Green v. Thomas

Case: 24-60314 Document: 54-1 Page: 1 Date Filed: 03/03/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________

FILED

March 3, 2025

No. 24-60314

____________ Lyle W. Cayce

Clerk

Desmond D. Green,

Plaintiff—Appellee,

versus

Jacquelyn Thomas, Detective,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:23-CV-126

______________________________

Before Higginbotham, Willett, and Ho, Circuit Judges.

Don. R. Willett, Circuit Judge: *

This is a qualified immunity case about a man wrongfully accused of

murder. Detective Jacquelyn Thomas took a statement from a jailhouse

informant who was under the influence of illicit drugs. That statement

implicated Desmond Green in an ongoing murder case. Green alleges that

Detective Thomas then manipulated a photo lineup with the informant and

withheld crucial exonerating evidence from the grand jury. As a result,

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*

Judge Ho concurs in the judgment.

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Green—an innocent man—spent nearly two years in jail before the

informant recanted his statement and admitted he was “just high” and

“try[ing] to . . . get out of jail.” Green sued Detective Thomas for violating

his Fourth and Fourteenth Amendment rights, and the district court denied

Detective Thomas qualified immunity at the motion-to-dismiss stage. We

AFFIRM in part and REVERSE in part.

I

In February 2020, someone shot and killed Nicolas Robertson in

Jackson, Mississippi. Two months later, law enforcement arrested Samuel

Jennings for burglary and grand larceny. Once Jennings was jailed, he

provided a handwritten, signed statement about the Robertson murder to

Jackson Police Department Detective Jacquelyn Thomas. In that statement,

Jennings wrote that Green confessed in front of him that he shot Robertson

and, with assistance from others, moved Robertson’s body. Although Green

said he didn’t know Robertson and was not involved, a grand jury indicted

Green for capital murder in July 2020. Green was subsequently arrested and

detained in Raymond Detention Center, operated by Hinds County.

In March 2022—nearly two years after the indictment and arrest—

Jennings recanted his statement to Detective Thomas. Jennings admitted he

had consumed methamphetamine in the one to two hours prior to his April

2020 statement to Detective Thomas; he did “not know why he said [] Green

was involved in the capital murder”; he was in the hospital on the day

Robertson was killed; and he had “no knowledge of what happened to”

Robertson. He also swore he “made a false statement” about Green, he

picked a different photo in the lineup than the detective pointed to, and he

was “[j]ust high and try [sic] to help myself get out of jail.”

2

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On April 21, 2022, after the prosecutor moved to “remand,” the

presiding judge dismissed the case. Green was released from jail after 22

months of detention. 1

Green then sued Detective Thomas and the city 2 in February 2023.

He filed claims under 42 U.S.C. § 1983, arguing Detective Thomas violated

his Fourth and Fourteenth Amendment rights, as well as Mississippi law, and

alleging “malicious prosecution and malicious arrest without probable

cause.” Of note, Green alleged that Detective Thomas withheld exonerating

evidence from the grand jury, including: Robertson, after being shot in one

location, was conscious when he arrived at a different location where he was

later found dead; Robertson was with another man (not Green) “shortly

before” the shooting; and information pertaining to Jennings’s unreliability

(including drug use and criminal activity). Green also alleged that Jennings

selected a photo of a different suspect in Detective Thomas’s photo lineup.

Jennings’s recantation—attached to Green’s complaint—provides added

detail: Detective Thomas pointed to the photo of Green after Jennings had

identified a different suspect.

Detective Thomas filed a motion to dismiss based on qualified

immunity. The district court denied qualified immunity and commented that

qualified immunity is “an unconstitutional error.” 3 The district court then

stayed all other claims to permit Detective Thomas to seek interlocutory

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1

As the district court noted, Green’s complaint alleges he was incarcerated for two

years and three months. But July 2020 (when Green was indicted) to April 2022 (when

Green was released) is less than two years.

2

This appeal involves only Detective Thomas’s motion to dismiss based on

qualified immunity.

