Michael Durham v. David Horner

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL DWAYNE DURHAM, 

Plaintiff-Appellant,

v.

DAVID L. HORNER, Wise County

Sheriff’s Deputy and Member of

the Regional Drug Task Force,



individually, and in his official

capacity as a Wise County No. 11-1022

Sheriff’s Deputy and Regional

Drug Task Force Member,

Defendant-Appellee,

and

JOHN DOES,

Defendants.



Appeal from the United States District Court

for the Western District of Virginia, at Big Stone Gap.

James P. Jones, District Judge.

(2:09-cv-00012-jpj-pms)

Argued: May 15, 2012

Decided: August 8, 2012

Before TRAXLER, Chief Judge, and KING and WYNN,

Circuit Judges.

2 DURHAM v. HORNER

Affirmed by published opinion. Judge King wrote the opin-

ion, in which Chief Judge Traxler joined. Judge Wynn wrote

a dissenting opinion.

COUNSEL

Charles Adam Kinser, MONTGOMERY KINSER LAW

OFFICES, Jonesville, Virginia, for Appellant. Henry Keuling-

Stout, KEULING-STOUT, PC, Big Stone Gap, Virginia, for

Appellee.

OPINION

KING, Circuit Judge:

In a case of mistaken identity, Michael Dwayne Durham

was charged and jailed in southwest Virginia for more than

three months before the prosecutor realized and rectified the

error. As a result, Durham initiated this civil action in the

Western District of Virginia against, inter alia, officer David

L. Horner, alleging a Fourth Amendment claim under 42

U.S.C. § 1983, plus a state law claim for malicious prosecution.1

The district court awarded summary judgment to Horner on

the basis of qualified immunity, and Durham appeals. See

Durham v. Horner, No. 2:09-cv-00012 (W.D. Va. Dec. 7,

2010) (the "Opinion").2 As explained below, we affirm.

1

Durham also named as defendants the Commonwealth’s Attorney of

Wise County and its high Sheriff. He has not appealed the district court’s

judgment of dismissal in favor of those defendants.

2

The district court’s unpublished Opinion is found at J.A. 357-66. (Cita-

tions herein to "J.A.___" refer to the contents of the Joint Appendix filed

by the parties in this appeal.)

DURHAM v. HORNER 3

I.

In 2005, Horner was a police officer in Big Stone Gap, Vir-

ginia, and a member of the Regional Drug Task Force.3 In

performing his Task Force duties, Horner arranged for three

controlled drug buys in late 2005 through a confidential infor-

mant (the "CI").4 On November 29, 2005, about an hour prior

to the first drug buy, Horner received a telephone call from

the CI, who disclosed his plan to purchase illegal drugs from

a man named "Michael Dwayne Durham." See Opinion 2;

J.A. 180. The CI described the drug dealer as an "old man"

who drove a Jeep with a stolen Tennessee license plate, num-

ber unknown. See J.A. 330-31, 334-35. Horner relayed the

name Michael Dwayne Durham to the Task Force office

which, in turn, provided a social security number and a Big

Stone Gap post office address associated with that name.

Although the Task Force generally sought photographs of sus-

pects, it did not secure a photo of the drug dealer.5

Horner used Accurint, an internet investigative tool avail-

able to law enforcement agencies, to query the name Michael

Dwayne Durham, inputting the social security number

obtained by the Task Force. The Accurint report listed Dur-

ham’s age as forty-five and his physical description, from

Tennessee DMV records, as 6′7″, 225 pounds, with brown

hair and hazel eyes. The report reflected the Big Stone Gap

3

For purposes of our review of the district court’s summary judgment

award, we recite the facts in the light most favorable to Durham, as the

nonmoving party. See Buckley v. Mukasey, 538 F.3d 306, 310 n.4 (4th Cir.

2008).

