Schambach v. Mandeville City

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FRANK SCHAMBACH, ET AL. CIVIL ACTION

VERSUS CASE NO. 20-214

CITY OF MANDEVILLE, ET AL. SECTION: "G"

ORDER AND REASONS

This Order and Reasons assumes familiarity with prior proceedings in this civil rights

wrongful arrest litigation pursued by Frank and Aurora Schambach (“Plaintiffs”) against various

public entities and officials with the City of Mandeville. On November 3, 2021, the Court granted

in relevant part a motion for summary judgment filed by the City of Mandeville and Gerald Sticker,

in his official capacity as Chief of Police for the City of Mandeville.1 The Court revisits the

summary judgment record to resolve the present motion, which principally presents the question

of whether the remaining defendants, the arresting officers, had arguable probable cause to arrest

Plaintiff Frank Schambach. Presently before the Court is a Motion for Summary Judgment2 filed

by Defendants Detective Karole Muller and Lieutenant Fred Fath, sued in their individual and

official capacities as police officers for the City of Mandeville (collectively, “Defendants”).

Plaintiffs oppose the motion.3 Having considered the motion, the memoranda in support and in

opposition, the record, and the applicable law, the Court grants the motion.

1 Rec. Doc. 32.

2 Rec. Doc. 38.

3 Rec. Doc. 39.

I. Background

Frank Schambach was arrested and charged with molesting his teenage stepdaughter, who

later recanted the allegation, prompting the District Attorney to drop the charge months later.4 This

civil rights lawsuit by Mr. Schambach and his wife, Aurora, the girl’s mother, followed.5

Mr. Schambach is an Iraq War veteran.6 After he returned from combat, he was in his mid-

30s working as a contractor with security clearance for the federal government.7 He lived with his

wife on the Northshore of New Orleans with Mrs. Schambach’s daughter, Jane Roe, who presented

some disciplinary challenges as a teenager.8 The Schambachs discovered Jane Roe was

“constant[ly] lying,” so they installed spyware on Jane Roe’s cellphone to read her text messages.9

When they discovered that Jane Roe had engaged in promiscuous behavior with her boyfriend, the

parents threatened to send Jane Roe to California to live with her biological father.10 Jane Roe’s

text messages to her boyfriend indicate that the prospect of moving to California (i.e., being away

from the boyfriend) gravely concerned her; she texted him on the morning of January 16, 2019

that she planned to “fix this cause I wanna be with you.”11

4 Rec. Doc. 1 at 5–6.

5 Id.

6 Rec. Doc. 35 at 3.

7 Id.

8 Id.

9 Id.

10 Rec. Doc. 39-2 at 4.

11 Rec. Doc. 39-10.

Later that day at school on January 16, 2019, Jane Roe reported to her high school

counselor that her stepfather had molested her on one occasion some years prior.12 The high school

counselor reported this allegation to the state Department of Children and Family Services.13 That

same day, an employee of the state Department of Children and Family Services visited the

Schambachs’ house and confronted Mr. Schambach with the child molestation accusation, which

he denied.14 He was told to leave his house.15 He did so.16 That same day, Mr. Schambach self-

reported to his military unit that he was being investigated for child molestation.17

And, so, he was. The next day, on January 17, 2019, the Department of Children and Family

Services reported to the Mandeville Police Department that a juvenile had alleged that she had

been sexually assaulted.18 Mandeville Police Department Detective Karole Muller and Lieutenant

Fred Fath were tasked with investigating the allegation.19 During the three-day investigation,

Muller and Fath were provided a videotaped interview of Jane Roe, which was conducted by a

Children’s Advocacy Center forensic counselor, and the officers interviewed several witnesses:

Jane Roe, Jane Roe’s mother Aurora Schambach, Jane Roe’s best friend at the time of the alleged

molestation, Department of Children and Family Services employee Ashley Myers, Jane Roe’s

12 Rec. Doc. 35 at 3.

13 Id.

14 Id.

15 Id.

16 Rec. Doc. 39-2 at 5.

17 Rec. Doc. 35 at 3.

18 Rec. Doc. 38-3 at 1.

19 Id.

sister, and Mandeville High School counselor Julie Heiden.20 The investigation culminated on

January 19, 2019, when the officers took a video and audio taped statement of the accused, Frank

Schambach, who was Mirandized and agreed to be interviewed.21 The investigating officers

memorialized these aspects of their investigation in a written report, which was logged into the

Mandeville Police Department records system as Incident 1901-0662.22 Muller and Fath reported

that Jane Roe, Frank Schambach’s stepdaughter, had accused him of molesting her on one occasion

six years prior.23

At the conclusion of Frank Schambach’s interview, Muller and Fath concluded the

investigation, having determined that there was sufficient probable cause to arrest Frank

Schambach for violating La. R.S. § 14:81.2, molestation of a juvenile.24 Mr. Schambach was

arrested, handcuffed, and taken into custody.25 He was processed at the Mandeville Police

Department then transported to the St. Tammany Parish Sheriff’s Office, where he was booked.26

20 Id. at 1–2.

21 Id. at 2. According to Mrs. Schambach, during her police interview, she denied that her husband ever

molested her daughter and explained the disciplinary issues they confronted with Jane Roe. Rec. Doc. 39-2 at 3.

Although she offered to show the interviewing officer text messages and social media messages that she believed

would support her firm belief that her daughter was fabricating the molestation allegation, she says the unidentified

officer refused to review the text and social media messages. Id. When officers interviewed Mr. Schambach, he denied

the allegations, advised of the disciplinary issues, and offered to show the officers the messages from Jane Roe’s

phone. Rec. Doc. 39-14 at 4–5. Again, the Schambachs say, the unnamed officers refused to review the messages. Id.

22 Rec. Doc. 38-3 at 1.

23 Id.

24 Rec. Doc. 38-3 at 2. La. R.S. § 14:81.2(A)(1) provides in relevant part:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or

lascivious act upon the person or in the presence of any child under the age of seventeen, where

there is an age difference of greater than two years between the two persons, with the intention of

arousing or gratifying the sexual desires of either person, by the use of force, violence, duress,

menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue

of a position of control or supervision over the juvenile.

25 Rec. Doc. 38-3 at 2.

26 Id.

The next day, on January 20, 2019, Muller submitted an Affidavit of Probable Cause and

applied for a 48-hour arrest warrant for Mr. Schambach for violation of La. R.S. § 14:81.2.27

Muller summarized under oath the details of the alleged molestation, that the suspect denied the

specific allegation, that the victim made consistent disclosures to her close friend at the time, and

then later to the counselor and the Department of Children and Family Services.28 The arrest

warrant application was submitted to Commissioner Dan Foil of the 22nd Judicial District, who

then reviewed and signed the application and issued the 48-hour arrest warrant: Commissioner

Foil ordered, adjudged, and decreed that Frank Schambach had been lawfully arrested upon

probable cause, without a warrant.29 Shortly thereafter, Mr. Schambach’s security clearance was

revoked, and he was terminated from his job.30

A few months later, on April 29, 2019, in a notarized handwritten statement, Jane Roe

recanted her accusation of molestation; she wrote: “The accusations made towards Frank and I are

not true. I wanted to get out of a situation regarding my family and things have just been taken too

far. Some of my friends did encourage me and as said before things got way out of hand.”31 Months

27 Id.

28 Rec. Doc. 38-7 at 1-2. In the Affidavit for Probable Cause of Arrest—Exhibit E in the summary judgment

record—Detective Muller attested that: Jane Roe reported that when she was approximately 10 years old, during a

massage that she performed on Schambach’s legs on his bed and at his direction, Schambach told her to go up higher

up on his legs; Jane Roe reported that Schambach routinely put his hand on top of hers; on the occasion at issue,

Schambach requested that Jane Roe go higher until she felt something “warm and soft,” which she believed to have

been Schambach’s penis; Jane Roe further reported that she was uncomfortable, and that Schambach opened the front

of his shorts and she saw what she thought was his penis; Jane Roe closed her eyes and Schambach stated something

to the effect of “this is my lollipop it’s okay you can kiss/lick it.” Schambach denied the alleged incident, but he

admitted that Jane Roe would massage his legs. Schambach stated that he recalled a massage event that made Jane

Roe uncomfortable: as he recalled, she was brushing his hair when the brush fell between his legs; he told her to pick

it up but then told her to stop. Id. Jane Roe disclosed a consistent allegation to a close friend and later to a counselor

at school as well as a Department of Children and Family Services investigator. Id. Detective Muller thus states

“[r]easons for belief are victim’s statements, other persons statements, and defendant’s statements.” Id. at 2.

