Thomas Noonan v. County of Oakland

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 17a0183n.06

CASE NO. 15-2192

FILED

UNITED STATES COURT OF APPEALS Mar 24, 2017

FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

THOMAS D. NOONAN, )

)

Plaintiff-Appellee, )

)

v. ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

COUNTY of OAKLAND, et al., ) COURT FOR THE EASTERN

) DISTRICT OF MICHIGAN

Defendants-Appellants. )

)

Before: SILER, BATCHELDER, and GRIFFIN, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from the denial

of qualified immunity, a police officer accused of malicious prosecution argues that she had

probable cause and/or that the plaintiff was not deprived of his liberty. Because a plaintiff must

have suffered a deprivation of liberty in order to state a Fourth Amendment claim of malicious

prosecution under Sixth Circuit precedent, and because we cannot find a sufficient deprivation of

liberty here, we conclude that this police officer is entitled to qualified immunity as a matter of

law and REVERSE. We do not decide the fact-based question of probable cause.

I.

In June 2010, Thomas Noonan was an attorney earning over $100,000 per year at a law

firm, where he had worked since 1999 and had become a partner in 2006. He had never declared

bankruptcy, never been convicted of a crime involving theft or dishonesty, and never been

arrested for or convicted of any drinking and driving violation. He had $10,000 in outstanding

No. 15-2192, Noonan v. Oakland

student loans, toward which he was methodically paying $800 per month. He had once had an

issue with the Michigan Bar, due to an isolated incident, long since resolved.

In 2008, Noonan had purchased a 2001 Pontiac Grand Prix from his brother, David, for

$2,500. David gave Noonan only one key, an older style key without a fob or buttons. David

later attested that he has no recollection of ever giving Noonan the second key and expressly

denied that he told police that he gave Noonan two sets of keys with the vehicle at the time of the

purchase. Noonan has insisted throughout this episode that he only ever had one key.

By June 2010, the car was almost 10 years old, with approximately 180,000 miles, and

ordinary wear. Noonan had just replaced the brakes for $700 and he estimated the car’s value at

$1,000. R. 84-8 at 4. On the evening of June 17, 2010, Noonan left work around 7:00 p.m.,

went to the gym, and then met a friend at a bar to watch an NBA Finals game. After two or three

drinks over the course of an hour and a half, Noonan left the bar a little after midnight and went

home. On his way home, Noonan stopped and filled up his car with $42 in gas. Noonan parked

his car in the driveway of his Farmington Hills home, as was his custom (he used his garage for

storage), and left some personal property in the car, including gym clothes and several work-

related files. Noonan locked the car and took his key into his house. He also took one of his two

employment security access cards into his house with him. The next morning (June 18) at about

9:00 a.m., Noonan discovered that his car was gone. He reported a car theft to the Farmington

Hills Police Department and to his insurance carrier. The responding officer noted “no sign of

force”—presumably meaning no broken glass on the ground or other evidence of damage

resulting from a physical break-in to the car—and that Noonan had the key. R. 84-8 at 4.

The Farmington Hills Police Department assigned the investigation to defendant Nicole

Tomasovich-Morton, a detective with its Auto Theft Unit (ATU), a multi-jurisdictional task

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force comprised of officers from Oakland County cities. Morton had been with the ATU since

January 2010 (five months), before which she had no experience investigating auto thefts.

When the Detroit police recovered the car in Detroit at about 9:20 p.m. that evening (June

18), it was “w/o plate[,] … [k]eys were with the vehicle, and no arrest was made.” R. 84-8 at 4.

Detective Morton recorded in her Case Report [R.84-8] that, according to “Officer Pitts” of the

Detroit Police Department, the driver had hit two parked cars and then abandoned the car and

fled on foot—Morton’s report, however, contains no name or description for the reporting

witness and, more importantly, contains no description or request for description of the fleeing

driver.1 Morton observed that “a temporary license plate” had been placed in the rear window

and that the car had more damage than would be explained by the present accident. Morton noted

that the key in the ignition was on a key ring with several other keys and a security pass card.

