Vivianne Jade Washington v. Investigator Hugh Howard

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-12148

____________________

VIVIANNE JADE WASHINGTON,

Plaintiff-Appellant,

versus

INVESTIGATOR JASON DURAND,

in his individual capacity,

Defendant,

INVESTIGATOR HUGH HOWARD,

in his individual capacity,

Defendant-Appellee.

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2 Opinion of the Court 20-12148

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 3:18-cv-00086-TCB

____________________

Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and

SCHLESINGER,* District Judge.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether an officer must

release a suspect detained pursuant to a valid arrest warrant when

he learns of possibly exculpatory evidence. During an investigation

of the murder of an elderly woman, Vivianne Washington was ar-

rested pursuant to a warrant based on a tip from a confidential in-

formant that she was involved in the crime and a positive photo-

graph identification by a perpetrator who had already confessed.

Shortly after the arrest, Officer Hugh Howard of the Meriwether

County Sheriff’s Office brought Washington in front of the perpe-

trator, who said, “[T]hat’s not her.” Howard continued to detain

Washington for approximately twenty hours and then released her

when the perpetrator confessed that he had lied about Washing-

ton. Washington sued Howard and alleged that Howard had an

affirmative duty to return to the magistrate to inform him that the

* Honorable Harvey E. Schlesinger, United States District Judge for the Middle

District of Florida, sitting by designation.

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20-12148 Opinion of the Court 3

perpetrator had said, “[T]hat’s not her,” and that, by not doing so,

Howard violated her right to be free from unreasonable seizures

under the Fourth and Fourteenth Amendments because there was

no longer probable cause to support her detention. See 42 U.S.C.

§ 1983. The district court granted summary judgment in favor of

Howard based on qualified immunity. Washington cannot prove

that Howard violated her constitutional rights for three reasons:

probable cause persisted throughout her detention, Howard was

entitled to rely on a facially valid and lawfully obtained warrant,

and he did not take an affirmative action to continue the prosecu-

tion. Because each reason entitles Howard to qualified immunity,

we affirm.

I. BACKGROUND

On August 4, 2016, four assailants invaded Dorothy Dow’s

home on her blueberry farm in Meriwether County, Georgia, at-

tacked Dow, and set her on fire. Dow, an elderly woman, later died

from her injuries. But before Dow passed away, she identified her

assailants as “several black males and an African American female.”

Howard also received a tip from a farm employee suggesting that

he interview Cortavious Heard and Justin Grady. Heard, a former

farm employee, was on probation for another crime.

When Howard first contacted him, Heard denied all in-

volvement in the crime and refused to speak with Howard. Later,

the police conducted searches of Heard’s person and residence,

which were permitted by a Fourth Amendment waiver as a condi-

tion of his probation. The probation officer found marijuana in

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4 Opinion of the Court 20-12148

Heard’s pocket and some of Dow’s possessions in Heard’s resi-

dence.

After his grandmother encouraged him to do the right thing,

Heard confessed to his involvement in the home invasion. Howard

arrested Heard, took him to the sheriff’s office, and questioned him

further about the home invasion. Heard identified Grady—already

a person of interest—a “brown-skinned” female, and an unidenti-

fied black male as the perpetrators of the invasion and murder. He

also said that he had been with his girlfriend, Mina Ellery, and her

friend Angel Harmon earlier on the evening of the crime, but that

neither was involved in the crime.

While Howard was interrogating Heard, Officer Victor

McPhie, a narcotics officer in the city of Newnan, called Officer

Chris Warden, a narcotics officer in the Meriwether County Sher-

iff’s Office. McPhie told Warden about a tip received from one of

his confidential informants who identified Washington as someone

the informant had “heard [] was involved in this.” The informant

also provided McPhie with a photograph of Washington, which

McPhie sent to Warden.

Warden interrupted Howard’s interrogation of Heard, told

Howard of the tip, and showed Howard the photo. Howard then

showed the photo to Heard. Heard positively identified the woman

in the photo as the woman who was involved in the invasion and

said that the black hat that she was wearing in the photo was the

same hat that she had worn during the crime.

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20-12148 Opinion of the Court 5

Howard then spoke to McPhie to gain more information

about the woman in the photograph. Based on the information

from the confidential informant, McPhie told the officer Washing-

ton’s name, that she worked at a pizza place in Newnan, and that

she had gone to school with Harmon and Ellery—the two women

who were with Heard on the night of the crime. McPhie did not

disclose the identity of his confidential informant but represented

to Howard that he was a reliable informant whose assistance had

been documented and that McPhie had personally used him as a

source many times. Washington asserts that there is no evidence

that McPhie told Howard this information, but she provides no ev-

idence that contradicts Howard’s deposition testimony that

McPhie did so.

Then, in coordination with Howard, Officer Jason Durand

procured an arrest warrant for Washington. McPhie executed the

warrant and arrested Washington at work at 4:45 p.m. An officer

then transported Washington to the Meriwether County Sheriff’s

Office.

The district court and parties disagree about what took place

next. At summary judgment, we view all evidence in the light most

favorable to and draw all reasonable inferences in favor of the non-

moving party, which in this appeal is Washington. See Williams v.

Aguirre, 965 F.3d 1147, 1156 (11th Cir. 2020). We set forth each

account below.

First, Washington’s account: While Washington was still in

her street clothes and before she was booked, Howard informed

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6 Opinion of the Court 20-12148

Washington of her rights. See Miranda v. Arizona, 384 U.S. 436,

444 (1966). Washington invoked her right to counsel before any

substantive questioning took place. Howard then took her to be

booked. After she was booked and placed in an isolation cell, she

told others that she wanted to speak to Howard. Washington

signed a waiver of her right to remain silent, and Howard pro-

ceeded with the interrogation.

Washington denied knowing Grady and Heard when How-

ard showed her their photographs. She offered alibi witnesses,

asked to have her clothes tested, offered to give Howard access to

her phone and its location data, consented to a DNA swab, and

continually denied involvement. Howard then returned her to her

cell.

On their way to her cell, Washington and Howard passed

the cell in which Heard was housed. Howard then asked Heard if

Washington was the girl involved in the crime, to which Heard re-

sponded, “[T]hat’s not her.” This statement contradicted his earlier

photo identification of Washington as a co-conspirator and perpe-

trator of the crime. Washington later consented to a polygraph ex-

amination, which Howard had suggested to her in the previous in-

terview.

Second, Howard’s account: Before Washington was booked

and while she was still in her street clothes, Howard interviewed

Washington but did not “uncover any incriminating information.”