4

By its Opinion, the district court observed that "[t]here were apparently

more than one CI involved in some fashion, although the CI Tracking

Sheets prepared by Horner at the time indicated one and the same CI for

each drug purchase." Opinion 2 n.1.

5

After Horner became aware of this civil action, he conducted a review

of the case to determine what had happened. He eventually showed the CI

a photograph of a "Michael David Durham," whom the CI identified as the

person who sold him drugs. See J.A. 274-75 (emphasis added).

4 DURHAM v. HORNER

address where Durham received mail from 1982 to 1999.

Accurint identified other addresses for Durham, including

Memphis, Tennessee, between 1982 and 1999, Smithfield,

Virginia, in 1992 and between 1994 and 2002, and a "current"

address: Horn Lake, Mississippi, where he had moved in Sep-

tember 1999. According to Accurint, Durham owned a Jag-

uar, and he had been arrested once for driving while

intoxicated. The report cautioned that "[b]efore relying on any

data this system supplies, it should be independently veri-

fied." J.A. 228.

After obtaining the Accurint report, Horner checked VCIN,

another internet resource for law enforcement agencies, where

he acquired Durham’s criminal history record in Mississippi.

That record, from the state Department of Public Safety,

described Durham as 6′1″ and 197 pounds, with state convic-

tions for possession of drug paraphernalia in February 2003,

and for public drunkenness and possession of drug parapher-

nalia in July 2003.

With respect to the CI’s first drug buy, Horner completed

a "CSI Tracking Sheet," identifying the target as "Mike Dur-

ham" with the Big Stone Gap address. J.A. 222. He also com-

pleted a laboratory examination request for eight yellow pills

(believed to be Percocet) purchased from "Durham, Michael

Dwayne" on November 29, 2005. Id. at 223. Horner submit-

ted the CSI Tracking Sheet and the laboratory request to the

Task Force for processing.

The CI’s two other drug buys occurred in Wise County on

December 3 and 16, 2005. On both occasions, the CI identi-

fied the drug dealer as Michael Dwayne Durham. The CI pur-

chased eight yellow pills in the second drug buy and two

packs of white powder (believed to be methamphetamine)

during the third. Officer Horner submitted a CSI Tracking

Sheet and laboratory request to the Task Force for each of the

latter two drug transactions. When the laboratory results con-

firmed that the CI had, in fact, purchased drugs in each of the

DURHAM v. HORNER 5

three incidents, Horner "told [the Task Force] to go ahead and

indict [Durham]." J.A. 331. From that point on, Horner had no

involvement in Durham’s arrest and prosecution.

On May 31, 2006, Task Force Agent Larry Mullins testi-

fied before the grand jury in Wise County. An excerpt of

those grand jury proceedings shows the following exchange:

LARRY MULLINS: Next one will be on Michael

Dwayne Durham, D-U-R-H-A-M.

THE JUROR: I have two on him.

LARRY MULLINS: Should be an offense day of

12/16/05.

THE JUROR: I have three on him.

LARRY MULLINS: On 12/16/05 informant con-

tacted agent David Horner and advised him he made

arrangements to purchase Methamphetamine from

Michael Durham. Informant met with Agent Horner

where they were searched for no contraband found.

Informant was provided with a transmitter recording

device and money to make the purchase.

Informant met with suspect Michael Durham and

purchased one gram of Methamphetamine for $100.

Informant met back with Agent Horner turning the

narcotic over to him where they were searched again

with no contraband found.

THE JUROR: Now when you say one unit is that –-

J.A. 284. On May 31, 2006, the grand jury returned three

indictments against Michael Dwayne Durham — relating to

the three drug transactions with the CI — charging him with

felony drug distribution offenses. See id. 207, 216, 219. As a

6 DURHAM v. HORNER

result, the circuit court issued three separate bench warrants

directing "Sgt. D. Horner, or Any Other Authorized Law

Enforcement Officer" to arrest "Michael Dwayne Durham."

See id. at 208, 217, 220.