3

Green v. Thomas, 734 F. Supp. 3d 532, 540 (S.D. Miss. 2024).

3

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review. Detective Thomas appealed, seeking review of the denial of qualified

immunity and the application of the independent-intermediary doctrine. 4

II

“Jurisdiction is always first.” 5 Green contends that we lack

jurisdiction because “there has been no [] certification and approval” by the

district court and circuit court for an interlocutory appeal and because the

district court’s decision was not final. But the district court’s order

specifically stayed the case “so that Detective Thomas can exercise her right

to an immediate interlocutory appeal.” 6 And regardless, “certification and

approval” are not necessary for denials of qualified immunity when those

denials turn on questions of law. 7 When officers “contend that their conduct

did not violate the Fourth Amendment” or “clearly established law,” as

Detective Thomas does here, “they raise legal issues” that may be appealed. 8

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4

Detective Thomas does not appear to appeal the denied dismissal of Green’s

state-law claim, for which she did not assert qualified immunity as a defense, and has thus

waived any such argument. See Brown v. Miller, 519 F.3d 231, 239 (5th Cir. 2008) (finding

waiver because plaintiff “has not argued that he has qualified immunity against the state

law claims under the Louisiana law of qualified immunity” and “argues only the federal

law of qualified immunity in his motions to dismiss before the district court and in his

appellate briefs”). To the extent she appeals the application of the independent-

intermediary doctrine to Green’s state-law claims, the analysis is the same. See post, at 15–

18.

5

Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021) (quotation omitted).

6

Green, 734 F. Supp. 3d at 569.

7

See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[W]e hold that a district

court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law,

is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding

the absence of a final judgment.”); Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009).

8

Modacure v. Short, No. 22-60546, 2023 WL 5133429, at *1 (5th Cir. Aug. 10,

2023) (quoting Plumhoff v. Rickard, 572 U.S. 765, 773 (2014)).

4

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Accordingly, we have “jurisdiction to review orders denying qualified

immunity” under the collateral-order doctrine and 12 U.S.C. § 1291. 9

Green argues that the district court erred for two additional reasons,

which he suggests bear on jurisdiction. First, staying the case pending appeal

gives a “windfall” to the other city defendants: “[G]iving qualified immunity

to [Detective Thomas] gives the political subdivision Defendants the benefit

of qualified immunity, which is to delay the case for an undetermined time.”

And second, the federal constitutional torts are also actionable as state-law

torts, which Green has alleged but for which Detective Thomas did not assert

any immunity—and therefore, Detective Thomas “will be saved nothing,

regardless of the outcome of this appeal.” But as Green acknowledges, the

Supreme Court has held that the addition of state-law tort claims to the

suit—as here, Mississippi malicious prosecution—does not foreclose

appealability for federal claims. 10 Indeed, “[t]he Harlow right to immunity is

a right to immunity from certain claims, not from litigation in general,” so

when a court denies qualified immunity, “appeal must be available,”

regardless of what other claims and parties remain in litigation. 11 Though we

recognize Green’s concern for judicial resources, we follow the Supreme

Court’s grant of interlocutory appeals in denials of qualified immunity. 12

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9

Carswell v. Camp, 54 F.4th 307, 310 (5th Cir. 2022) (first citing Backe v. LeBlanc,

691 F.3d 645, 647–49 (5th Cir. 2012); then citing Mitchell, 472 U.S. at 526–27); see also

Trevino v. Iden, 79 F.4th 524, 530 (5th Cir. 2023) (citations omitted); Asante-Chioke v.

Dowdle, 103 F.4th 1126, 1128 (5th Cir. 2024), cert. denied sub nom. Asante-Chioke v. Dowdle,

No. 24-387, 2025 WL 76452 (U.S. Jan. 13, 2025).

10

See Behrens v. Pelletier, 516 U.S. 299, 311–12 (1996).

11

Id. at 312.

