                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                      May 10, 2004

                                                        Charles R. Fulbruge III
                           No. 03-60079                         Clerk


                         ANTHONY GLIATTA,

                                               Plaintiff-Appellee,
                              versus


                       TERRY JONES; ET AL.,

                                                        Defendants,

     TERRY JONES, Individually and in his Official Capacity,

                                              Defendant-Appellant.


          Appeal from the United States District Court
            for the Northern District of Mississippi
                        (1:01-CV-253-M-D)


Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Terry Jones’ interlocutory appeal from a summary judgment

denial of qualified immunity against Anthony Gliatta’s Fourth

Amendment claim (arrest without probable cause) includes Gliatta’s

challenge to our jurisdiction.    Because the undisputed material

evidence establishes entitlement to immunity, we have jurisdiction;

VACATE the immunity-denial; and RENDER judgment for Jones in his

individual capacity.


     *
      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this opinion should not be published and is not precedent except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.
                                  I.

     This   interlocutory   appeal       being   from   a   summary      judgment

ruling, we view the facts in the light most favorable to Gliatta,

the non-movant.    E.g., Nerren v. Livingtston Police Dep’t, 86 F.3d

469, 470 (5th Cir. 1996).       On 14 August 1998, Gliatta left the

house he shared with Pamela Reed and their infant son, Brandon, in

Lee County, Mississippi.       Upon his return the next evening (15

August), Reed and Brandon were absent.            According to Gliatta, he

was not concerned because Reed often left for several days at a

time.

     On 17 August, Reed and Brandon were reported missing by Reed’s

cousin; they had last been seen the afternoon of 15 August.                 On 19

August, Lee County Sheriff’s Deputies found Reed’s and Brandon’s

bodies in a local lake and arrested Charles Walters for murder,

based   upon   incriminating   statements        Walters    made   to,    and   as

reported to the Sheriff’s Department by, Walters’ brother.                  While

in custody, Walters gave several statements to the Sheriff’s

Department concerning the murders, one of which detailed how his

friend Gliatta had committed them in Walters’ presence.

     After Reed and Brandon were reported missing, Gliatta had

cooperated with the investigation by the Sheriff’s Department.                  On

19 August, the day the bodies were found and Walters was arrested,

Gliatta took a polygraph examination, which indicated he was not

being truthful when he answered that, inter alia:              Reed was alive


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the last time he saw her; and he did not cause the disappearance of

Reed    and    Brandon.        Based      primarily    on    Walters’     statement

implicating      Gliatta      and   the    results     of    Gliatta’s    polygraph

examination, Jones arrested Gliatta, without a warrant, on 20

August.      Gliatta and Walters were charged with the murders of Reed

and Brandon.

       On 21 August, a justice court judge issued a warrant for

Gliatta’s arrest, conducted an initial appearance, and set bond.

Gliatta did not post bond; he remained in custody for more than

five months until a grand jury indicted only Walters for the

murders.

       Claiming he was arrested without probable cause, in violation

of the Fourth Amendment, Gliatta filed this 42 U.S.C. § 1983 action

against, among others, Jones (individual and official capacities)

and    the    Sheriff’s    Department.          Defendants    moved    for   summary

judgment on the merits; Jones claimed qualified immunity for the

individual capacity claim against him.

       The district court treated this action as raising three

claims:        (1)   arrest    without     probable    cause;    (2)     failure   to

investigate       alibi    witnesses;          and   (3)    evidence     tampering.

Concluding there were genuine issues of material fact, it denied

summary judgment.

                                          II.

       The complaint indicates Gliatta raised several claims; but, at

oral argument here, he stated that he presents only a probable

                                           3
cause claim:   for arrest and continuing detention without probable

cause.   Failure to release Gliatta after probable cause dissipated

(failure to release claim) is a separate claim with legal standards

distinct from one for arrest without probable cause.

     Gliatta did not adequately assert his failure to release claim

until oral argument. (In his appellate brief, he made only passing

reference to continuing detention.       The separate claim was not

adequately briefed.)    Generally, for obvious reasons, we do not

address claims raised in this fashion.    We decline to do so in this

instance.   Likewise, we do not consider Jones’ contention, raised

for the first time on appeal, that he is entitled to qualified

immunity based on the intervening decision of the justice court

judge, after Gliatta had already been arrested, to issue a warrant

for Gliatta’s arrest.

                                 A.

     Although we do not generally have jurisdiction to review the

denial of summary judgment, a denial of qualified immunity in such

a proceeding is immediately appealable if based on an issue of law.