The key ring also had an individualized tag, which turned out to be for a “LegalShield”

account for prepaid legal services. Noonan’s gym clothes and work files were still in the car and

it was later reported that a tequila bottle (contents unreported) was found on the floor. The

police did not collect any fingerprints from the keys, the security pass card, the LegalShield tag,

or the tequila bottle. Nor did the police contact LegalShield to determine the owner of the tag—

the prosecutor later recognized that it would be odd for an attorney such as Noonan to have a

prepaid legal services account, and when Noonan’s counsel subpoenaed LegalShield, the

response provided a name and address for the account owner. [R. 79] It was not Noonan.

1

This question—“How did the witnesses describe the fleeing driver?”—would have revealed that the

witnesses had seen a skinny, African-American male. Because Noonan is Caucasian, this would have precluded

suspicion of him, and the investigation and prosecution that followed. It is incomprehensible that Detective Morton,

if she were conducting a legitimate investigation, would not have asked Officer Pitts this question. Cf. Webb v.

United States, 789 F.3d 647, 662 (6th Cir. 2015) (“A law-enforcement defendant is deliberately indifferent—and

therefore not entitled to qualified immunity—if he mistakenly identifies an individual as a suspect when the

individual does not match the suspect’s description.”).

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Detective Morton first interviewed Noonan on July 6, 2010, and her formal report begins

with the characterization that Noonan “appeared to be very nervous, shaking, sweating and

stumbling over his words.” Noonan denies that characterization and asserts that he was instead

calm and cooperative. Morton had Noonan describe any preexisting damage to the car and he

recounted only a small dent to the rear bumper; she also had Noonan attest that he had only one

key and she took possession of that key. Morton advised Noonan that his car had been recovered

with a key in the ignition shortly after its theft and showed Noonan the key ring and keys found

with the car. Noonan denied that the keys were his, even when pressed; though he did concede

eventually that the security pass card “could be” one of his pass cards for work that he had left in

his car. Noonan filled out a vehicle theft report and left his only key with Morton.

Two things warrant mention at this point. First, despite Noonan’s claim that Detective

Morton recorded both interviews [R.1 at 13], Morton said that she did not record the interviews

or even keep her notes; indeed, she shredded her notes for all of the interviews in this case.

Therefore, the only written record is her after-the-fact report. This is particularly important

because two of Morton’s proffered rationales for her suspicion are her claims that, during these

interviews, Noonan changed his story and refused a polygraph. Morton claims that Noonan

originally said that he went straight home from the gym and only later revealed that he went to a

bar to watch the game. But Noonan denies ever saying that he had gone straight home, and there

is no record of it in Morton’s report. Morton also claims that Noonan refused to take a

polygraph, but Noonan denies that Morton ever offered a polygraph and Morton’s report

contains no mention of any polygraph. The other noteworthy thing is that Morton lost the keys.

She testified that she mailed them to the person who retrieved the car from the impound lot, but

she could not recall who that was and she had no record of sending them. Also, contrary to

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No. 15-2192, Noonan v. Oakland

Farmington Hills Police Department rules, she did not photograph the keys as evidence. So there

are no keys and no photos of the keys.

Morton interviewed Noonan again on July 21, 2010, and Oakland County Sheriff’s

Detective Herman Bishop attended this interview as well. Again, Morton’s formal report begins

with the almost identical characterization that Noonan “appear [sic] agitated and nervous[,]

[s]haking and stumbling over his words.” Noonan again denies that characterization and asserts

that he was instead “very calm.” Morton also claimed that “Noonan stated he just wanted to get

this whole process behind him, he wanted it ‘done’.” Noonan denies that assertion and says he

was glad to be getting his car back and that it had “been a pain in the ass borrowing cars.”

Morton pressed Noonan about the keys and Noonan insisted that he had only one, that he

had never copied it, and that nobody else had access to make a copy. Morton then reported:

“Once Noonan learn[ed] that a car key was found in the ignition attached to a key chain with his

work pass he stated that he could possibly have had a second key. Detectives then advised

Noonan that both keys appear[ed] to be the original keys to the vehicle.” R.84-8 at 6. But

Noonan denies ever saying that he might or could have had two keys. Morton also reported that

Noonan’s brother David had told her “that he gave (Thomas) Noonan two sets of keys with the

vehicle at the time of purchase.” R. 84-8 at 6. David, however, denies this and says that while he

told Morton that he himself had two sets of keys, he did not tell her that he gave both to Noonan,

and that Noonan likely only had one (Morton kept no notes of this interview either). Finally,

included without context or explanation in the report of this July 21 interview, Morton wrote:

[Noonan] is also paying off his law school loans. He indicated that he is trying to

get over the ‘hump’ with the loan. He wants the loan paid off as soon as he can.