Howard then intentionally took Washington by Heard on the way

to booking, who spontaneously said, “That is her. That is the b*tch

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20-12148 Opinion of the Court 7

I told you about. That is her.” At some point before Washington

was fully booked, Howard offered her the opportunity to take a

polygraph test. Shortly after being booked, Howard interviewed

Washington again and showed Washington photographs of Heard

and Grady. Washington admitted she knew the suspects. At some

time after this interview, Washington requested the polygraph test.

Third, the district court’s account: Washington was imme-

diately booked, and within an hour of booking, she was inter-

viewed by Howard. In this first interview, Howard showed Wash-

ington photographs of Heard and others who were believed to be

involved. Washington denied knowing Heard but admitted that

she knew the other people whose photographs she was shown. She

ended the interview by requesting to speak with a lawyer. Wash-

ington then requested to speak with Howard and recanted her pre-

vious statements. She told Howard that she had lied in the first in-

terview and denied all involvement in the crime. After the two in-

terviews, Howard walked Washington by Heard’s cell. The district

court credited Washington’s testimony that Heard retracted his

previous identification. Due to the inconsistent statements about

whether Washington knew other suspected perpetrators, Howard

arranged for Washington to take a polygraph test.

On appeal, Howard argues that the district court correctly

recounted the relevant facts. But the sequence of events recounted

in his own Statement of the Facts contradicts his argument on this

point. Washington did state in her deposition that at some time

while in detention she admitted to knowing or being related to the

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8 Opinion of the Court 20-12148

suspects. But before the district court and on appeal, she argues

that we should disregard that statement because it was equivocal,

she was confused about the exact sequence of events, and the state-

ment is not consistent with the video-recorded evidence. In How-

ard’s deposition, he did not mention Washington’s alleged admis-

sion, and his testimony instead implies that she did not admit to

knowing the other suspected perpetrators. But in the argument

section of his brief on appeal, Howard adopts the conclusion of the

district court that the admission happened and that it happened be-

fore Heard’s alleged retraction.

We need not decide whether or when Washington’s pur-

ported admission occurred because the evidence, including How-

ard’s and Washington’s depositions, establishes that the confronta-

tion with Heard happened before booking and before Washington

allegedly admitted to knowing at least some of the suspected per-

petrators of the crime. Washington has clarified that her position is

that the confrontation with Heard happened before any alleged ad-

mission. Howard has not offered any contrary evidence to support

his argument that Washington’s admission happened first. There is

support in the record that, if Washington did admit to knowing the

suspects, that admission happened after her encounter with Heard.

So, viewing the evidence in the light most favorable to Washing-

ton, Williams, 965 F.3d at 1156, we assume that Howard did not

know about Washington’s admission before Heard said, “[T]hat’s

not her.”

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20-12148 Opinion of the Court 9

Both parties again agree on the remainder of the facts.

Washington voluntarily took a polygraph test in which she denied

all involvement and knowledge of the crime. The administrator of

the test reported that there were “physiological responses indica-

tive of deception” in her answers to the questions “Were you in

[Dorothy Dow’s] house last Thursday night?” and “Were you pre-

sent when that woman [Dorothy Dow] was beaten and burnt?”.

After hearing that she had “failed” the polygraph, Washington ad-

mitted to being involved in the crime and began to make up details

about it, but Howard realized that Washington’s account was in-

consistent with evidence already gathered at that point. Howard

returned Washington to the jail and returned home for the even-

ing.

The next day, Heard asked to speak with Howard. During

that interview, he admitted that Washington was not involved, ad-

mitted that he had identified her to protect his girlfriend, and iden-

tified her and an additional suspect as co-conspirators. Howard

pointed out to Heard that his new statements contradicted his pre-

vious photograph and in-person identification and asked Heard to

take a polygraph examination to help Howard know which story

was true. Heard took and passed a polygraph examination in which

he said that Washington was not involved.

Howard then cancelled the arrest warrant for Washington

and released her. He arranged for a deputy to transport Washing-

ton to her home and gave the deputy money to buy Washington

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10 Opinion of the Court 20-12148

dinner at a McDonald’s restaurant. Heard was charged with mak-

ing false statements.

Washington sued Howard and Durand for violating her

Fourth and Fourteenth Amendment rights, see 42 U.S.C. § 1983,

and for malicious prosecution under Georgia law. After discovery,

Howard and Durand filed a motion for summary judgment on all

claims. Washington pursued only her Fourth Amendment claim

against Howard and voluntarily dismissed all other claims. She also

conceded that there was at least arguable probable cause for the

arrest warrant.

The district court entered summary judgment after conclud-

ing that Howard was entitled to qualified immunity. The district

court reasoned that a police officer must release a subject only

when arguable probable cause ceases to exist. It concluded that, on

its account of the facts, Washington had already admitted to know-

ing suspected co-conspirators when Heard verbally recanted his

identification. Given that sequence of events, the district court con-

cluded that there was “at least arguable probable cause” to detain

Washington until Heard passed the polygraph, at which point

Washington was immediately released. It also reasoned that when

exculpatory evidence that does not negate arguable probable cause

comes to light, a police officer “need only act reasonably in contin-

uing the investigation.” The district court then concluded that

Howard acted reasonably in seeking out polygraphs and re-inter-

viewing Heard.

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II. STANDARD OF REVIEW

We review a summary judgment de novo. Kingsland v. City

of Miami, 382 F.3d 1220, 1225 (11th Cir. 2004). Summary judgment

is only appropriate when “there is no genuine dispute as to any ma-

terial fact and the movant is entitled to judgment as a matter of

law.” Williams, 965 F.3d at 1156 (quoting FED. R. CIV. P. 56(a)).

“[W]e view the evidence and all factual inferences therefrom in the

light most favorable to the non-moving party, and resolve all rea-

sonable doubts about the facts in favor of the non-movant.” Id. (in-

ternal quotation marks omitted).

III. DISCUSSION

“Qualified immunity shields public officials from liability for

civil damages when their conduct does not violate a constitutional

right that was clearly established at the time of the challenged ac-

tion.” Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019) (quot-

ing Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016)). To re-

ceive qualified immunity, the “defendant must first show he was

performing a discretionary function.” Barnes v. Zaccari, 669 F.3d

1295, 1303 (11th Cir. 2012). The plaintiff then bears the burden of

proving both that the defendant violated his constitutional right

and that “the right was clearly established at the time of the viola-

tion.” Id. Because Washington does not dispute that Howard per-

formed a discretionary function, she bears the burden of proving

that he is not entitled to qualified immunity. See Williams, 965 F.3d

at 1156–57.