E.g., Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).         Gliatta

maintains we lack jurisdiction because factual issues are in

dispute.    The district court’s concluding there are material fact

issues does not necessarily deprive us of jurisdiction; we review

whether those identified fact issues are material to qualified

immunity.   See, e.g., Evett v. DETNFF, 330 F.3d 681, 686 (5th Cir.


                                  4
2003); Lemoine v. New Horizons Ranch and Center, Inc., 174 F.3d

629, 633-34 (5th Cir. 1999).      We review de novo the district

court’s legal conclusions as to the materiality of the identified

fact issues.   Evett, 330 F.3d at 687 (citing Lemoine, 174 F.3d at

634).

     For the only claim at issue, arrest without probable cause

claim, the only disputed issue of fact identified by the district

court was whether, before Jones arrested Gliatta, an assistant

district attorney advised Jones that probable cause did not exist

to do so.   The existence vel non of probable cause, however, is an

objective inquiry, decided by the courts without regard to the

subjective beliefs of law enforcement officers.    E.g.,   Whren v.

United States, 517 U.S. 806, 813 (1996); Craig v. Singletary, 127

F.3d 1030, 1042 (11th Cir. 1997), cert. denied, 523 U.S. 1031

(1998).   Therefore, Jones’ belief about probable cause as a result

of his conversation with the assistant district attorney is not

material.

     Further, Gliatta does not point to any disputed facts that

would preclude our jurisdiction, nor are any revealed by our

review of the summary judgment record.   Gliatta asserts that Jones

made deliberate attempts to implicate him and urged Walters to make

statements incriminating him; but, no summary judgment evidence

supports such assertions.




                                 5
     The material facts for the arrest without probable cause claim

are not in dispute.        Accordingly, we have jurisdiction over this

interlocutory appeal.

                                        B.

     Law enforcement officers, like other government officials

acting within their discretionary authority, are immune, in their

individual capacity, from civil liability if their conduct does not

violate clearly established rights of which a reasonable person

would have known.      See Harlow v. Fitzgerald, 457 U.S. 800, 815

(1982); Evett, 330 F.3d at 687.          When a defendant claims qualified

immunity,   the   plaintiff       has    the      burden   to     demonstrate   its

inapplicability.      E.g., McClendon v. City of Columbia, 305 F.3d

314, 323 (5th Cir. 2002) (en banc).

     To defeat qualified immunity, a plaintiff must satisfy a well-

established, two-prong test.        First, he must assert the violation

of a clearly established constitutional right; second, he must

demonstrate   that,   at    the   time       of   the   claimed    violation,   the

officer’s conduct was objectively unreasonable in the light of then

clearly established law.          E.g., Morris v. Dillard Dep’t Stores,

Inc., 277 F.3d 743, 753 (5th Cir. 2001) (citing Chiu v. Plano

Indep. Sch. Dist., 260 F.3d 330, 343 (5th Cir. 2001)).

     Concerning the first prong, the right to be free from arrest

without probable cause by a state official is a clearly established

constitutional right secured by the Fourth, through the Fourteenth,


                                         6
Amendment.       E.g., Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir.

1998).    Along this line, “[p]robable cause exists when the facts

available at the time of the arrest would support a reasonable

person’s belief that an offense has been, or is being, committed

and that the individual arrested is the guilty party”.                Blackwell

v. Barton, 34 F.3d 298, 303 (5th Cir. 1994) (emphasis added).

Probable cause is determined on the basis of facts available to the

officer at the time of the arrest and may be supported by the

collective knowledge of law enforcement personnel who communicate

with each other prior to the arrest.                 Evett, 330 F.3d at 688.

Although officers may rely on the totality of facts available to

them for probable cause, “they also may not disregard facts tending

to dissipate probable cause”.       Id. (quoting Bigford v. Taylor, 834

F.2d 1213, 1218 (5th Cir.), cert. denied, 488 U.S. 851 (1988)).

       Because     Gliatta   satisfies       the   first   prong   for    testing

qualified immunity, Jones’ entitlement vel non to such immunity

turns on the second prong — whether his conduct was objectively

unreasonable in the light of then clearly established law.                     The

reasonableness standard for qualified immunity differs from that

for probable cause.      Evett, 330 F.3d at 688 (quoting Wren v. Towe,

130 F.3d 1154, 1160 (5th Cir. 1997)).              For qualified immunity, the

test     is   “whether   a   reasonably        competent    officer      in   [the

defendant’s] position could reasonably have thought his actions to



                                         7
be consistent with the rights he is alleged to have violated”.                    Id.

