she]
knew was ‘false and baseless’” and that the report “caused BISD Police
Investigators to seize several public school computers and documents for
forensic reviews,” it is difficult to see how the remaining allegations
established probable cause for the specific offense of “false alarm or report.” 21
                                             IV
       Gabbert’s primary defense is that even if the corrected warrant affidavit
did not establish probable cause for the “false alarm or report” offense, he had
probable cause to arrest Arizmendi without a warrant for a different offense.
He suggests that there was probable cause that Arizmendi had committed the
lesser offense of “false report” under Texas Penal Code § 37.08, which states
that “[a] person commits an offense if, with intent to deceive, he knowingly
makes a false statement that is material to a criminal investigation and makes
the statement to . . . a peace officer.” As we have explained, Gabbert also
alleged in his affidavit that Arizmendi told him in September 2013 that she
had not signed the grade change form, and later handwriting analysis refuted
her claim. 22 We agree that this was sufficient to generate probable cause that



       20 See Tex. Pen. Code § 42.06.
       21 The offense of “false alarm or report” does not require a showing that the report
actually caused official action. But the only suggestion in Gabbert’s affidavit that Arizmendi
had circulated a report that “would ordinarily” cause official action comes from the false
statements that Arizmendi’s report caused the BISD police investigation. Without those
allegations, the affidavit could not establish probable cause for the offense, even though it
alluded to a grievance Arizmendi had filed and her later statement to Gabbert that she had
not signed the grade change form.
       22 Arizmendi does not contest these statements.

       Gabbert argues that the extent of his misconduct, if any, was that he inadvertently
cited the incorrect section number—in other words, he meant to cite section 37.08, and
instead cited section 42.06. As we have explained, the district court determined that Gabbert
made other false statements. It also suggested that Arizmendi had raised a genuine factual
dispute over whether Gabbert’s accusation that Arizmendi violated the “false alarm or
report” offense in section 42.06 was knowing or reckless. The court observed that “false alarm
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                                       No. 17-40597
Arizmendi violated § 37.08’s “false report” offense when she met with
Gabbert. 23
       The critical question is therefore whether an officer who knowingly or
recklessly included false statements on a warrant affidavit can be held liable
for false arrest despite having had probable cause to arrest the plaintiff
without a warrant for a different offense not identified in the affidavit, an
argument with great force. This said, the principle was not clearly established
at the time of Gabbert’s alleged conduct, so Gabbert is entitled to qualified
immunity.
                                              A
       In Vance v. Nunnery, 24 we suggested that an officer could not evade
liability in such circumstances. While investigating Vance for the April 5, 1995
burglary of a storage facility, Nunnery, a police detective, also received
information suggesting that Vance had burglarized the same facility on March
10 of that year. 25 Although Nunnery learned shortly after obtaining a warrant
to arrest Vance for the April 5 burglary that Vance could not have committed
that crime, he arrested Vance regardless. 26 When Vance sued under § 1983 for




or report” is a more serious offense punishable by a longer prison sentence, and that Gabbert’s
affidavit closely tracked the elements of the “false alarm or report” offense. Here too, we lack
jurisdiction to review the district court’s identification of a genuine factual dispute.
        23 The Supreme Court has established that in general, a claim for false arrest cannot

lie in the failure to obtain a warrant for the arrest, at least for offenses committed in the
arresting officer’s presence. See Virginia v. Moore, 553 U.S. 164, 176 (2008) (“We conclude
that warrantless arrests for crimes committed in the presence of an arresting office are
reasonable under the Constitution, and that while States are free to regulate such arrests
however they desire, state restrictions do not alter the Fourth Amendment’s protections.”).
To be clear, the issue here is not whether Gabbert could have arrested Arizmendi without a
warrant. It is whether once he obtained a warrant, potentially in violation of Franks, he could
retroactively justify a warrant-based arrest by claiming that he could have instead conducted
a warrantless arrest based on facts stated in the affidavit.
        24 137 F.3d 270 (5th Cir. 1998).
        25 Id. at 271–73.
        26 Id.