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12 Opinion of the Court 20-12148

Washington argues that Howard, by continuing to detain

her pursuant to a facially valid arrest warrant after uncovering ex-

culpatory evidence, violated her clearly established Fourth Amend-

ment right to be free from unreasonable seizures pursuant to legal

process. She contends that her allegedly prolonged detention was

not supported by probable cause and so was not justified by the

arrest warrant. We have never addressed the “contours and pre-

requisites,” id. at 1159 (quoting Manuel v. City of Joliet, 137 S. Ct.

911, 920 (2017)), of a Fourth Amendment claim in this precise cir-

cumstance—where a seizure based on a warrant was supported by

probable cause but was later undermined by contrary exculpatory

evidence. See Barnett v. MacArthur, 956 F.3d 1291, 1301 n.7 (11th

Cir. 2020) (“express[ing] no view” on this question).

For a seizure through process, we have explained that a

“plaintiff must prove (1) that the defendant violated his Fourth

Amendment right to be free from seizures pursuant to legal process

and (2) that the criminal proceedings against him terminated in his

favor.” Luke v. Gulley, 975 F.3d 1140, 1144 (11th Cir. 2020). In de-

fining the “contours and prerequisites” of these Fourth Amend-

ment claims under section 1983, we are “guide[d]” by well-settled

“[c]ommon-law principles” that governed actions for malicious

prosecution when Congress enacted section 1983 in 1871. Manuel,

137 S. Ct. at 920–21; accord Williams, 965 F.3d at 1157, 1159. Alt-

hough “[w]e cannot elevate the common law over the Constitu-

tion,” Williams, 965 F.3d at 1157, those common-law principles

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“serv[e] . . . as . . . inspired examples.” Manuel, 137 S. Ct. at 921 (in-

ternal quotation marks omitted).

Washington cannot prove that Howard violated her Fourth

Amendment right for three reasons. First, probable cause persisted

throughout her detention. Second, Howard was entitled to rely on

the facially valid and lawfully obtained warrant. And third, Howard

did not affirmatively act to continue the prosecution against her.

We discuss each reason in turn.

A. Washington’s Continued Detention Was Supported by

Probable Cause.

Probable cause renders a seizure pursuant to legal process

reasonable under the Fourth Amendment. See Grider v. City of

Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). Consequently, “the

presence of probable cause defeats” a claim that an individual was

seized pursuant to legal process in violation of the Fourth Amend-

ment. Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016). So,

to prove a Fourth Amendment violation, Washington must prove

that there was no probable cause for her continuing detention.

We have not always consistently articulated the probable-

cause standard in the context of arrests. In 2018, the Supreme Court

explained that probable cause exists when the facts, considering the

totality of the circumstances and viewed from the perspective of a

reasonable officer, establish “a probability or substantial chance of

criminal activity.” District of Columbia v. Wesby, 138 S. Ct. 577,

586 (2018) (internal quotation marks omitted). Probable cause does

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14 Opinion of the Court 20-12148

not require conclusive evidence and “is not a high bar.” Id. (internal

quotation marks omitted). A reviewing court must simply ask

“whether a reasonable officer could conclude . . . that there was a

substantial chance of criminal activity.” Id. at 588 (emphasis added)

(internal quotation marks omitted). One of our decisions applied at

least a part of this standard and concluded that there was probable

cause. See United States v. Leonard, 4 F. 4th 1134, 1146 (11th Cir.

2021) (determining whether there was a “substantial chance of

criminal activity” (quoting Wesby, 138 S. Ct. at 586)). But, even

after the Supreme Court clarified the standard in Wesby, we have

articulated a different standard that predates Wesby. See Cozzi v.

City of Birmingham, 892 F.3d 1288, 1293 (11th Cir. 2018) (citing

Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002)); accord United

States v. Wilson, 979 F.3d 889, 908 (11th Cir. 2020); Hardigree v.

Lofton, 992 F.3d 1216, 1230 (11th Cir. 2021); Crocker v. Beatty, 995

F.3d 1232, 1243–44 (11th Cir. 2021). The older standard requires

“facts and circumstances within the officer’s knowledge, of which

he or she has reasonably trustworthy information . . . [that] would

cause a prudent person to believe . . . that the suspect has commit-

ted, is committing, or is about to commit an offense.” E.g., Hardi-

gree, 992 F.3d at 1230 (emphasis added) (quoting Kingsland, 382

F.3d at 1226).

The older standard is more demanding than the Wesby

standard. The older standard requires facts and circumstances such

that all prudent people would affirmatively believe that the suspect

has already engaged in or will shortly engage in criminal behavior.

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Cozzi, 892 F.3d at 1293 (“Probable cause exists when the facts . . .

would cause a prudent person to believe . . . that the suspect has

committed . . . an offense.” (emphases added) (internal quotation

marks omitted)). But the Wesby standard requires only that it be

reasonable for any particular officer to conclude that there is a sub-

stantial chance of criminal activity. Wesby, 138 S. Ct. at 588. In

practice, it is unclear whether our application of the older standard

has actually been more demanding. See, e.g., Crocker, 995 F.3d at

1243–45 (reciting the older standard but concluding that there was

probable cause because the facts “could cause a prudent person to

believe” the suspect had broken the law (internal quotation marks

omitted)).

Some of our decisions have also used a variant of the older

standard that does not use the word “would” but does require an

affirmative belief that the suspect had already engaged in or was

engaging in a criminal offense. See Gates v. Khokhar, 884 F.3d

1290, 1298 (11th Cir. 2018) (“Probable cause exists where the facts

. . . are sufficient to cause a person of reasonable caution to believe

that a criminal offense has been or is being committed.” (internal

quotation marks omitted)); Huebner v. Bradshaw, 935 F.3d 1183,

1187 (11th Cir. 2019); United States v. Mancilla-Ibarra, 947 F.3d

1343, 1349 (11th Cir. 2020); Alston v. Swarbrick, 954 F.3d 1312,

1318 (11th Cir. 2020). And in some decisions, we have recited both

the older standard and the Wesby standard, apparently considering

them equivalent. See Manners v. Cannella, 891 F.3d 959, 968–69

(11th Cir. 2018); Gill ex rel. K.C.R. v. Judd, 941 F.3d 504, 516–17

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16 Opinion of the Court 20-12148

(11th Cir. 2019); Paez v. Mulvey, 915 F.3d 1276, 1285–86, 1288 (11th

Cir. 2019); see also Barnett, 956 F.3d at 1296–97 (addressing

whether it was beyond a reasonable doubt that probable cause had

dissipated).

