By Bryan R. Lemons, Branch Chief, Legal Division, Federal Law Enforcement Training Center, Glynco, Georgia
“Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause” and “great deference” is to be given to magistrate’s determination of the matter.1 However, a plaintiff may challenge the presumption of validity afforded a warrant where the issuing judge was misled by information contained in the affidavit that the affiant either (1) knew was false or (2) would have known was false had he not recklessly disregarded the truth. The purpose of this column is to discuss the liability that a law enforcement officer may incur in such situations under 42 U.S.C. 1983, which is one of the primary federal statutes under which lawsuits are filed against state and local law enforcement officers.2
When a law enforcement officer is sued under section 1983, the officer is entitled to claim qualified immunity. Qualified immunity entitles an officer “not to stand trial or face the other burdens of litigation.”3 The doctrine is designed to protect “all but the plainly incompetent or those who knowingly violate the law.”4 “The rationale behind qualified immunity for police officers is two-fold—to permit officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages and to allow the public to recover damages where officers unreasonably invade or violate” a person’s constitutional or federal legal rights.5 Stated differently, where law enforcement officers reasonably, albeit mistakenly, violate a person’s constitutional rights, those “officials—like other officials who act in ways they reasonably believe to be lawful—should not be held personally liable.”6
In deciding whether to grant an officer qualified immunity, courts use a two-part analysis. First, the court must determine whether a constitutional violation occurred; if no violation has occurred, that ends the inquiry.7 If a constitutional violation can be established, the court must then decide whether the right was “clearly established” at the time of the violation. In addressing what is meant by the term “clearly established” for purposes of qualified immunity, the Supreme Court requires that “the contours of the right… be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”8 This does not mean the that “the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Although courts differ, a right is generally considered to be “clearly established” for qualified immunity purposes where the law “has been authoritatively decided by the Supreme Court, the appropriate United States Court of Appeals, or the highest court of the state in which the action arose.”9
Liability for False Affidavits
Before a search or arrest warrant is issued, the Fourth Amendment requires a truthful factual showing in the affidavit used to establish probable cause.10 Because “the Constitution prohibits an officer from making perjurious or recklessly false statements in support of a warrant,”11 a complaint that an officer knowingly filed a false affidavit to secure a search or arrest warrant states a claim under section 1983.12 Further, “where an officer knows, or has reason to know, that he has materially misled a magistrate on the basis for a finding of probable cause . . . the shield of qualified immunity is lost.”13
A plaintiff in a section 1983 action who alleges misrepresentations or omissions in the affidavit of probable cause “must satisfy the two-part test developed in Franks v. Delaware.” The first part of the test requires a plaintiff to show “that the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant.” The second part of the test requires the plaintiff to show that the false statements or omissions were “material, or necessary, to the finding of probable cause.”14 A closer examination of this two-part test makes it clear that, in order to obtain a hearing under Franks, a plaintiff must make a “substantial preliminary showing” of three separate facts.15
First, the plaintiff must make a showing that the warrant affidavit includes false information.16 In addition to a false statement in the affidavit, “a material omission of information may also trigger a Franks hearing,”17 because “by reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw.”18
After showing that a false statement or material omission was made, the plaintiff must next show that the false statement or omission was made either (1) knowingly and intentionally or (2) with reckless disregard for the truth. “Knowingly and intentionally” requires a separate analysis for false statements as opposed to omissions. With regards to false statements, the Supreme Court does not require that all statements in an affidavit be completely accurate. Instead, the Court simply requires that the statements be “believed or appropriately accepted by the affiant as true.”19 “The fact that a third party lied to the affiant, who in turn included the lies in a warrant affidavit does not constitute a Franks violation. A Franks violation occurs only if the affiant knew the third party was lying, or if the affiant proceeded in reckless disregard of the truth.”20 Accordingly, “misstatements resulting from negligence or good faith mistakes will not invalidate an affidavit which on its face establishes probable cause.”21 With regard to omissions, the plaintiff “must show that the facts were omitted with the intent . . . to make the affidavit misleading.”22 As with false statements, “negligent omissions will not undermine the affidavit.”23. Like “knowingly and intentionally,” the phrase “‘reckless disregard for the truth’ means different things when dealing with omissions and assertions.”24 Assertions are made with “reckless disregard for the truth” when, “viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.”25 Omissions, on the other hand, are made with “reckless disregard for the truth” when a law enforcement officer omits facts that “any reasonable person would have known the judge would wish to have brought to his attention.”26
Finally, the plaintiff must show that the false statements or omissions were “material” to a finding of probable cause. “Disputed issues are not material if, after crossing out any allegedly false information and supplying any omitted facts, the ‘corrected affidavit’ would have supported a finding of probable cause.”27 Thus, “even if [there is] a showing of deliberate falsity or reckless disregard for the truth by law enforcement officers, [there is no entitlement] to a hearing if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause.”28
Law Enforcement Officer Liability
State and local law enforcement officers may be sued for violating a person’s Fourth Amendment rights under section 1983. When such suits are brought, officers may be entitled to qualified immunity in situations where a valid search or arrest warrant existed. However, qualified immunity will not be granted in those cases where the judge issuing the warrant was misled by information contained in the affidavit that the affiant either (1) knew was false or (2) would have known was false had he not recklessly disregarded the truth.
