Brad Williams v. Horace Walters

United States Court of Appeals

For the Eighth Circuit

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No. 13-3497

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Brad Lamont Williams

lllllllllllllllllllll Plaintiff - Appellee

v.

City of Alexander, Arkansas

lllllllllllllllllllll Defendant

Horace Walters, Individually and as Alexander Chief of Police

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: September 10, 2014

Filed: December 8, 2014

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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

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WOLLMAN, Circuit Judge.

Brad Williams sued Horace Walters, the chief of police of Alexander,

Arkansas, under 42 U.S.C. § 1983 and Arkansas law for arresting him without

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probable cause. Walters appeals from the district court’s1 denial of his motion for

qualified immunity. We affirm.

I.

We state the facts in the light most favorable to Williams, the nonmoving party.

Handt v. Lynch, 681 F.3d 939, 941 (8th Cir. 2012). Williams worked as a police

officer for the City of Alexander (“the City”) under Walters, the chief of police.

There was bad blood between Williams and Walters, stemming from Williams’s

support of the mayor. In the summer of 2011, Walters told Williams that the mayor

and his supporters were “a bunch of cock roaches [sic][.]” Walters further said that

“the gloves [were] coming off[,]” that “he was an atomic bomb and he was going to

destroy [Williams,]” and that he had Williams “in his cross hairs [sic].” A short time

later, the mayor relieved Walters of duty. The city council held a meeting on the

matter and decided to reinstate Walters. Williams testified against Walters at the

reinstatement hearing, at which Walters was present. Thereafter, Walters tried to

keep his contact with Williams and the mayor to a minimum because he “didn’t want

any problems.”

In September 2011, the bookkeeper for the City discovered that Williams had

cashed two payroll checks covering the same pay period. On September 3, 2010,

Williams was issued a payroll check for $305.69, numbered 1977. He lost the check,

so the City issued him another check for the same pay period, numbered 1986.

Williams cashed check 1986 on September 8, 2010. Almost a year later, check 1977

resurfaced. Williams cashed it on August 9, 2011, without realizing that it was the

check that he had reported lost and had had replaced. The bookkeeper for the City

brought this error to Williams’s attention at a city council meeting on September 19,

1

The Honorable Kristine G. Baker, United States District Judge for the Eastern

District of Arkansas.

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2011. The mayor found that Williams had made “an error that was not intentional[,]”

and the city council agreed that as long as Williams repaid the money, the issue would

be resolved. Two days later, Williams returned the money to the City. Walters was

present at the city council meeting and was aware of the resolution of this matter.

In May 2011, Williams borrowed blue police lights from Tim Dudderar, a

deputy sheriff for Saline County, Arkansas. These lights were Dudderar’s personal

property and were marked with his name. Williams informed Walters that he had

borrowed the lights from Dudderar. In September 2011, Walters asked another

officer to retrieve the blue lights from Williams and install them on Walters’s patrol

car. The officer did so. In November 2011, Dudderar retrieved the lights from

Walters.

In February 2012, a magistrate judge issued a warrant for Williams’s arrest,

based on a sworn affidavit from Walters that stated the following:

1. On 9/22/11 I instructed officers to install blue lights on an unmarked

APD vehicle. Officers were unable to locate two (2) blue lights that

were secured in the APD storage area. These lights were visible in the

secured area of the Alexander Police Department on 9/21/2011. You

were called and asked the location of the blue lights. You told officers

that they were in your personal vehicle at your home. You were never

given permission to take possession of this property. This constitutes

theft of property. (Misdemeanor)

2. On 9/3/2010 you were issued an Alexander police Department payroll

check# 1977. This check was drawn on US Bank in the amount of

$305.69. You stated on 9/3/10 you had misplaced or lost payroll check

#1977.

On 9/3/2010, the same day[] you were issued your original payroll check

#1977, you were re-issued a replacement payroll check; the re-issued

check number was check#1986. This check was also drawn on US Bank

in the amount of $305.69.

