UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD THOMAS OSBORNE, JR.,
Plaintiff-Appellee,

v.

W. D. ROSE, Individually and in his
                                                          No. 97-1259
official capacity as an officer of the
Virginia Department of Game and
Inland Fisheries,
Defendant-Appellant.

DONALD THOMAS OSBORNE, SR.,
Plaintiff-Appellee,

v.

W. D. ROSE, Individually and in his
                                                          No. 97-1264
official capacity as an officer of the
Virginia Department of Game and
Inland Fisheries,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CA-96-59-A, CA-96-60-A)

Argued: October 27, 1997

Decided: January 20, 1998

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
CAMPBELL, Senior Circuit Judge of the
United States Court of Appeals for the First Circuit,
sitting by designation.
Dismissed in part, reversed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Mark Dunn, Assistant Attorney General, Rich-
mond, Virginia, for Appellant. Dennis Eugene Jones, Lebanon, Vir-
ginia, for Appellee. ON BRIEF: Richard Cullen, Attorney General of
Virginia, Richmond, Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Donald Osborne Sr. and his son, Donald Osborne Jr., sued Virginia
game warden W.D. Rose after a violent encounter in November 1994.
Their complaints included claims of excessive force and malicious
prosecution brought under 42 U.S.C. § 1983. The district court denied
Rose summary judgment on his defense of qualified immunity, and
Rose filed this interlocutory appeal. With respect to the Osbornes'
excessive force claims, we dismiss Rose's appeal because it would
require us to resolve a genuine factual dispute between the parties.
However, Rose is entitled to qualified immunity on the Osbornes'
malicious prosecution claims because a constitutional right to be free
from malicious prosecution was not clearly established in November
1994. Accordingly, we dismiss in part, reverse in part and remand the
case to the district court.

I.

On the rainy morning of November 21, 1994, the opening day of
deer hunting season in western Virginia, Rose observed a vehicle pro-

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ceeding slowly down a country road. Rose observed that the driver
(Osborne Sr.) wore hunting clothing though he did not get a good
look at the passenger (Osborne Jr.); Rose suspected that they were
hunting from an automobile in violation of Virginia law. Va. Code.
Ann. § 29.1-521.6. He followed them at a distance in his state vehicle
and onto a farm that belonged to Claude Osborne, father of Osborne
Sr. The Osbornes were going to look for sick cattle on the family farm
and fix a hay rick, then leave for a hunting trip in another part of the
state.

From this point, the parties' accounts of events begin to diverge.
Warden Rose alleges that, from a distance, he observed the Osbornes'
car stop briefly and saw Osborne Jr. open the passenger door, sight
a rifle from the car into the nearby woods, then pull the rifle back into
the car. The Osbornes deny these allegations. Rose also alleges that,
after the Osbornes became aware of his presence, Osborne Sr. drove
wildly at Rose's vehicle, yelled at Rose, and made obscene gestures.
The Osbornes deny these allegations as well. Shortly thereafter, the
parties exited their vehicles, and a confrontation ensued.

Rose accused the Osbornes of hunting illegally. Osborne Sr. denied
Rose's accusation and ordered Rose off of his family's property. Dur-
ing this heated exchange, Osborne Sr. placed his hand inside his hunt-
ing jacket and hooked his thumb inside his overalls. Fearing that
Osborne Sr. was reaching for a weapon, Rose drew his service
revolver and ordered Osborne Sr. to remove his hand. It is undisputed
that Rose fired his weapon three times and struck Osborne Sr. once
in the abdomen, but the parties disagree about why he began to shoot.
Rose alleges that Osborne Sr. returned to his car, withdrew a rifle, and
pointed it at Rose; Rose claims that he fired only after Osborne Sr.
refused to drop the rifle. The Osbornes deny these allegations and
insist that Rose shot at them after both Osbornes began to move back
toward their car, approximately twenty feet away. The Osbornes fled
the scene and drove back to the home of Osborne Sr.'s parents,
located elsewhere on the farm. Rose radioed for assistance; other war-
dens arrived on the scene and took the Osbornes into custody.