29 Id. at 3.

30 Rec. Doc. 39-14 at 3-4.

31 Rec. Doc. 39-12 at 1.

later, on July 15, 2019, the District Attorney for the 22nd Judicial District refused the charge and

released the bond.32 Nevertheless, Mr. Schambach has been unable to regain his security clearance;

both Mr. and Mrs. Schambach “have been labeled as child molesters in the State of Louisiana

Department of Children and Family Services Stage Central Registry” and the Department

purportedly refuses to update the database.33

Exactly one year after his arrest, seeking declaratory and injunctive relief along with

monetary damages for false arrest and malicious prosecution, Frank and Aurora Schambach sued

Gerald Sticker, in his official capacity as the Chief of Police for the City of Mandeville and the

City of Mandeville, as well as unidentified parties (John Doe 1 and John Doe 2 as placeholders for

the arresting officers), and the Department of Children and Family Services for the State of

Louisiana.34 The Schambachs allege that Jane Roe fabricated the molestation allegation to avoid

being disciplined.35 They claim that the (then-unidentified) arresting officers should have

discovered that Jane Roe was lying, that the officers deliberately ignored exculpatory evidence in

arresting Mr. Schambach.36 Plaintiffs seek to recover for violations of their civil rights under 42

U.S.C. § 1983 under the Fourth, Fifth, and Fourteenth Amendments as well as for malicious

prosecution under Louisiana law.37

32 Rec. Doc. 38-8.

33 Rec. Doc. 35 at 5. It is alleged that Mr. Schambach is listed in the database for “sexual enticement of” Jane

Roe and Mrs. Schambach is listed for “passive sexual abuse” of Jane Roe. Id.

34 Rec. Doc. 1. The Department of Children and Family Services was later dismissed for lack of jurisdiction

based on sovereign immunity. Rec. Doc. 12.

35 Rec. Doc. 1 at 7.

36 Id. at 9.

37 Id. at 9–10.

Following the Court’s grant of summary judgment in favor of the City and Sticker on

November 3, 2021, on November 19, 2021, Plaintiffs filed an amended complaint, finally naming

Defendants Karole Muller and Fred Fath, the arresting officers, and re-alleging false arrest and

malicious prosecution.38 Defendants now request summary judgment in their favor dismissing the

plaintiffs’ federal civil rights claim for false arrest and the state law claim for malicious

prosecution.39 Plaintiffs oppose the motion.40 With leave of Court, Defendants filed a reply.41

II. Parties’ Arguments

A. Defendants’ Arguments in Support of the Motion

Defendants submit that they are entitled to summary judgment because probable cause

supported Mr. Schambach’s arrest, they are entitled to qualified immunity, and the existence of

probable cause defeats Plaintiffs’ state law claim for malicious prosecution. First, Defendants

contend that Plaintiffs must show that Defendants lacked probable cause to arrest Mr. Schambach

and that a later finding of innocence or a suspect’s protestation will not defeat an officer’s finding

of probable cause.42 Defendants contend that probable cause is a relatively low threshold, and that

threshold is met on the summary judgment record here, which includes the incident report,

Defendants’ affidavits, witness statements, Mr. Schambach’s statement, as well as the warrant

which issued after the arrest.43

38 Rec. Doc. 35.

39 Rec. Doc. 38.

40 Rec. Doc. 39.

41 Rec. Doc. 42.

42 Rec. Doc. 38-1 at 5.

43 Id. at 6–7.

Second, Defendants contend that Plaintiffs cannot carry their burden to show that

Defendants’ actions in conducting a lengthy investigation into Jane Roe’s molestation allegation

violated Mr. Schambach’s clearly established rights.44 Defendants submit that Plaintiffs have no

evidence to support their conclusory allegations that Defendants violated their constitutional right

to be free from false arrest.45 Defendants point out that Plaintiffs fail to allege that the arrest

warrant that issued was not supported by probable cause.46

Third, Defendants contend that a finding of probable cause to support an arrest defeats a

malicious prosecution claim arising under Louisiana law.47 Defendants argue that Plaintiffs’

malicious prosecution claim fails as a matter of law considering that Defendants determined they

had probable cause to arrest Mr. Schambach and the arrest was also supported by a post-arrest

warrant, which Plaintiffs do not challenge.48 Accordingly, Defendants argue that Plaintiffs’

malicious prosecution claim must be dismissed with prejudice.49 Finally, Defendants invoke

Louisiana Revised Statute 9:2798.1(B), which Defendants argue protects them from liability for

performing discretionary acts within the scope of their employment duties.50

B. Plaintiffs’ Opposition to the Motion

Plaintiffs advance three interrelated arguments in support of their contention that summary

judgment must be denied. First, Plaintiffs invoke Louisiana state law cases analyzing whether

44 Id. at 10.

45 Id.

46 Id.

47 Id. at 12.

48 Id.

49 Id. at 12–13.

50 Id. at 13.

probable cause exited to arrest certain suspects in identity cases (i.e., cases where the identification

of the suspect is at issue, where witnesses merely saw a person resembling or bearing similarity to

unidentified accused persons) or whether, instead, officers merely had reasonable suspicion,

falling short of the requisite probable cause standard to effect an arrest.51

Second, Plaintiffs submit that Defendants lacked probable cause to arrest Mr. Schambach

and that the arrest warrant was tainted by Defendants’ use of misleading information and their

deliberate concealment of exculpatory evidence.52 Plaintiffs argue that Defendants violated the

Fourth Amendment by intentionally or recklessly omitting material facts from the warrant

application, thereby committing a Franks v. Delaware violation.53 By omitting any reference to

evidence contained in Jane Roe’s text messages with her boyfriend and by failing to include “any

of the content of [Mr. Schambach’s] statement that was exculpatory[,]” Defendants made material

misrepresentations to the magistrate which did not allow for a neutral finding of probable cause.54