Nearly six months later, in November 2006, Durham, who

was living in Memphis, Tennessee, received a letter from the

Social Security Administration notifying him that his disabil-

ity benefits would be terminated due to an outstanding arrest

warrant in Wise County, Virginia. As a result, David Byard,

one of Durham’s friends, contacted the Wise County Sheriff’s

Department to inquire about the warrant and explain that Dur-

ham had not lived in Virginia for more than ten years. Byard

was told that Durham should surrender to the authorities in

Memphis, and "they would straighten it out." See J.A. 242. In

December 2006, Durham surrendered to the Memphis author-

ities, waived extradition, and was transported to the South-

west Virginia Regional Jail at Duffield, Virginia.

On December 15, 2006, Durham appeared before a Vir-

ginia magistrate and informed the court, inter alia, that

"they’ve got the wrong person" because he had never sold

drugs. See J.A. 248. The magistrate responded, "[W]ell,

we’ve got your address where you lived in Big Stone Gap,

Virginia." Id. Durham replied, "[Y]es, sir, that’s right [but]

what does that prove[?]" Id. Although the court fixed Dur-

ham’s bail at "$9,000 secured," he was unable to post bond.

See id. at 212. On December 18, 2006, Durham appeared

before the Wise County circuit judge and the court appointed

counsel. Durham’s lawyer, however, waited for two months,

until February 2007, to contact his client. Meanwhile, Dur-

ham did not raise any mistaken identity issues with the

Regional Jail authorities because, according to Durham, "they

wouldn’t have believed [him]." See id. at 247. When Dur-

ham’s lawyer finally talked to his client, Durham apparently

explained the situation. Durham remained in the Regional Jail

for another month, however, until March 20, 2007, when his

lawyer presented Durham’s cell phone records to the Com-

DURHAM v. HORNER 7

monwealth’s Attorney and argued that the wrong person had

been indicted and arrested. The prosecutor agreed with the

defense lawyer and dismissed the three indictments against

Durham later that same day.

Nearly two years later, on March 17, 2009, Durham initi-

ated this federal court civil action against the Common-

wealth’s Attorney, the Sheriff, and Horner. The only alleged

claims to survive the initial round of dispositive motions in

the district court were Durham’s § 1983 claim and a state law

malicious prosecution claim against Horner, each predicated

on an asserted violation of his Fourth Amendment right to be

free from unreasonable seizure. Horner moved for summary

judgment on the basis of qualified immunity, and, on Decem-

ber 7, 2010, the district court granted judgment in his favor.

In rejecting Durham’s attempts to show factual disputes con-

cerning Horner’s investigation and the resulting prosecution,

the court explained that, at bottom,

[q]ualified immunity does not protect only those

police officers who are never mistaken. To have

probable cause does not mean to have proof suffi-

cient to convict. It is clear from the present record

that . . . Horner acted in good faith in accord with the

information available to him. That his investigation

led to the very unfortunate circumstance portrayed in

this case is highly regrettable, but under the law,

these facts do not permit the officer to be subject to

a trial for money damages.

Opinion 8-9. Durham has timely appealed from the district

court’s qualified immunity ruling, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291.

II.

We review de novo an award of summary judgment on the

basis of qualified immunity. See Lefemine v. Wideman, 672

8 DURHAM v. HORNER

F.3d 292, 297 (4th Cir. 2012). Summary judgment is proper

"only if taking the evidence and all reasonable inferences

drawn therefrom in the light most favorable to the nonmoving

party," there is no genuine dispute of material fact, and the

moving party is entitled to judgment as a matter of law. See

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

III.