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On 8/9/2011, you cashed the original first issued payroll check # 1977

in the amount of $305.69 at Hess Convenient Store located at 13325

First Street in Alexander Arkansas. Your written statement to me

indicated “I honestly didn’t know I had even lost check# 1977.” This

action constitutes Theft of Property.

Walters claims that the blue lights he instructed the officer to retrieve from Williams

and install on his vehicle belonged to the City and had been located in the storage

area; these lights were different from the lights that belonged to Dudderar. Walters

further claims that when the officer was unable to locate these lights, the officer

spoke with Williams, who stated that the blue lights were in his personal vehicle.

Walters based this claim on a memo from the officer. The officer denies writing the

memo and does not remember signing it. Furthermore, the officer stated that the blue

lights that Walters asked him to install belonged to Dudderar, not to the City, and

were located in Williams’s patrol car, not his personal vehicle. Williams had

permission from Dudderar to use these lights.

Williams was arrested on misdemeanor charges of theft and spent a day in jail.

The prosecuting attorney dismissed the charges, following which Williams brought

this suit against Walters and the City under § 1983, alleging violations of his Fourth

and First Amendment rights, as well as violations of state law. The district court

dismissed the claims against the City, but denied summary judgment and qualified

immunity for Walters. Walters appeals.

II.

A district court’s decision denying summary judgment based on qualified

immunity can be appealed immediately, even though it is interlocutory. Walden v.

Carmack, 156 F.3d 861, 868 (8th Cir. 1998) (citing Mitchell v. Forsyth, 472 U.S. 511,

530 (1985)). We review the denial of a motion for summary judgment and the legal

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issues related to qualified immunity de novo. Id. Qualified immunity protects

government officials sued in their individual capacities from civil liability unless “(1)

the facts, viewed in the light most favorable to the plaintiff, demonstrate the

deprivation of a constitutional or statutory right; and (2) the right was clearly

established at the time of the deprivation.” Parrish v. Ball, 594 F.3d 993, 1001 (8th

Cir. 2010) (quoting Howard v. Kan. City Police Dep’t, 570 F.3d 984, 988 (8th Cir.

2009)).

A.

The Fourth Amendment right to be free from unreasonable searches and

seizures requires that arrests be based on probable cause. Lambert v. City of Dumas,

187 F.3d 931, 935 (8th Cir. 1999). Similarly, “‘[l]ack of probable cause is a

necessary element of’ a First Amendment retaliatory arrest claim.” Galarnyk v.

Fraser, 687 F.3d 1070, 1076 (8th Cir. 2012) (alteration in original) (quoting McCabe

v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010)). The parties dispute on appeal only

whether, viewing the facts in the light most favorable to Williams, probable cause

existed.

1.

“Probable cause exists if ‘the totality of facts based on reasonably trustworthy

information would justify a prudent person in believing the individual arrested had

committed . . . an offense.’” Flynn v. Brown, 395 F.3d 842, 844 (8th Cir. 2005)

(quoting Hannah v. City of Overland, 795 F.2d 1385, 1389 (8th Cir. 1986)). “Whe[n]

the alleged constitutional violation involves an arrest pursuant to a warrant, ‘the fact

that a neutral magistrate has issued a warrant is the clearest indication that the officers

acted in an objectively reasonable manner[.]’” Saterdalen v. Spencer, 725 F.3d 838,

841 (8th Cir. 2013) (second alteration in original) (quoting Messerschmidt v.

Millender, 132 S. Ct. 1235, 1245 (2012)). But when a police officer deliberately or

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recklessly makes false statements to demonstrate probable cause for an arrest warrant,

the warrant may be invalidated under Franks v. Delaware, 438 U.S. 154 (1978).

Hawkins v. Gage Cnty., Neb., 759 F.3d 951, 958 (8th Cir. 2014). To establish a

Franks violation, the plaintiff must prove “1) that a false statement knowingly and

intentionally, or with reckless disregard to the truth, was included in the affidavit, and

2) that the affidavit’s remaining content is insufficient to provide probable cause.”

