     Case: 13-50594      Document: 00512604396         Page: 1    Date Filed: 04/22/2014




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

                                                                          FILED
                                                                        April 22, 2014
                                      No. 13-50594
                                                                       Lyle W. Cayce
                                                                            Clerk
REGINALD JOHNSON; CALVIN MCLEAN; PETER MOTTLEY; JEFFREY
WALTERS; CHRISTOPHER DOLES,

                                                 Plaintiffs - Appellees
v.

COMMANDER MARK NORCROSS; SERGEANT PATRICK SWANTON,

                                                 Defendants - Appellants


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:11-CV-212


Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellants, Commander Mark Norcross and Sergeant Patrick Swanton,
are defendants in a civil rights case related to the arrests of Appellees,
Reginald Johnson, Calvin McLean, Peter Mottley, Jeffrey Walters, and
Christopher Doles.
I.     BACKGROUND
       Appellees, Reginald Johnson, Calvin McLean, Peter Mottley, Jeffrey
Walters, and Christopher Doles, were employed as police officers by the Waco



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-50594
Police Department (“WPD”) and as security guards by the Waco Housing
Authority (“WHA”). In 2009 Appellees were arrested for misreporting their
hours at the WHA. A grand jury failed to indict any of the appellees. Appellees
filed a lawsuit pursuant to 42 U.S.C. § 1983 alleging that their Fourth and
Fourteenth Amendment rights were violated when they were arrested without
probable cause.
      Appellees accused Appellants of making false statements and omitting
material facts from their affidavits which Appellants submitted to obtain
arrest warrants for Appellees. The affidavits accused Appellees of violating
various sections of Texas Penal Code § 37.10 which states in part:
      (a) A person commits an offense if he:
            (1) knowingly makes a false entry in, or false alteration of, a
            governmental record;
            (2) makes, presents, or uses any record, document, or thing
            with knowledge of its falsity and with intent that it be taken
            as a genuine governmental record;
            (3) intentionally destroys, conceals, removes, or otherwise
            impairs the verity, legibility, or availability of a
            governmental record;
            (4) possesses, sells, or offers to sell a governmental record or
            a blank governmental record form with intent that it be used
            unlawfully;
            (5) makes, presents, or uses a governmental record with
            knowledge of its falsity; or
            (6) possesses, sells, or offers to sell a governmental record or
            a blank governmental record form with knowledge that it
            was obtained unlawfully.
      ...
      (c)(1) Except as provided by Subdivisions (2), (3), and (4) and by
      Subsection (d), an offense under this section is a Class A
      misdemeanor unless the actor’s intent is to defraud or harm
      another, in which event the offense is a state jail felony.
      Norcross submitted affidavits in support of arrest warrants for Doles and
Mottley, and Swanton submitted affidavits in support of warrants for McLean,