We have a “well-established approach to resolving conflicts

in our precedent.” Williams, 965 F.3d at 1163. First, if possible, we

distill a “basis of reconciliation” from the “apparently conflicting”

decisions and then “apply that reconciled rule.” Id. (internal quota-

tion marks omitted). But “only the holdings of prior decisions bind

us,” id., so legal principles set forth outside of the decision’s holding

do not bind us. Then, if reconciliation is not possible, “we must

follow the earliest precedent that reached a binding decision on the

issue.” Id.

The decisions reciting the older standard or its variant fall

into two categories. First, several of our decisions recited the older

standard or its variant but then concluded that there was probable

cause to support the seizure. Gates, 884 F.3d at 1298 (concluding

that the officers “had actual probable cause”); Manners, 891 F.3d at

969 (concluding that there was “both arguable and actual probable

cause to arrest [the suspect] for fleeing”); Paez, 915 F.3d at 1288

(concluding that “the affidavits would have established . . . proba-

ble cause”); Huebner, 935 F.3d at 1189 (concluding that the facts

were “enough to give [the officer] probable cause”); Gill, 941 F.3d

at 516–17 (concluding that “[r]easonable officers would have be-

lieved that probable cause existed”); Mancilla-Ibarra, 947 F.3d at

1349–50 (concluding that “[t]he officers had probable cause to

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arrest Mancilla-Ibarra”); Wilson, 979 F.3d at 909 (concluding that

the officer “had probable cause to believe Wilson committed a

criminal offense”); Crocker, 995 F.3d at 1244 (“We agree with the

district court that Officer Beatty had probable cause to arrest

Crocker.”). If we had applied the Wesby standard, which sets a

lower bar, we would have necessarily reached the same conclu-

sions—that there was probable cause. Because applying the Wesby

standard would not have altered the judgment or fundamental rea-

soning of these decisions, they do not require us to apply the older

standard. Cf. BRYAN GARNER ET AL., THE LAW OF JUDICIAL

PRECEDENT § 4, at 47 (2016) (If changing the “questioned proposi-

tion . . . wouldn’t require alteration of the court’s judgment or the

reasoning that supports it, then the proposition is dictum.” (inter-

nal quotation marks omitted)).

The second set of decisions that recited the older standard

or its variant concluded that there was not probable cause. Man-

ners, 891 F.3d at 969–70 (concluding that there was not probable

cause “for running a stop sign”); Cozzi, 892 F.3d at 1297 (conclud-

ing that there was no arguable probable cause); Alston, 954 F.3d at

1319 (concluding that there was no arguable probable cause for ei-

ther of the two crimes at issue); Hardigree, 992 F.3d at 1230 (con-

cluding that “no arguable probable cause existed for any of these

offenses”); see also Barnett, 956 F.3d at 1296–97, 1299 (“[A] jury

could find . . . that there was no longer probable cause . . . .”). For

these decisions to bind us to applying the older standard, the un-

derlying facts must have satisfied the Wesby standard but not the

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18 Opinion of the Court 20-12148

older standard. If so, then applying the Wesby standard instead of

the older standard “would[] require alteration of the court’s judg-

ment.” GARNER ET AL., supra, § 4, at 47. But if there would have

been no probable cause even if we had applied the Wesby standard,

these decisions would not require us to apply the older standard.

In every decision, faithful application of the Wesby standard

would have led to the same conclusion that there was no probable

cause, so we are not bound to apply the older standard. For exam-

ple, in Manners v. Cannella, Officer Cannella testified that he saw

Manners disobey a stop sign, but Manners said that he obeyed the

stop sign. 891 F.3d at 969–70. On Cannella’s motion for summary

judgment, we accepted Manners’s account and concluded that “a

reasonable factfinder could find that Cannella neither saw nor rea-

sonably thought he saw Manners run a stop sign.” Id. at 970. If a

reasonable officer neither saw nor reasonably thought he saw a ve-

hicle run a stop sign, then he could not have concluded “that there

was a substantial chance of criminal activity.” Wesby, 138 S. Ct. at

588 (internal quotation marks omitted).

In another decision that recited that older standard, Cozzi v.

City of Birmingham, a police officer arrested Cozzi based on two

tips from unknown informants that Cozzi looked like a perpetrator

in a crime scene surveillance video. 892 F.3d at 1292–93. Cozzi’s

roommate had told the officer that the perpetrator had an armful

of tattoos but that Cozzi did not, id. at 1292, and the police officer

found nothing in executing a search warrant on Cozzi’s home that

tied him to the crime, id. at 1297. In these circumstances—

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especially in the light of the tattoo discrepancy—no reasonable of-

ficer could have reasonably concluded that there was a substantial

chance that Cozzi was the perpetrator.

In Alston v. Swarbrick, we recited a variant of the older

standard and concluded that Officer Swarbrick did not have proba-

ble cause to arrest Alston. 954 F.3d at 1318–19. Alston argued that

Swarbrick “arrested him based merely on [Alston] refusing to an-

swer questions and spouting obscenities while walking away.” Id.

at 1319. Swarbrick asserted that he had probable cause to arrest Al-

ston based on two Florida statutes that criminalized disorderly con-

duct and resisting an officer without violence. Id. at 1318–19. But it

was well established that neither statute could be violated by “mere

words” and that “mere words would not suffice to provide proba-

ble cause for resisting without violence.” Id. (internal quotation

marks omitted). Given the clear contours of the law, Swarbrick

could not have reasonably concluded that there was a substantial

chance that Alston violated either statute by his silence or obsceni-

ties.

In another decision, Hardigree v. Lofton, we recited the

older standard and concluded that there was no arguable probable

cause. 992 F.3d at 1230. Officer Lofton argued that he had probable

cause to arrest Hardigree for disorderly conduct, obstruction, and

battery. Id. at 1230. On a contested record, we assumed that there

was no physical contact and that Hardigree simply obeyed the po-

lice officers’ commands. Id. at 1230–31. Of course, a police officer

who observes a suspect obeying commands without making any

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20 Opinion of the Court 20-12148

physical contact could not have concluded from that observation

that there was a substantial chance of criminal activity.