(emphasis added).

     Therefore, if an officer has arguable probable cause to

arrest, he is entitled to qualified immunity. Brown v. Lyford, 243

F.3d 185, 190 (5th Cir. 2001). In sum, “[a]n officer’s entitlement

to qualified immunity based on probable cause is difficult for a

plaintiff to disturb”.       Morris, 277 F.3d at 753 (citing Brown, 243

F.3d at 190, n.7).

                                      1.

     Gliatta was arrested at 4:00 p.m. on 20 August.                By that time,

Walters had made several statements to the Sheriff’s Department.

In the first, made very early that day (12:50 a.m.):                        Walters

admitted visiting Reed and Brandon at Reed’s home on 15 August and

leaving around 2:00 or 2:30 p.m.; he next remembered waking up at

a lake and finding Reed’s and Brandon’s floating bodies, before

going to his sister’s house and telling her and his brother-in-law

that he had just killed Reed and Brandon.            (Almost two years later,

concerning   this    20    August   early       morning    time    period,    Jones

described a meeting with Walters then, during which Walters had

told Jones that he had “killed the woman and the baby and ...

wanted to go straight to prison and die”.                 Gliatta suggests that

Jones attempted to conceal this statement from other Deputies; but,

even if   true,     such   concealment     is    irrelevant       because    we   are




                                      8
examining probable cause based on information known to Jones at the

time of Gliatta’s arrest much later that day.)

     Walters gave another statement at 10:40 a.m. on 20 August:         he

had taken Gliatta to a pay telephone on 16 August (the day after

Reed was last seen alive) to call a woman (Criddle); and Gliatta

had told her to come to his house, “the Bitch [Reed] would not be

back”.

     Walters gave his most detailed statement at 2:50 p.m. on 20

August:   he went to Reed and Gliatta’s house on 15 August to meet

Gliatta; he left in Gliatta’s truck with Gliatta, Reed, and Brandon

and drove to the lake; during the drive, Reed and Gliatta were

arguing   about   Criddle   (according   to   Walters’   above   described

earlier statement, Criddle was the woman Gliatta telephoned the

next day (16 August)); Gliatta stopped the truck at the lake and

everyone exited; Walters observed a baseball bat in the back of the

truck, heard Gliatta and Reed arguing, and then heard a “clinging

noise”, followed by Reed saying “Oh, Anthony”; Walters turned to

see Gliatta with the bat in his hand and Reed on the ground, before

seeing Gliatta throw Brandon into the lake; Walters saw Reed’s body

in the lake before he drove away; and, the next day, when he

returned to the lake to “see if it [had] really happened”, he again

saw Reed’s and Brandon’s bodies in the lake.

     Gliatta claims Walters’ last statement implicating Gliatta

cannot support probable cause because it is incredible on its face.



                                   9
See, e.g., United States v. Booker, 334 F.3d 406, 410 (5th Cir.

2003) (defendant may be convicted on basis of uncorroborated

testimony    of    co-conspirator,       even    one    who    has   accepted    plea

bargain, unless testimony legally incredible); United States v.

Posada-Rios, 158 F.3d 832, 861 (5th Cir. 1998) (well settled that

uncorroborated      testimony      of    accomplice      sufficient    to    support

conviction unless insubstantial on its face).                  See also Craig, 127

F.3d at 1044 (Eleventh Circuit; uncorroborated testimony of co-

conspirator or accomplice sufficient to support conviction if not

incredible on its face or otherwise insubstantial; by extension,

testimony held sufficient to establish probable cause, id. at

1045).

     According to Gliatta, Walters’ statement implicating him is

incredible    on    its   face     because:          Walters   had   unequivocally

confessed in a previous statement; Walters had confessed to family

members; and Jones should have known the statement was suspicious

because Walters had changed his story several times.                         Walters’

implication of Gliatta is not incredible on its face.                           It is

internally consistent and a detailed account of riding with Gliatta

to the lake, hearing Gliatta hit Reed with a bat, and then seeing

Gliatta throw Brandon into the lake.             Nothing within the statement

suggests that      the    events    could      not   have   happened    as   Walters

described.        Moreover,   the       statement      incriminated    Walters     by

revealing he was at the crime scene, which supports reliability.


                                          10
On    the    other    hand,    Gliatta     is    correct    that    Walters’    earlier

statement claiming sole responsibility for the murders undercuts

the     reliability       of     this     later     statement        about     Gliatta.