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Johnson, and Walters.      In the district court, Appellants filed motions for
summary judgment based on qualified immunity. The district court denied
Appellants’ motions, and Appellants filed this interlocutory appeal.
II.     DISCUSSION
A.      Standard of Review:
        We are reviewing the district court’s denial of Appellants’ motions for
summary judgment based on qualified immunity. “The denial of a motion for
summary judgment is ordinarily a non-final, non-appealable order; however,
when such a motion is based upon qualified immunity, its denial is a collateral
order that is immediately reviewable to the extent the denial was based on an
issue of law.” Ramirez v. Martinez, 716 F.3d 369, 373 (5th Cir. 2013). Our
review is constrained in the present context.
        When reviewing an interlocutory appeal asserting qualified
        immunity, we lack the jurisdiction to review the district court’s
        decision that a genuine issue of fact exists. Instead, this court’s
        jurisdiction is limited to determining whether the district court
        erred in assessing the legal significance of the conduct that the
        district court deemed sufficiently supported for purposes of
        summary judgment.
Id. (internal quotation marks and citations omitted).            Therefore, we will
consider whether the genuine issues of material fact identified by the district
court preclude summary judgment for Appellants.
B.      Appellees’ Claims
        Appellees alleged they were falsely arrested in violation of their
constitutional rights. “To ultimately prevail on [their] section 1983 false arrest
. . . claim[s], [Appellees] must show that [Appellants] did not have probable
cause to arrest [them].” Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir.
2004). “Where an arrest is made under authority of a properly issued warrant,
the arrest is simply not a false arrest.” Smith v. Gonzales, 670 F.2d 522, 526
(5th    Cir.   1982).    But   we    have    recognized   that    both   intentional
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                                   No. 13-50594
misrepresentations in warrant applications and material omissions from the
same may give rise to Fourth Amendment claims. Kohler v. Englade, 470 F.3d
1104, 1113-14 (5th Cir. 2006).
         Appellees accused Appellants of including false information in their
warrant affidavits and omitting exculpatory information. Importantly, the
district court denied Appellants’ motions for summary judgment because it
found there were fact issues on whether Appellants knowingly omitted
exculpatory information from their affidavits. The district court did not find
there were fact issues on whether Appellants intentionally included
misrepresentations in their affidavits. Therefore, in this appeal, our review is
strictly limited to the significance of the omissions identified by the district
court.
         In the present context, Appellees must demonstrate: (1) that Appellants
knowingly or recklessly omitted exculpatory information from the affidavits
they submitted in support of the warrant applications and (2) that “the
warrant would [not have] establish[ed] probable cause” if the omitted
information had been included in the affidavits. Freeman v. Cnty. of Bexar,
210 F.3d 550, 553 (5th Cir. 2000) (citing Franks v. Delaware, 438 U.S. 154, 171
(1978)). Because the district court found that there were fact issues on whether
Appellants knowingly omitted the purportedly exculpatory information, we
will assume that Appellants knowingly omitted the information and focus on
the second prong of the analysis.
         Turning to the second prong, viewing the evidence in the light most
favorable to Appellees, the district court identified two potentially exculpatory
facts which were omitted: “(1) the WHA did not require the timesheets to be
completed with exact specificity; and (2) the Waco Police Department
permitted lax record-keeping.”      Therefore, we will resolve those fact issues
identified by the district court in favor of Appellees and will determine whether
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                                    No. 13-50594
a warrant supported by affidavits that included the omitted information would
have established probable cause.
C.    Probable Cause for What Crime?
      Appellees argue that in order for their arrests to be valid, there had to
be probable cause for the exact crime charged in the warrant.                 The four
Appellees who were charged with felony violations of § 37.10 argue that there
had to be probable cause that they had committed felony violations of § 37.10.
They argue that the related offense doctrine 1 only applies to warrantless
arrests and does not apply to arrest warrants.
      Appellants assert that the authorities cited by Appellees do not stand for
the proposition that the related offense doctrine only applies to warrantless
arrests. Furthermore, they argue that this is not a related offense case.
      In this case we are not considering charged and uncharged offenses.
Appellees were charged with violating § 37.10 of the Texas Penal Code. A basic
violation of that section is a misdemeanor, and misdemeanor arrest warrants
are issued in Texas. See Gordon v. State, 801 S.W.2d 899, 915 (Tex. Crim. App.
1990). The fact that four of the appellees were additionally charged with the
culpable intent which converts a § 37.10 violation into a felony does not change
the reality that they were still charged with misdemeanor violations of that
section, albeit as lesser-included offenses.          Therefore, the arrests were