Third, Plaintiffs contend that Defendants are not entitled to qualified immunity because no

crime had been committed and there was no probable cause.55 Plaintiffs contend that the right to

be free from arrest absent probable cause was clearly established at the time of Mr. Schambach’s

arrest.56 Plaintiffs contend that the Court may not determine disputed facts and “[b]ecause there

are material facts in dispute,” summary judgment must be denied.57

51 Rec. Doc. 39 at 2–6.

52 Id. at 8–9.

53 Id. at 10–11.

54 Id. at 11.

55 Id. at 6.

56 Id. at 7–8.

57 Id. at 11.

Finally, Plaintiffs contend that their malicious prosecution claim survives summary

judgment because “Defendants must concede that Plaintiffs have established the first, second,

third, and sixth elements but would contend that Plaintiffs have failed to allege the fourth and fifth

elements.”58 Plaintiffs submit that because the charge against Mr. Schambach was dismissed by

the St. Tammany Parish district attorney prior to trial, a presumption of malice and no probable

cause arises, which “satisfies Plaintiffs’ pleading burden.”59

C. Defendants’ Arguments in Further Support of the Motion

Defendants respond that Plaintiffs fail to provide any evidence to demonstrate that there

was a lack of probable cause for the warrantless arrest of Frank Schambach or to prove that

Detective Muller made material omissions or deliberately concealed exculpatory evidence in

obtaining the arrest warrant.60

First, Defendants contend that Plaintiffs erroneously rely upon Louisiana state case law to

support their argument that probable cause was lacking in this case.61 This reliance is misplaced,

Defendants contend, because those cases concerned complex issues presented by insufficient

witness identifications.62 Here, Defendants contend, there are no material facts genuinely in

dispute.63 Once probable cause was established through witness interviews as well as Mr.

Schambach’s statement, police officers were not required to exhaust all available avenues of

58 Id.

59 Id. at 12.

60 Rec. Doc. 42.

61 Id. at 2.

62 Id.

63 Id. at 3.

investigation to ferret out evidence that might exculpate the suspect.64 Addressing Plaintiffs’

argument that Defendants did not consider Jane Roe’s text messages and failed to mention them

in the arrest warrant application, Defendants contend that Plaintiffs’ arguments remain speculative

considering they have not authenticated the text messages, nor have they offered proof as to the

meaning or context of the messages, and they attach only some eight pages out of alleged 1,300

pages of texts.65 The eight pages of text messages do not prove that probable cause was lacking;

rather, Defendants contend that the texts corroborate and establish that Jane Roe was scared of her

stepfather and planned on divulging her secret at school the next day, which is what happened.66

Defendants take issue with Plaintiffs’ attempt to advance a Franks claim for the first time

in their opposition papers.67 Defendants submit that Plaintiffs offer no evidence to prove a Franks

claim, arguing that there was legal probable cause at the time of the warrantless arrest, the warrant

was supported by probable cause, and the district attorney’s subsequent refusal to charge is

irrelevant to the probable cause determination.68 Again, Defendants contend that Plaintiffs

erroneously speculate that if the text messages had been mentioned in the warrant application, then

somehow the affidavit would establish that there was no probable cause to arrest Frank

Schambach.69 Plaintiffs fail to explain how this is so, Defendants contend, and Plaintiffs offer no

evidence to refute Defendants’ affidavits, no evidence to refute the results of the investigation, no

evidence that probable cause was not established by the information learned by Defendants, and

64 Id.

65 Id.

66 Id. at 3–4.

67 Id. at 4.

68 Id. at 4–5.

69Id. at 7–8.

no evidence that Defendants intentionally excluded exculpatory facts in the application for the

arrest warrant.70

Defendants submit that they are indisputably entitled to qualified immunity, considering

that Schambach was arrested after a lengthy investigation into the molestation allegation lodged

by his stepdaughter; Plaintiffs have produced no competent summary judgment evidence that

Defendants’ conduct during the investigation or in arresting Mr. Schambach were objectively

unreasonable under the circumstances known to them at the time; and Plaintiffs have produced no

evidence that Defendants disregarded exculpatory facts.71 Because the record shows that

Defendants acted reasonably under the circumstances and with probable cause, Defendants

contend that they are entitled to the protections of qualified immunity and dismissal of Plaintiffs’

claims.72

Finally, Plaintiffs’ claim for malicious prosecution fails as a matter of law because the

summary judgment record establishes legal probable cause for the arrest of Frank Schambach for

the molestation of Jane Roe.73 Defendants also invoke the protections of La. R.S. 9:2798.1, which

Defendants contend entitles them to immunity from liability.74

III. Procedural Legal Standard

Summary judgment is appropriate when the pleadings, discovery, and affidavits

demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as

70 Id. at 8.

71 Id. at 9.

72 Id.

73 Id.

74 Id.

a matter of law.”75 To decide whether a genuine dispute as to any material fact exists, the court

considers “all of the evidence in the record but refrains from making credibility determinations or

weighing the evidence.”76 All reasonable inferences are drawn in favor of the nonmoving party.77

Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”78

If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then

no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a

matter of law.79 The nonmoving party may not rest upon the pleadings.80 Instead, the nonmoving

party must identify specific facts in the record and articulate the precise manner in which that

evidence establishes a genuine issue for trial.81

The party seeking summary judgment always bears the initial responsibility of showing the

basis for its motion and identifying record evidence that demonstrates the absence of a genuine

issue of material fact.82 “To satisfy this burden, the movant may either (1) submit evidentiary

documents that negate the existence of some material element of the opponent’s claim or defense,

or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at

trial, demonstrate that the evidence in the record insufficiently supports an essential element of the

75 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

76 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

77 Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

78 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

79 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

80 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

81 See id.; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

82 Celotex, 477 U.S. at 323.

opponent’s claim or defense.”83 If the moving party satisfies its initial burden, the burden shifts to

the nonmoving party to “identify specific evidence in the record, and to articulate” precisely how

that evidence supports the nonmoving party’s claims.84 The nonmoving party must set forth

“specific facts showing the existence of a ‘genuine’ issue concerning every essential component

of its case.”85

The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied

merely by creating “some metaphysical doubt as to the material facts,” “by conclusory

allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”86 Moreover, the

nonmoving party may not rest upon mere allegations or denials in its pleadings.87

Though the summary judgment record evidence continues to be viewed in the light most

favorable to the non-movants, the ordinary summary judgment burden of proof is altered when a

defendant invokes qualified immunity.88

A qualified immunity defense alters the usual summary judgment burden of proof.

Although nominally an affirmative defense, the plaintiff has the burden to negate

the defense once it is properly raised. The plaintiff has the burden to point out

clearly established law. The plaintiff also bears the burden of raising a fact issue as

to its violation. Thus, once the defense is invoked, the plaintiff must rebut the

defense by establishing that the official’s allegedly wrongful conduct violated

clearly established law and that genuine issues of material fact exist regarding the

reasonableness of the official’s conduct according to that law.

At the summary judgment stage, however, all inferences are still drawn in the

plaintiff’s favor. This is true even when a court decides only the clearly-established

83 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (quoting Little, 939 F.2d at 1299).

84 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris

v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

85 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).

86 Little, 37 F.3d at 1075 (internal citations omitted).

87 Morris, 144 F.3d at 380.

88 Kokesh v. Curlee, 14 F.4th 382, 392 (5th Cir. 2021).

prong of the qualified immunity standard. Likewise, under either qualified

immunity prong, courts may not resolve genuine disputes of fact in favor of the

party seeking summary judgment. Accordingly, courts must take care not to define

a case’s context in a manner that imports genuinely disputed factual propositions.89

IV. Substantive Legal Standards

A. 42 U.S.C. § 1983

Title 42, United States Code, Section 1983, which was enacted pursuant to Congress’s

authority to enforce the Fourteenth Amendment, creates a damages remedy for the violation of

federal constitutional or statutory rights under color of state law; it provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any . . . person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured.