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                                     No. 17-40597
violation of his Fourth Amendment rights, Nunnery offered a defense
strikingly similar to the one Gabbert presents in this case: he “argued that he
was entitled to qualified immunity, not because he met the constitutional
requirements for arresting Vance for the April 5th burglary [for which Vance
was actually arrested], but because he had arguable probable cause to arrest
Vance for a ‘related offense’—a burglary that he believed occurred . . . on March
10th.” 27
       Nunnery’s defense relied on the “related offense” doctrine, which
established that while a police officer could generally not obtain qualified
immunity for a warrantless arrest by claiming that he could have validly
arrested the plaintiff for a different offense, he was entitled to immunity where
the charged and uncharged offenses were “related” and the officer
demonstrated “arguable probable cause” to arrest the plaintiff for the
uncharged related offense. 28 We had relied on the related offense doctrine for
decades prior to Vance. 29 In doing so, we made clear that we would not “indulge
in ex post facto extrapolations of all crimes that might have been charged on a
given set of facts at the moment of arrest[, since] . . . [s]uch an exercise might
permit an arrest that was a sham or fraud at the outset, really unrelated to
the crime for which probable cause was actually present[,] to be retroactively
validated”—hence the requirement that where the charged and uncharged
offenses did not match, they at least be related. 30
       We concluded that Nunnery was not entitled to claim the protection for
related offenses because “[u]nlike every police officer who has successfully
invoked the related offense doctrine, Nunnery did not make a warrantless


        Id. at 273.
       27

        Id. at 274.
       28
     29 See United States v. Atkinson, 450 F.2d 835, 838–39 (5th Cir 1971) (citing Mills v.

Wainwright, 415 F.2d 787 (5th Cir. 1969)).
     30 Id. at 838.

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                                       No. 17-40597
arrest[, but instead] arrested Vance on the basis of an arrest warrant that he
knew was no longer supported by probable or arguable probable cause.” 31In
short, we declined in Vance to extend the related-offense defense to warrant-
based arrests. This approach recognized that the primary role of the related
offense doctrine was to strike a “compromise” between forcing officers making
warrantless arrests to routinely charge arrestees with every possible offense
“to increase the chances that at least one charge would survive the test for
probable cause,” 32 at one extreme, and allowing officers to justify “sham or
fraudulent arrests on the basis of ex post facto justifications that turn out to
be valid,” 33 at the other. In contrast, allowing an officer to invoke the related
offense doctrine when justifying a warrant-based arrest “would unjustifiably
tilt this balance in favor of qualified immunity” because “[a] police officer who
obtains an arrest warrant and then intentionally arrests someone he knows to
be innocent should not benefit from a doctrine designed to protect police officers
from civil liability for reasonable mistakes in judgment made when they effect
warrantless arrests for conduct they believe is criminal based on their
observations or ‘first-hand knowledge.’” 34
       While Vance is not the only relevant authority on this issue, it is the
clearest voice in our circuit on the relationship between an invalid warrant and
a warrantless arrest for a different offense. In a series of pre-Vance and pre-
Franks cases, we had suggested that a warrant-based arrest was lawful if the
officer had probable cause to make a warrantless arrest, even if the warrant



       31 Id. Though we held in the alternative that Nunnery lacked probable cause even to
arrest Vance for the alleged March 10 burglary, Vance, 137 F.3d at 276–77, this does not
diminish the force of our holding that the related offense doctrine did not extent to warrant-
based arrests. See, e.g., Perez v. Stephens, 784 F.3d 276, 281 (5th Cir. 2015) (per curiam)
(discussing the binding force of alternative holdings).
       32 Vance, 137 F.3d at 275 (quoting Trejo v. Perez, 693 F.2d 482, 485 (5th Cir. 1982)).
       33 Id. (quoting Gassner v. City of Garland, 864 F.2d 394, 398 (5th Cir. 1989)).
       34 Id.