Later that same day, Rose swore out a criminal complaint. The
complaint alleged that Osborne Jr. hunted from the automobile and
Osborne Sr. pointed a rifle at him. On the basis of Rose's complaint,

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a magistrate issued criminal warrants charging both Osbornes with
felonies of attempted murder and attempted abduction; Osborne Sr.
was charged with the additional felony of using a firearm in an
attempted murder. Both Osbornes were also charged with a misde-
meanor of failure to obey a conservator of the peace, later amended
to charges of impeding a game warden in the discharge of his duties.
The Osbornes were arrested pursuant to these warrants and released
on bail.

At a preliminary hearing on January 10, 1995, the prosecutor
elected to dismiss the misdemeanor charges and proceed only on the
felonies. The judge found no probable cause supported the felony
charges. A grand jury later indicted both Osbornes with impeding a
game warden and Osborne Sr. with brandishing a firearm.

At the Osbornes' criminal trial, an eyewitness, Charlie Glenn,
denied that Osborne Sr. ever pointed a rifle at Rose. A ballistics
expert testified that, based on the bullet marks in Osborne Sr.'s cloth-
ing, he could not have been holding a rifle when he was shot. A jury
convicted Osborne Sr. of impeding a game warden but acquitted the
Osbornes of all other charges.

Both Osbornes filed complaints against Rose alleging federal civil
rights violations and pendent state claims of assault and battery. Rose
sought summary judgment on the basis of qualified immunity and
other grounds not relevant here. The district court consolidated the
cases, dismissed Osborne Jr.'s battery claim, but otherwise denied
Rose's motions for summary judgment. Rose brings this interlocutory
appeal to challenge the denial of qualified immunity.

II.

Initially, we must determine our jurisdiction over this appeal. Ordi-
narily, a defendant may immediately appeal the denial of a qualified
immunity defense. Behrens v. Pelletier, 116 S. Ct. 834, 839 (1996);
Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). In Johnson v.
Jones, however, the Supreme Court held "that a defendant, entitled to
invoke a qualified-immunity defense, may not appeal a district court's
summary judgment order insofar as that order determines whether or

                     4
not the pretrial record sets forth a `genuine' issue of fact for trial."
115 S. Ct. 2151, 2159 (1995).

With these principles in mind, we examine our jurisdiction over
Rose's appeal. With respect to the Osbornes' malicious prosecution
claims, Rose challenges the district court's holding that a constitu-
tional right to be free from malicious prosecution was clearly estab-
lished. An appeal on this basis implicates precisely the sort of pure
legal question that Mitchell and its progeny found appropriate for
interlocutory review. Thus, we may consider the merits of Rose's
appeal from the district court's order denying qualified immunity on
these claims. Mitchell, 472 U.S. at 530; Winfield v. Bass, 106 F.3d
525, 529 (4th Cir. 1997) (en banc).

With respect to the excessive force claims, Rose does not raise an
abstract legal question. Instead, he challenges the district court's hold-
ing that a genuine dispute existed over whether Rose's use of deadly
force was reasonable. Qualified immunity protects an officer who
uses deadly force where a reasonable officer could believe that a "sus-
pect poses a threat of serious physical harm, either to the officer or
to others." Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Rose claims that he fired his weapon in self-defense. At the
Osbornes' preliminary hearing and criminal trial, Rose testified that
he fired his gun after Osborne Sr. took a rifle from his car and aimed
it at Rose.

The Osbornes deny that Osborne Sr. ever pointed a rifle at Rose
and rely on several facts in support of their position. Charlie Glenn,
who witnessed the confrontation, testified at the criminal trial that he
never saw Osborne Sr. point anything at Rose. Gerald Styers, a ballis-
tics expert, testified that he had examined the bullet marks in Osborne
Sr.'s clothing and concluded that Osborne Sr. was not holding a rifle
at the time he was shot. The outcome of the criminal proceedings
against the Osbornes lends additional credence to their version of the
events. A judge dismissed the more serious charges against the
Osbornes, including the charge that Osborne Sr. used a firearm in an
attempted murder, and the jury at the Osbornes' criminal trial later
acquitted Osborne Sr. of brandishing a firearm.

                      5
To determine whether Rose is entitled to qualified immunity on the
Osbornes' excessive force claims, we would have to resolve a genu-
ine dispute of material fact. This we cannot do. We thus dismiss this
portion of the appeal.

III.

We now turn to the merits of Rose's appeal from the denial of
qualified immunity on the Osbornes' malicious prosecution claims.
The district court held, and the Osbornes argue, that Rose violated the
Osbornes' constitutional right to be free from malicious prosecution.
We believe that, at the time of the events in this case, real doubt
existed over whether this traditional common law tort rose to the level
of a constitutional violation. As a result, Rose is entitled to qualified
immunity on the Osbornes' malicious prosecution claims.