1 United States v. Leon, 468 U.S. 897, 914 (1984).
2 Section 1983 of title 42 of the U.S. Code provides as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress. For the purposes of this section, any act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
3 Saucier v. Katz, 533 U.S. 194, 200 (2001).
4 Malley v. Briggs, 475 U.S. 335, 341 (1986).
5 Green v. City of Paterson, 971 F. Supp. 891, 901 (D.N.J. 1997); see also Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995) (qualified immunity “serves to protect police from liability and suit when they are required to make on-the-spot judgments in tense circumstances”).
6 Anderson v. Creighton, 483 U.S. 635, 641 (1987).
7 Saucier, 533 U.S. at 201.
8 Wilson, 526 U.S. at 615.
9 Norwood v. Bain, 166 F.3d 243, 252 (4th Cir.), cert. denied, 527 U.S. 1005 (1999); see also Wilson v. Strong, 156 F.3d 1131, 1135 (11th Cir. 1998); Durham v. Nu’Man, 97 F.3d 862, 866 (6th Cir. 1996).
10 Franks v. Delaware, 438 U.S. 154, 165-66 (1978) (“When the Fourth Amendment demands a factual showing sufficient to compromise ‘probable cause,’ the obvious assumption is that there will be a truthful showing.”).
11 Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994).
12 See United States v. Basham, 286 F.3d 1199, 1204 (10th Cir. 2001) (“It is a violation of the Fourth Amendment for an affiant to knowingly and intentionally, or with reckless disregard for the truth, make a false statement in an affidavit.”), cert. denied, 535 U.S. 945 (2002); Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000).
13 Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992).
14 Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); see also Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994) (“A section 1983 plaintiff challenging a warrant on this basis must make the same showing that is required at a suppression hearing under Franks v. Delaware.”).
15 United States v. Merritt, 361 F.3d 1005, at 11 (7th Cir. 2004).
16 Franks, 438 U.S. at 155.
17 United States v. Castillo, 287 F.3d 21, 25 (1st Cir. 2002).
18 United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985).
19 Franks, 438 U.S. at 165.
20 United States v. Jones, 208 F.3d 603, 607 (7th Cir. 2000).
21 United States v. Hammett, 236 F.3d 1054, 1058 (9th Cir.), cert. denied, 534 U.S. 866 (2001); see also Franks, 438 U.S. at 171 (“Allegations of negligence or innocent mistake are insufficient.”); United States v. Colonna, 360 F.3d 1169, 1174 (10th Cir. 2004)(“However, a misstatement in an affidavit that is merely the result of simple negligence or inadvertence…does not invalidate a warrant.”); United States v. Capozzi, 347 F.3d 327, 332 (1st Cir. 2003) (“Mere negligence or inattention to detail in preparing an affidavit does not deprive the government of the benefits of the Leon exception.”), cert. denied, ___ U.S. ___, 124 S. Ct. 1187 (2004).
22 United States v. Clapp, 46 F.3d 795, 799 (8th Cir. 1995).
23 United States v. McCarty, 36 F.3d 1349, 1356 (5th Cir. 1994).
24 Wilson, 212 F.3d at 787.
25 Clapp, 46 F.3d at 801 n.6.
26 United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993).
27 Velardi, 40 F.3d at 574; see also United States v. Salter, 358 F.3d 1080, 1085 (8th Cir. 2004) (“Police cannot obtain valid search warrants where they knowingly or recklessly provide misinformation to a magistrate who issues a warrant, unless probable cause exists when the affidavit is properly reconstructed with truthful information.”).
28 United States v. Dickey, 102 F.3d 157, 161–162 (5th Cir. 1996); see also United States v. Froman, 355 F.3d 882, 889 (5th Cir. 2004).
Editor’s note: An earlier version of this column appeared in the Maine Law Officer’s Bulletin 37 (July 15, 2003).
This column is prepared monthly by members of IACP's Legal Officers Section. Interested section members should coordinate their contributions with Randy Means at (email@example.com).