He planned on buying a new vehicle towards the end of the year. I asked Noonan

what he planned on doing with the vehicle that was taken. Noonan paused and

stated he was not sure.

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R. 84-8 at 6. Morton had surmised that Noonan had two possible motives to falsify a police

report and insurance claim, and the law school loan underlies the first: that Noonan wanted the

insurance money to pay off his student loans. But Morton was already aware of other evidence

that belies this theory: the amount of Noonan’s outstanding loans (about $10,000), that he was

current on those loans (at $800 per month), that his income was over $100,000 per year, that the

car was only valued at $1,000, and that he would need to purchase another car.2 But Morton and

Detective Bishop nonetheless accused Noonan of pulling an “insurance scam job”; arranging the

theft because he needed the money. When Morton produced a key and asked Noonan if it was

the key he gave her at the July 6 interview, Noonan said that it looked like it, to which Morton

replied that it was actually the key found in the car, suggesting to her that Noonan was lying.

Because Detective Bishop had repeatedly asserted that the evidence “all points to [Noonan],”

when they asked for a written explanation, Noonan declined and asked for a lawyer.

The day after the July 21 interview, Noonan retained counsel who immediately scheduled

a polygraph with a private company run by a retired Michigan State Police polygraph examiner.

In denying the car theft and the fraud, Noonan passed the polygraph. R. 84-10 (dated 7/25/10).

But based solely on her hunch that Noonan was lying about the theft of his car, Morton

contacted the Oakland County Prosecutor on or about July 29, and urged her to charge Noonan.

At her deposition, Morton offered her alternative suspicion as to Noonan’s possible motive and

testified that she suspected that Noonan “had been drinking prior to driving home . . . [a]nd,

unfortunately, Noonan driving, hit something, fled the scene, and got home,” leaving his car

behind and then reporting it stolen. Lacking any evidence whatsoever to support that hunch, she

offered three reasons for her suspicion. One was her insistence that Noonan had changed his

2

Also, Noonan had just invested approximately $700 in that car to replace the brakes and had also, in April

2010, made a charitable donation of $2,500 to Cornerstone Schools. But nothing in the record demonstrates that

Morton was necessarily aware of these two items at the time she prepared the report or posed this theory.

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story about his whereabouts the night the car went missing, the possible existence of two keys,

and his student loans, but her formal report says nothing about Noonan’s ever changing his story

and Noonan has consistently and emphatically denied ever doing so. The second was that

Noonan was “shaking and stumbling over his words” but again Noonan pointedly denied that.

And the third was Noonan’s allegedly refusing a polygraph, which she claimed she omitted from

her report because she had been instructed never to include reference to polygraphs in her police

reports. Noonan responded that he was never offered a polygraph and therefore did not refuse

one; moreover, he took and passed a privately administered polygraph and subsequently (after

being charged) voluntarily took and passed another polygraph, administered by the police.

On July 29, 2010, the assistant prosecuting attorney (Amy S. McGregor) charged Noonan

with two felonies: insurance fraud and falsely reporting a felony. In her case evaluation form,

McGregor noted that Morton had told her that Noonan first “stated he only had one key” but

“[t]hen stated he might have had two keys.” R. 78 at 2. She also wrote, under “Further

Investigation Requested,” that she wanted to “Verify the key pass belongs to [Noonan] through

his employer.” As it turns out, that key pass did not belong to Noonan through his employer. But

in her subsequent explanation for charging Noonan, McGregor concluded:

The car key was found in the ignition. Also on the key ring was [Noonan]’s work

key pass. [Noonan] could not provide any explanation for how that occurred.

[Noonan] later said it was possible that he had two keys. Based on the fact that the

key was found with the vehicle, nothing was taken from the car, and there was no

interior damage to the vehicle, it is impossible for the theft to have occurred as

[Noonan] stated, therefore he made a false report of a felony and a false report of

a material fact to an insurance company for purposes of a claim.