“The purpose of § 1983 is to deter state actors from using their badge of authority to deprive

individuals of their federally guaranteed rights and to provide relief to victims if such deterrence

fails.”90 Because § 1983 merely provides a remedy for designated rights, rather than creating any

substantive rights, “an underlying constitutional or statutory violation is a predicate to liability.”91

To establish § 1983 liability, the plaintiff must satisfy three elements:

(1) deprivation of a right secured by the U.S. Constitution or federal law,

(2) that occurred under color of state law, and

(3) was caused by a state actor.92

89 Id. (cleaned up).

90 Wyatt v. Cole, 504 U.S. 158, 161 (1992).

91 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).

92 Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).

B. Qualified Immunity

“Qualified immunity shields public officials ‘sued in their individual capacities from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’”93 “Qualified immunity

balances two important interests – the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment, distraction, and liability

when they perform their duties reasonably.”94 Once invoked, the plaintiff has the burden of

negating the defense of qualified immunity.95

Resolving immunity defenses calls for application of a bifurcated test. To negate qualified

immunity, the plaintiffs must demonstrate “(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.”96 The

Court may consider these prongs in either sequence; it need not consider both.97 Plaintiffs may

rebut the qualified immunity defense “by establishing a genuine fact issue as to whether the

official’s allegedly wrongful conduct violated clearly established law.”98

What does it mean for a right to be clearly established?99 “The second prong of the qualified

immunity test,” the Fifth Circuit has observed, “is better understood as two separate inquires:

93 Kokesh v. Curlee, 14 F.4th 382, 391 (5th Cir. 2021)(citations omitted).

94 Pearson v. Callahan, 555 U.S. 223, 231 (2009)(noting that “[t]he protection of qualified immunity applies

regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on

mixed questions of law and fact.’”).

95 Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009).

96 Craig v. Martin, 26 F.4th 699, 704 (5th Cir. 2022)(citations omitted).

97 See Pearson, 555 U.S. at 232-36.

98 See Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017)(citation omitted).

99 This thorny second prong has instigated scholarly criticism and debate and its misapplication has

precipitated many summary reversals by the Supreme Court. See, e.g., Morrow v. Meachum, 917 F.3d 870, 876 (5th

Cir. 2019)(citing cases and cautioning in an excessive force case that “we must think twice before denying qualified

whether the allegedly violated constitutional rights were clearly established at the time of the

incident; and, if so, whether the conduct of the defendants was objectively unreasonable in light

of that then clearly established law.”100 “[L]aw is clearly established,” the Fifth Circuit has

observed, “if it puts an objectively reasonable official on fair warning that his conduct is

unlawful.”101 This is a “demanding standard,” which requires “precedent [so] clear...that every

reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.”102

“Clearly established” law is “settled law” that “place[s] the constitutionality of the officer’s

conduct ‘beyond debate.’”103 Although the Supreme Court does not require “a case directly on

point,” the legal principle must be specific, not general, and either “controlling authority” has

adopted the rule, or there is “a robust consensus of cases of persuasive authority” embracing it.104

Stated another way, “[a] [g]overnment official’s conduct violates clearly established law when, at

the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every

‘reasonable official would [have understood] that what he [or she] is doing violates that right.’”105

This demanding second prong thus ensures that “government officials [have] breathing room to

immunity”; noting that, although “[t]he Supreme Court reserves ‘the extraordinary remedy of summary reversal’ for

decisions that are ‘manifestly incorrect[,]’” the Supreme Court “routinely wields this remedy against denials of

qualified immunity.”); Cole v. Carson, 935 F.3d 444, 472, 473-74 (5th Cir. 2019)(en banc)(holding that it was clearly

established in 2010 that officers’ use of deadly force without warning where officers were not in immediate danger

violated Fourth Amendment, but fact issues persisted as to whether officers had time to give the plaintiff warning to

disarm before shooting him)(Willett, J., dissenting; Ho, J., dissenting)(citations omitted), cert. denied sub nom.,

Hunter v. Cole, --- U.S. ---, 141 S. Ct. 111 (2020).

100 Hare v. City of Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998)(citations omitted, emphasis in original).

101 Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 n.2 (5th Cir. 2014)(citation omitted).

102 District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)(citations omitted, emphasis added).

103 Id. (citation omitted).

104 Id. at 589-90 (citation omitted).

105 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

make reasonable but mistaken judgments about open legal questions.”106 Indeed, “the qualified

immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly

incompetent or those who knowingly violate the law.’”107

Whereas Defendants invoke qualified immunity, anchored to two theories, Plaintiffs allege

violations of Mr. Schambach’s Fourth Amendment rights: the right to be free from a warrantless

arrest effected without probable cause and the right to be free from arrest warrants that lack

probable cause due to knowing or reckless material omissions. The Court summarizes the

substantive legal standards applicable to each theory in turn.

C. Probable Cause

The Fourth Amendment, made applicable to the states through the Fourteenth Amendment,

protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures” and further provides that “no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”108 This encompasses the right to be free from

an unlawful arrest. This case, in theory, tests the contours of this right in the context of a minor’s

claim that her stepfather molested her, which led to his arrest, though the charge was later

dismissed after she recanted her allegation.

106 Id. at 743.

107 Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)(quoting Malley v. Briggs, 475 U.S. 335, 343

(1986)).

108 U.S. CONST. amend. IV.

Arrests are “’seizures’ of ‘persons,’” and, thus, “they must be reasonable under the

circumstances.”109 Assessing Fourth Amendment violations for reasonableness is a fact-intensive

inquiry. Probable cause is no exception, as the Supreme Court has instructed:

To determine whether an officer had probable cause for an arrest, “we examine the

events leading up to the arrest, and then decide ‘whether these historical facts,

viewed from the standpoint of an objectively reasonable police officer, amount to’

probable cause.” Because probable cause “deals with probabilities and depends on

the totality of the circumstances,” it is “a fluid concept” that is “not readily, or even

usefully, reduced to a neat set of legal rules.” It “requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.”

Probable cause “is not a high bar.”110

“A practical, nontechnical probability that [the arrestee committed a crime] is all that is

required.”111 It need be based on “only the kind of fair probability on which reasonable and prudent

people, not legal technicians, act.”112

“Probable cause exists when all of the facts known by a police officer ‘are sufficient for a

reasonable person to conclude that the suspect had committed, or was in the process of committing,

an offense.’”113 Law enforcement officers “may rely on the totality of facts available to them in

establishing probable cause, [but] they ... may not disregard facts tending to dissipate probable

cause.”114 To reiterate, probable cause is a relatively low threshold: “something more than bare

suspicion, but need not reach the fifty percent mark.”115 “Whether probable cause exists depends

109 Wesby, 138 S. Ct. at 585-86.

110 Id. (internal citations omitted).

111 Texas v. Brown, 460 U.S. 730, 742 (1983).

112 Kaley, 571 U.S. at 338.

113 Villarreal v. City of Laredo, Tex., 17 F.4th 532, 543 (5th Cir. 2021) (quoting Texas v. Kleinert, 855 F.3d

305, 316 (5th Cir. 2017)).

114 Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003) (quoting Bigford v. Taylor, 834 F.2d 1213, 1217

(5th Cir. 1988)).

