Michael Melton v. Hunt County

Case: 15-10604 Document: 00514235068 Page: 1 Date Filed: 11/13/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-10604 FILED

November 13, 2017

Lyle W. Cayce

MICHAEL DAVID MELTON, Clerk

Plaintiff - Appellee,

v.

KELLY D. PHILLIPS,

Defendant - Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, Chief Judge, and JOLLY, JONES, SMITH, DENNIS,

CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,

HIGGINSON, and COSTA, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge, joined by STEWART, Chief

Judge, JOLLY, JONES, SMITH, CLEMENT, PRADO, OWEN, SOUTHWICK,

HAYNES, * and HIGGINSON, Circuit Judges:

Michael David Melton alleges that he was arrested in violation of the

Fourth Amendment for an assault committed by another man with the same

first and last names. He seeks to hold Deputy Kelly Phillips, who took the

original incident report, liable for his arrest under 42 U.S.C. § 1983. Deputy

Phillips moved for summary judgment in district court, asserting the defense

* Judge Haynes concurs in the judgment and concurs as to Parts I and II.B only.

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of qualified immunity. The district court determined that fact issues precluded

summary judgment on one of Melton’s Section 1983 claims. Because Deputy

Phillips is entitled to summary judgment even when construing all the facts in

the light most favorable to Melton, we REVERSE the district court’s order and

RENDER summary judgment on Melton’s remaining Section 1983 claim

against Deputy Phillips.

I.

In June 2009, Deputy Phillips interviewed an alleged assault victim and

filled out an incident report identifying the alleged assailant by the name

“Michael David Melton.” 1 After Deputy Phillips submitted the report, an

investigator with the Sheriff’s Office began investigating the assault. A year

later, the alleged victim provided the investigator with a sworn affidavit

identifying the alleged assailant as “Mike Melton.” The Hunt County

Attorney’s Office then filed a complaint against “Michael Melton.” The alleged

assailant’s first and last names are the only identifying information contained

in the complaint, and their accuracy is undisputed. Four days after the

complaint was filed, a Hunt County judge issued a capias warrant correctly

identifying the assailant as “Michael Melton.” 2 Two years after the judge

1 Melton’s briefs argued that the incident report’s use of the middle name “David”

erroneously identified him as the assailant. However, the record does not show that this

information ever made its way to the judge who issued the warrant. As Melton has conceded,

the record does not show that the incident report itself was presented to the judge. OA at

41:51–42:11. Moreover, no erroneous information from the report was incorporated into the

complaint that was presented to the judge: Melton has conceded that the complaint is

accurate. OA at 40:55–41:51.

2 The record does not contain any document labeled as a warrant application or

probable cause affidavit. The warrant appears to have issued based on a complaint filed by

an Assistant Hunt County Attorney. However, the briefing by both parties assumes that a

complaint that leads to a capias warrant is the equivalent of a warrant application for

purposes of Franks v. Delaware, 438 U.S. 154 (1978), and Hart v. O’Brien, 127 F.3d 424 (5th

Cir. 1997). We accept their assumption for purposes of deciding this case without reaching

the question because the issue has not been briefed, is not disputed by the parties, and would

not alter the outcome here.

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issued the warrant, Melton was arrested on assault charges and detained for

sixteen days before being released on bond. It is undisputed that Deputy

Phillips’s involvement in the chain of events that led to Melton’s May 2012

arrest and detention ended with the incident report in June 2009. Melton v.

Phillips, 837 F.3d 502, 505 (5th Cir. 2016).

The assault charges against Melton were ultimately dismissed for

insufficient evidence. Melton then sued Deputy Phillips under 42 U.S.C.

§ 1983, alleging that Deputy Phillips was responsible for his arrest under

Franks and Hart because Deputy Phillips included false information in his

incident report. 3 Deputy Phillips asserted the affirmative defense of qualified

immunity and provided an affidavit stating broadly that the identifying

information in the incident report “would have been based solely on what I was

told by [the victim].” In his affidavit, Phillips also averred, as is stated in the

incident report, that the victim provided the assailant’s first name, last name,

gender, ethnicity, and date of birth.

Melton responded by alleging that Deputy Phillips did not obtain any

identifying information from the victim other than the assailant’s first and last

names. Melton relied on an affidavit by former Hunt County Patrol Lieutenant

Brian Alford for his explanation of how Deputy Phillips obtained the

information in the incident report. According to Alford’s affidavit, victims

generally cannot provide the exact date of birth or driver’s license number of

an offender who is not a family relation. Therefore, Alford averred that Deputy

Phillips must have obtained the information from a database called a P.I.D.

used by the Hunt County Sheriff’s Office. Alford further stated that Melton

3 Melton also brought numerous state-law claims against Deputy Phillips and a

variety of state-law and Section 1983 claims against Hunt County, the Hunt County Sheriff’s

Department, and the Hunt County Sheriff. However, the only claim at issue in this

interlocutory appeal based on qualified immunity is Melton’s Section 1983 claim based on

Franks.

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and the true assailant have no identifying characteristics in common other

than their first and last names. Accordingly, Alford inferred that Deputy

Phillips must have obtained the information in the incident report from the

P.I.D. without asking the victim to verify any information other than first and

last names. Finally, Alford’s affidavit averred that a reasonable officer would

not rely on the P.I.D. without verifying additional information beyond first and

last names.

The district court determined that Alford’s affidavit created a genuine

issue of material fact regarding whether Deputy Phillips obtained identifying

information from the victim, whether he cross-checked that information

against the P.I.D. results, whether he used the P.I.D. system at all, and

whether his use of the P.I.D. system was improper. The district court reasoned

that these questions were material to recklessness, which is an element of

liability under Franks. Accordingly, the district court denied Deputy Phillips’s

motion for summary judgment on qualified immunity with respect to Melton’s

Franks-based Section 1983 claim. 4

Deputy Phillips appealed the district court’s denial of summary

judgment. Interlocutory appeal was appropriate in this case because Deputy

Phillips had raised the defense of qualified immunity, which is an immunity

from suit that must be considered at the earliest possible stage of litigation.

Pearson v. Callahan, 555 U.S. 223, 232 (2009). A divided panel of this court

affirmed the district court in part and dismissed the appeal for lack of

jurisdiction to the extent it challenged the genuineness of the factual dispute

over recklessness. Melton, 837 F.3d at 510. The panel majority further held

sua sponte that, although Jennings v. Patton, 644 F.3d 297 (5th Cir. 2011), and

4 The district court granted Deputy Phillips’s motion for summary judgment on

Melton’s Section 1983 claims that were based on the Fifth Amendment, and those claims are

not at issue here.