R. 78. But as that key pass was not actually Noonan’s, it is unclear why McGregor said it was,

given her specific request to investigate and answer this, and there is no indication that

McGregor made any attempt to “verify” the ownership of the key pass. It is possible that Morton

told McGregor that it was Noonan’s, but it is also possible that this was merely speculation or

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No. 15-2192, Noonan v. Oakland

mistake. Similarly, based on the record evidence and Noonan’s testimony, Noonan never said

that it was possible he had two keys.

Noonan’s arraignment was on August 9, 2010, and it appears from the record that

Noonan was not present. He was never physically arrested or incarcerated on these charges. He

claims that he was compelled to attend a status conference in September, and that is not disputed.

On November 4, 2010, McGregor sought and obtained a nolle prosequi, thereby

dismissing the charges. In the summary memo, McGregor explained:

When [I] charged this case, [I] was informed that [Noonan]’s house/personal keys

were on the keychain in the recovered vehicle along with his work ‘swipe card,’

said information tending to establish that the keys found in the ignition were

[Noonan]’s commonly-used keys. Subsequently, [I] was informed that [Detective

Morton] was unable to verify whose keys were on the key chain, and unable to

verify if the swipe card actually belonged to [Noonan]

[I] went to view the recovered car in the impound lot and viewed the keys on the

key chain recovered from the vehicle’s ignition. [I] noticed that on the key chain

with several other keys was a small tag, which criminal defense attorneys give out

to clients with their number on it to call if the client is in trouble. This information

led [me] to believe these were not [Noonan]’s keys because [Noonan] is an

attorney. Moreover, [I] noticed that the car was filled with [Noonan]’s personal

items as well as boxes of work material. [I] also noticed a security key very

similar to the one on the key chain was observed in the console area of the car.

This was probably why [Noonan] believed it could have been his security swipe

card on the key chain. The card is a white rectangle without unique identifiers.

Upon being charged, [Noonan] asserted his innocence and requested a polygraph.

A polygraph was approved and administered. The results of the test tend to

establish that [Noonan] is not guilty of the charged offense….

…

List Reasons for Nolle Prosequi:

1) [Noonan] Passed Polygraph

2) Unable to prove the keys found in the car belonged to [Noonan]

3) Unable to prove the security swipe card found on the keychain in the recovered

car belonged to [Noonan]

R. 78 at 2-3 (emphasis in original).

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Noonan filed a § 1983 claim in federal court, accusing Morton of malicious prosecution.3

In pressing his malicious prosecution claim, Noonan pointed to other evidence undermining any

suspicion of him. Detective Morton herself testified that it is easy to get a re-key for a 2001

Pontiac Grand Prix. Detective Bishop testified that keys can be made from vehicle identification

numbers for purposes of stealing cars and that it is not unusual to have cars stolen based on the

copying of keys in this fashion. Sergeant Banycky testified that most car thefts in Farmington

Hills happen in the south end of town, which is where Noonan lives.

Also, Morton and Bishop admitted that, other than interviewing Noonan, they performed

no further investigation. For example, the Detroit Police reported that eyewitnesses had told

them that someone had crashed the car and fled on foot. But there is no evidence that Morton

obtained the actual reports by those officers or even asked for a description of the suspect.

Morton claims that a few days into the investigation, she went to the Detroit neighborhood where

the car was found but could not find the witnesses who spoke with the Detroit Police—she left

her business card at some nearby houses but got no response. Years later, after being sued,

Farmington Hills sent two different police officers to Detroit to find the witnesses, which they

did. These witnesses told the officers that they remembered the incident well and had seen a

skinny, African-American male run from Noonan’s crashed car (Noonan is Caucasian). They

also said the Detroit Police had apprehended the suspect, returned with him for them to identify,

and then arrested him. 84-12 at 2. There is no evidence in the record of this arrest, however.