12

Green argues Mohawk Indus., Inc. v. Carpenter “undermine[s]” the Supreme

Court’s decision in Behrens; in Carpenter, discovery orders alleged to violate the attorney-

client privilege were not appealable under the collateral-order doctrine. See 558 U.S. 100,

104–08 (2009). But as the Supreme Court held in Behrens, “appealability determinations

5

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Accordingly, we have jurisdiction to review the district court’s denial

of qualified immunity to Detective Thomas.

III

We review denials of qualified immunity at the motion-to-dismiss

stage de novo. 13 “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” 14 “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” 15 When ruling on a

Rule 12(b)(6) motion to dismiss, we may rely on the content of the pleadings

and “documents attached to either a motion to dismiss or an

opposition . . . when the documents are referred to in the pleadings and are

central to a plaintiff’s claims.” 16

The same standards apply when a motion to dismiss is based on

qualified immunity. 17 In such cases, “[t]he crucial question is ‘whether the

complaint pleads facts that, if true, would permit the inference that

Defendants are liable under § 1983 . . . and would overcome their qualified

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are made for classes of decisions, not individual orders in specific cases.” 516 U.S. at 312.

Denials of qualified immunity fall into one “class[]”; discovery orders which violate

attorney-client privilege are another (inapposite) “class[].”

13

See Cantrell v. City of Murphy, 666 F.3d 911, 918 (5th Cir. 2012).

14

Ashcroft, 556 U.S. at 678 (quotation marks and citation omitted).

15

Id.

16

Brand Coupon Network, LLC v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir.

2014).

17

See Dyer v. Houston, 964 F.3d 374, 379 (5th Cir. 2020).

6

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immunity defense.’” 18 The plaintiff carries the burden of demonstrating that

qualified immunity is inappropriate. 19

IV

We begin with the central issue: whether Detective Thomas is entitled

to qualified immunity. To defeat Detective Thomas’s assertion of qualified

immunity, Green must plead that Detective Thomas violated a statutory or

constitutional right that was clearly established at the time of his indictment

and arrest. 20 The district court found that Green made such a showing. We

mostly agree.

A

First, Detective Thomas contends the complaint “fails to identify the

clearly established constitutional right that was violated, which every

reasonable officer would know was a violation.” 21 Detective Thomas

misreads—or perhaps overlooks—parts of Green’s complaint. In his

complaint, Green alleges specific violations of the Fourth and Fourteenth

Amendments to the U.S. Constitution. 22 So Green has, in fact, identified

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18

Terwilliger v. Reyna, 4 F.4th 270, 280 (5th Cir. 2021) (citation omitted).

19

See id.

20

See Trevino, 79 F.4th at 530–31.

21

Detective Thomas generally argues she is “entitled to qualified immunity

because the complaint fails to allege facts to support a violation of a clearly established

right” without specific reference to any of Green’s claims under the Fourth and Fourteenth

Amendments. We understand her briefing to appeal the district order’s denial of qualified

immunity across all of Green’s federal claims.

22

Green asserts claims for state-law malicious prosecution; Fourth-Amendment

malicious prosecution; Fourth-Amendment false arrest; and, as the district court

construed the complaint, Fourteenth-Amendment due process. Green, 734 F. Supp. 3d at

554. Although the complaint (and the briefing) is unclear, we understand the complaint to

allege Detective Thomas manipulated a photo lineup and withheld evidence from the grand

jury, which are actionable under the Fourteenth Amendment. See Geter v. Fortenberry, 849

7

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constitutional rights which he alleges Detective Thomas violated. The

question, then, is whether these rights were clearly established at the time of

Green’s arrest in early 2020. Short answer: They were, for the most part.

Start with false arrest under the Fourth Amendment. Our precedents

make this one simple: “There can be no doubt that the right not to be arrested

absent probable cause was clearly established at the time of [Green’s]

arrest.” 23 And the requirement of probable cause prior to seizure is so

foundational it is in the Fourth Amendment itself:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and 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. 24

It is hard to imagine a right more clearly established.