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Hampton v. Oktibbeha County Sheriff Department, 480 F.3d 358 (5th Cir.

2007), “grant[ed] qualified immunity to government officials who neither

signed nor drafted warrant applications,” these opinions lacked precedential

value because, in the panel majority’s view, they contradicted this court’s

earlier decision in Hart. Melton, 837 F.3d at 509. Accordingly, the panel

majority sua sponte overruled Jennings and Hampton. The panel majority also

rejected Deputy Phillips’s alternative argument that he was entitled to

qualified immunity under the independent intermediary doctrine.

The dissenting opinion would have held that the requirement of

participation in preparing an application for a warrant in Jennings and

Hampton is consistent with Hart’s requirement that information be provided

“for use in an affidavit in support of a warrant.” Id. at 513 (Elrod, J.,

dissenting). Because there was no evidence that Deputy Phillips provided

information for the purpose of having it used in obtaining a warrant, the

dissenting opinion would have held that Deputy Phillips was entitled to

summary judgment under Hart, Hampton, and Jennings. Id. at 511–13.

Deputy Phillips petitioned for rehearing en banc, and we granted the petition.

II.

“The denial of a motion for summary judgment based on qualified

immunity is immediately appealable under the collateral order doctrine to the

extent that it turns on an issue of law.” Flores v. City of Palacios, 381 F.3d

391, 393 (5th Cir. 2004). “Accordingly, we lack jurisdiction to review the

genuineness of a fact issue but have jurisdiction insofar as the interlocutory

appeal challenges the materiality of [the] factual issues.” Allen v. Cisneros, 815

F.3d 239, 244 (5th Cir. 2016). We review the materiality of fact issues de novo.

Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).

Where the district court has identified a factual dispute, we ask whether the

officer is entitled to summary judgment even assuming the accuracy of the

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plaintiff’s version of the facts. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.

2004) (en banc).

“A good-faith assertion of qualified immunity alters the usual summary

judgment burden of proof, shifting it to the plaintiff to show that the defense

is not available.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016). To satisfy

this burden and overcome qualified immunity, the plaintiff must satisfy a two-

prong test. Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc).

First, the plaintiff must show “that the official violated a statutory or

constitutional right.” Id. Second, the plaintiff must show that “the right was

‘clearly established’ at the time of the challenged conduct.” Id. To avoid

summary judgment on qualified immunity, “the plaintiff need not present

absolute proof, but must offer more than mere allegations.” King, 821 F.3d at

654. Because the plaintiff is the non-moving party, we construe all facts and

inferences in the light most favorable to the plaintiff. Mullenix v. Luna, 136 S.

Ct. 305, 307 (2015); Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).

As explained below, Melton’s claim fails under both prongs of the

qualified immunity analysis because, even assuming his version of the

disputed facts and construing all facts and inferences in his favor, the

connection between Deputy Phillips’s conduct and Melton’s arrest is too

attenuated to hold the deputy liable under the rule that we reaffirm today or

under any law that was clearly established at the time that Deputy Phillips

filled out the incident report.

A.

Melton’s argument that Deputy Phillips violated his Fourth Amendment

rights is based on the Supreme Court’s decision in Franks and our subsequent

application of Franks in Hart. The defendant in Franks was convicted of sexual

assault and sentenced to life imprisonment after the district court denied his

motion to suppress evidence that had been seized pursuant to a search

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warrant. Franks, 438 U.S. at 160. The warrant affidavit in that case stated

that the affiant had personally spoken with two individuals who worked at the

defendant’s place of employment, who had both told him that the defendant

often wore clothing that matched the description offered by the victim. Id. at

157. At the suppression hearing, the defendant requested the right to call

these individuals to testify that they had never spoken personally with the

affiant and that if they had spoken to another police officer, any information

they would have provided about the defendant would have been “somewhat

different” from what was recited in the affidavit. Id. at 158. The district court

refused to hear testimony on this point and denied the defendant’s motion to

suppress. Id. at 160. The Supreme Court of Delaware affirmed, holding that

a defendant may never challenge the veracity of a warrant affidavit. Id.

The Supreme Court of the United States reversed, determining that the

Fourth Amendment entitles a defendant to a hearing on the veracity of a

warrant affidavit if he can make a sufficient preliminary showing that the

affiant officer obtained the warrant by recklessly including material falsehoods

in a warrant application. Id. at 171–72. Particularly relevant to our analysis

here, the Supreme Court also observed in a footnote that an officer should not

be permitted to “insulate” a deliberate misstatement “merely by relaying it

through an officer-affiant personally ignorant of its falsity.” Id. at 163 n.6.

Our decision in Hart applied this principle to allow Section 1983 claims

against an officer who “deliberately or recklessly provides false, material

information for use in an affidavit in support of [a warrant].” Hart, 127 F.3d

at 448–49 (citing Franks, 438 U.S. at 163 n.6) (holding that assistant county

attorney was entitled to qualified immunity because he did not act recklessly

when he erroneously told an officer who was filling out a warrant application

that the person to be arrested for suspected drug offenses was the wife of a

known marijuana cultivator). In Hampton, we clarified that the holding in

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Hart does not extend to officers who neither prepared nor presented the

warrant affidavit. Hampton, 480 F.3d at 365 (holding that two officers who

did not prepare, present, or sign a warrant affidavit were entitled to qualified

immunity whereas a third officer who prepared the warrant affidavit could be

liable for falsely accusing the plaintiff of resisting another individual’s arrest).

We reaffirmed this principle in Jennings, holding again that an officer enjoys

qualified immunity if he does not prepare, present, or sign a warrant

application. Jennings, 644 F.3d at 300–01 (holding that judge who allegedly

fabricated corruption charges was entitled to qualified immunity because there

was no evidence that he prepared or presented the warrant application and the

independent intermediary doctrine shielded him from liability on other

grounds).

The panel opinion treated Jennings and Hampton as in conflict with

Hart. Melton, 837 F.3d at 509. However, we, like the parties in this case,

interpret our precedents to be in one accord. Thus, an officer who has provided

information for the purpose of its being included in a warrant application

under Hart has assisted in preparing the warrant application for purposes of

Jennings and Hampton and may be liable, but an officer who has not provided

information for the purpose of its being included in a warrant application may

be liable only if he signed or presented the application.