And finally, in Barnett v. MacArthur, we recited both stand-

ards and addressed whether probable cause persisted throughout

the duration of a warrantless arrest. 956 F.3d at 1296–97. Barnett

was arrested on suspicion of driving under the influence. Id. at

1295. While at the jail, she took two breathalyzer tests, each of

which resulted in readings of 0.000—that is, there was no alcohol

in her bloodstream—and posted bond. Id. at 1295–96. On the sher-

iff’s motion for summary judgment, we accepted as true Barnett’s

account that she displayed no signs of intoxication at any point

leading up to her arrest or during her detention. Although we had

to assume that there was probable cause for the initial arrest, id. at

1296 n.3, we concluded that Barnett’s account of the facts

“show[ed] beyond a reasonable doubt that,” after her breathalyzer

tests, “there was no longer probable cause to continue holding Ms.

Barnett.” Id. at 1299. Even under the Wesby standard, no reasona-

ble officer could have concluded that there was even a substantial

chance she had been driving under the influence.

We conclude that the correct legal standard to evaluate

whether an officer had probable cause to seize a suspect is to “ask

whether a reasonable officer could conclude . . . that there was a

substantial chance of criminal activity.” Wesby, 138 S. Ct. at 588.

Here, Washington argues that probable cause dissipated after her

encounter with Heard because his later in-person statement ne-

gated his earlier photograph identification. She seems to assert that

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20-12148 Opinion of the Court 21

Heard’s in-person retraction was, if anything, more reliable than

his photograph identification, so the information Howard had

gained from Heard up to that point was at most neutral. And ana-

lyzing the tip alone, she argues that it was not specific enough to

support even arguable probable cause.

Although Heard’s statement—if true—was exculpatory,

Howard was not required to believe it or to weigh the evidence in

such a way as to conclude that probable cause did not exist. Be-

cause “probable cause does not require officers to rule out a sus-

pect’s innocent explanation for suspicious facts,” Wesby, 138 S. Ct.

at 588, a police officer need not resolve conflicting evidence in a

manner favorable to the suspect. And instead of focusing on a sin-

gle piece of evidence “in isolation” and dismissing any evidence

with “an innocent explanation,” we must look at the “totality of

the circumstances.” Id. at 589 (internal quotation marks omitted).

There were “plenty of reasons to doubt” Heard’s in-person

identification. Cf. id. (explaining that there were "plenty of reasons

to doubt [the suspects’] protestations of innocence”). He and his

co-conspirators had shown that they were lawbreakers—indeed,

violent ones—willing to beat an elderly woman and set her on fire

in the hope of acquiring a few thousand dollars to split between

them. And only after Heard had spoken to his grandmother about

doing the right thing did he confess to his own involvement. He

then identified his co-conspirators and assisted the police with the

investigation. Howard then purposefully surprised him by bringing

an alleged co-conspirator to his cell and asking whether she was the

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22 Opinion of the Court 20-12148

person he had previously identified, which would have suggested

that Heard had pointed the finger at her. If Washington had actu-

ally been a co-conspirator, it would be no surprise that Heard con-

tradicted his previous identification in the presence of someone

who would have a strong motive to exact revenge and tell his other

co-conspirators about his role in their arrest. Howard was entitled

to discount this retraction.

So, even crediting Washington’s account that Heard said,

“[T]hat’s not her,” during their encounter, probable cause sup-

ported her continued detainment. After the encounter, Howard

had an anonymous tip that included information about the suspect,

a photograph of the suspect provided by the same informant, and

an accusation that the suspect was involved. The confidential in-

formant who supplied the tip, photograph, and accusation had

been reliable and had worked with the police on other occasions.

And Heard, who had already confessed to the police to having

committed the crime and previously stated that a female was pre-

sent, identified the person in the photo—Washington—as being a

co-conspirator and perpetrator of the crime. On the strength of a

tip from a reliable confidential informant and an identification by a

co-conspirator who appeared to be fully cooperating with the po-

lice before his later in-person contradiction, which there were

many reasons to not take at face value, a reasonable officer “could

[have] conclude[d] . . . that there was a substantial chance” Wash-

ington was involved. See id. at 588 (internal quotation marks omit-

ted).

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20-12148 Opinion of the Court 23

Because probable cause supported Washington’s detention

even after Heard’s statement, her continued detention was reason-

able under the Fourth Amendment. See Black, 811 F.3d at 1267. So,

because Washington cannot prove that Howard “violated [her]

Fourth Amendment right,” Luke, 975 F.3d at 1144, Washington’s

Fourth Amendment claim fails.

Washington also cannot prove that her right was clearly es-

tablished. A right is clearly established only if “the state of the law

on the date of the alleged misconduct,” Hardigree, 992 F.3d at 1224,

“makes it obvious that the defendant’s acts violated the plaintiff’s

rights in the specific set of circumstances at issue,” Gates, 884 F.3d

at 1297 (alterations adopted) (internal quotation marks omitted).

Washington cannot “identify” a “controlling case or robust consen-

sus of cases,” Wesby, 137 S. Ct. at 590–91 (internal quotation marks

omitted), from the Supreme Court, this Circuit, or the Georgia Su-

preme Court where a suspect’s in-person retraction of an earlier

photo identification negated the original identification or caused

probable cause to dissipate. See Bradley v. Benton, 10 F. 4th 1232,

1242–43 (11th Cir. 2021) (explaining that only “decisions from the

United States Supreme Court, this Court, or the relevant state su-

preme court” are relevant in determining whether the law was

clearly established). And it follows from our conclusion that there

was probable cause that “existing precedent” did not place the

question of whether Howard violated her constitutional rights “be-

yond debate.” See Wesby, 137 S. Ct. at 590 (internal quotation

marks omitted).

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24 Opinion of the Court 20-12148

B. Howard Was Entitled to Rely on The Facially Valid and

Lawfully Obtained Warrant.

Washington argues that Howard was not entitled to rely on

the arrest warrant in continuing to detain her because evidence

later arose that caused probable cause to dissipate. She contends

that Howard was constitutionally required to return to the magis-

trate with the newly discovered evidence and allow the magistrate

to reevaluate whether there was probable cause. Only then could

he rely on the warrant to continue to detain Washington. We dis-

agree.

In Manuel v. City of Joliet, the Supreme Court held that, “if

the [probable-cause] proceeding is tainted . . . by fabricated evi-

dence—and the result is that probable cause is lacking, then the en-

suing pretrial detention violates the” Fourth Amendment. 137 S.