Next, take due process under the Fourteenth Amendment. 25 We have

clearly established the right to be free from officers’ witness interference and

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F.2d 1550, 1559 (5th Cir. 1988) (Geter I) (recognizing claim as clearly established right

under Fourteenth Amendment); Geter v. Fortenberry, 882 F.2d 167, 170 (5th Cir. 1989)

(Geter II) (finding sufficient factual pleadings for claim to overcome qualified immunity).

23

Alexander v. City of Round Rock, 854 F.3d 298, 306–07 (5th Cir. 2017) (collecting

cases); see also Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (holding that the Fourth

Amendment requires a judicial determination of probable cause as a prerequisite to any

extended restraint on liberty following an arrest).

24

U.S. Const. amend. IV (emphasis added).

25

Green’s Fourteenth Amendment claim may be pursued alongside his Fourth

Amendment claims. See, e.g., Green, 734 F. Supp. 3d at 555; Castellano v. Fragozo, 352 F.3d

939, 960 (5th Cir. 2003) (en banc) (permitting Fourth and Fourteenth Amendment claims

to proceed simultaneously to trial); Cole v. Carson, 802 F.3d 752, 772 (5th Cir. 2015)

(“Though these wrongs may be addressed through a Fourth Amendment challenge in

many cases, they do not disappear where there is no violation of that amendment. Instead,

8

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concealment of exculpatory evidence which results in unlawful arrest,

detention, or conviction. 26 An officer “cannot avail himself of a qualified

immunity defense if he procures false identification by unlawful means or

deliberately conceals exculpatory evidence, for such activity violates clearly

established constitutional principles.” 27 And such “unlawful means”

include suggestive photo lineups, like “prodding the witness[] to select

another picture when they had chosen incorrectly.” 28

Finally, we look at malicious prosecution under the Fourth

Amendment. In finding clearly established law, the district court overlooked

Espinal v. City of Houston, in which a plaintiff sued officers under § 1983 for

malicious prosecution under the Fourth and Fourteenth Amendments. 29

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where there is no more specific constitutional protection available, the Fourteenth

Amendment may offer protection.”), cert. granted, judgment vacated sub nom. Hunter v. Cole,

580 U.S. 994 (2016), and opinion reinstated in part, 905 F.3d 334 (5th Cir. 2018); id. at 772

n.143 (“Certain wrongs affect more than a single right and, accordingly, can implicate more

than one of the Constitution’s commands.” (quoting Soldal v. Cook Cnty., 506 U.S. 56, 70

(1992))). Cole does not suggest that Fourth Amendment and Fourteenth Amendment

violations are only available as alternative claims; it merely asserts that in cases where a

plaintiff cannot meet the requirements for a Fourth Amendment claim, the Fourteenth

Amendment may provide a path to relief. 802 F.3d at 772. And the Supreme Court only

hesitated to expand claims available under the Fourteenth Amendment through substantive

due process when such claims were already available through other provisions of the

Constitution. See Albright v. Oliver, 510 U.S. 266, 271–73 (1994) (finding no Fourteenth

Amendment right to be free from malicious prosecution).

26

See, e.g., Geter I, 849 F.2d at 1559.

27

Id. (first citing Manson v. Brathwaite, 432 U.S. 98 (1977); then citing Brady v.

Maryland, 373 U.S. 83 (1963)); see also Good v. Curtis, 601 F.3d 393, 399 (5th Cir. 2010)

(finding an officer’s “knowing efforts to secure a false identification by fabricating evidence

or otherwise unlawfully influencing witnesses is not entitled to qualified immunity”).

28

Geter II, 882 F.2d at 170.