The parties have not asked us to overrule Jennings and Hampton in

favor of a broader rule of liability, and Franks counsels against such a course.

The Supreme Court expressly stated that the Franks rule is a narrow one and

that its narrowness reflects six concerns. Franks, 438 U.S. at 167. First, a

broad Fourth Amendment rule could interfere with criminal convictions and

be costly to society. Id. at 165–66. Second, a broad rule would have minimal

benefit in light of “existing penalties against perjury, including criminal

prosecutions, departmental discipline for misconduct, contempt of court, and

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civil actions.” Id. at 166. Third, magistrates have the ability to inquire into

the accuracy of an affidavit before a warrant issues, both by questioning the

affiant and by summoning others to testify at a warrant proceeding. Id.

Fourth, “[t]he less final, and less deference paid to, the magistrate’s

determination of veracity, the less initiative will he use in that task,” despite

the fact that the magistrate’s scrutiny is “the last bulwark preventing any

particular invasion of privacy before it happens.” Id. at 167. Fifth, the

proliferation of challenges to the veracity of warrant applications could unduly

burden the court system and be abused by defendants as a source of discovery.

Id. Sixth, a broad rule would be in tension with the fact that “[a]n affidavit

may properly be based on hearsay, on fleeting observations, and on tips

received from unnamed informants whose identity often will be properly

protected from revelation,” so that “the accuracy of an affidavit in large part is

beyond the control of the affiant.” Id. Accordingly, in light of the Supreme

Court’s guidance, we decline to adopt a broad new rule of officer liability sua

sponte. 5

5 We observe that none of our sister circuits has applied Franks to circumstances in

which an officer’s connection to the plaintiff’s arrest is as attenuated as in this case. See, e.g.,

KRL v. Moore, 384 F.3d 1105, 1118 (9th Cir. 2004) (holding that, “because he had no role in

the preparation of the . . . warrant,” an officer who was involved at every stage of an

investigation was entitled to qualified immunity for material omissions in a warrant

application); see also United States v. Brown, 631 F.3d 638, 640–42 (3d Cir. 2011) (applying

Franks where non-affiant helped prepare the warrant affidavit); Burke v. Town of Walpole,

405 F.3d 66, 86 (1st Cir. 2005) (applying Franks where officer who “was centrally involved in

the collection of evidence to be used to secure an arrest warrant” withheld evidence from the

affiant); United States v. Wapnick, 60 F.3d 948, 950, 955–56 (2d Cir. 1995) (applying Franks

where non-affiant “knowingly or recklessly made false statements to [the affiant] in

connection with [the affiant’s] preparation of the affidavit”); United States v. DeLeon, 979

F.2d 761, 762–63 (9th Cir. 1992) (applying Franks where the affiant was present during the

non-affiant investigator’s telephone interviews and based same-day affidavit on those

interviews); United States v. Calisto, 838 F.2d 711, 712–13 (3d Cir. 1988) (applying Franks

where non-affiant informants provided information regarding a drug investigation to a police

officer who then obtained a warrant); United States v. Pritchard, 745 F.2d 1112, 1118–19 (7th

Cir. 1984) (applying Franks where non-affiant provided information to affiant and noting

that Franks applies “when one government agent deliberately or recklessly misrepresents

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Because we interpret our precedents to be consistent and do not choose

to announce a broad new rule of liability, we apply the requirement that an

officer must have assisted in the preparation of, or otherwise presented or

signed a warrant application in order to be subject to liability under Franks. 6

It is undisputed that Deputy Phillips did not present or sign the complaint on

the basis of which the capias warrant issued. Thus, Deputy Phillips can be

subject to liability only if he helped prepare the complaint by providing

information for use in it. See Jennings, 644 F.3d at 300–01; Hampton, 480 F.3d

at 365.

To the extent that Jennings or Hampton could be read to immunize the

provision of information for use in preparing a warrant application, we do not

read them that broadly. As explained above, Franks liability can reach not

only those fully responsible for preparing a warrant application, but also those

who “deliberately or recklessly provide[] false, material information for use in

an affidavit.” Hart, 127 F.3d at 448. Likewise, “an officer who makes knowing

and intentional omissions that result in a warrant being issued without

probable cause” is also liable under Franks. Michalik v. Hermann, 422 F.3d

252, 258 n.5 (5th Cir. 2005) (citing Hart, 127 F.3d at 448).

Separate from a Franks liability context, an officer could be held liable

for a search authorized by a warrant when the affidavit presented to the

magistrate was “so lacking in indicia of probable cause as to render official

belief in its existence unreasonable.” Malley v. Briggs, 475 U.S. 335, 344 (1986)

information to a second agent, who then innocently includes the misrepresentations in an

affidavit”). Moreover, Hart fully addresses the panel’s concern that an officer might seek to

insulate a misstatement “merely by relaying it through an officer-affiant personally ignorant

of its falsity” because it applies Franks to officers who provide information for use in a

warrant application. See Hart, 127 F.3d at 448 (citing Franks, 438 U.S. at 163 n.6).

6 As noted above, Melton has not requested a broad new rule but only asserts that

Deputy Phillips is liable under our circuit’s existing case law.

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(citing United States v. Leon, 468 U.S. 897, 923 (1984)). The Malley wrong is

not the presentment of false evidence, but the obvious failure of accurately

presented evidence to support the probable cause required for the issuance of

a warrant. In this situation, we have rightly recognized that liability should

attach only to the “affiant and person who actually prepared, or was fully

responsible for the preparation of, the warrant application.” Michalik, 422

F.3d at 261. That is because an officer who only provides a portion of the

information included in the affidavit has no way of knowing whether the

“whole picture” painted by the evidence establishes probable cause. Id. As

discussed above, Franks liability—our concern here—addresses the distinct

issue of false information in a warrant application.

Here, the fact issue that the district court identified was whether Deputy

Phillips used the P.I.D. in an improper way while preparing the incident

report. The district court determined that this fact issue was material to

recklessness and that Deputy Phillips’s immunity depended on whether he was

reckless because, as the district court understood it, Franks applies to “any

government official who makes a reckless misstatement.” However, even

assuming arguendo that Deputy Phillips was reckless in completing the

incident report, 7 he is still entitled to summary judgment unless there is a

question of fact as to whether he assisted in the preparation of the complaint

7 In the alternative, the fact issues identified by the district court are not material to

recklessness as defined in Hart. For purposes of liability under Franks, Hart defined

recklessness to require that an officer “in fact entertained serious doubts as to the truth” of

the information included in the warrant application. Hart, 127 F.3d at 449. Even assuming

arguendo that Alford correctly surmised that Deputy Phillips used the P.I.D. system without

having the victim verify any identifying information other than first and last names and that

a reasonable officer would not have relied on information so obtained, this would not satisfy

the requirement that Deputy Phillips entertained serious doubts as to the truth of the

information in the report. Melton has not pointed to any evidence on this requirement.