Ct. at 920 n.8. It explained that that “wrongful [pretrial] detention

. . . unsupported by probable cause” is “constitutionally unreason-

able” because the Fourth Amendment “guarantee[s] a fair and reli-

able determination of probable cause as a condition for any signifi-

cant pretrial restraint.” Id. at 917–19 (internal quotation marks

omitted). There, the probable cause hearing that purported to sup-

port the suspect’s detention “did not expunge Manuel’s Fourth

Amendment claim because the process he received failed to estab-

lish . . . probable cause” due to the “taint[]” of “fabricated evi-

dence.” Id. at 919–20, 920 n.8 (emphasis added). An officer who in-

tentionally or recklessly makes material misstatements or omis-

sions to or fabricates evidence and puts it before a “neutral and

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20-12148 Opinion of the Court 25

detached magistrate,” Johnson v. United States, 333 U.S. 10, 14

(1948), violates the Fourth Amendment because “[l]egal process

has gone forward, but it has done nothing to satisfy the Fourth

Amendment’s probable-cause requirement.” Manuel, 137 S. Ct. at

918–19; accord Hupp v. Cook, 931 F.3d 307, 324 (4th Cir. 2019); see

also Sykes v. Anderson, 625 F.3d 294, 317 (6th Cir. 2010) (“[P]olice

officers . . . cannot hide behind the officials whom they have de-

frauded.” (internal quotation marks omitted)). An officer might

also violate the Fourth Amendment if he “should have known that

his application failed to establish probable cause” and nevertheless

obtained the warrant. Williams, 965 F.3d at 1165.

In contrast with the invalid probable-cause determination in

Manuel, a valid and lawfully obtained warrant shields an officer

from liability because the officer’s reliance on the magistrate’s

probable-cause determination renders the officer’s actions reason-

able. Cf. Elsee v. Smith (1822) 1 Dowl. & Ry. 97, 104 (Eng.) (opin-

ion of Holroyd, J.) (“If the warrant issued without due authority on

the part of the magistrate, that would be trespass in the magis-

trate.”). If an officer fully and honestly places evidence before the

magistrate, reasonably believing that there is probable cause, those

“procedural steps . . . afford a shield against a Fourth Amendment

claim.” Hupp, 931 F.3d at 324; cf. Manuel, 137 S. Ct. at 919 (explain-

ing that the probable-cause determination “lacked any proper ba-

sis” and therefore “violated [the] Fourth Amendment” because

“[a]ll that the judge had before him were police fabrications”). To

be sure, a police officer cannot lie or omit material evidence in later

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26 Opinion of the Court 20-12148

testimony to continue detention, such as at an arraignment, indict-

ment, or bond hearing. See Manuel, 137 S. Ct. at 920 n.8 (explaining

that fabricated evidence can result in a Fourth Amendment viola-

tion “[w]hatever [the] precise form . . . [of] the proceeding”). But

the discovery of exculpatory evidence after a determination of

probable cause does not undermine the validity of a detention

based on a judicial order. See Brooks v. City of Winston-Salem, 85

F.3d 178, 184 (4th Cir. 1996) (“Once a pretrial seizure has been ren-

dered reasonable by virtue of a probable cause determination by a

neutral and detached magistrate, the continuing pretrial seizure of

a criminal defendant—either by detention or by bond re-

strictions—is reasonable.”); see also Baker v. McCollan, 443 U.S.

137, 144–46 (1979) (explaining that the warrant requirement and

speedy-trial guarantee form the constitutional protections against

deprivations of liberty).

Washington cannot prove that Howard violated her Fourth

Amendment right because she cannot prove that the warrant was

facially invalid or unlawfully obtained. Washington does not dis-

pute that Howard detained her pursuant to an arrest warrant, and

Howard does not dispute that he participated in procuring the war-

rant by discussing the investigation with Durand who then ob-

tained the warrant. And Washington cannot prove—nor does she

argue—that the warrant was facially invalid because it was materi-

ally irregular, was issued by a court without jurisdiction, or did not

purport to authorize her detention. With respect to obtaining the

warrant, Washington’s counsel conceded at oral argument that

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20-12148 Opinion of the Court 27

neither Howard nor Durand lied to the magistrate. Washington

also makes no argument that there were material omissions or that

it was unreasonable for Howard to believe that there was probable

cause at the time Durand applied for the warrant. And it is of no

moment that she was later exonerated. See United States v. Mar-

tinez-Fuerte, 428 U.S. 543, 565 (1976) (“One . . . purpose [of the

warrant requirement] is to prevent hindsight from coloring the

evaluation of the reasonableness of a . . . seizure.”); United States

v. Robinson, 535 F.2d 881, 884 (5th Cir. 1976) (“The Fourth Amend-

ment does not have that special feature known as hindsight.”).

The well-settled common-law principles that governed the

tort of malicious prosecution in 1871 when Congress enacted sec-

tion 1983 and that “guide” us further support our conclusion. See

Manuel, 137 S. Ct. at 921. At common law, for the tort of malicious

prosecution, an officer who detained an individual pursuant to a

warrant—with a few exceptions—had a complete defense to liabil-

ity for the arrest and detention. MARTIN L. NEWELL, A TREATISE ON

THE LAW OF MALICIOUS PROSECUTION, FALSE IMPRISONMENT, AND

THE ABUSE OF LEGAL PROCESS ch. XII, § 5, at 431–32 (Chi., Calla-

ghan & Co. 1892) (quoting verbatim from Justification, 2 JOHN

BOUVIER, A LAW DICTIONARY, ADAPTED TO THE CONSTITUTION AND

LAWS OF THE UNITED STATES OF AMERICA, AND OF THE SEVERAL

STATES OF THE AMERICAN UNION (Phila., J. B. Lippincott & Co. 15th

ed. 1883)). So, unless an accused could prove that one of the excep-

tions applied, the warrant that caused his detention served as “a

complete bar to the action.” See Justification, 1 JOHN BOUVIER, A

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28 Opinion of the Court 20-12148

LAW DICTIONARY, ADAPTED TO THE CONSTITUTION AND LAWS OF

THE UNITED STATES OF AMERICA, AND OF THE SEVERAL STATES OF

THE AMERICAN UNION (Phila., George W. Childs 11th ed. 1862).

In 1871, obtaining a warrant to arrest a suspect was “the

proper course when the circumstances of the case . . . permit[ted].”