Durham contends on appeal that Horner was not entitled to

qualified immunity because he relied on and utilized unveri-

fied information to set "forth a chain of events that would lead

to the indictment and arrest of the wrong individual." Br. of

Appellant 10. Durham emphasizes that Horner knew from the

Accurint report that Durham had not had a Big Stone Gap

address since 1999; that Horner never obtained the Tennessee

license number to confirm whether the Jeep belonged to Dur-

ham; that Horner had not secured a photograph of Durham to

show the CI and confirm the drug dealer’s identity; that

Horner believed the dealer was approximately sixty years old,

and not, like Durham, in his mid-forties; and that Horner

admitted by deposition that he was not a hundred percent cer-

tain that he had the correct Michael Durham. Accordingly,

Durham maintains that "Horner’s actions were plainly incom-

petent," arguing that "whether or not Horner acted reasonably

is a jury question." Id. at 11.

As we have recognized, "[q]ualified immunity protects

officers who commit constitutional violations but who, in

light of clearly established law, could reasonably believe that

their actions were lawful." Henry v. Purnell, 652 F.3d 524,

531 (4th Cir. 2011). Hence, our qualified immunity defense

involves a "two-step" inquiry, asking "first whether a consti-

tutional violation occurred and second whether the right vio-

lated was clearly established." Id. (internal quotation marks

omitted).

DURHAM v. HORNER 9

Put succinctly, Durham’s "malicious prosecution" claim

fails the first step of the qualified immunity inquiry.6

Although "it is not entirely clear whether [there is] a separate

constitutional right to be free from malicious prosecution, if

there is such a right, the plaintiff must demonstrate both an

unreasonable seizure and a favorable termination of the crimi-

nal proceeding flowing from the seizure." Snider v. Seung

Lee, 584 F.3d 193, 199 (4th Cir. 2009) (citations omitted).

Thus, what has been inartfully "termed a ‘malicious prosecu-

tion’ claim . . . is simply a claim founded on a Fourth Amend-

ment seizure that incorporates the elements of the analogous

common law tort of malicious prosecution." Id. (internal quo-

tation marks omitted). More specifically, "we have required

that [1] the defendant have ‘seized plaintiff pursuant to legal

process that was not supported by probable cause and [2] that

the criminal proceedings have terminated in plaintiff’s

favor.’" Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)

(quoting Brooks v. City of Winston-Salem, 85 F.3d 178, 183-

84 (4th Cir. 1996)) (alterations and emphasis omitted).

Durham is unable to establish a constitutional violation

because, although the underlying criminal proceedings were

terminated in his favor, the prosecution was plainly supported

by probable cause, as conclusively established by the three

indictments. It has long since been settled by the Supreme

Court that "an indictment, ‘fair upon its face,’ returned by a

‘properly constituted grand jury,’ conclusively determines the

existence of probable cause." Gerstein v. Pugh, 420 U.S. 103,

117 n.19 (1975) (internal quotation marks omitted); Costello

v. United States, 350 U.S. 359, 363 (1956) (recognizing that

grand jury "indictment . . . valid on its face, is enough to call

for trial of the charge on the merits"). Notwithstanding the

conclusive effect of the indictments, our precedents instruct

6

Consistent with the Supreme Court’s decision in Pearson v. Callahan,

555 U.S. 223, 236 (2009), we are entitled to evaluate the two qualified

immunity inquiries in either order. Because we can dispose of this case on

the first step, we turn immediately to it.

10 DURHAM v. HORNER

that "a grand jury’s decision to indict . . . will [not] shield a

police officer who deliberately supplied misleading informa-

tion that influenced the decision." See, e.g., Goodwin v. Metts,

885 F.2d 157, 162 (4th Cir. 1989) (quoting favorably Jones

v. City of Chicago, 856 F.2d 985, 993 (7th Cir. 1988)), over-

ruled in part by, Albright v. Oliver, 510 U.S. 266 (1994); see

also Miller v. Prince George’s Cnty., Md., 475 F.3d 621, 632

(4th Cir. 2007) (observing that "the Constitution did not per-

mit a police officer . . . with reckless disregard for the truth,

to make material misrepresentations or omissions to seek [an

arrest] warrant that would otherwise be without probable

cause").