Accordingly, we will assume that the later statement was not

sufficient, in itself, to establish the requisite arguable probable

cause.

                                            2.

       Notwithstanding our assumption that Walters’ later statement

is not alone sufficient for the requisite arguable probable cause,

the totality of the facts known to Jones at the time of arrest are.

Most significantly,            Gliatta’s    19    August     polygraph   examination

(before       the    bodies    were     discovered)        indicates   his     possible

involvement.         That examination strongly indicated deception when

Gliatta responded affirmatively that Reed was alive when he last

saw her.        It further indicated deception when Gliatta answered

that:       he had not seen Reed since 14 August (the day before she was

last seen alive); he was not withholding any information concerning

her and Brandon’s disappearance; and he did not cause it.

       Polygraph       examination        results     may      be    considered    for

determining probable cause.             See Bennett v. City of Grand Prairie,

883 F.2d 400, 405-06 (5th Cir. 1989) (holding magistrates may

consider polygraph results when determining whether probable cause

exists for arrest warrant).                Therefore, for qualified immunity




                                            11
purposes, Gliatta’s answers to the polygraph examination support

the requisite arguable probable cause to arrest.

                                 3.

     Additional   evidence   supports   arguable   probable   cause.

Although Gliatta lived with Reed and Brandon, he never reported

them missing.   The missing persons report by Dykes (Reed’s cousin)

stated:   Reed’s automobile, her purse, and Brandon’s clothes and

diaper bag were left at the house; and Gliatta seemed unconcerned

about Reed’s and Brandon’s disappearance.    Accepting as true that

Reed often left home for days at a time, the factual circumstances

surrounding Reed’s absence on this occasion suggest something other

than voluntary departure; and Gliatta’s failure to report it

supports arguable probable cause.

     Further, Gliatta made contradictory statements concerning

whether he and Reed had argued the night of 14 August, the last

time Gliatta claimed to have seen her alive.    Dykes reported that

Gliatta told her that he and Reed had argued, but Gliatta told

Deputies they had not done so.      Because Dykes’ report indicated

Gliatta admitted he had argued with Reed, it was reasonable to

suspect he was lying when he said they had not.       This supports

probable cause.   E.g., United States v. Howard, 991 F.2d 195, 202

(5th Cir.), cert. denied, 510 U.S. 949 (1993) (stating that lies to

police established probable cause to search vehicle).




                                 12
     Lastly, on 19 August, the Sheriff’s Department received a

telephone call from a meter-reader who had been at Gliatta and

Reed’s house on 15 August and had spoken to Reed.             The meter-reader

stated that Reed told him that her boyfriend had left to retrieve

a truck that was stuck in the mud.            This suggests Gliatta was with

Reed during the day of 15 August, thereby giving him an opportunity

to commit the murders and supporting arguable probable cause for

his arrest.

     Gliatta contests probable cause by claiming the evidence

relied upon by Jones was speculative and by supplying explanations

for it, including: Gliatta did not report Reed missing because she

frequently left home for days at a time; Gliatta cooperated with

the Sheriff’s Department and showed his concern for Reed’s and

Brandon’s     whereabouts       during    the   investigation;      and   Reed’s

statement to the meter-reader about Gliatta only being temporarily

absent could have been made because she was afraid to be alone with

the meter-reader.         Probable cause vel non is based on the totality

of the circumstances, see Glenn v. City of Tyler, 242 F.3d 307, 313

(5th Cir. 2001); Gliatta’s contentions that there are innocent

explanations       for    the   suspicious    circumstances    of   Reed’s   and

Brandon’s disappearance do not negate arguable probable cause.

     In     sum,    the     totality     of   the   circumstances     (Walters’

statements; Gliatta’s polygraph examination; his failure to report

Reed and Brandon missing; his inconsistent statements about whether


                                         13
he had argued with Reed on the last night he claimed he saw her;

and   the   meter-reader’s     statement)     establish      that       it    was   not

objectively    unreasonable     for   Jones       to   believe    probable      cause

existed to     arrest   Gliatta.      Even     “if     officers    of    reasonable

competence could disagree on [probable cause], immunity should be

recognized”.       Hart v. O’Brien, 127 F.3d 424, 445 (5th Cir. 1997)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).                    Therefore,

Jones is entitled to qualified immunity against the arrest without

probable cause claim.

                                      III.

      For the foregoing reasons, the denial of qualified immunity

for   Jones   is    VACATED;   judgment      is   RENDERED       for    him   in    his

individual capacity.

                                                       VACATED and RENDERED




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