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on the basis of which the capias warrant issued. See Jennings, 644 F.3d at

300–01; Hampton, 480 F.3d at 365.

Melton seeks to create a fact issue as to whether Deputy Phillips helped

prepare the complaint by providing information for use in it, asserting that

“[a]ny investigator would know” an incident report will be used to obtain a

warrant. However, there is no record evidence of a policy or practice at the

Hunt County Sheriff’s Office that would have allowed Deputy Phillips to

anticipate that the incident report would be used to obtain a warrant. See OA

at 38:25–40:40. Nor, as Melton has conceded, is there record evidence

suggesting that Deputy Phillips knew this specific report would be used to

obtain a warrant. OA at 38:11–38:23. Moreover, unchecked boxes at the end

of the incident report show that Deputy Phillips chose not to file the report

with a justice of the peace, a county attorney, or a district attorney. Because

the record does not contain evidence that the information in the incident report

was provided for the purpose of use in the complaint, Deputy Phillips did not

participate in preparing the complaint. See Hart, 127 F.3d at 448–49.

Accordingly, because he did not assist in preparing, present, or sign the

complaint, Deputy Phillips cannot be held liable under Franks. See Jennings,

644 F.3d at 300–01; Hampton, 480 F.3d at 365. Accordingly, Deputy Phillips

is entitled to summary judgment on this claim.

B.

Even assuming arguendo that Melton could demonstrate that a fact

issue exists on his claim that Deputy Phillips recklessly filled out the incident

report, Melton bears the burden of demonstrating that Deputy Phillips violated

his clearly established rights. 8 See Morgan, 659 F.3d at 371. “Abstract or

8 “This circuit follows the rule that alternative holdings are binding precedent and not

obiter dictum.” United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011).

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general statements of legal principle untethered to analogous or near-

analogous facts are not sufficient to establish a right ‘clearly’ in a given context;

rather, the inquiry must focus on whether a right is clearly established as to

the specific facts of the case.” Vincent v. City of Sulphur, 805 F.3d 543, 547

(5th Cir. 2015); see also Kinney, 367 F.3d at 350. “Although a case directly on

point is not necessary, there must be adequate authority at a sufficiently high

level of specificity to put a reasonable official on notice that his conduct is

definitively unlawful.” Vincent, 805 F.3d at 547; see also Kinney, 367 F.3d at

350. 9 Thus, “[a] clearly established right is one that is sufficiently clear that

every reasonable official would have understood that what he is doing violates

that right.” Luna, 136 S. Ct. at 308.

Rather than attempting to demonstrate that his rights were clearly

established by cases addressing analogous or near-analogous facts, Melton has

repeatedly emphasized that the facts of his case are unique. See, e.g., Red Brief

at 20; OA at 28:38–29:09; OA at 36:09–37:33; OA at 56:54–57:24. Moreover,

Melton conceded at oral argument that he could not identify a single case

applying Franks to a situation in which there was no error in the complaint

and no false statement that made its way into the warrant. OA at 55:26–56:05.

Indeed, Franks expressly requires a falsehood to be included in the warrant

application for there to be a Fourth Amendment violation. Franks, 438 U.S. at

9 Although neither Melton nor Deputy Phillips has briefed this prong of the qualified

immunity analysis, Deputy Phillips’s good-faith assertion of qualified immunity has placed

the burden on Melton to demonstrate that neither prong of the defense applies. King, 821

F.3d at 653. Moreover, both parties have briefed their understanding of the law that existed

at the time Deputy Phillips prepared the incident report, and reaching prong two of qualified

immunity does not result in unfair prejudice. It is important to consider the defense at the

earliest possible stage of litigation because qualified immunity is an immunity from suit that

“is effectively lost if a case is erroneously permitted to go to trial.” Pearson, 555 U.S. at 231;

see also White v. Pauly, 137 S. Ct. 548, 551 (2017) (noting that qualified immunity is

“important to society as a whole”); Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (noting that

qualified immunity is “too important to be denied review” on interlocutory appeal).

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155–56. Particularly in light of Franks’s detailed discussion of why its rule

must be narrowly construed, we cannot say Franks clearly established the

unconstitutionality of Deputy Phillips’s conduct. See id. at 165–67.

Moreover, even if Melton had attempted to satisfy his burden rather

than conceding that his case is unique and that no case applies Franks in

similar circumstances, Melton could not have shown that Deputy Phillips

violated his clearly established rights without assisting in preparing,

presenting, or signing the complaint. Hart and Hampton had been decided at

the time Deputy Phillips prepared the incident report. As discussed above,

Hampton held that an officer is entitled to qualified immunity if he does not

prepare, present, or sign a warrant application. Hampton, 480 F.3d at 365.

Hart held that an officer is not entitled to qualified immunity if he “deliberately

or recklessly provides false, material information for use in an affidavit in

support of [a warrant].” Hart, 127 F.3d at 448–49 (emphasis added). Because

Melton cannot show that Deputy Phillips prepared, presented, signed, or

provided information for use in the complaint, he cannot show that Deputy

Phillips violated clearly established law. 10

III.

For the reasons explained above, we REVERSE the district court’s order

and RENDER summary judgment for Deputy Phillips on Melton’s claim of

liability under Franks.

10 Because we decide the case on the grounds explained above, we do not reach Deputy

Phillips’s additional alternative argument that he is entitled to qualified immunity under the

independent intermediary doctrine.

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GREGG COSTA, Circuit Judge, concurring in the judgment:

There are now so many strands of Fourth Amendment law that it is not

surprising they sometimes get tangled. As Judge Dennis’s dissent explains,

that is what has happened to our caselaw addressing two different situations

in which an officer can be held liable for an unlawful search even when a

warrant was obtained. The first—and the one that is the claim alleged against

Phillips—is when an officer provides false information to the magistrate

issuing the warrant. See Franks v. Delaware, 438 U.S. 154 (1978). Because

the wrongful act is misleading the magistrate, our original view in this area

rightly focused on whether the officer “deliberately or recklessly provides false,

material information for use in an affidavit in support of a search warrant,

regardless of whether he signs the affidavit.” Hart v. O’Brien, 127 F.3d 424,

448–49 (5th Cir. 1997) (emphasis added). As long as the officer knows his false

information will be used in an attempt to mislead a magistrate, that officer

should be liable under Franks. See 438 U.S. at 164 n.6 (explaining that officers

should not be able to “insulate one officer’s deliberate misstatements merely

by relaying it through an officer-affiant personally ignorant of its falsity”).