See Arrest, id. At common law, a warrant protected an officer from

liability even if the warrant was actually void, incorrectly issued, or

based on an erroneous judgment. NEWELL, supra, ch. XII, § 5(1), at

432–33; Miller v. Brown, 3 Mo. 127, 130 (1832) (“[W]here the Court

. . . [has] jurisdiction of the subject matter, the . . . officer is not

bound to examine into the validity of the judgment, proceedings

or process . . . .”); see also Brown v. Crowl, 5 Wend. 298, 299–301

(N.Y. Sup. Ct. 1830) (explaining that a warrant founded upon an

erroneous judgment was still valid such that a claim for false im-

prisonment did not lie); Anderson v. Friend, 85 Ill. 135, 137 (1877)

(concluding that a prosecutor had a justification because he ob-

tained independent legal advice about whether he had probable

cause to institute the action, even though the witnesses later

changed their testimony). But arrests based on warrants that were

intrinsically invalid “render[ed] the officer liable for a trespass to

the party arrested.” Arrest, 1 JOHN BOUVIER, A LAW DICTIONARY,

ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES

OF AMERICA, AND OF THE SEVERAL STATES OF THE AMERICAN UNION

(Phila., J. B. Lippincott & Co. 14th ed. 1878). And a warrant was

only intrinsically invalid if it was “materially irregular” or facially

void, if it was apparent from the warrant that the court “ha[d] no

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20-12148 Opinion of the Court 29

general jurisdiction of the subject-matter,” or if the officer’s actions

extended beyond the scope of the warrant. Id.; see also Justifica-

tion, id.; NEWELL, supra, ch. XII, § 5, at 432.

To be sure, at common law, an officer could also be liable

for an arrest pursuant to a warrant if the officer unlawfully obtained

the warrant. See 2 C. G. ADDISON, A TREATISE ON THE LAW OF

TORTS ch. XII, § 856, at 74 (H.G. Wood ed., Jersey City, Frederick

D. Linn & Co. 1881) (“If [an individual] maliciously and without

reasonable and probable cause has . . . induced [a] magistrate to is-

sue a warrant against [another], [that person] is responsible in dam-

ages in an action for malicious prosecution.”). That is, one who ob-

tained a warrant might be liable if he “willfully” or recklessly made

misstatements or omissions to support the warrant application. See

id. ch. XIII, § 856, at 74–75 (explaining that an action malicious

prosecution might lie if “the charge was willfully false, . . . untrue

to his knowledge at the time[,] . . . or were of such a nature that no

well-intentioned person would state” it without further investiga-

tion); cf. Honeycut v. Freeman, 35 N.C. (13 Ired.) 320, 324 (1852)

(a person who attempts to shield himself from liability by asserting

that he relied on the advice of counsel must disclose all material

facts to his attorney); MELVILLE M. BIGELOW, ELEMENTS OF THE

LAW OF TORTS FOR THE USE OF STUDENTS ch. III, § 3, at 84–85 (Bos.,

Little, Brown, & Co. 1878) (“[T]o establish probable cause”

through “the defence of [acting on the] advice of legal counsel, . . .

the statement made . . . to his counsel must be full and true . . . .”);

Fitzjohn v. Mackinder (1861) 142 Eng. Rep. 199, 208 (opinion of

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30 Opinion of the Court 20-12148

Cockburn, J.) (explaining that a judicial order to prosecute another

person does not protect the prosecutor if the order was obtained

maliciously).

An officer might also be liable if he should have known that

the information provided to the magistrate failed to establish prob-

able cause. See Elsee, 1 Dowl. & Ry. at 104 (opinion of Bayley, J.)

(explaining that when a person “makes the charge, and he prevails

upon the justice to issue [the] warrant, . . . he has no right to say”

as a defense to a suit for malicious prosecution that the “warrant is

improperly granted”). But because a neutral magistrate’s determi-

nation that there is probable cause “affords prima facie evidence of

probable cause,” the accused bore the burden of proving the lack

of probable cause. See BIGELOW, supra, ch. III, § 3, at 81 (explaining

that a magistrate’s probable cause determination is sufficient to re-

quire the accused to produce affirmative evidence of the lack of

probable cause).

To be liable for malicious prosecution at common law, the

prosecutor need not have personally obtained the warrant from the

magistrate. It was enough that he “set[] the machinery of the law

in motion . . . whether he [did] the act himself or procure[d] an-

other to do it.” NEWELL, supra, ch. X, § 4, at 367. He “need not

[have] participate[d] in the execution of the prosecution . . . if he

ma[de] out the affidavit maliciously, vexatiously and without prob-

able cause” even in the absence of “further intervention on his

part.” Id. ch. X, § 4, at 368.

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20-12148 Opinion of the Court 31

Here, because Howard both procured the warrant and de-

tained Washington pursuant to it, he was justified in detaining her

based on that warrant unless it was facially invalid or procured un-

lawfully. It was neither. Because Howard was entitled to rely on

the warrant, Washington cannot prove that Howard “violated her

Fourth Amendment right to be free from seizures pursuant to legal

process.” Luke, 975 F.3d at 1144. And this reason provides another

separate ground for affirming the summary judgment in Howard’s

favor.

C. Washington Cannot Prove that Howard Affirmatively

Acted to Continue Her Prosecution.

Washington’s argument turns on a supposed affirmative

duty for any investigator to return to the magistrate every time ex-

culpatory evidence comes to light. Washington cannot prove and

does not allege that Howard took affirmative steps to continue the

prosecution. Instead, Washington alleges that Howard violated her

Fourth Amendment right because he continued to detain her pur-

suant to a warrant and to investigate the crime after probable cause

had dissipated. She contends that Howard should have returned to

the magistrate with the new information and requested that the

warrant be rescinded. We disagree.

The Fourth Amendment imposes no affirmative duty on an

investigator to return to the magistrate after every twist and turn

of the investigation. See Brady v. Dill, 187 F.3d 104, 111–12 (1st Cir.

1999) (explaining that the “separation of functions” empowers “the

prosecutor to decide whether to go forward” with the prosecution

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32 Opinion of the Court 20-12148

and “the judicial branch” to ascertain “guilt or innocence”); see also

Baker, 443 U.S. at 144 (explaining that when an officer makes an

arrest pursuant to a lawful warrant but due to mistaken identity

arrests a person for whose detainment there is no probable cause,

the accused can invoke his right to a speedy trial); id. at 145 (“A

reasonable division of functions between law enforcement officers,

committing magistrates, and judicial officers . . . is entirely con-

sistent with ‘due process of law.’”). Instead, the officer is allowed

to defer to the prosecutor, who has the power to determine

whether to proceed with the prosecution and whether to seek con-

tinued pretrial detention based on the evidence collected. At least

two of our sister circuits have rejected arguments similar to Wash-

ington’s. See Brady, 187 F.3d at 111–12; Brooks, 85 F.3d at 184; see

also Wilson v. Russo, 212 F.3d 781, 792 (3d Cir. 2000) (explaining

that the “law in this area is not entirely settled” but only because a

duty might arise in the context of warrantless arrests).