Qualified immunity protects a public official in the discharge of his
duties except where a reasonable official would know that an action
violated clearly established constitutional rights. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Torchinsky v. Siwinski, 942
F.2d 257, 261 (4th Cir. 1991). Government officers, therefore, do not
lose the shield of qualified immunity merely because their actions
might transgress a common law duty. Anderson v. Creighton, 483
U.S. 635, 646 (1987). To interpret whether a right is "clearly estab-
lished" by reference to state tort law would undermine qualified
immunity and convert Section 1983 into "a font of tort law to be
superimposed upon whatever systems may already be administered by
the states." Paul v. Davis, 424 U.S. 693, 701 (1976). Rather, as the
Supreme Court just recently emphasized, "civil liability under § 1983
. . . may be imposed for deprivation of a constitutional right if, but
only if, `in the light of pre-existing law the unlawfulness [under the
Constitution is] apparent.'" United States v. Lanier, 117 S. Ct. 1219,
1228 (1997) (quoting Anderson, 483 U.S. at 640) (modifications in
original).

Many states, including Virginia, recognize the tort of malicious
prosecution. See, e.g., Cuthrell v. Zayre of Va., Inc., 201 S.E.2d 779
(1974) (per curiam). The tort originated at common law and "per-
mit[ted] damages for confinement imposed pursuant to legal process."
Heck v. Humphrey, 512 U.S. 477, 484 (1994). In general, to state a

                     6
claim of malicious prosecution, a plaintiff must show (1) the initiation
or maintenance of a proceeding against the plaintiff by the defendant;
(2) termination of that proceeding favorable to the plaintiff; (3) lack
of probable cause to support that proceeding; and (4) the defendant's
malice. See W. Page Keeton et al., Prosser and Keeton on the Law
of Torts § 119, at 871 (5th ed. 1984).

The Osbornes maintain that Rose violated their constitutional right
to be free from malicious prosecution when Rose swore out an alleg-
edly perjurious affidavit in support of their criminal warrants and
thereby initiated criminal proceedings against them. Rose may have
committed a state tort, but his actions did not violate the Osbornes'
clearly established constitutional rights. Shortly before these events,
the Supreme Court had considered and rejected a Section 1983 claim
of malicious prosecution grounded in the substantive due process
guarantees of the Fourteenth Amendment. Albright v. Oliver, 510
U.S. 266, 275 (1994). While the Court divided on its reasoning, seven
justices clearly held that the plaintiff in Albright could not maintain
his claim for malicious prosecution. See id. at 275 (plurality opinion);
id. (Scalia, J., concurring); id. at 281 (Ginsburg, J., concurring); id.
at 283 (Kennedy, J., concurring in judgment and joined by Thomas,
J.); id. at 291 (Souter, J., concurring in judgment). Prior to Albright,
this circuit had recognized a constitutional right to be free from mali-
cious prosecution, Goodwin v. Metts, 885 F.2d 157 (4th Cir. 1989),
but we later recognized that Albright largely overruled Goodwin inso-
far as it grounded this right in "a liberty interest in avoiding prosecu-
tion on less than probable cause." Taylor v. Waters, 81 F.3d 429, 436
n.5 (4th Cir. 1996). Indeed, the several opinions in Albright threw into
question whether there was any constitutional basis for a malicious
prosecution claim and "add[ ] up to a fairly strong sentiment against
constitutionalizing malicious prosecution." 1A Martin A. Schwartz,
Section 1983 Litigation § 3.20, at 322 (3d ed. 1997).

The Osbornes accept that Albright foreclosed malicious prosecu-
tion claims based on the Fourteenth Amendment but contend that
Albright recognized such claims brought under the Fourth Amend-
ment. It is true that Albright left open this question, and, prior to
November 1994, some courts read Albright in conjunction with earlier
Supreme Court cases to permit malicious prosecution claims under
the Fourth Amendment. See, e.g., Kelly v. Curtis, 21 F.3d 1544 (11th

                    7
Cir. 1994) (relying on Malley v. Briggs, 475 U.S. 335 (1986)). We do
not believe, however, that the mere possibility that such claims might
survive after Albright demonstrates that a constitutional right had
reached the status of being clearly established. The plurality opinion
offered "no view as to whether petitioner's claim would succeed
under the Fourth Amendment." Albright, 510 U.S. at 275. As the
Tenth Circuit noted:

          As many courts have observed, in many ways Albright mud-
          died the waters rather than clarified them. Albright's discus-
          sion about the Fourth Amendment governing pretrial
          deprivations of liberty is dicta, inasmuch as Mr. Albright
          never alleged a Fourth Amendment violation. Thus, the
          Supreme Court specifically avoided deciding whether a
          Fourth Amendment malicious prosecution claim would suc-
          ceed.