29

See 96 F.4th 741, 749 (5th Cir. 2024). Neither of the parties briefed this case,

either. Generally, our review is limited by the party-presentation principle. See Elmen

Holdings, LLC v. Martin Marietta Materials, Inc., 86 F.4th 667, 674 (5th Cir. 2023). “But it

is untrue that the party-presentation principle somehow limits federal judges to reading

9

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There, the plaintiff “was arrested and indicted in 2020,” like Green, “when

the constitutional prosecution tort did not exist in our circuit,” though such

a claim now exists. 30 Accordingly, we held, “the officers could not possibly

have violated clearly established law at the time.” 31

Our circuit previously suggested “[t]he initiation of criminal charges

without probable cause may set in force events that run afoul of explicit

constitutional protection—the Fourth Amendment if the accused is seized

and arrested, for example.” 32 Seeing no direct conflict between this holding

and that of Espinal, the rule of orderliness requires that we follow our

circuit’s precedent. 33 We do so here. For Green’s malicious prosecution

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only those cases cited in a Table of Authorities.” L. Off. of Rogelio Solis PLLC v. Curtis, 93

F.4th 276, 277–78 (5th Cir. 2024) (Oldham, J., dissenting from denial of reh’g en banc);

see also Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99 (1991) (“When an issue or

claim is properly before the court, the court is not limited to the particular legal theories

advanced by the parties, but rather retains the independent power to identify and apply the

proper construction of governing law.”); Elder v. Holloway, 510 U.S. 510, 512, 515–16

(1994) (holding that “appellate review of qualified immunity dispositions is to be

conducted in light of all relevant precedents,” not just those cited by the district court or

briefed by the parties).

30

Espinal, 96 F.4th at 749.

31

Id.

32

Winfrey v. Rogers, 901 F.3d 483, 491 (5th Cir. 2018) (quoting Castellano, 352 F.3d

at 953) (recognizing Fourth Amendment claims analogous to malicious-prosecution tort

claims).

33

See In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021) (“It is a

well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn

another panel's decision, absent an intervening change in the law, such as by a statutory

amendment, or the Supreme Court, or our en banc court. This rule is strict and rigidly

applied.” (internal quotation marks and citation omitted)); Arnold v. U.S. Dep’t of Interior,

213 F.3d 193, 196 n.4 (5th Cir. 2000) (“[U]nder the rule of orderliness, to the extent that a

more recent case contradicts an older case, the newer language has no effect.”).

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claim only, Detective Thomas did not violate clearly established law, and she

is thus entitled to qualified immunity. 34

Though Detective Thomas contests factual distinctions in the caselaw

used by Green, we are not beholden to the cases cited by a plaintiff, 35 and

“[t]he law can be clearly established ‘despite notable factual distinctions

between the precedents relied on and the cases then before the Court, so long

as the prior decisions gave reasonable warning that the conduct then at issue

violated constitutional rights.’” 36 Our precedents—regardless of whether

they were cited by Green—gave Detective Thomas “fair warning” of

Green’s right to be free from false arrest under the Fourth Amendment and

his due process rights under the Fourteenth Amendment. 37

B

We now must determine whether Green sufficiently pleaded that

Detective Thomas violated his clearly established rights under the Fourth

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34

Because failure to meet either prong of the qualified-immunity test is fatal to a

claim, we need not consider whether Green sufficiently pleaded malicious prosecution

prior to granting Detective Thomas qualified immunity on this claim. See Pearson v.

Callahan, 555 U.S. 223, 236 (2009) (permitting courts “to exercise their sound discretion

in deciding which of the two prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at hand” and granting qualified

immunity because “the unlawfulness of the officers’ conduct in this case was not clearly

established”).

35

See Bailey v. Ramos, 125 F.4th 667, 682 n.60 (5th Cir. 2025) (collecting cases and

explaining that the Supreme Court and this circuit recognize courts reviewing qualified

immunity are not restricted to only the cases cited by plaintiffs).

36

Bailey v. Iles, 87 F.4th 275, 289 (5th Cir. 2023) (quoting Kinney v. Weaver, 367

F.3d 337, 350 (5th Cir. 2004) (en banc)).

37

Id.

11

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and Fourteenth Amendments. The district court found Green’s complaint

was sufficient, 38 and we agree.

1

We start with Green’s Fourth Amendment claim for false arrest. “To

prevail in a § 1983 claim for false arrest, a plaintiff must show that . . . the

officers could not have reasonably believed that they had probable cause to

arrest the plaintiff for any crime.” 39 Green was arrested and jailed—for

nearly two years—for Robertson’s murder. So the only element at issue is

probable cause.