United States v. Box, 193 F.3d 1032, 1034-35 (8th Cir. 1999) (quoting United States

v. Humphreys, 982 F.2d 254, 259 n.2 (8th Cir. 1992)).

We must first determine whether the facts viewed in the light most favorable

to Williams could establish that Walters intentionally and knowingly, or with reckless

disregard to the truth, included a false statement in the affidavit. Walters swore in the

affidavit that Williams “told officers” that the blue lights were in his personal vehicle

at his house. Walters claims that Williams made this statement to an officer and that

it was recorded in the officer’s memo. The officer has denied writing the memo and

does not remember signing it. Furthermore, Walters and Williams were at odds with

each other; Walters claims that Williams had said that he would “destroy” Williams.

A reasonable jury could find that Walters fabricated the officer’s memo and

intentionally included a false statement in the affidavit to make good on his promise

to “destroy” Williams.

Walters also swore in the affidavit that Williams did not have permission to use

the blue lights. The officer who retrieved the blue lights from Williams stated that

Walters had asked him to find Dudderar’s blue lights, not the blue lights belonging to

the City. Williams had permission to use Dudderar’s blue lights, and Williams claims

that Walters knew this. Accordingly, a reasonable jury could find that Williams has

established the first step of a Franks violation: that Walters knew that the lights in

Williams’s possession belonged to Dudderar and that Williams had permission to use

them, but deliberately stated falsely in the affidavit that Williams did not have

permission to do so.

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Once the purportedly false statements are removed, the affidavit’s remaining

content does not support a finding of probable cause.2 After removing the statement

that Williams did not have permission to take possession of the property and the

statement that Williams said the blue lights were in his personal vehicle at his home,

this is what remains of the affidavit supporting theft of the blue lights:

On 9/22/11 I instructed officers to install blue lights on an unmarked

APD vehicle. Officers were unable to locate two (2) blue lights that

were secured in the APD storage area. These lights were visible in the

secured area of the Alexander Police Department on 9/21/2011.

[Williams] w[as] called and asked the location of the blue lights. . . .

This constitutes theft of property.

As so corrected, the affidavit does not establish probable cause that Williams

committed theft of the City’s blue lights. Accordingly, when the facts are viewed in

the light most favorable to Williams, a reasonable jury could find that Walters

violated Williams’s constitutional rights when he caused Williams to be arrested for

theft of the blue lights.

2.

Both parties agree that the facts in the affidavit to support the allegation of theft

based on the check-cashing incident contain no falsehoods. But Walters omitted

several facts. Under Franks, Williams can challenge the affidavit based on the

omission of facts by proving “1) that facts were omitted with the intent to make, or

2

In Bagby v. Brondhaver, 98 F.3d 1096, 1099 n.2 (8th Cir. 1996), we left open

the issue “whether a defendant whose affidavit contained a deliberate falsehood

should be entitled to qualified immunity if a corrected affidavit would still provide

probable cause[,]” recognizing that “[a] more stringent rule may be appropriate when

a liar seeks the benefit of this defense.” As the corrected affidavit here does not

provide probable cause, we need not address this issue.

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in reckless disregard of whether they thereby make, the affidavit misleading, and 2)

that the affidavit, if supplemented by the omitted information, could not support a

finding of probable cause.” Box, 193 F.3d at 1035 (quoting Humphreys, 982 F.2d at

259 n.2). See also United States v. Reivich, 793 F.2d 957, 960 (8th Cir. 1986).

The affidavit failed to state that the mayor and the city council had resolved the

check-cashing issue and that the mayor had found that Williams did not intend to take

money from the City that did not belong to him. Walters also failed to mention that

when the matter was brought to Williams’s attention, he repaid the money within two

days. There is evidence that Walters was aware of this information and that he chose

to omit it from the affidavit. A reasonable jury could find that because Walters and

Williams did not get along and Walters had told Williams that he would “destroy”

him, Walters intentionally omitted these facts to make the affidavit misleading.