      1  In Vance v. Nunnery, 137 F.3d 270, 274 (5th Cir. 1998), we explained the related
offense doctrine:
             [A] police officer may not obtain qualified immunity for an
             unconstitutional warrantless arrest by claiming that he could
             have arrested the plaintiff for another offense unless two
             conditions are satisfied. First, the charged and uncharged
             offenses must be “related.” Second, the arresting officer must
             demonstrate that there was arguable probable cause to arrest
             the plaintiff for the uncharged related offense.
But in Devenpeck v. Alford, 543 U.S. 146, 152-155 (2004), the Supreme Court rejected the
requirement that an uncharged offense had to be “closely related” to the charged offense.
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                                 No. 13-50594
constitutional if there was probable cause that Appellees had committed
misdemeanor violations of the statute in filling out their WHA timesheets.
D.    The Law of Qualified Immunity
      Appellants assert qualified immunity. Importantly, Appellees bear the
burden of demonstrating that Appellants are not entitled to qualified
immunity. Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997). “This court
applies a two-step analysis to determine whether a defendant is entitled to
summary judgment on the basis of qualified immunity. First, we determine
whether, viewing the summary judgment evidence in the light most favorable
to the plaintiff, the defendant violated the plaintiff’s constitutional rights.”
Freeman v. Gore, 483 F.3d 404, 410-11 (5th Cir. 2007). If the evidence viewed
in the light most favorable to Appellees demonstrates that a constitutional
violation occurred, “we next consider whether the defendant’s actions were
objectively unreasonable in light of clearly established law at the time of the
conduct in question.” Id. at 411.
E.    Whether Appellants Are Entitled to Qualified Immunity
      We first consider whether warrants, which were based on affidavits
which included the omitted information identified by the district court, would
have established probable cause that each of the appellees committed a
misdemeanor violation of § 37.10.     We will reach the issue of whether a
reasonable officer could have thought there was probable cause only if we
decide that there was no probable cause.
      Appellant Norcross submitted affidavits supporting the arrest warrants
for Doles and Mottley. Appellant Swanton submitted affidavits supporting the
arrest warrants for McLean, Walters and Johnson. Doles reported working
multiple shifts at the WHA at times when he was actually out of state. In total,
Doles’s WHA timesheets and other evidence showed over three hundred hours
of overlap or double-billing. Mottley reported working several days at the
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                                    No. 13-50594
WHA when he was actually out of town for training. In total, Mottley’s WHA
timesheets and other evidence showed over one hundred thirty hours of overlap
or double-billing. McLean’s WHA timesheets and other evidence showed over
one hundred fifty hours of overlap time or double-billing. Walters’s WHA
timesheets and other evidence showed approximately a dozen hours of overlap
or double-billing. Furthermore, there was evidence that Walters had spent
dozens of hours golfing at times when his WPD timesheets indicated he was on
duty. Johnson’s WHA timesheets and other evidence showed approximately
sixty hours of overlap or double-billing.
      Appellees assert that there was no probable cause because Appellants
omitted information from the affidavits which was relevant to a potential
defense. Specifically, Appellees argue that a § 37.10(f) defense was relevant to
the probable cause inquiries.         That section states:       “It is a defense to
prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false
information could have no effect on the government’s purpose for requiring the
governmental record.” TEX. PENAL CODE § 37.10(f). 2 Appellees argue that if
the summary judgment evidence is viewed in the light most favorable to them,
it demonstrates that “the purpose of the WHA timesheets was to ensure that
each security officer worked 50 hours per [month] at his assigned WHA
property.” Accepting this as true, affidavits, which included the information
that the WHA did not require exact specificity in its timesheets and the WPD
permitted lax record-keeping, would have provided little support for the
proposition that the errors in the WHA timesheets could have no effect on
ensuring each officer worked his required hours.



      2  Texas law distinguishes between “defenses” and “affirmative defenses.” See TEX.
PENAL CODE §§ 2.03 and 2.04. Because Section 37.10(f) begins with the language “[i]t is a
defense to prosecution,” it is a “defense.”

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                                  No. 13-50594
        If Appellants were not required to consider facts which may have
supported a defense in their probable cause analyses, warrants supported by
properly constructed affidavits would have established probable cause that
Appellees committed misdemeanor violations of § 37.10 in filling out their
WHA timesheets based on the discrepancies between those timesheets and the
other evidence addressed in the affidavits. But even assuming that Appellants
were required to consider facts which were potentially relevant to defenses in
their probable cause analyses, we are satisfied that a potential § 37.10(f)
defense did not vitiate probable cause in this case. Therefore, we offer no
opinion “whether, as a general principle, facts supporting the existence of a[]
. . . defense are relevant to the determination of probable cause.” Piazza v.
Mayne, 217 F.3d 239, 247 (5th Cir. 2000). Furthermore, we hold that the
district court erred in finding that the omissions it identified precluded
summary judgment for Appellants on Appellees’ false arrest claims and
reverse the district court’s holding to the contrary.
III.    CONCLUSION
        We reviewed the omitted information which was identified by the district
court and hold that even if Appellants had included the omitted information in
the affidavits, the warrants supported by those affidavits would have
established probable cause to arrest Appellees for misdemeanor violations of
Texas Penal Code § 37.10. Because the omissions identified by the district
court do not preclude summary judgment for Appellants on the false arrest
claims, we reverse the district court’s holding to the contrary and remand this
case to the district court.
REVERSED and REMANDED.




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