An officer can also be held liable for a search authorized by a warrant

when the affidavit presented to the magistrate was “so lacking in indicia of

probable cause as to render official belief in its existence entirely

unreasonable.” Malley v. Briggs, 475 U.S. 335, 344 (1986) (citing United States

v. Leon, 468 U.S. 897, 923 (1984)). The Malley wrong is not the presentment

of false evidence, but the obvious failure of accurately presented evidence to

support the probable cause required for the issuance of a warrant. In this

situation, we have rightly recognized that liability should attach only to the

“affiant and person who actually prepared, or was fully responsible for the

preparation of, the warrant application.” Michalik v. Hermann, 422 F.3d 252,

262 (5th Cir. 2005). That is because an officer who only provides a portion of

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the information included in the affidavit has no way of knowing whether the

“whole picture” painted by the evidence establishes probable cause. Id. 261.

Michalik’s sensible standard for “no probable cause” cases cross-

pollinated with the Franks line of falsity cases in Hampton v. Oktibbeha Cty.

Sheriff Dep’t., 480 F.3d 358 (2007). See Leon, 468 U.S. at 914–15 (recognizing

these as separate doctrines). Hampton was a falsity case, yet it readily

dismissed claims against two officers who allegedly provided false information

that was later presented to the magistrate because neither signed the affidavit

or prepared the warrant application. 480 F.3d at 365. Importing the Michalik

limitation into Franks cases and ignoring Hart was error. There is no

principled reason why Franks liability should be limited to the affiant or a

person “fully responsible” for preparing the warrant application. See United

States v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (“If we held that the conduct

of . . . the affiant[] was the only relevant conduct for the purpose of applying

the teachings of Franks, we would place the privacy rights protected by that

case in serious jeopardy.”). That requirement would preclude liability in the

case of an officer who provides to a warrant affiant a doctor’s inculpatory

opinion about bite mark evidence while failing to disclose exculpatory DNA

results. Burke v. Town of Walpole, 405 F.3d 66, 87 (1st Cir. 2005) (denying

qualified immunity on those facts). It would also defeat a claim brought

against an officer who conveyed to an affiant the inculpatory comments of one

informant but not the contradictory account of another. United States v.

DeLeon, 979 F.2d 761, 762-63 (9th Cir. 1992). In both of these scenarios, Hart’s

“for use in an affidavit” standard would support liability.

The majority opinion tries to harmonize Hart with Hampton (and

Jennings v. Patton, 644 F.3d 297 (5th Cir. 2011), which followed Hampton in a

Franks case) by saying that “an officer who has provided information for the

purpose of its being included in a warrant application under Hart has assisted

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in preparing the warrant application for purposes of Jennings and Hampton

and may be liable.” Maj. Op. at 8. But if Hart’s “for use in a warrant”

requirement is sufficient, why overlay it with the additional requirements that

“an officer must have assisted in the preparation of, or otherwise presented or

signed a warrant application in order to be subject to liability under Franks”?

Id. at 10. More problematic than the merged test being cumbersome, the Hart

standard for Franks liability is irreconcilable with Hampton’s endorsement of

the requirement that the officer must have “prepared or presented the warrant

or [have been] fully responsible for its preparation or presentation.” Hampton,

480 F.3d at 365 (quoting Michalik, 422 F.3d at 261) (emphasis added); see also

Jennings, 644 F.3d at 300 (reciting same requirement). That language was

wrongly imported from the “no probable cause” caselaw and is not used by any

other circuit in Franks cases.

The en banc court’s attempt to reconcile rather than correct our caselaw,

with Hart apparently now being a subpart of the Hampton standard, will

continue to result in confusion. That confusion is especially problematic for a

claim in which individuals can assert a qualified immunity defense as a lack

of clarity in the law provides a defense. In a future Franks case, an officer who

provided false information “for use in” an affidavit will no doubt argue he was

not “fully responsible” for the warrant application and thus is immune under

the Hampton and Jennings decisions that we reaffirm today.

Such a conflict in the caselaw will support an easy defense of qualified

immunity as this case demonstrates. Although the “violation of clearly

established law” standard is increasingly being questioned, see Ziglar v.

Abbasi, 137 S. Ct. 1843, 1870–72 (2017) (Thomas, J., concurring) (citing Baude,

Is Qualified Immunity Unlawful?, 106 CAL. L. REV. (forthcoming 2018)), it is

hard to imagine that any immunity threshold should hold law enforcement to

a higher standard than judges when it comes to interpreting the law. If judges

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thought (and apparently still think) that the Michalik standard should extend

to Franks cases, then an officer like Phillips who has neither the legal training

of judges nor the time we can devote to parsing caselaw should not face civil

liability for that error. So I join the majority opinion in concluding that Phillips

is immune from this suit. 1

But I would use the en banc process to recognize the dubious provenance

of the “sign or prepare” requirement in our Franks case. Hart alone should

provide the appropriate standard for Franks claims. Its “for use in”

requirement is more straightforward, consistent with the law in other circuits,

and fully captures Franks’s concern that an officer’s misrepresentations to a

court should not be a basis for interfering with citizens’ privacy and liberty

interests. Our failure to straighten out the strands of Fourth Amendment law

that got tangled in Hampton means that the next time one of these cases comes

along, perhaps with a stronger case for liability than this one, the important

Fourth Amendment concerns that Franks protects might not be vindicated.