The primary problem that Durham faces in this proceeding

is that he was indicted by a Wise County grand jury before

which Horner did not even testify. Agent Mullins was the

only law enforcement officer to testify before the grand jury

and, in that circumstance, Horner could hardly have been the

instrument of its misapprehension. Indeed, we have no basis

for concluding that Horner tainted the grand jury process,

because, other than the excerpt from Agent Mullins’s testi-

mony (referenced above), the record does not disclose the evi-

dence that the grand jury heard and considered. Nor has

Durham put forward any evidence to show that Horner acted

maliciously or conspired with Agent Mullins to mislead the

grand jury.7 As a result, the grand jury’s probable cause deter-

minations and its three indictments were the proximate cause

7

We recognize that malice is not an essential element of a Fourth

Amendment claim for unreasonable seizure because "the reasonableness

of a seizure . . . should be analyzed objectively." Burrell, 395 F.3d at 514

n.5. Of course, the determination of probable cause inherent in any indict-

ment — typically rendering perforce any seizure of the named defendant

objectively reasonable — can be legitimately questioned in the presence

of facts indicating that a law enforcement officer has maliciously tainted

the grand jury process. Other than a bald allegation of a lack of probable

cause, however, there is no allegation or evidence that any of Horner’s

actions contributing to Durham’s indictments and arrest were motivated

by either malice or ill will.

DURHAM v. HORNER 11

of Durham’s arrest and detention, which by operation of law

constituted a reasonable seizure. Cf. Brooks, 85 F.3d at 184 &

n.7 (recognizing that, where untainted facts support officer’s

assessment of probable cause, seizure "rendered reasonable

by virtue of a probable cause determination by a neutral and

detached magistrate . . . is reasonable" and "break[s] the

causal chain between the application for the warrant and the

improvident arrest"); see also Jennings v. Patton, 644 F.3d

297, 301 (5th Cir. 2011) (upholding award of qualified immu-

nity to public official, despite assertion that he tainted grand

jury process, because, inter alia, official did not testify before

grand jury); Anthony v. Baker, 767 F.2d 657, 666 (10th Cir.

1985) (affirming verdict in favor of officer who assisted in

investigation but did not testify before grand jury as there was

no evidence that he "conspired . . . to taint the probable cause

determinations").

Even if we were disposed to look behind the indictments in

this case, we would agree with the district court that Horner

was not plainly incompetent in assessing the probable cause

issue. As we have recognized, "[f]or probable cause to exist,

there need only be enough evidence to warrant the belief of

a reasonable officer that an offense has been or is being com-

mitted; evidence sufficient to convict is not required." Brown

v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002) (analyzing

§ 1983 false arrest claim under Fourth Amendment’s unrea-

sonable seizure framework). Put simply, there was ample evi-

dence for a reasonable law enforcement officer to believe that

Durham was involved in the three drug transactions —

namely, the CI had on three occasions identified the drug

dealer as Michael Dwayne Durham; Durham had a Big Stone

Gap address; the drug dealer had a vehicle with Tennessee

license plates; Durham had a Tennessee driver’s license; and

Durham’s criminal history included two drug-related convic-

tions. Contrary to Durham’s assertions, Horner was "not

required to exhaust every potentially exculpatory lead or

resolve every doubt about [Durham’s] guilt before probable

cause [was] established." See Miller, 475 F.3d at 630 (internal

12 DURHAM v. HORNER

quotation marks omitted). Nevertheless, even if the existence

of probable cause were a close question, the "qualified immu-

nity standard gives ample room for mistaken judgments."

Henry, 652 F.3d at 534 (internal quotation marks omitted).

Indeed, qualified immunity protects public officials from "bad

guesses in gray areas." Maciariello v. Sumner, 973 F.2d 295,

298 (4th Cir. 1992).