Detective Thomas argues that she “is immunized against reasonable

mistakes concerning the presence of probable cause.” It is true that “[e]ven

law enforcement officials who reasonably but mistakenly conclude that

probable cause is present are entitled to” qualified immunity. 40 But there is

no such “reasonabl[e] but mistaken[] conclu[sion]” in this case.

“Probable cause is established by facts and circumstances within the

officer’s knowledge that are sufficient to warrant a prudent person, or one of

reasonable caution, in believing . . . that the suspect has committed . . . an

offense.” 41 Here, accepting Green’s allegations as true, Detective Thomas

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38

See Green, 734 F. Supp. 3d at 552–56.

39

O’Dwyer v. Nelson, 310 F. App’x 741, 745 (5th Cir. 2009) (quotation marks and

citation omitted); see also Davidson v. City of Stafford, 848 F.3d 384, 391 (5th Cir. 2017), as

revised (Mar. 2017).

40

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009) (alteration in

original) (quotation marks and citation omitted).

41

Arizmendi v. Gabbert, 919 F.3d 891, 897 (5th Cir. 2019) (quotation marks and

citation omitted); see also Hernandez v. Terrones, 397 F. App’x 954, 966 (5th Cir. 2010) (“In

the context of evaluating the existence of probable cause and whether an officer is entitled

qualified immunity, ‘we embark on a practical, common-sense [determination] whether

given all of the circumstances’ a reasonable officer could have believed ‘there is a fair

12

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had information which would have undercut any reasonable belief that Green

murdered Robertson.

First, Jennings alleged that Green confessed to killing Robertson and

moving his body. But a police report showed that Robertson, after having

been shot, was alive and went to Avery Forbes’s home, where he knocked on

the door and spoke with Forbes before he died at that location. Such evidence

directly contradicts Jennings’s statement that Green moved Robertson’s

body.

Second, officers had evidence that another individual—Brandon

Summerall—had been with the deceased shortly before his death. Such

evidence would offer another person of interest that could have been

involved in the crime and undermine probable cause for both Detective

Thomas and the grand jury to indict and arrest Green.

Third, Detective Thomas took Jennings’s initial statement and could

have provided the grand jury with information about the informant’s

status—jailed for burglary and grand larceny—and mental state at the time

of giving the statement—high or withdrawing from illicit drugs. Such

information would have diminished Detective Thomas’s ability to rely on

Jennings’s statement and at least provided the grand jury with the

opportunity to determine whether to rely on the informant’s statement.

As a result, Green has alleged sufficient facts to show a lack of

probable cause at this stage.

_____________________

probability’ [Plaintiff] committed the crime charged.” (alterations in original) (quotation

marks and citations omitted)).

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2

We next turn to Green’s Fourteenth Amendment due process claim.

To succeed, Green must plead “specific facts” regarding “what exculpatory

evidence [Detective Thomas] suppressed and concealed” and “what

‘unlawful means’” she “used to procure the identification[].” 42

Green’s complaint sufficiently alleges a violation of his Fourteenth

Amendment right to due process. As to exculpatory evidence, the same

evidence that should have cast doubt in Detective Thomas’s mind regarding

Green’s culpability and Jennings’s reliability is the same evidence that Green

alleges was suppressed from the grand jury. 43 And as to Jennings’s

identification, Green alleges—based on Jennings’s recantation, attached to

the complaint—that Jennings identified a different suspect in the photo

lineup with Detective Thomas. After Jennings identified someone else,

Detective Thomas “prodd[ed]” Jennings by pointing to another suspect:

Green. 44 This method of identification, if true, is the very type of “unlawful”

and “suggestive” identification procedure for which we have previously

denied qualified immunity at the motion-to-dismiss stage. 45

Accepting his allegations as true, Green’s complaint is clear.