1 The dissent raises legitimate concerns about whether the defendant raised the

“clearly established” aspect of qualified immunity as a ground for summary judgment. But

even without getting to the “clearly established” question, Melton has not established a

constitutional violation under the proper Franks inquiry. That is because he cannot show

that Phillips knowingly or recklessly presented false information. Assuming the truth of

Melton’s theory that the inaccurate identification came from Phillips’s use of a law

enforcement database, there is no evidence indicating that Phillips “entertained serious

doubts as to the truth” of that information on which law enforcement frequently relies. Hart,

127 F.3d at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).

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JAMES L. DENNIS, Circuit Judge, joined by GRAVES, Circuit Judge,

dissenting:

The evidence of the nonmovant and the justifiable inferences drawn in

his favor by the district court—which we may not second-guess at this

interlocutory stage—establish a genuine dispute as to whether Officer Phillips

acted with reckless disregard for the truth in falsely identifying the plaintiff

as the perpetrator in his official report of a violent assault, resulting in the

plaintiff’s arrest without probable cause. The majority opinion errs in

reversing the district court’s denial of qualified immunity and summary

judgment to Phillips and causes injustice to the plaintiff, who should be

allowed to proceed with his claim, and to future civil plaintiffs and criminal

defendants, who will be deprived of a legal remedy for similar violations of

their constitutional rights. What makes this case even more significant are

the legal and procedural maneuvers this court is employing in order to shield

a reckless officer, bending over backwards to revive bad decisions that violated

our rule of orderliness and raising arguments and defenses that the appellant

did not raise. I respectfully dissent.

I

In June 2009, the defendant, Kelly Phillips, then a deputy with the Hunt

County, Texas, Sheriff’s Office, was dispatched to a hospital in Greenville,

Texas, to interview the victim of an assault. The victim told Phillips that the

assailant was a man he knew named “Michael Melton.” There is no dispute

that the assailant was not the plaintiff, Michael David Melton, but a different

man, Michael Glenn Melton, who apparently was romantically involved with

the victim’s estranged wife at the time of the assault. Phillips shortly

thereafter prepared an offense report in which he specifically identified the

plaintiff, Michael David Melton, as the assailant, and provided his middle

name, age, height, hair color, and eye color. As the district court noted, Phillips

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did not explain how he came to identify the plaintiff, as opposed to the true

assailant, as the perpetrator in his report. 1 According to the plaintiff’s expert

witness, the only possible way Phillips could have identified the plaintiff

falsely as the assailant in his offense report was by entering the name “Michael

Melton” into a computer database, the “Personal Identification History

through net data” or “PID,” without conducting any investigation as to whether

the PID-generated result matched the person identified by the victim.

Phillips forwarded his report to the Criminal Investigation Division of

the Hunt County Sheriff’s Office. In April 2010, another officer obtained a

sworn affidavit from the victim, who again identified his assailant only as

“Mike Melton,” his estranged wife’s boyfriend. In July 2010, the state

prosecutor filed a criminal complaint against the plaintiff, charging him with

the assault. The complaint expressly stated that it was “based upon the

observations of K. Phillips, a peace officer, obtained by reviewing said officer’s

report,” and it provided no other basis for the information contained therein.

Shortly thereafter, a Hunt County judge issued a warrant for the plaintiff’s

arrest. The plaintiff was arrested in May 2012 and held in county jail for

sixteen days before he was released on bond. In August 2012, the charge

against the plaintiff was dismissed.

The plaintiff sued Phillips for violation of his Fourth Amendment rights,

alleging that Phillips intentionally or with reckless disregard for the truth

misidentified him as the assailant in his offense report, thereby leading to his

arrest without probable cause. Phillips moved for summary judgment,

1 Phillips’ affidavit asserts only that, “[a]s standard practice,” the identity of the

suspect in his report “would have been” based on what he was told by the victim, but he does

not actually contend that the victim gave him the plaintiff’s middle name or physical

description, or that the victim even knew the plaintiff, let alone explain how or why the victim

would have given Phillips the plaintiff’s information instead of the information of the actual

assailant, who was known to the victim.

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asserting qualified immunity. The district court denied summary judgment on

the plaintiff’s Fourth Amendment claims, finding a genuine dispute of fact

regarding whether Phillips was reckless in identifying the plaintiff in his

offense report.

II

A

This court has recognized two different kinds of claims against

government agents for alleged Fourth Amendment violations in connection

with a search or arrest warrant: (1) claims under Franks v. Delaware, 438 U.S.

154 (1978), for which the agent may be liable if he “makes a false statement

knowingly and intentionally, or with reckless disregard for the truth that

results in a warrant being issued without probable cause,” Michalik v.

Hermann, 422 F.3d 252, 258 n.5 (5th Cir. 2005) (discussing Franks, 438 U.S.

at 155–56); and (2) claims under Malley v. Briggs, 475 U.S. 335 (1986), for

which the agent may be liable if he “fil[es] an application for an arrest warrant

without probable cause” and “a reasonable well-trained officer . . . would have

known that [the] affidavit failed to establish probable cause,” Michalik, 422

F.3d at 259–60 (citations and internal quotation marks omitted).

As is apparent, these two kinds of claims involve very different legal

theories, and our controlling caselaw properly reflects our understanding of

those differences. In Hart v. O’Brien, 127 F.3d 424, 448–49 (5th Cir. 1997),

this court considered the scope of a government agent’s liability for Franks

claims and held, “A governmental official violates the Fourth Amendment

when he deliberately or recklessly provides false, material information for use

in an affidavit in support of a . . . warrant.” And in Michalik, we considered

the scope of a government agent’s liability for Malley claims. We held that, in

that context, only the “affiant and person who actually prepared, or was fully

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responsible for the preparation of, the warrant application” may be liable for

seeking a warrant without probable cause. Michalik, 422 F.3d at 261.

These different rules make sense. A government official who merely

provides information that is later included in a warrant application is not in a

position to “see the whole picture” and thus to fully “assess probable cause

questions” relevant to Malley claims of facially insufficient warrant

applications. See Michalik, 422 F.3d at 261. By contrast, an officer who

“deliberately or recklessly provides false, material information for use in an

affidavit” is certainly in a position to fully assess his own conduct, which forms

the entire basis for Franks claims of material misrepresentations in warrant

applications. See Hart, 127 F.3d at 448–49. At issue in this case is a Franks

claim alleging a Fourth Amendment violation resulting from material

misrepresentations in a warrant affidavit; thus, as the prudent reader will

easily recognize, this claim is controlled by Hart/Franks, and the

Michalik/Malley rule is inapplicable.

B

In Hampton v. Oktibbeha County Sheriff’s Department, 480 F.3d 358, 365

(5th Cir. 2007), and Jennings v. Patton, 644 F.3d 297, 301 (5th Cir. 2011), this

court confused the two theories described above and, in conflict with our earlier

holding in Hart, erroneously applied the Michalik/Malley rule to cases

involving Franks misrepresentation claims. And it did so without ever

mentioning Franks or Hart. Under our rule of orderliness, when such conflict

occurs, the earlier precedent controls and subsequent, inconsistent cases are

disregarded. See, e.g., United States v. Puckett, 505 F.3d 377, 385 (5th Cir.