Taylor v. Meacham, 82 F.3d 1556, 1561 n.5 (10th Cir. 1996), cert.
denied, 117 S. Ct. 186 (1996); see also Johnson v. Louisiana Dep't
of Agric., 18 F.3d 318, 320 (5th Cir. 1994) ("Significantly, the
[Albright] Court expressed no view whether [a malicious prosecution
claim] would succeed under the Fourth Amendment."). In light of
Albright's explicit reservation of this question, it cannot be read to
establish clearly a Fourth Amendment right to be free from malicious
prosecution.

Nor do we believe that this circuit's case law since Albright dem-
onstrates that such a right was clearly established. In July 1994, this
circuit found no Fourth Amendment violation in a case where a
defendant submitted an allegedly perjurious affidavit in support of an
arrest warrant. Wilkes v. Young, 28 F.3d 1362, 1364 (4th Cir. 1994).
Because the purportedly perjurious statements were not necessary to
the finding of probable cause, Wilkes declined to find any liability for
the arrest. Id. at 1365. Wilkes, therefore, cannot be read to restore
malicious prosecution claims to constitutional status. The Osbornes
point to this circuit's opinion in Brooks v. City of Winston-Salem, 85
F.3d 178 (4th Cir. 1996), in support of their position. Brooks recog-
nized that under some circumstances the Fourth Amendment includes
a right to be free from malicious prosecution. Id. at 183-84; see also
Riley v. Dorton, 115 F.3d 1159, 1162 (4th Cir.) (en banc), cert.

                    8
denied, 1997 WL 644679 (U.S. Dec. 15, 1997). But Brooks and Riley
postdate the events in this case and, therefore, cannot demonstrate that
a constitutional right was clearly established at the time of Rose's
actions in November 1994.

"Section 1983 imposes liability for violations of rights protected by
the Constitution, not for violations of duties of care arising out of tort
law. Remedy for the latter type of injury must be sought in state court
under traditional tort-law principles." Baker v. McCollan, 443 U.S.
137, 146 (1979). Rose indeed may have committed the common law
tort of malicious prosecution. The Osbornes have not advanced this
claim, and we offer no opinion on whether it would succeed. We do
conclude, however, that, in the wake of Albright , substantial doubt
existed over whether to give this ordinary state tort constitutional dig-
nity. See Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256
(1st Cir. 1996) ("The law is settled that a garden-variety claim of
malicious prosecution garbed in the regalia of § 1983 must fail."). As
a result, in November 1994, a reasonable officer could not have
known that Rose's actions violated the Osbornes' constitutional
rights. Lanier, 117 S. Ct. at 1228. Thus, Rose is entitled to qualified
immunity on the Osbornes' malicious prosecution claims.*

IV.

In summary, we dismiss for want of jurisdiction the appeal from
the denial of qualified immunity on the excessive force claims. We
reverse that portion of the district court's order denying Rose quali-
fied immunity on the Osbornes' malicious prosecution and false arrest
_________________________________________________________________

*In denying Rose qualified immunity, the district court held that the
Osbornes stated independent claims for false arrest and malicious prose-
cution and that both sets of claims may go to trial. We have reviewed the
record and the pleadings and conclude that the Osbornes' false arrest
claims merely repeat their malicious prosecution claims. On appeal, the
Osbornes argue that they pled independent false arrest claims based on
their detention before a magistrate issued the criminal warrants. But the
Osbornes based their claims on an arrest pursuant to a warrant, and we
are loathe to allow them to construct a new theory on appeal. Thus, we
also reverse the district court's order insofar as it would allow any false
arrest claims to go to trial.

                     9
claims. The malicious prosecution and false arrest claims must now
be dismissed, and the excessive force claims may proceed to trial.

DISMISSED IN PART, REVERSED IN PART, AND REMANDED

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