Detective Thomas manipulated a photo lineup. She relied on uncorroborated

testimony from a high—or withdrawing—jailhouse informant who was

contradicted by police reports to obtain an indictment against Green. And

she withheld critical information in Green’s favor from the grand jury—

information which should have given Detective Thomas pause to even indict

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42

Geter I, 849 F.2d at 1559.

43

See ante, at 13.

44

Geter II, 882 F.2d at 170–71.

45

See id. at 171.

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him in the first place. Green has sufficiently alleged violations of his clearly

established Fourth and Fourteenth Amendment rights. Subject to the

independent-intermediary doctrine, discussed below, Detective Thomas is

not entitled to qualified immunity on Green’s Fourth Amendment false

arrest and Fourteenth Amendment due process claims.

V

We next assess whether the independent-intermediary doctrine

applies to this case. Detective Thomas asserts that she is entitled to qualified

immunity because a grand jury indicted Green, and thus, the independent-

intermediary doctrine protects her against all of Green’s claims. The district

court, taking Green’s allegations as true and making reasonable factual

references in his favor, found the doctrine did not protect Detective

Thomas. 46 We agree.

The independent-intermediary doctrine “becomes relevant

when . . . a plaintiff’s claims depend on a lack of probable cause.” 47 Green’s

Fourth Amendment claims depend on an absence of probable cause.

Accordingly, Detective Thomas must show an “intermediate’s decision

[broke] the causal chain and insulate[d]” her. 48 As we have held,

[T]he chain of causation between the officer’s conduct and the

unlawful arrest “is broken only where all the facts are

presented to the grand jury, or other independent intermediary

where the malicious motive of the law enforcement officials

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46

See Green, 734 F. Supp. 3d at 558.

47

Trevino, 79 F.4th at 531 (quoting Buehler v. City of Austin, 824 F.3d 548, 553 (5th

Cir. 2016)).

48

Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977).

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does not lead them to withhold any relevant information from

the independent intermediary.” 49

The doctrine does not apply if “it can be shown that the deliberations

of that intermediary were in some way tainted by the actions of the

defendant” 50 and that “taint” is material—“that is, even knowing

misstatements or omissions will not satisfy the taint exception if the

misstated or omitted information would not have altered the intermediary’s

probable-cause finding.” 51

The standard for “taint” in grand jury deliberations is relatively low.

An officer “taint[s]” the deliberation by “withhold[ing] any relevant

information.” 52 And “[a]ny misdirection of the magistrate or the grand jury

by omission or commission perpetuates the taint of the original official

behavior.” 53

Detective Thomas, in arguing that Green has no evidence of anything

“improperly presented,” “misl[eading],” or “malicious[],” holds Green to

too high a bar at the motion-to-dismiss stage. 54 Of course, a criminal

defendant—and, as here, later a § 1983 plaintiff—has limited knowledge of

_____________________

49

Winfrey, 901 F.3d at 497 (emphasis added) (quoting Buehler, 824 F.3d at 554).

50

Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010) (internal

quotation marks and citation omitted).

51

Trevino, 79 F.4th at 532 (citations omitted).

52

Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988).

53

Id.

54

Detective Thomas relies on summary-judgment-stage cases, which of course

require a higher burden of proof for plaintiffs than those ruling on motions to dismiss. See

Craig v. Dallas Area Rapid Transit Authority, 504 F. App’x 328, 331–32 (5th Cir. 2012);

Buehler, 824 F.3d at 553–54.

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what occurs in grand jury proceedings. 55 So “[a]t the motion-to-dismiss

stage, ‘mere allegations of taint’ may be adequate ‘where the complaint

alleges other facts supporting the inference.’” 56 Accordingly, a plaintiff must

specifically allege that the officer “‘deliberately or recklessly’ provided false

information to . . . the grand jury” or made “knowing and intentional

omissions that result in a warrant being issued without probable cause.” 57

Regardless of which claims it applies to, the independent-

intermediary doctrine does not shield Detective Thomas. 58 Green’s

complaint and its attachments—including Jennings’s recantation—assert

that Detective Thomas manipulated a photo lineup and relied on an

uncorroborated statement from a jailhouse informant who was high or

experiencing withdrawals. It also asserts that Detective Thomas withheld

crucial, specific evidence from the grand jury which would contradict

Jennings’s original statement that Green moved the deceased body, would

suggest Jennings’s unreliability as a witness and in his identification of Green,