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itself was invalid. 35 These cases did not implicate the same principles as Vance
and this case. Some involved arrests based on faulty warrant affidavits that
could later be justified by pointing to probable cause for the same offense
identified in the warrant; 36 another addressed an apparent clerical error that
led a warrant to cite the wrong section of the United States code. 37 In contrast,
Vance dealt directly with the question of whether an officer could make an
arrest based on a warrant that he should have known was invalid, then claim
the protection shed by the related offense doctrine. We do not take Vance to be
in tension with this line of cases, but rather to be an interpretation of the
related offense doctrine that predated them.
       In sum, Vance rejected the possibility that an officer could arrest
someone based on a warrant and then, on its challenge, retroactively justify
his conduct by arguing that he had probable cause to arrest the person without
a warrant for a different offense. Taking the disputed facts in the light most
favorable to Arizmendi, that is exactly what Gabbert has done.
       To be sure, Vance differs from this case in certain ways. It did not involve
a Franks violation, but rather a violation of the separate principle that an
officer cannot arrest someone for an offense of which the officer knows the
person to be innocent. Further, Gabbert include facts in his warrant affidavit
that would arguably support probable cause for the other offense, while no such



       35  See United States v. Francis, 487 F.2d 968, 971–72 (5th Cir. 1973) (holding that the
sufficiency of a warrant affidavit was “immaterial” where the arrest would have been valid
without a warrant); United States v. Morris, 477 F.2d 657, 662–63 (5th Cir. 1973) (“[I]t does
not necessarily follow from the fact that the arrest warrants were defective that the officers’
entry into the apartment was unlawful . . . . A warrantless arrest is nevertheless valid if the
arresting officer has probable cause to believe that the person arrested has committed or is
in the act of committing a crime.”); United States v. Wilson, 451 F.2d 209, 214–15 (5th Cir.
1971) (“A search incident to an arrest valid on one ground is not an illegal search merely
because the arrest would be invalid if supported only by the faulty warrant.”).
        36 See Francis, 487 F.2d at 971–72; Morris, 477 F.2d at 662–64.
        37 See Wilson, 451 F.2d at 214–15.

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                                       No. 17-40597
facts were included in the warrant affidavit in Vance. Neither of these
differences, however, disturb the applicability of Vance’s underlying
recognition that an officer who made an unconstitutional warrant-based arrest
could not be spared from liability by the possibility that he could conduct a
separate, warrantless arrest of the same arrestee—precisely what Gabbert
argues here.
                                              B
       Neither party addresses Vance or its parallels to this case. Rather,
Gabbert relies upon Devenpeck v. Alford, 38 where police believed that a suspect
had committed several offenses—including impersonating a police officer,
lying to officers, and violating the State Privacy Act—but only arrested and
charged him with an offense that was later established to be wholly
unsupported by the facts. 39 The Court rejected the resulting § 1983 challenge,
concluding that the warrantless arrest was valid so long as the officers had
probable cause to arrest him for any crime based on the facts within their
knowledge. 40 It did not matter whether the crime for which someone was
arrested was “closely related” to other crimes for which there was probable
cause to arrest—in other words, the related offense doctrine was too
restrictive—because “[s]ubjective intent of the arresting officer . . . is simply no
basis for invalidating an arrest.” 41 Gabbert argues that Devenpeck squarely
applies here: he arrested Arizmendi for one crime, but since he had probable