Noonan also points out that despite his denying ownership of the keys found in his car,

Morton never investigated the LegalShield tag that was attached to the key chain, which had a

3

Noonan also named Detective Bishop, but the district court granted Bishop summary judgment based,

essentially, on his minimal participation. Noonan also sued Farmington Hills and Oakland County for municipal

liability and the district court denied their motions for summary judgment. They have joined Morton’s interlocutory

appeal on the singular basis that the claims must fail if Morton is entitled to qualified immunity. Consequently, the

only true issue here is Morton’s qualified immunity and, therefore, that is the only issue we address.

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No. 15-2192, Noonan v. Oakland

clearly identifiable member number listed on it. But Noonan’s lawyer did and quickly found its

owner. Moreover, when the prosecutor viewed the car, she immediately spotted a second pass

card—virtually identical to the one attached to the keys—in plain sight and realized that Noonan

was probably confused when he indicated the pass card attached to the keys could have been his.

Oddly, Morton never sought to reconcile the removal of the license plate and placement of a

temporary tag in the rear window, with her theory that Noonan had abandoned the car (and his

belongings therein) in a panic after an unexpected drunk driving accident.

Morton claimed qualified immunity and the district court set accurately out the standard

for a Fourth Amendment malicious prosecution claim. A plaintiff must prove:

(1) a criminal prosecution was initiated against him and the defendant made,

influenced, or participated in the decision to prosecute;

(2) there was a lack of probable cause for the criminal prosecution;

(3) as a consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty

under the Fourth Amendment, apart from the initial seizure; and

(4) the criminal proceeding was resolved in the plaintiff’s favor.

Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010). Only the second and third elements

were at issue: Morton argued that she had probable cause to recommend prosecution and that

Noonan did not suffer a deprivation of liberty. Morton pointed to several facts which, she

argued, established probable cause, but Noonan had denied most of them as untrue and the court

determined that if a jury were to believe Noonan rather than Morton, that jury could find a lack

of probable cause. Moreover, Noonan had substantial other evidence, which—taken in the light

most favorable to him—could further persuade a jury that there was no probable cause for

charges here.

Morton also argued that Noonan suffered no deprivation of liberty because he was never

arrested, incarcerated, or required to post anything other than a personal recognizance bond. But

the district court held that, pursuant to Bacon v. Patera, 772 F.2d 259, 265 (6th Cir. 1985),

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mandatory court appearances are sufficient to constitute a deprivation of liberty, as are the

detrimental effects of a criminal investigation on his employment and income.

The district court denied qualified immunity, holding that “[e]ven if the [c]ourt believe[d]

[Detective Morton]’s version of the facts, the question remains whether a jury could reasonably

decide that Morton violated [Noonan]’s Fourth Amendment rights.” The court also denied the

City’s and the County’s motions for summary judgment based on Noonan’s proffered evidence.

II.

This is an interlocutory appeal from a denial of a motion for summary judgment, in which

Officer Morton argues that Noonan did not overcome her assertion of qualified immunity. To

overcome a qualified immunity defense at the summary judgment stage, the plaintiff must show

that (1) the defendant violated a constitutional right and (2) that right was clearly established.

This means, at a minimum, pointing to “evidence on which [a] jury could reasonably find for the

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256 (1986). If the district court

determines that the plaintiff’s evidence would reasonably support a jury’s finding that the

defendant violated a clearly established right, it must deny summary judgment.

The denial of summary judgment is ordinarily not a final decision within the meaning of

28 U.S.C. § 1291 and is not immediately appealable. But the “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 . . . § 1291 notwithstanding the absence of a final judgment.” Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). We may decide an appeal challenging the district court’s

legal determination that the defendant’s actions violated a constitutional right or that the right

was clearly established. Id. We may also decide an appeal challenging a legal aspect of the

district court’s factual determinations, such as whether the district court properly assessed the

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incontrovertible record evidence. See Plumhoff v. Rickard, 572 U.S. --, 134 S. Ct. 2012, 2019

(2014); Roberson v. Torres, 770 F.3d 398, 402 (6th Cir. 2014).