115 United States v. Williams, 836 Fed. App’x 310, 312 (5th Cir. 2021) (citation omitted).

upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the

time of the arrest.”116 Notably, “evidence that the arrestee was innocent of the crime is not

necessarily dispositive of whether the officer had probable cause to conduct the arrest because

‘probable cause requires only a probability or substantial chance of criminal activity, not an actual

showing of such activity.’”117

Here, Mr. Schambach was arrested before a warrant issued, following an investigation

conducted after his stepdaughter, Jane Roe, complained of a molestation incident. To reiterate, “[a]

warrantless arrest must be based on ‘probable cause.’ Probable cause exists when the totality of

facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient

for a reasonable person to conclude that the suspect had committed or was committing an

offense.”118 “The constitutional claim of false arrest requires a showing of no probable cause.”119

Thus, conversely, if the arresting officers had probable cause to arrest an accused for any charge,

then the false arrest claim fails. Even if the officers’ conclusion as to probable cause was mistaken,

they are still entitled to qualified immunity so long as the conclusion was reasonable.120

D. Franks Liability

In addition to disputing whether the arresting officers had probable cause to effect a

warrantless arrest, for the first time in their opposition papers, the plaintiffs additionally appear to

anchor their false arrest theory to an alleged Franks defect in the affidavit supporting the post-

116 Devenpeck v. Alford, 543 U.S. 146, 152 (2004)(citing Maryland v. Pringle, 540 U.S. 366, 371 (2003)).

117 Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir. 2009)(quoting Illinois v. Gates, 462 U.S. 213, 244 n.13

(1983)).

118 Prim v. Stein, 6 F.4th 584, 593 (5th Cir. 2021) (quoting Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir.

2000)).

119 Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).

120 Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).

arrest warrant, though they do so in conclusory fashion. It is undisputed that Mr. Schambach was

arrested without a warrant, then the arresting officer applied under oath for a warrant, which issued.

Accordingly, the Court summarizes the substantive legal doctrines applicable to Plaintiffs’

defective warrant theory of recovery.

Under the independent intermediary doctrine, “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.”121 Notably, arresting

officers “are shielded from liability by the independent intermediary doctrine . . . even if the

warrant application was sought and granted after the arrest took place.”122 That shield is not

absolute, however, for “officers who deliberately or recklessly provide false, material information

for use in an affidavit or who make knowing and intentional omissions that result in a warrant

being issued without probable cause may still be held liable.”123 This so-called Franks defect as a

source for officer liability is “[f]unctionally ... an exception to the independent intermediary

doctrine” and might arise from either material misstatements or material omissions in warrant

affidavits.124 Put differently, under the so-called “taint” exception to the independent-intermediary

doctrine, “arrest warrants do not insulate arresting officers from false-arrest liability if their own

false and misleading affidavits tainted the magistrate’s deliberations.”125

121 Mayfield v. Currie, 976 F.3d 482, 486 (5th Cir. 2020).

122 Buehler v. Dear, 27 F.4th 969, 990 (5th Cir. 2022) (citing Buehler v. City of Austin/Austin Police Dep’t,

824 F.3d 548, 554 (5th Cir. 2016) (noting that independent intermediary doctrine applies even if the warrant

application was granted after the arrest and even if the arrestee was not convicted of any crime)).

123 Mayfield, 976 F.3d at 487.

124 See Terwilliger v. Reyna, 4 F.4th 270, 281 (5th Cir. 2021) (citing Franks v. Delaware, 438 U.S. 154

(1978), which held that intentional or reckless false statements in an affidavit supporting a search warrant resulted in

a warrant lacking probable cause); Melton v. Phillips, 875 F.3d 256, 262 (5th Cir. 2017) (en banc) (although Franks

arose in search warrant context, its rationale extends to arrest warrant context).

125 Buehler, 2 F.4th at 991 (quotation, citations omitted).

“Franks ... requires more than bare assertions of falsehood.”126 “[T]o overcome the

‘presumption of validity with respect to the affidavit supporting the ... warrant[, the] plaintiff must

demonstrate that ... the affidavit was deliberately or recklessly false.”127 No small feat, a Franks

showing “must be accompanied by an offer of proof ... [and] point out specifically the portion of

the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of

supporting reasons[; indeed,] sworn or otherwise reliable statements of witnesses should be

furnished, or their absence satisfactorily explained.”128 “[I]t has been clearly established [since

Franks v. Delaware] that a defendant’s Fourth Amendment 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.’”129 “To determine whether the allegedly false statement [or material omission] was

necessary [to the finding of probable cause], Franks [mandates that courts] consider the faulty

affidavit as if those errors and omissions were removed[,] then examine the ‘corrected affidavit’

and determine whether probable cause for the issuance of the warrant survives the deleted false

statements and material omissions.”130 To be sure, “negligence alone will not defeat qualified

immunity[; rather a] proven misstatement can vitiate an affidavit only if it is established that the

misstatement was the product ‘of deliberate falsehood or of reckless disregard for the truth.’”131

126 Terwilliger, 4 F.4th at 283.

127 Id.

128 Id. (quoting Franks, 438 U.S. at 171).

129 Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018)(citing Franks, 438 U.S. at 155-56).

130 Id. at 494-95.

131 Id. (citations omitted).

To prove recklessness, it must be established “that the defendant ‘in fact entertained serious doubts

as to the truth’ of the statement.”132

V. Analysis

Mindful of the foregoing legal standards applicable to the alleged Fourth Amendment

violations, the Court turns to apply these standards in the context of the arresting officers’

invocation of qualified immunity. First, the Court considers whether the arresting officers had

arguable probable cause to arrest Mr. Schambach after their investigation, but before securing an

arrest warrant. Second, the Court considers whether the warrant affidavit, reconstructed to include

the allegedly omitted material facts (that is, free of the alleged taint), sufficed to establish probable

cause to support the arrest warrant.

A. Whether the Arresting Officers had Arguable Probable Cause to Arrest Mr. Schambach

After Their Investigation, but Before Securing an Arrest Warrant

Plaintiffs contend that the arresting officers violated Mr. Schambach’s rights under the

Fourth Amendment by arresting him without probable cause. The right to be free from arrest

without probable cause is a clearly established constitutional right. Where, as here, police officers

have invoked qualified immunity, then, the issue presented in considering the first prong of the

qualified-immunity analysis is whether the arresting officers had probable cause to arrest; or, if the

Court elects to consider the second prong, the issue is whether the arresting officers’ conduct was

reasonable in light of the clearly established law at the time of the incident (i.e., whether the

arresting officers had objective or arguable probable cause in arresting Mr. Schambach).

Mindful that “[q]ualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

132 Id. (cleaned up).

rights of which a reasonable person would have known[,]’”133 if an arresting officer sued in his

individual capacity invokes qualified immunity, he has “ample room for mistaken judgments,” for

qualified immunity protects “all but the plainly incompetent or those who knowingly violate the

law.”134 Thus, “an officer [sued in his individual capacity] who asserts qualified immunity will not

be liable for an arrest if he ‘reasonably but mistakenly conclude[d] that probable cause was

present.’”135

Simply put, when an arresting officer advances a qualified immunity defense to a wrongful

arrest claim, the Court examines the totality of the circumstances to determine whether the

arresting officer had “arguable probable cause” at the time of the arrest.136 To defeat qualified

immunity in the false arrest context, the plaintiff must show that “defendants lacked arguable (that

is, reasonable but mistaken) probable cause for the arrest.”137 Plaintiffs fail to do so here.

Louisiana Revised Statute § 14:81.2 provides, in relevant part, that “molestation of a

juvenile is the commission by anyone over [age 17] of any lewd or lascivious act upon the person

or in the presence of a child under [age 17], with the intention of arousing or gratifying the sexual

desires of either person, by the use of force . . . or by the use of influence by virtue of a position of

control or supervision over the juvenile.”

133 See Kokesh, 14 F.4th at 391.

134 See Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000) (quoting Malley v. Briggs, 475 U.S. 335, 343

(1986)).