       38 543 U.S. 146 (2004).
       39 Id. at 149.
       40 Id. at 153–56.
       41 Id. at 154–55; see also id. at 153 (“Our cases make clear that an arresting officer’s

state of mind (except for the facts that he knows) is irrelevant to the existence of probable
cause. That is to say, his subjective reason for making the arrest need not be the criminal
offense as to which the known facts provide probable cause.” (citations omitted)).
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                                        No. 17-40597
cause to arrest her for a different crime, it does not matter whether he
committed Franks violations in the course of obtaining the arrest warrant.
       The parties dispute whether Devenpeck applies solely to warrantless
arrests, or also reaches warrant-based arrests. We, like other courts, have not
explicitly addressed the reach of Devenpeck in circumstances like these. 42 After
Devenpeck, but without addressing it explicitly, we characterized as “dubious”
the argument that “an officer can give a knowingly false affidavit and avoid
liability by the fortuity that, after the fact, he may be able to argue some other
basis for the arrest.” 43 We have since acknowledged the possibility that
Devenpeck may be limited to warrantless arrests, though we have not offered



       42  Relying on Devenpeck, the Eleventh Circuit has suggested that probable cause for a
warrant-based arrest is an absolute bar to a false arrest claim even when the arresting officer
lacked probable cause for “all announced charges.” See Elmore v. Fulton Cty. Sch. Dist., 605
F. App’x 906, 914–17 (11th Cir. 2015) (per curiam) (ultimately affirming the dismissal of a
false arrest claim on grounds that did not implicate this principle). Conversely, after
Devenpeck was decided but without mentioning the case, the Sixth Circuit drew a line
between warrant-based and warrantless arrests similar to the one we drew in Vance: where
“an officer is confronted with a rapidly developing situation and makes the on-the-scene
determination to arrest someone in the reasonable-but-mistaken belief that the arrestee
committed a crime whose elements, it turns out later, were unmet though the arrestee’s
conduct did satisfy the elements of a different crime,” the error is “in no small part technical:
[the officer] is correct in believing the arrestee susceptible to arrest, and mistaken only as to
which crime the arrestee committed.” See Kuslick v. Roszczewski, 419 F. App’x 589, 594 (6th
Cir. 2011). Such an officer, the Sixth Circuit held, “is in a thoroughly different position
than . . . [one] who, from a position of safety and retrospective deliberation, decides to falsify
details of the arrestee’s conduct in a sworn statement made to a magistrate in order to obtain
authorization for a retaliatory arrest.” Id.
        Several circuits have also held that an officer who relies on a facially invalid warrant
is exempt from false arrest liability as long as there was probable cause to arrest the person
for the offense identified in the warrant. See Graves v. Mahoning County, 821 F.3d 772, 775–
77 (6th Cir. 2016); accord Noviho v. Lancaster County, 683 F. App’x 160, 164–65 (3d Cir.
2017); Robinson v. City of South Charleston, 662 F. App’x 216, 221 (4th Cir. 2016). But these
cases did not decide whether the offense identified in the warrant must match the offense for
which there was probable cause to make an arrest. Cf. Goad v. Town of Meeker, 654 F. App’x
916, 922–23 (10th Cir. 2016) (citing Graves for the proposition that the court could look to
facts outside the warrant to establish probable cause, but also explaining that the plaintiff
“would have to show that the Defendants lacked probable cause to support the charged crime
against him” (emphasis added)).
        43 DeLeon v. City of Dallas, 345 F. App’x 21, 23 n.2 (5th Cir. 2009) (per curiam).