We must then determine whether the affidavit, when supplemented by the

omitted information, supports a finding of probable cause for theft based on cashing

the check. See Reivich, 793 F.2d at 961. For probable cause to exist, there must be

probable cause for all elements of the crime, including mens rea. See Kuehl v. Burtis,

173 F.3d 646, 651 (8th Cir. 1999) (holding that an officer who ignored exculpatory

evidence that negated the mens rea required for assault was not entitled to qualified

immunity for arrest without probable cause). Under Arkansas law:

A person commits theft of property if he or she knowingly . . . [t]akes or

exercises unauthorized control over or makes an unauthorized transfer

of an interest in the property of another person with the purpose of

depriving the owner of the property[.]

Ark. Code Ann. § 5-36-103(a)(1).

We conclude that when reconstructed to contain the omitted facts, the affidavit

does not establish probable cause that Williams purposefully deprived the City of its

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property. Williams cashed a payroll check that was made out to him and in the same

amount as the City regularly paid him. He explained that he had not realized that this

was the check that he had reported lost and that had been replaced almost a year

earlier. When it was brought to his attention that he had received money that did not

belong to him, he repaid the money within two days. The mayor believed that

Williams had made an honest mistake, and the city council agreed that the issue was

resolved. Taken together, these facts demonstrate that there was not probable cause

to believe that Williams had purposefully deprived the City of its property as required

under the Arkansas theft statute. Accordingly, a reasonable jury could find that

Williams’s constitutional rights were violated when he was arrested for theft based

on his cashing the check.

B.

Williams’s constitutional rights are clearly established if, on these particular

facts, a “reasonable official would understand that what he is doing violates

[Williams’s] right[s].” Good v. Olk-Long, 71 F.3d 314, 315 (8th Cir. 1995) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The facts viewed in the light most

favorable to Williams establish that Walters purposefully lied and omitted

information from the affidavit so that he could have Williams arrested and thereby

exact revenge on Williams for supporting the mayor. “The Fourth Amendment right

of citizens not to be arrested without probable cause is indeed clearly established.”

Kuehl, 173 F.3d at 649. Furthermore, it is “clearly established that the Fourth

Amendment requires a truthful factual showing sufficient to constitute probable

cause” in a sworn affidavit. Burk v. Beene, 948 F.2d 489, 494 (8th Cir. 1991). It is

also clearly established that a citizen has a right “to exercise First Amendment

freedoms ‘without facing retaliation from government officials[.]’” Baribeau v. City

of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010) (quoting Kilpatrick v. King, 499

F.3d 759, 767 (8th Cir. 2007)). Because a reasonable official would understand that

including false information in and omitting relevant information from an affidavit in

an effort to punish someone for supporting one’s political opponent would constitute

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a violation of clearly established constitutional rights, Walters is not entitled to

qualified immunity.

III.

Walters also appeals the district court’s denial of summary judgment on

Williams’s state-law claims of malicious prosecution, abuse of process, defamation,

and outrage. Our jurisdiction in an interlocutory appeal is limited to reviewing the

issue of qualified immunity, and we do not have jurisdiction over state-law claims

unless they are “inextricably intertwined” with the qualified-immunity determination.

Small v. McCrystal, 708 F.3d 997, 1010 (8th Cir. 2013). “An issue is ‘inextricably

intertwined’ with properly presented issues only ‘when the appellate resolution of the

collateral appeal necessarily resolves the pendent claims as well.’” Lockridge v. Bd.

of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (en banc) (quoting

Kincade v. City of Blue Springs, 64 F.3d 389, 394 (8th Cir. 1995)). Because each of

the state-law claims contains elements that we need not evaluate to resolve the

qualified-immunity issue, they are not “inextricably intertwined” with the qualified-

immunity determination, and thus we lack jurisdiction over them.

IV.

We affirm the district court’s denial of qualified immunity, and we dismiss for

lack of jurisdiction the attempted appeal of the denial of summary judgment on

Walters’s state-law claims.

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