135 Sam v. Richard, 887 F.3d 710, 715 (5th Cir. 2018) (quoting Wesby, 138 S. Ct. at 591).

136 See Mendenhall, 213 F.3d at 231 (citing Illinois v. Gates, 462 U.S. 213, 241 (1983)); see also Brown v.

Lyford, 243 F.3d 185, 190 (5th Cir. 2001) (footnote, citations omitted)( In the false arrest context, “[a] plaintiff must

clear a significant hurdle to defeat qualified immunity[:] ‘there must not even ‘arguably’ be probable cause for the

search and arrest for immunity to be lost.’”); see also Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009)

(“[e]ven law enforcement officials who ‘reasonably but mistakenly conclude that probable cause is present’ are

entitled to immunity.”).

137 Club Retro, L.L.C., at 207 (citations omitted).

Defendants submit that they are entitled to qualified immunity because they conducted a

reasonable investigation into Jane Roe’s allegation that, on one occasion years ago when she was

10 years old, her stepfather, Frank Schambach, had encouraged her to touch (and had shown her)

his penis and—based on the three-day police investigation—they reasonably concluded that

probable cause supported Schambach’s arrest for molestation under the statute. Plaintiffs counter

that probable cause was lacking because Defendants willfully disregarded what Plaintiffs

characterize as exculpatory evidence, namely, that Jane Roe’s credibility was undermined due to

her motivation to fabricate the molestation allegation to avoid, or in retaliation for, threatened

discipline. This motive to fabricate, Plaintiffs contend, was implicit in more than one thousand

pages of text messages; of those, only about eight pages are filed into the summary judgment

record.

On this record, Plaintiffs fail to defeat the arresting officers’ invocation of qualified

immunity. The summary judgment record demonstrates that a reasonable police officer could

believe that Jane Roe’s account of the alleged incident, as she recounted to a high school counselor,

state agent, a friend at the time, and the investigating officers, even though denied by the accused,

was sufficient to support probable cause to arrest Mr. Schambach for molestation under the state

statute. In other words, the record demonstrates that Defendants had arguable probable cause to

arrest Mr. Schambach for molestation of a juvenile. The arresting officers’ investigation included

consideration of a videotaped interview of Jane Roe, which was conducted by a Children’s

Advocacy Center forensic counselor, as well as the officers’ interviews of several witnesses,

including Jane Roe, Jane Roe’s mother Aurora Schambach, Jane Roe’s best friend at the time of

the alleged molestation, Department of Children and Family Services employee Ashley Myers,

Jane Roe’s sister, Mandeville High School counselor Julie Heiden, and Frank Schambach. The

arresting officers memorialized the facts and allegations in an Incident Report, Defendant Muller

submitted an affidavit under oath in support of an application for an arrest warrant, and Defendants

have filed affidavits into the summary judgment record. For their part, Plaintiffs submit their

answers to interrogatories, Jane Roe’s handwritten recantation, the district attorney’s letter

refusing the molestation charge, as well as eight pages of screenshots purportedly of text messages

between Jane Roe and her boyfriend. Considering the facts in the light most favorable to Plaintiffs,

the Court finds that Plaintiffs have failed to rebut the qualified immunity defense; Plaintiffs fail to

show that Defendants lacked arguable (reasonable but mistaken) probable cause for Mr.

Schambach’s arrest for molestation of a juvenile.

Critically, reports of sexual assault, standing alone, may constitute sufficient probable

cause to effect an arrest of the individual accused.138 In Travis v. City of Grand Prairie, Texas,

arrestee-plaintiff Thomas Travis had reported to a state welfare agency that Rita Sandoval

committed welfare fraud and perjury, and he reported to child protective services that Sandoval

had sexually assaulted a minor child.139 Two days later, Sandoval reported to the county sheriff

that Travis had sexually assaulted her; after speaking with Travis, the sheriff’s department

determined that Sandoval’s allegations were unfounded, that her allegations were made in

retaliation for his report against her.140 The next day, Sandoval reported the same sexual assault

allegations against Travis to the Grand Prairie Police Department, where the assigned detective

ignored Travis’s assertions of innocence and allegedly ignored the sheriff’s department’s

138 See, e.g., Travis v. City of Grand Prairie, Texas, 654 Fed. App’x 161 (5th Cir.

2016)(unpublished)(citations omitted).

139 Id. at 162.

140 Id.

communication that Sandoval’s allegations were false and retaliatory; so, Travis was arrested.141

In his civil rights lawsuit, Travis alleged that the arresting officers lacked probable cause to arrest

him because the detective had direct “exculpatory” evidence proving Travis’s innocence.142 Even

assuming Travis’s allegations were true, the district court determined, and the Fifth Circuit agreed,

that Travis failed to show that the officers lacked probable cause to arrest him, given that

Castaldo’s report alone was sufficient to give the officers probable cause for his arrest.143

It is settled that probable cause generally exists to arrest a suspect named by an alleged

victim of assault.144 Plaintiffs fail to contend with this authority. To undermine the arresting

officers’ determination of probable cause when an accuser reports an assault, an accused must do

more than question the accuser’s credibility and motives; he must point to evidence that would

show her account to be demonstrably false.145 Here, Plaintiffs fall short of identifying any such

evidence.146 Plaintiffs essentially challenge the sufficiency of the investigation.147 Had the

arresting officers accepted Plaintiffs’ insistence that Jane Roe was lying to avoid being disciplined

and had they read her text messages exchanged with her boyfriend (presumably, especially the one

in which Jane Roe tells her boyfriend she will “fix this”), Plaintiffs argument goes, the officers

141 Id. at 162–63.

142 Id.

143 Id. at 165.

144 See id. (citing cases); see also, e.g., Walz v. Randall, 2 F.4th 1091 (8th Cir. 2021); Ahlers v. Schebil, 188

F.3d 365 (3d Cir. 1999); Tangwall v. Stuckey, 135 F.3d 510 (7th Cir. 1998).

145 See Travis, 654 Fed. App’x at 165.

146 That Jane Roe later recanted her allegation is of no moment to the probable cause determination.

147 The Schambachs submit in conclusory fashion that the arresting officers disregarded exculpatory evidence

(i.e., that Jane Roe fabricated the molestation allegation to avoid being disciplined or in retaliation for the threatened

disciplinary action). Notably, however, the Court examines evidence under an objective standard—in the arresting

officers’ narrative in the incident report, it is reported that Mr. Schambach claimed that Jane Roe had reasons to

fabricate the molestation allegation. So this retaliatory motive was part of the probable cause calculus.

would have discovered that Jane Roe’s credibility was questionable. But even assuming that the

arresting officers had some reason to question Jane Roe’s account (as she reported to the arresting

officers after she had so reported to several others), it does not establish that they were

unreasonable in their determination that they had probable cause to arrest Mr. Schambach for

molestation. To be sure, it is not uncommon for police officers to vet differing accounts of events

and nonetheless determine that evidence supports a finding of probable cause that a crime has been

committed. This is particularly true in the context of sexual assault of molestation claims, where

“only two people were in the bedroom where the alleged [molestation] occurred[.]”148

Notably, here, the arresting officers were well aware that Mr. Schambach denied Jane

Roe’s allegation. Mr. Schambach denied the allegation during his interview, which was the last

piece in the arresting officers’ investigation puzzle. That Mr. Schambach offered an ostensibly

innocuous account of prior massages by his stepdaughter or a prior hair-brushing event

culminating in (as Mr. Schambach allegedly told it) an upset Jane Roe running from the room, and

that he suggested that Jane Roe was motivated to lie “do not have any automatic, probable-cause-

vitiating effect.”149 That Jane Roe’s credibility could be called into question or that she had a

motivation to fabricate a molestation allegation likewise does not vitiate Defendants’ arguable

probable cause determination.