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                                       No. 17-40597
further analysis. 44 There are two reasons, however, to doubt that Devenpeck
applies here.
       First, Devenpeck applies with significantly more force in the warrantless
arrest context. The Court expressed concern over ways in which probing an
officer’s mental state could lead to “haphazard” results—an arrest’s validity
might hinge on whether it was made by a rookie or a veteran officer
knowledgeable about the law; perhaps more troublingly, the arresting officer
may have an incentive not to provide grounds for a warrantless arrest to avoid
the risk that the stated grounds would fail to withstand scrutiny even though
other potential grounds might have succeeded. 45 These concerns have little
force with arrests based on warrants, where officers are called upon to identify
both the offense and the facts that ground probable cause. Nor do warrant-
based arrests involve the snap judgments attending warrantless arrests—so
similar leniency may be undue an officer arresting with an unconstitutionally
invalid warrant. 46
       Indeed, the Court’s identification of the related offense doctrine’s
potential drawbacks meshes with the distinction we drew in Vance between
warrantless and warrant-based arrests. As we have explained, Vance held that
an officer was not entitled to the limited protection of the related offense
doctrine when conducting a warrant-based arrest; the related offense doctrine
was crafted to provide protection only for officers conducting warrantless
arrests, lest they be forced to proactively identify every possible offense the
arrestee may have committed. While Devenpeck held that the validity of a
warrantless arrest should not be limited by an insistence that the officer have



        See, e.g., Johnson v. Norcross, 565 F. App’x 287, 289–90 (5th Cir. 2014) (per curiam).
       44

        Devenpeck, 543 U.S. at 155–56.
       45
      46 See Vance, 137 F.3d at 275–76 (explaining the practical differences between

warrantless and warrant-based arrests); Kuslick, 419 F. App’x at 594 (same).
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                                          No. 17-40597
probable cause for the charged offense or related offenses, it did not disturb
our previous recognition that allowing an officer conducting an improper
warrant-based arrest to point to another offense for which there was probable
cause would “unjustifiably tilt [the balance of protection] in favor of qualified
immunity.” 47
      Second, and relatedly, Devenpeck hinged on the requirement that we
distance ourselves from an arresting officer’s subjective state of mind, focusing
solely on the objective facts known to the officer at the time. Yet Franks
explicitly requires inquiry into officers’ states of mind to assess the validity of
arrest warrants. Only deliberate or reckless misstatements or omissions are
Franks violations; mere negligence will not suffice. 48 This stands in stark
contrast to the Supreme Court’s emphasis on objectivity surrounding
warrantless arrests.
                                               C
      Today we cannot conclude that an officer can deliberately or recklessly
misstate or omit facts in a warrant affidavit to procure a warrant to arrest
someone for a specific crime, then escape liability by retroactively constructing
a justification for a warrantless arrest based on a different crime. That said,
overarching and reconciling principles bring clarity.
      Franks and Devenpeck operate in tandem by protecting the validity of an
arrest in circumstances where the arrest does not deny a person the protections
of the Fourth Amendment—in these circumstances, the mental state of the
officer aside, the arrest is lawful. In warrantless arrests, there is no threat to
a citizen’s Fourth Amendment rights where the officer had probable cause to
arrest, albeit not for the offense he chose to charge. With a warrant, even where



      47   Vance, 137 F.3d at 275.
      48   See Franks, 438 U.S. at 171.
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                                  No. 17-40597
there was ultimately no probable cause for the arrest, an officer instead gains
the protection of Franks—invalidating the warrant only for misstatements
willfully or recklessly made, and then only for misstatements necessary to the
finding of probable cause for the charged offense.
      As of Gabbert’s conduct, we had not yet explained this common ground
between warrantless and warrant-based arrests—let alone established that
these principles do not mandate further protection for an officer who arrests
someone based on a Franks-violating warrant, then later points to probable
cause to have effected a warrantless arrest for another offense. A reasonable
officer in Gabbert’s position may not have recognized that by proceeding with
an arrest based on a warrant, the validity of the arrest would not be judged by
standards applicable to warrantless arrests, standards he could have met. In
short, one could have reasonably taken Devenpeck to protect the validity of
Arizmendi’s arrest, even if—based on the facts in the light most favorable to
Arizmendi—Gabbert should have known that the warrant itself was invalid
under Franks.
      Knowing or reckless false statements in a warrant affidavit are not to be
condoned. But Arizmendi has not persuaded us that Gabbert’s actions were
then illicit by clearly established law. Gabbert is therefore entitled to qualified
immunity.
                                        V
      The judgment of the district court is reversed.




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