The determinative question in this appeal is whether Noonan suffered a deprivation of his

liberty and, as to this question, the facts are not in dispute. To state a claim for malicious

prosecution under § 1983, a plaintiff must prove, among other things, that he suffered a

deprivation of liberty protected by the Fourth Amendment. Sykes, 625 F.3d at 308-09. Noonan

contends that he did. He asserts that the police called him in for questioning (twice) and he had

to undergo a polygraph exam; he had to hire a criminal defense attorney; the court required him

to attend a status conference; the police/prosecutor withheld his car from him, in impound, for

over five months; and the false charges caused substantial embarrassment, personally and

professionally, as he had to reveal this prosecution to his employer; all of which inhibited his

practice as a lawyer and cost him thousands of dollars. These facts are not in dispute.

Detective Morton argues that even though the prosecutor charged Noonan with two

felonies, Noonan did not suffer a Fourth Amendment deprivation of his liberty. He “was never

arrested, incarcerated, or required to post anything other than a personal recognizance bond”;

“did not have to stand trial before his charges were dismissed and, in fact, did not even have to

participate in a preliminary exam”; nor was he “subjected to any travel restrictions as a result of

the criminal charges”—“[t]o the contrary, he participated in a bike race that caused him to be in

Chicago during the end of August and first part of September.” Apt. Br. at 28.

In finding a deprivation of liberty, the district court relied on Bacon v. Patera, 772 F.2d

259, 265 (6th Cir. 1985), in which we held that even though the plaintiff was not actually

arrested, a summons to appear in court was a seizure sufficient to cause a Fourth Amendment

deprivation of liberty. Since that time, however, the Supreme Court has explained that a Fourth

Amendment malicious prosecution claim is its own unique claim, Albright v. Oliver, 510 U.S.

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266, 274 (1994), and we have specifically “articulated the elements of a Fourth Amendment

malicious-prosecution claim under 42 U.S.C. § 1983,” Sykes, 625 F.3d at 308, including:

Third, the plaintiff must show that, as a consequence of a legal proceeding, the

plaintiff suffered a deprivation of liberty, as understood in our Fourth Amendment

jurisprudence, apart from the initial seizure.

Id. at 308-09 (emphasis added) (quotation marks and citations omitted). That is, the initial arrest

alone is an insufficient deprivation of liberty. See Thibault v. Wierszewski, No. 15-cv-11358,

2016 WL 3457941, at *11 (E.D. Mich. June 24, 2016) (explaining that the plaintiff “had to

identify evidence that he was deprived of liberty apart from his arrest”). Given that a summons

to appear is even less a deprivation than an arrest, it stands to reason that it too is insufficient to

satisfy this third element of a Fourth Amendment malicious-prosecution claim under § 1983,

pursuant to Sykes. Thus, we must reject Bacon from our current jurisprudence.

Rather, as most commonly applied in the Sixth Circuit, “[s]ervice with a summons to

appear at trial or some other court proceeding does not rise to the level of a constitutional

deprivation.” Billock v. Kuivila, No. 4:11-cv-02394, 2013 WL 591988, at *6 (N.D. Ohio Feb. 14,

2013); Briner v. City of Ontario, No. 1:07-cv-129, 2011 WL 866464, at *4 (N.D. Ohio Mar. 9,

2011); Hopkins v. Sellers, No. 1:09-cv-304, 2011 WL 2173859, at *9–10 (E.D. Tenn. June 2,

2011); see also Rapp v. Putnam, 644 F. App’x 621, 628 (6th Cir. 2016) (“[E]ven if we assume

that being subject to the authority of the court constitutes a Fourth Amendment seizure,

defendants would still be entitled to qualified immunity because the particularized right alleged .

. . is not clearly established.” (quotation marks omitted)). Nor do we believe that the withholding

of Noonan’s car and the incurrence of defense costs satisfy the “deprivation of liberty” element

as we have construed it, and we find no precedent that persuades us otherwise.

Noonan was never arrested or incarcerated, required to post bail or bond, or subjected to

any travel restrictions. In short, despite the aggravation, financial cost, and personal humiliation

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No. 15-2192, Noonan v. Oakland

that Noonan suffered as a result of these false charges, we must conclude as a matter of law that

he did not suffer a deprivation of liberty as understood in our Fourth Amendment jurisprudence.

While we sympathize with Noonan and condemn Detective Morton’s conduct in almost

every aspect of this case, we must nonetheless find her entitled to qualified immunity.

III.

For the foregoing reasons, we REVERSE the judgment of the district court and

REMAND for further proceedings consistent with this opinion.

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