In sum, Durham is unable to establish that his seizure was

"pursuant to legal process that was not supported by probable

cause," Burrell, 395 F.3d at 514, and he has not shown the

essential constitutional violation underlying a § 1983 claim.8

Because there was, as a matter of law, probable cause for

Durham’s arrest and detention, his state law malicious prose-

cution claim fails as well. See Lewis v. Kei, 708 S.E.2d 884,

889-90 (Va. 2011) (affirming dismissal of state law malicious

prosecution claim where plaintiff failed to allege essential ele-

ment of lack of probable cause).

IV.

Pursuant to the foregoing, we affirm the judgment of the

district court.

AFFIRMED

WYNN, Circuit Judge, dissenting:

When viewed in the light most favorable to the nonmoving

party, the evidence in this case could support a finding that,

as a result of Officer Horner’s failure to perform his duties

competently and thoroughly, Michael Dwayne Durham

("Durham") was wrongfully indicted, arrested, and incarcer-

8

Having concluded that Durham has no "viable § 1983 claim, we need

not determine whether any rights [he] asserted were ‘clearly established’

for purposes of qualified immunity." See Lambert v. Williams, 223 F.3d

257, 263 n.5 (4th Cir. 2000).

DURHAM v. HORNER 13

ated. Because I would find that Officer Horner’s mistaken

conclusion regarding Durham’s identity cannot be deemed

objectively reasonable as a matter of law-and that, by turn, he

is therefore not entitled to qualified immunity as a matter of

law—I must respectfully dissent.

I.

The majority opinion would grant Officer Horner qualified

immunity on the basis that a grand jury "indictment, fair upon

its face, returned by a properly constituted grand jury, conclu-

sively determines the existence of probable cause."1 Ante at 9

(quotation marks omitted). According to the majority opinion,

because of this indictment Durham is unable to establish that

"a constitutional violation" occurred. See id. ("[T]he prosecu-

tion was plainly supported by probable cause, as conclusively

established by three indictments."). Thus, for the majority, the

indictment breaks the causal chain between Officer Horner’s

alleged incompetence and Durham’s injury. Id. at 11.

However, the Supreme Court has rejected a similar argu-

ment:

§ 1983 should be read against the background of tort

liability that makes a man responsible for the natural

consequences of his actions. Since the common law

recognized the causal link between the submission of

a complaint and an ensuing arrest, we read § 1983 as

recognizing the same causal link.

Malley v. Briggs, 475 U.S. 335, 345 n.7 (1986) (citation omit-

ted). In applying Malley, we have held that "[a]n officer can-

1

To support this proposition, the majority relies on Costello v. United

States, 350 U.S. 359, 363 (1956). However, that case dealt with the Fifth

Amendment’s requirement for a grand jury, not the Fourth Amendment’s

right to be free from unreasonable searches and seizures and its probable

cause requirement, which are at issue here.

14 DURHAM v. HORNER

not invoke qualified immunity where he ‘did not avail himself

of readily available information that would have clarified mat-

ters to the point that [the criminal charges] would have been

flatly ruled out as factually unsupportable.’" Goodwin v.

Metts, 885 F.2d 157, 164 (4th Cir. 1989) (quoting Sevigny v.

Dicksey, 846 F.2d 953, 957-58 (4th Cir. 1988)), overruled in

part by, Albright v. Oliver, 510 U.S. 266 (1994). This limita-

tion on qualified immunity comports with the Supreme

Court’s admonition in Malley that officers who are "plainly

incompetent or those who knowingly violate the law" should

not be shielded from liability. 475 U.S. at 341. Thus, a mali-

cious or incompetent police officer who applies for an arrest

warrant will not be protected from liability by qualified

immunity. See Goodwin, 885 F.2d at 162. Likewise, such an

officer will not be shielded from liability by a grand jury’s indict-

ment.2 See also Miller v. Prince George’s Cnty., M.D., 475

F.3d 621, 632 (4th Cir. 2007).

II.