2007) (“A handful of this court’s cases, unfortunately, are inconsistent” with

earlier precedent, and they are therefore “not controlling”). The en banc court

now cements our confusion and error in Hampton and Jennings into law.

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In an attempt to portray Hampton and Jennings as consistent with Hart,

the majority opinion misrepresents those cases and their holdings. Under

Hampton and Jennings, a government official who deliberately provides false,

material information for use in an affidavit does not violate the Fourth

Amendment if she is not the affiant and does not actually prepare the warrant.

See Hampton, 480 F.3d at 365; Jennings, 644 F.3d at 301. This rule is plainly

inconsistent with our earlier holding in Hart.

In Hampton, the court “accepted the plaintiff’s version of the facts,

namely that the officers ‘conspired to submit false and incomplete information

in order to secure a warrant for the arrest of [Hampton].’” 480 F.3d at 364

(alteration in original). Nevertheless, the Hampton court held that these

officials could not be held liable because the plaintiff did not allege that either

of them “was the affiant officer or the ‘officer who actually prepare[d] the

warrant application with knowledge that a warrant would be based solely on

the document prepared.’” 480 F.3d at 365 (quoting Michalik, 422 F.3d at 261).

Jennings offers the same “actual preparation” requirement. In granting

qualified immunity to the relevant government official there, the court quoted

the following language from Michalik:

Although issues of fact may exist as to the roles that

[defendants] played in the investigation, and in providing some of

the information to [the affiant], these issues of fact are not material

to the [claim for causing a warrant to be issued without probable

cause] because none of the evidence suggests that [defendants]

prepared or presented the warrant or were fully responsible for its

preparation or presentation.

Jennings, 644 F.3d at 301 (emphasis added) (alteration in original)

(quoting Michalik, 422 F.3d at 261). The Jennings court went on to cite

Hampton and describe it as “granting qualified immunity to defendants who

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were neither the affiant nor the person who actually prepared the warrant

application.” Jennings, 644 F.3d at 301 (emphasis added) (citing Hampton,

480 F.3d at 364-65). This, too, is plainly inconsistent with Hart.

There is no way to explain how the language of these two cases and their

reliance on Michalik could be consistent with Hart. So the majority opinion

does not quote or otherwise discuss their language and does not even mention

their reliance on Michalik. The majority opinion’s attempt to argue that

Hampton and Jennings can be harmonized with Hart amounts to an endeavor

to square the circle.

C

The majority opinion’s holding that an officer who makes a deliberate or

reckless misrepresentation can only be held liable if he “assisted in the

preparation of, or otherwise presented or signed a warrant application” is

unsound and, unsurprisingly, is not the law in any other circuit. 2 See, e.g.,

United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997) (Fourth

Amendment violated by false statements “made not only by the affiant but also

[by] statements made by other government employees . . . insofar as such

statements were relied upon by the affiant in making the affidavit”); United

States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (“[W]e join the Third and

Seventh Circuits in holding that misstatements or omissions of government

officials which are incorporated in an affidavit for a search warrant are

2 The majority opinion cites KRL v. Moore, 384 F.3d 1105, 1118 (9th Cir. 2004), as

“holding that ‘because he had no role in the preparation of the . . . warrant,’ an officer who

was involved at every stage of an investigation was entitled to qualified immunity for

material omissions in a warrant application.” Maj. Op. at 9 n.5. This misrepresents Moore’s

holding. In Moore, the plaintiffs challenged the omission of information that was known to

those who drafted and signed the affidavit. 384 F.3d at 1117. Thus, the official in question,

an investigator who was not involved in the preparation of the affidavit, bore no responsibility

for the misleading omission of any information from the affidavit. See id. at 1108–09, 1118.

By contrast, in the instant case, there is no dispute that Phillips was the source of the

material misrepresentations provided to the affiant.

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grounds for a Franks hearing.”). Cf. United States v. Leon, 468 U.S. 897, 923

n.24 (1984) (admonishing that in applying the good-faith exception “[i]t is

necessary to consider the objective reasonableness . . . of the officers who

originally obtained [the warrant] or who provided information material to the

probable-cause determination”).

The following cases further illustrate the majority opinion’s departure

from the holdings of our sister circuits. In United States v. Calisto, 838 F.2d

711, 712 (3d Cir. 1988), an officer relayed information to a second officer at a

second agency. The first officer’s “reason for relaying the information to [the

second officer] . . . was his belief that it would aid [that officer] in his

investigation.” Id. (emphasis added). The first officer requested not to be

revealed as the source of the information. Id. The second officer then relayed

the information to a third officer at a third agency, who then relayed

information to a fourth officer at a fourth agency, who then drafted and signed

a warrant application based on the information. In applying Franks, the Third

Circuit considered the information provided, and omitted, by all four agents,

ultimately concluding that any misrepresentation was not material. See 838

F.2d at 714–15 & n.2.

In United States v. Davis, 471 F.3d 938, 942 (8th Cir. 2006), an officer

who conducted a protective sweep relayed false information to another officer

who participated in the sweep, and the latter officer relayed that information

to the affiant. Nothing in the facts or the court’s discussion suggests that the

misrepresenting officer was “involved in the preparation” of the warrant

affidavit, and the court concluded that his misrepresentation was reckless. Id.

at 946. The court stated, “The fact that the affiant . . . was not aware [of the

falsity] does not change the result under Franks, nor does the fact that [the

affiant’s] source of information . . . was also unaware of the truth. [The

recklessly misrepresenting officer’s] statement cannot be insulated from a

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Franks challenge simply because it was relayed through two officers who were

both unaware of the truth.” Id. at 947 n.6.

In United States v. Lakoskey, 462 F.3d 965 (8th Cir. 2006), the court

considered alleged misrepresentations by an Arizona-based postal inspector,

Hirose, in an email to a Minnesota-based inspector, Nichols. The email

informed Nichols that a Minnesota resident was apparently involved in a drug

trafficking operation using the mails. Id. at 970. Only after this email was

received, Nichols launched an investigation, which included multiple dog

sniffs, and, over two weeks later, applied for and obtained a search warrant

based in part on the information relayed in the email. Id. at 970–71. Nothing

in the facts or in the court’s discussion suggests that Hirose was “involved in

the preparation” of the warrant affidavit or intended for the information to be

used in an affidavit. Nonetheless, the court recognized that

misrepresentations by Hirose could give rise to a Franks claim, see id. at 978,

though it ultimately concluded that the misrepresentations were not material,

id.