Where, as here, Defendants invoke qualified immunity, Plaintiffs bear the burden to

demonstrate that it was unreasonable for the arresting officers to believe that Jane Roe was telling

the truth in her accusation that her stepfather had molested her and that it was unreasonable for

148 See Walz, 2 F.4th at 1103-04 (observing that “this case is not one in which ‘minimal further investigation

would have exonerated the suspect’” and “’[w]hen an officer is faced with conflicting information that cannot be

immediately resolved, he may have arguable probable cause to arrest a suspect’ even without additional

investigation.”).

149 See Wesby, 138 S.Ct. at 592.

them to conclude that they had probable cause to arrest Mr. Schambach for molesting her.

Considering the evidence in the light most favorable to Plaintiffs, they fail to carry their burden.

The arresting officers were faced with conflicting accounts that could not be immediately

reconciled or resolved. The record supports Defendants’ submission that they (Muller and Fath)

had arguable probable cause to effect a warrantless arrest of Mr. Schambach for molestation of a

juvenile. Indeed, the Court underscores that probable cause is a relatively low threshold, depends

on the totality of the circumstances, and does not demand an actual showing of criminal activity,

only a fair probability or substantial chance of criminal activity. Jane Roe’s account of the alleged

molestation event, if true, fit the state statutory charge of molestation of a juvenile. Plaintiffs have

not demonstrated that the arresting officers acted unreasonably in determining that they had

probable cause when they credited her account after speaking with relevant parties (including the

alleged victim, the accused, and others) during their investigation. Thus, Defendants are entitled

to qualified immunity for Plaintiffs’ Fourth Amendment warrantless false arrest claim.

B. Whether the Warrant Affidavit, Reconstructed to Include the Allegedly Omitted Material

Facts Sufficed to Establish Probable Cause to Support the Arrest Warrant

Even though raised for the first time in their opposition papers, the Court assumes that

Plaintiffs have sufficiently briefed their allegation that the arresting officers violated Mr.

Schambach’s Fourth Amendment right as recognized by Franks—to be free from arrest pursuant

to a warrant that lacks probable cause due to knowing or reckless misstatements or omissions by

the officer in the warrant application. However, the Court underscores that “mere allegations of

‘taint,’ without more, are insufficient to overcome summary judgment” and “omissions of

exculpatory information must be ‘knowing.’”150 Nevertheless, to reiterate, to prove such a claim,

Plaintiffs must show that:

(1) the affidavit supporting a warrant contained false statements or material

omissions;

(2) the affiant made such false statements or omissions knowingly and

intentionally, or with reckless disregard for the truth; and

(3) the false statements or material omissions were necessary to the finding of

probable cause.151

To determine (3), the Court considers whether the affidavit, reconstructed to include the allegedly

material omissions, is insufficient to establish probable cause.152

Focusing on the first prong of the qualified immunity analysis, the Court focuses on

Defendant Muller’s conduct in swearing out the affidavit supporting the warrant in considering

whether the Fourth Amendment was violated. The Schambachs fail to show a triable issue whether

the magistrate’s finding of probable cause was tainted by material omissions made by Detective

Muller, the arresting officer.

Though “Franks ... requires more than bare assertions of falsehood[,]”153 Plaintiffs fail to

heed the Fifth Circuit’s clear instructions: “[T]o overcome the ‘presumption of validity with

respect to the affidavit supporting the ... warrant[, the] plaintiff must demonstrate that ... the

affidavit was deliberately or recklessly false.”154 Plaintiffs fail to submit the requisite “offer of

proof” and fail to articulate with any precision what facts were recklessly omitted from the

150 Buehler I, 824 F.3d at 555 (citations omitted).

151 See Davis v. Hodgkiss, 11 F.4th 329, 333 (5th Cir. 2021)(citations omitted).

152 Id.

153 Terwilliger, 4 F.4th at 283.

154 Id.

affidavit.155 Nor do Plaintiffs submit a statement of supporting reasons or offer reliable witness

statements.156 Instead, Plaintiffs anchor their Franks theory of liability to Muller’s failure to advise

the reviewing commissioner that Mr. and Mrs. Schambach believed that Jane Roe had credibility

issues, namely, that she was motivated to fabricate the molestation allegation in order to avoid

being disciplined or sent to live with her father in California. Plaintiffs also suggest that they have

more than one thousand pages of screenshots of Jane Roe’s text messages which they conclude

are exculpatory; however, the Court may only consider what is of record: eight pages of

unauthenticated text messages purportedly between Jane Roe and her boyfriend in which she

purportedly157 tells him she will “fix this.”

Assuming Plaintiffs’ submission suffices for an offer of proof, Muller’s affidavit would be

reconstructed to include the following facts, which Plaintiffs characterize as exculpatory:

• Jane Roe was acting out and facing discipline in the form of being sent away to California;

• Jane Roe texted her boyfriend that she was going to “fix this”;

• Mr. and Mrs. Schambach believed that Jane Roe fabricated the allegation to avoid being

disciplined or in retaliation for the parents threatening to send her to live in California.

In other words, Plaintiffs insist that injecting an express credibility concern into the affidavit would

undermine the other facts (including the victim’s allegation, that the victim disclosed consistent

statements to three others, that the accused could not recall specifics of the many massages he

received from Jane Roe, but that he did recall a brush incident that upset Jane Roe, and that the

suspect “denied everything else”) as reported to and by Muller in the affidavit. So reconstructed,

155 See id.

156 Id. (quoting Franks, 438 U.S. at 171).

157 The text messages are unauthenticated.

the Court must determine whether the reconstructed affidavit would still support a finding of

probable cause.

Viewing the facts and reconstructed affidavit in the light most favorable to Plaintiffs,

Plaintiffs fail to persuade the Court that the reconstructed affidavit would not support a finding of

probable cause. Had the affidavit conveyed the Schambachs’ shared belief that Jane Roe was lying

to avoid (or in retaliation for) disciplinary action and their shared belief that her text message that

she would “fix this” meant that she planned to do something to prevent her parents from sending

her to California, viewed in the context of the other unchallenged information contained in the

warrant application, does not compel a finding that the affidavit would no longer serve as a

predicate for probable cause. In other words, Plaintiffs overstate the exculpatory nature of the

omitted facts which they insist support their belief that Jane Roe fabricated the molestation

allegation. True, assessing credibility and resolving inconsistencies bear on the probable cause

assessment. It does not follow, however, that expounding upon the accused’s belief as to the

alleged victim’s credibility or motivation is necessary to the finding of probable cause. Had Muller

conveyed in the warrant application that the Schambachs’ believed that Jane Roe was motivated

to fabricate the alleged incident, Plaintiffs fail to demonstrate how this would have a probable-

cause-vitiating effect. This is especially so considering that the alleged omissions are not

intrinsically exonerating facts. Rather, Muller was faced with conflicting accounts that could not

be immediately reconciled or resolved. This was conveyed, though not as extensively as the