Nonetheless, the majority determines, as a matter of law,

that qualified immunity shields Officer Horner from liability

regarding the wrongful arrest and confinement of Durham,

based on a standard of "deliberately suppl[ying] misleading

information that influenced the [grand jury’s] decision" to

indict. Goodwin, 885 F.2d at 162. However, Goodwin also

states that an officer is not shielded from liability if "a reason-

ably well-trained officer in [his] position would have known

that his affidavit [for a warrant] failed to establish probable

cause and that he should not have applied for the warrant." Id.

(citation omitted). As the Supreme Court has noted, "objec-

2

The majority opinion relies on Jennings v. Patton, 644 F.3d 297 (5th

Cir. 2011), for the proposition that the failure to testify before the grand

jury should afford Officer Horner an additional layer of protection. Ante

at 11. However, in Jennings, the official given qualified immunity was not

responsible for the preparation or presentation of the warrant application.

Here, by contrast, Officer Horner prepared the evidence brought before the

grand jury.

DURHAM v. HORNER 15

tive reasonableness" is the correct "standard . . . [that] defines

the qualified immunity accorded an officer whose request for

a warrant allegedly caused an unconstitutional arrest." Malley,

475 U.S. at 344; see also Miller, 475 F.3d at 632 ("[A] police

officer who recklessly . . . omits material information from[]

a search warrant affidavit cannot be said to have acted in an

objectively reasonable manner, and the shield of qualified

immunity is lost." (citation and quotation marks omitted)). In

this case, a genuine dispute of fact remains regarding whether

Officer Horner’s mistakes were objectively reasonable. As

such, this case cannot and should not be decided as a matter

of law.

On a motion for summary judgment, the evidence and all

reasonable inferences drawn from it should be viewed in the

light most favorable to the nonmoving party, Durham. See

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011). When

viewed in this light, the evidence indicates that Officer Horner

erroneously relied on a report from Accurint, a system which

conspicuously warns that the information given needs corrobo-

ration.3 That report showed at most a tenuous link between

Officer Horner’s target and Durham’s Social Security number

and former post office box.

Officer Horner’s unreasonable reliance and alleged failure

to perform his duties thoroughly and competently set in

motion a chain of events that ended with Durham’s wrongful

arrest and imprisonment for over ninety days. Regardless of

the performance of court-appointed counsel, the undeniable

truth remains that, but for Officer Horner’s actions, Durham

3

The Accurint report begins with the following disclaimer:

The Public Records and commercially available data sources

used on reports have errors. Data is sometimes entered poorly,

processed incorrectly and is generally not free from defect. This

system should not be relied on as definitely accurate. Before rely-

ing on any data this system supplies, it should be independently

verified.

16 DURHAM v. HORNER

would never have been arrested and incarcerated. If the inves-

tigative officer cannot be held accountable for his reckless-

ness or incompetence, then where is an innocent man to turn?

The record shows that the confidential "informant con-

tacted [Officer] Horner and advised him [that] he made

arrangements to purchase Methamphet[a]mine from Michael

Durham."4 J.A. 284. Officer Horner put that name into the

Accurint system and relied on the results of the resulting

Accurint report, notwithstanding his knowledge of facts that

directly undermined and contradicted the accuracy of the

Accurint report.

For example, Officer Horner knew that his target was driv-

ing a Jeep with a stolen Tennessee license plate; however,

Durham had a Mississippi driver’s license. Additionally,

based on information from the confidential informant, Officer

Horner believed his target was approximately sixty years old,

but Officer Horner possessed a copy of the law enforcement

report that showed Durham was only forty-nine years old.

Moreover, the controlled drug buys under investigation took

place in Wise County, Virginia, but Officer Horner knew that

Durham had not lived there since 1999 and was currently liv-

ing over 500 miles away, in Horn Lake, Mississippi. Indeed,

Officer Horner admitted that he harbored doubts as to whether

the Accurint report identified the correct target.