Our sister circuits’ caselaw reflects a common-sense understanding:

when an officer, acting with reckless disregard for the truth, includes false,

material information in an official report for further official use, leading to an

unlawful search or arrest of an innocent person, there is no justification to

insulate him from liability. A reasonable officer can certainly foresee that such

actions could lead to an unlawful search or arrest, as information relayed in

law enforcement agents’ reports routinely end up as support for warrant

applications even if the reports are not expressly designed exclusively for that

use. See, e.g., Calisto, 838 F.2d at 712; Davis, 471 F.3d at 942; Lakoskey, 462

F.3d at 970–71. Nor does the passage of time between the false report and the

warrant application justify ignoring that officer’s conduct. Whether the false

information is used within a week or a year is not within the misrepresenting

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officer’s control—the majority opinion offers no basis for the proposition that

the existence of a constitutional violation depends on the passage of time

between the reckless misrepresentation and the resulting unlawful arrest.

There is thus no justification for the anomalous shield that this court has now

created.

It is important to emphasize that the majority opinion’s erroneous

holding that only an officer who actually participates in preparing the warrant

affidavit can violate the Fourth Amendment through his reckless or intentional

misrepresentations is not limited to civil cases; that narrow reading of the

Fourth Amendment will limit criminal defendants’ ability to challenge search

warrants that are premised on fraudulent misrepresentations. Say, for

example, that a patrol officer intentionally alters an assault victim’s statement

in his police report with the intent to lead detectives to an individual the officer

believes committed the crime. And say that this misrepresentation is later

included in a search warrant, leading to the recovery of evidence that this

individual possessed small amounts of marijuana in his home. Under the

majority opinion’s holding, that individual would not be able to challenge his

search warrant in his ensuing prosecution for possession of a controlled

substance simply because the culprit officer did not “participate” in the

preparation of the warrant affidavit, notwithstanding his intentional

misrepresentation. Such a rule is untenable.

III

In addition to establishing an imprudent and unfounded rule of law, the

court makes serious procedural missteps. On appeal from the denial of a

motion for summary judgment based on qualified immunity, this court “lack[s]

jurisdiction to review the genuineness of a fact issue.” Allen v. Cisneros, 815

F.3d 239, 244 (5th Cir. 2016). We have jurisdiction to review only the

materiality of the factual issues. See id. In this case, the district court found

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that the plaintiff “has introduced evidence suggesting that Phillips’s

identification of [the plaintiff] in his incident report was reckless.” The

majority opinion acknowledges that recklessness is a question of fact, but in

the same breath, it concludes that the facts identified by the district court are

not “material” to recklessness. Maj. Op. at 11 n.8. In actuality, the majority

opinion simply overrules the district court’s determination that there is a

genuine dispute as to whether Phillips “in fact entertained serious doubts as

to the truth of the information included in the warrant application,” Hart, 127

F.3d at 449, and by so doing exceeds this court’s jurisdiction. 3

The majority proceeds to absolve Phillips on the additional basis that,

even if he did violate the plaintiff’s constitutional rights, those rights were not

“clearly established.” Phillips never made such an argument—not before the

district court, not in his brief on appeal, and not in his supplemental en banc

brief. The majority opinion states that Phillips’s assertion of qualified

immunity below “placed the burden on Melton to demonstrate that neither

prong of the defense applies.” Maj. Op. at 13 n.10. But it is the appellant’s

burden to show that the district court erred. See Santillana v. Williams, 599

F.2d 634, 635 (5th Cir. 1979) (“The burden of appellant on appeal is to persuade

the appellate court that the trial judge committed an error of law.”); Vetter v.

Frosch, 599 F.2d 630, 633 (5th Cir. 1979) (“The appellant has the burden of

persuading the appellate court that the district court erred.”); Murphy v. St.

The district court’s conclusion was also correct. The plaintiff’s expert witness

3

averred that Phillips simply entered the name “Michael Melton” into a computer database

and used the result of his search to identify the plaintiff in his report, without making any

attempt to corroborate that he was the right “Michael Melton.” A reasonable juror certainly

could conclude based on these facts that Phillips entertained doubts as to the truth of his

report. As previously discussed, Phillips could reasonably expect his false report to be used

in support of a warrant application, and his false report in fact led to the plaintiff’s wrongful

arrest. In my view, this is sufficient to establish a genuine dispute as to whether Phillips

violated the plaintiff’s constitutional rights.

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Paul Fire & Marine Ins. Co., 314 F.2d 30, 31 (5th Cir. 1963) (“It is elementary

instead that the burden is on the appellants to show error.”). It is not

appropriate for the court to attempt to shoulder this burden on Phillips’s

behalf.

The majority opinion proceeds to assert on Phillips’s behalf that the

complaint contained no false information, Maj. Op. at 13, even though Phillips

never argued before the district court or before the panel on appeal that his

false identification of the plaintiff as the assailant in his report did not result

in the plaintiff’s wrongful arrest or that the complaint did not falsely identify

the plaintiff as the suspected assailant based on his report. Phillips has

therefore forfeited these arguments that the majority opinion attempts to raise

for him. See, e.g., Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov’t,

849 F.3d 615, 626 (5th Cir. 2017) (citing In re Paige, 610 F.3d 865, 871 (5th Cir.

2010)) (“[T]his court generally does not consider arguments raised for the first

time on appeal.”); United States v. Brace, 145 F.3d 247, 261 (5th Cir. 1998) (en

banc) (holding that the en banc court cannot address an issue that was not

presented to the panel on appeal and stating, “It bears repeating—indeed,

cannot be overemphasized—that we do not address issues not presented to

us.”).

Pro se litigants could only dream of receiving the judicial help that the

en banc court is giving an officer represented by a highly competent attorney.

See, e.g., Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (“Although pro se

briefs are afforded liberal construction, even pro se litigants must brief

arguments in order to preserve them.” (citation omitted)). This court’s zeal to

protect officers from the prospect of chilling liability cannot justify abandoning

our rules and reversing the district court’s judgment on the basis of arguments

that the appellant has not made.

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*

Because I believe that the majority opinion errs in reversing the district

court’s denial of qualified immunity, I respectfully dissent.

30