and would suggest another individual was with the deceased person earlier in

the day of his murder. And Green asserted that this withheld evidence was

material: “No Grand Jury would have indicted Plaintiff had it been truthfully

informed that Jennings’[s] statement was false, was contrary to the known

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55

See, e.g., Wilson v. Stroman, 33 F.4th 202, 212–13 (5th Cir. 2022) (finding that,

given “a general rule of secrecy shrouds the proceedings of grand juries,” plaintiff

sufficiently alleged “taint” when they stated that officials made material omissions and

misrepresentations to grand jury and withheld video evidence from grand jury that

undermined probable cause (quoting Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004))).

56

Trevino, 79 F.4th at 532 (citing McLin v. Ard, 866 F.3d 682, 690 (5th Cir. 2017)).

57

Anokwuru v. City of Hous., 990 F.3d 956, 964 (5th Cir. 2021) (citations omitted).

58

See Winfrey, 901 F.3d at 497 (“[B]ecause, at best, it is not clear whether ‘all the

facts [were] presented to the grand jury,’ we hold that the independent-intermediary

doctrine does not apply.” (alterations in original) (quoting Cuadra, 626 F.3d at 813)).

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evidence, and was given by a drug addict in a mentally-altered condition.”

Accordingly, Green’s pleadings are sufficient to suggest Detective Thomas

materially tainted the grand jury proceedings, and thus, the independent-

intermediary doctrine does not apply.

VI

Finally, we turn to Green’s argument that qualified immunity is

unlawful. Though recognizing the uphill battle, Green preserves his

argument that qualified immunity rests on an erroneous interpretation of the

Civil Rights Act of 1871 and is “unsound law.” The district court, agreeing

with Green, provided significant background on the doctrine’s faulty

underpinnings and effects. 59

But given our role as “middle-management circuit judges, we must

follow binding precedent.” 60 The district court is “not free to overturn” our

circuit’s precedent, 61 nor are we permitted to overturn the Supreme Court’s.

We readily acknowledge the legal, social, and practical defects of the

judicially contrived qualified-immunity doctrine, but we are powerless to

scrap it.

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59

Green, 734 F. Supp. 3d at 543–48, 559–69; see also Rogers v. Jarrett, 63 F.4th 971,

979-980 (5th Cir. 2023) (Willett, J., concurring); Zadeh v. Robinson, 928 F.3d 457, 474–

81 (5th Cir. 2019) (Willett, J., concurring in part, dissenting in part); Horvath v. City of

Leander, 946 F.3d 787, 800 (5th Cir. 2020), as revised (Jan. 13, 2020) (Ho, J., concurring

in the judgment in part, dissenting in part).

60

Consumers’ Rsch. v. Consumer Prod. Safety Comm’n, 91 F.4th 342, 346 (5th Cir.

2024), cert. denied, No. 23-1323, 2024 WL 4529808 (U.S. Oct. 21, 2024).

61

In re Bonvillian Marine Serv., Inc., 19 F.4th at 789.

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VII

Qualified immunity does not protect government officials “who

knowingly violate the law.” 62 Based on the allegations in the complaint,

Detective Thomas falls into that camp.

Because Green has sufficiently alleged violations of his clearly

established Fourth and Fourteenth Amendment rights—and the

independent-intermediary doctrine doesn’t apply—Detective Thomas is not

entitled to qualified immunity. However, because a constitutional malicious-

prosecution claim did not exist in our circuit at the time of Green’s arrest,

Detective Thomas gets qualified immunity for that claim only.

Accordingly, we AFFIRM the district court’s denial of qualified

immunity for Green’s false arrest and due process claims under the Fourth

and Fourteenth Amendments and REVERSE its denial of qualified

immunity for Green’s Fourth Amendment malicious-prosecution claim.

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62

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

19