After Durham learned of the arrest warrant, David Byard,

a friend of Durham’s, called the Wise County Sheriff’s

Department on Durham’s behalf and explained that Durham

4

The majority determines that the confidential informant gave Officer

Horner the name "Michael Dwayne Durham". Ante at 3, 5, 11; J.A. 73,

180. However, the record reflects that the confidential informant may have

simply identified "Michael Durham" as the target suspect. J.A. 222, 284.

Therefore, it appears that there is a genuine dispute of material fact regard-

ing whether the confidential informant identified the target suspect as "Mi-

chael Durham" or "Michael Dwayne Durham." Such a disputed fact

should be decided by a jury.

DURHAM v. HORNER 17

could not have committed this crime and had not lived in Vir-

ginia for over ten years. Byard was informed that Durham

should turn himself in and that the matter would be straight-

ened out.

In December 2006, Durham surrendered to Memphis

authorities, waived extradition, and was transported to Vir-

ginia. Upon arrival, Durham told a magistrate that he had

been wrongly indicted and that he had never sold drugs. After

Durham’s arrest no picture was ever sent to the confidential

informant for verification, and no action was taken to verify

that the right person was arrested. J.A. 148-50. However,

when a new suspect, Michael David Durham, was found, the

investigative officer quickly sent a photograph to the confi-

dential informant, who identified him as the perpetrator. J.A.

167-68.

When viewed in the light most favorable to Durham, these

facts could support a finding that Officer Horner’s actions and

mistakes were not objectively reasonable. See Goodwin, 885

F.2d at 164 ("An officer cannot invoke qualified immunity

where he did not avail himself of readily available informa-

tion that would have clarified matters to the point that [the

criminal charges] would have been flatly ruled out as factu-

ally unsupportable." (quotation marks omitted)); United States

v. Reaves, 512 F.3d 123, 126 (4th Cir. 2008) ("When the

police rely on an anonymous tip to support reasonable suspi-

cion, the tip must be accompanied by some corroborative ele-

ments that establish its reliability." (quotation marks

omitted)); cf. United States v. Massenburg, 654 F.3d 480, 486

(4th Cir. 2011) ("Reliance on an anonymous tip may be rea-

sonable where, suitably corroborated, [it] exhibits sufficient

indicia of reliability." (quotation marks omitted)). Conse-

quently, in my view, the district court erred in granting sum-

mary judgment on the basis of qualified immunity.

III.

The majority also maintains that Durham cannot establish

a violation of a "clearly established" constitutional right. I dis-

18 DURHAM v. HORNER

agree and would hold that Durham’s § 1983 malicious

prosecution-type claim does meet this standard as a claim

founded on the Fourth Amendment right to be free from

unreasonable search and seizure. See Lambert v. Williams,

223 F.3d 257, 262 (4th Cir. 2000) (stating that incorporating

the common law elements of malicious prosecution claim

with the elements of a § 1983 claim was not the creation of

a new cause of action, but was done "in recognition of the fact

that § 1983 was designed to create a ‘special species of tort

liability.’" (quoting Imbler v. Pachtman, 424 U.S. 409, 417

(1976))).

In this case, the parties do not contest that there is a clearly

established, actionable right to freedom from prosecution

without probable cause. Accordingly, it follows that Dur-

ham’s § 1983 malicious prosecution-type claim, asserted

under the Fourth Amendment, amounts to a "clearly estab-

lished" right to be free from unreasonable seizure. See id. at

260.

IV.

In sum, the majority holds that, since the grand jury indict-

ment is conclusive evidence of probable cause, Durham is

unable to establish the unreasonable seizure element of a via-

ble § 1983 claim based on malicious prosecution. However, to

the contrary, Durham’s wrongful arrest and confinement may

indeed meet the requirements of a § 1983 claim. Because

there is a genuine dispute of fact as to whether Officer

Horner’s actions, which resulted in Durham’s wrongful arrest

and incarceration, were objectively reasonable, Brooks, 85

F.3d at 183-84, I respectfully dissent.