Schambachs insist was necessary, in the affidavit for the warrant. Muller included in the affidavit

supporting the warrant application that “suspect denied everything else” which alluded to the

credibility decision the arresting officer had made in applying for the arrest warrant. The

reconstructed affidavit merely elucidates the inconsistent accounts presented to the arresting

officers. In the sort of he-said/she-said context of the allegation and charge here, Plaintiffs fail to

show how expounding upon credibility decisions could vitiate probable cause.158

On this record, Plaintiffs have failed to show that Muller recklessly omitted exculpatory

information that would have precluded the magistrate from viewing all facts material to a finding

of probable cause. Even including the facts that serve to underscore Jane Roe’s motive for either

fabricating or maliciously timing the molestation allegation, considering the totality of the facts

set forth in the affidavit—free of the alleged taint—the reconstructed affidavit is sufficient to

support the commissioner’s probable cause finding. Accordingly, the arresting officers are entitled

to summary judgment dismissing Plaintiffs’ Franks Fourth Amendment false arrest theory, as there

was no constitutional violation. Finally, the Court observes that even if Plaintiffs persuaded the

Court that the arrest warrant was tainted by Muller’s failure to precisely set forth Jane Roe’s

credibility issues as detailed by the Schambachs, the Court would simply be tasked with

determining whether Schambach’s arrest for molestation of a juvenile was supported by probable

cause.159 The Court has already indicated that Mr. Schambach’s arrest for molestation of his

teenage stepdaughter was supported by arguable probable cause. Considering the cases which

uphold the grant of qualified immunity when officers credit an alleged victim’s story in the face

of inconsistent accounts of assault, it would not be a stretch to conclude that the arresting officers

are entitled to qualified immunity on the facts of record here.160 On this record, Plaintiffs fail to

make out a constitutional violation.

158 Cf. Hawkins v. Gage Cnty., 79 F.3d 951, 957 (8th Cir. 2014) (“False accusations of sexual assault create

a difficult situation for police. Just as the officers were required to respect [the suspect’s] rights, they also were

expected to address [the alleged victim’s] allegations[.]”).

159 See Buehler, 2 F.4th at 992.

160 See supra at pp. 21–23.

C. Whether Defendants are Entitled to Summary Judgment on the State Law Claim

Plaintiffs’ sole remaining claim is a Louisiana state law claim for malicious prosecution.

The cause of action is inadequately briefed, and the Court is tempted to decline to exercise subject

matter jurisdiction over this remaining claim and dismiss the cause of action without prejudice.

Nevertheless, because the Court thoroughly has considered the probable cause issue relevant to

this state law tort, the Court elects to resolve Defendants’ motion for summary judgment.

To succeed on a claim for malicious prosecution under Louisiana law, a plaintiff must

prove by a preponderance of the evidence these essential elements:

(1) the commencement or continuance of an original criminal or civil

proceeding;

(2) its legal causation by the present defendant in the original proceeding;

(3) its bona fide termination in favor of the present plaintiff;

(4) the absence of probable cause for such proceeding;

(5) the presence of malice therein; and

(6) damages conforming to legal standards resulting to plaintiff.161

The plaintiff bears the burden of proof on all elements, except where the prosecuting officer has

dismissed the charges. In that instance, there is a presumption of malice and a lack of probable

cause in cases where the prosecuting officer has dismissed the charges.162 Here, the Court finds

that the record demonstrates that the arresting officers had probable cause to charge Mr.

Schambach with molestation. This dooms the malicious prosecution claim.163 Independently, the

Court observes that the defendants submit sworn affidavits attesting to their reasonable belief in

their probable cause determination, whereas Plaintiffs submit no evidence creating a fact issue as

to malice. At most, Plaintiffs allege in conclusory fashion that the defendants were unreasonable

161 Lemoine v. Wolfe, 2014-1546 (La. 3/17/15); 168 So. 3d 362, 367 (quoting Jones v. Soileau, 448 So. 2d

1268, 1271 (La. 1984)).

162 See Keppard v. AFC Enters., Inc., 2000-2474 (La. App. 4 Cir. 11/28/01); 802 So. 2d 959, 965.

163 See Danna v. Purgerson, 760 Fed. App’x 275, 280 (5th Cir. 2019) (unpublished).

in failing to scrutinize text messages and failing to believe Mr. Schambach over Jane Roe. Absent

any evidence supporting the malice element, summary judgment in Defendants’ favor is

independently warranted.164

Having determined that the arresting officers had probable cause to arrest Mr. Schambach,

and that there is no evidence in the record indicating that Muller and Fath acted with malice,

Defendants are entitled to summary judgment dismissing the Schambachs’ claim for malicious

prosecution.

VI. Conclusion

As the Court previously observed, false accusations have a devastating effect on the falsely

accused. But “[t]he constitution does not guarantee that only the guilty will be arrested.”165 Every

“wrongful arrest” case, by definition, involves a situation in which the police have apprehended

the wrong person; or, perhaps, a person not guilty of the crime charged; or, perhaps, one as to

whom the prosecuting authorities decline to proceed to trial for lack of sufficient evidence to secure

a conviction. The question in a wrongful-arrest civil-rights case is not whether the accused

definitively committed a crime, whether the police investigation could have been more complete,

or whether all of the evidence now possessed would support the charge. Probable cause cannot

turn on the hindsight determination of whether the putative victim told the truth; rather, it is based

on what the police know at the time of the arrest. And, with all Fourth Amendment inquiries,

context is dispositive of the ultimate assessment of reasonableness. Sexual assault, or he-said/she-

said molestation accusations, present difficult probable cause assessments for investigating

164 See Stokes v. Faber, 522 F. Supp. 3d 225, 239-40 (E.D. La. 2021)(Zainey, J.).

165 Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982)(citation omitted).

officers faced with conflicting information where, as here, one person is lying, and one is telling

the truth.166

“Probable cause exists where the facts and circumstances within their [the officers’]

knowledge, and of which they had reasonably trustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in the belief that an offense has been or is being

committed.”167 If conflicting narratives or an alleged victim’s credibility issues defeated probable

cause, rarely would an arrest be proper in a sexual assault/molestation case. Evidence indicative

of some other motivation for the timing or substance of an alleged victim’s allegation does not

render the alleged victim’s account per se fictional or fabricated. To be sure, when police officers

invoke qualified immunity, the Court must consider whether the officers acted reasonably—they

have “ample room for mistaken judgments,” for qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.”168

For the foregoing reasons,

166 “Innocent explanations—even uncontradicted ones—do not have any automatic, probable-cause-vitiating

effect.” Wesby, 138 S. Ct. at 592. Inconsistent accounts are a particularly challenging feature in the sexual assault or

abuse context.

167 Brinegar v. United States, 338 U.S. 160, 175-76 (1949)(quoting Carroll v. United States, 267 U.S. 132,

162 (1925)).

168 See Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000) (quoting Malley v. Briggs, 475 U.S. 335, 343

(1986)).

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment!® is

GRANTED. The plaintiffs’ claims are hereby dismissed with prejudice.!”°

NEW ORLEANS, LOUISIANA, this Ist day of June, 2022.

NANNETTE ype BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

169 Rec.Doc. 38.

0 Tnsofar as the plaintiffs sued the arresting officers in their official capacities, this Court previously granted

summary judgment in favor of the City of Mandeville; whether because the official-capacity claims are redundant of

the previous claims against the City of Mandeville or simply because the Court previously dismissed such claims,

summary judgment is proper and the official-capacity claims are dismissed for the same reasons articulated in the

Court’s November 3, 2021 Order and Reasons. Official-capacity suits “‘generally represent only another way of

pleading an action against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165 (1985)

(quoting Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)). Because the entity is the

real party in interest, “an official-capacity suit is, in all respects other than name, to be treated as a suit against the

entity.” Graham, 473 U.S. at 166.

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