To be sure, a police officer cannot intentionally or recklessly

make material misstatements or omissions in later testimony to

continue detention, such as at an arraignment, indictment, or bond

hearing. See Manuel, 137 S. Ct. at 920 n.8 (explaining that fabri-

cated evidence can result in a Fourth Amendment violation

“[w]hatever [the] precise form . . . [of] the proceeding”). And an of-

ficer’s failure to disclose exculpatory evidence to the prosecutor

might violate the Due Process Clause of the Fourteenth Amend-

ment, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963).

McMillian v. Johnson, 88 F.3d 1554, 1567 (11th Cir.) (“Investigators

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20-12148 Opinion of the Court 33

satisfy their obligations under Brady when they turn exculpatory

and impeachment evidence over to the prosecutor.”), amended on

other grounds, 101 F.3d 1363 (11th Cir. 1996); Moldowan v. City of

Warren, 578 F.3d 351, 378, 381 (6th Cir. 2009) (collecting cases

from the First, Second, Fifth, Seventh, Eighth, and Eleventh Cir-

cuits, and reaching the same conclusion); see also Youngblood v.

West Virginia, 547 U.S. 867, 868–70 (2006) (concluding that an in-

vestigator’s instruction to another person to discard exculpatory

evidence was a potential Brady violation). But neither of these con-

stitutional requirements impose on investigators a duty to return

to the magistrate after discovering exculpatory evidence.

Because well-settled principles that governed the common-

law tort of malicious prosecution when Congress enacted section

1983 in 1871 “guide” us, Manuel, 137 S. Ct. at 921, we add that our

conclusion—that the Fourth Amendment requires an affirmative

act to continue the prosecution—is supported by a similar require-

ment at common law. At common law, courts focused primarily

on the initiation of a prosecution as the act giving rise to liability

for malicious prosecution. A plaintiff had to prove that the infor-

mation available and known to the “prosecutor” at the institution

of the proceeding did not provide probable cause. See 1 FRANCIS

HILLIARD, LAW OF TORTS OR PRIVATE WRONGS ch. XVI, § 17, at 451

(Bos. Little, Brown & Co. 4th ed. 1874) (“[T]hose facts and circum-

stances which were known to the prosecutor at the time he insti-

tuted the prosecution are to be alone considered, in determining

the question of probable cause.”). Conversely, if the prosecutor had

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34 Opinion of the Court 20-12148

probable cause to initiate the prosecution based on the information

then known to him, and information exculpating the accused later

came to the prosecutor’s attention, the accused could not sustain

an action for malicious prosecution based on the initiation of the

action. See id. ch. XVI, § 19(b), at 455–56.

To be sure, if, after discovering exculpatory information, the

prosecutor continued to prosecute the action, the defendant could,

in some circumstances, maintain an action for malicious prosecu-

tion. See id. ch. XVI, § 13, at 446–47 (“The question sometimes

arises, whether an action will lie for the malicious continuance of a

prosecution, which was lawfully commenced.”). For example, an

English decision explained that “a prosecution, though in the out-

set not malicious, . . . may nevertheless become malicious in any of

the stages through which it has to pass, if the prosecutor, having

acquired positive knowledge of the innocence of the accused, per-

severes malo animo [with malicious intent] in the prosecution,

with the intention of procuring per nefas [through a wrongful act]

a conviction of the accused.” Fitzjohn, 142 Eng. Rep. at 209 (opin-

ion of Cockburn, C.J.) (italics added). Although it is unclear

whether this principle had been adopted in the United States in

1871, see 1 HILLIARD, supra, ch. XVI., § 13, at 446–47 (collecting

principally English decisions for this principle), we have held, in

any event, that “a criminal prosecution . . . continued . . . with mal-

ice and without probable cause” can violate the Fourth Amend-

ment, Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).

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20-12148 Opinion of the Court 35

Although taking affirmative steps to further a prosecution

was actionable, see Fitzjohn, 142 Eng. Rep. at 209 (opinion of Cock-

burn, J.) (explaining that a prosecution may “become malicious in

any of the stages through which it has to pass”), later inaction alone

was probably insufficient to prove a malicious prosecution. And

there was certainly no “well[-]settled” principle, Nieves v. Bartlett,

139 S. Ct. 1715, 1726 (2019) (internal quotation marks omitted),

that later inaction could give rise to liability.

Consider, for example, two leading English decisions from

the early and middle nineteenth century—both cited by a respected

American treatise as authoritative, see 1 HILLIARD, supra, ch. XVI,

§ 13, at 447,—that evidence the need for proof of an affirmative act

that continued the prosecution. In the first decision, Page v. Wiple,

a creditor procured a writ for the arrest of a debtor for the nonpay-

ment of a debt owed. (1803) 102 Eng. Rep. 618, 618. The debtor,

who was unaware of the outstanding writ, later paid the creditor

in full, including costs. Id. at 618–19. The creditor did not inform

the debtor of the outstanding writ or move to countermand it. Id.

The debtor was then arrested on the writ and sued the creditor for

the damages that resulted from his arrest. Id. at 618. In rejecting the

debtor’s action, the court explained that it was not “the [creditor’s]

duty . . . to prevent the arrest,” and that the creditor did not “wil-

ful[ly]” or “vexatiously” suffer the debtor to be arrested. Id. at 619.

Indeed, the debtor did not allege anything that “ha[d] been done

by the [creditor], . . . but a mere nonfeazance.” Id.; see also Scheibel

v. Fairbain (1799) 126 Eng. Rep. 968, 970 (opinion of Buller, J.)

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36 Opinion of the Court 20-12148

(refusing to hold a creditor liable “for mere non-feasance” unless

the creditor made an undertaking that would make him liable in

contract for failing to countermand the writ).

By contrast, in Churchill v. Siggers, a creditor was liable for

issuing a warrant for the full sum after receiving partial payment

by another debtor. (1854) 118 Eng. Rep. 1389, 1392. In Churchill, a

creditor brought two separate actions for the recovery of a debt

because multiple parties were liable for the same debt. Id. at 1390.

The creditor obtained a favorable judgment in both actions and at-

tempted to collect on the amount. Id. Eventually, one of the debt-

ors paid the full principal and the costs the creditor incurred in that

action; the other debtor still owed the costs incurred in the separate

action. Id. The creditor then procured a writ to arrest the remain-

ing debtor for the full amount of the debt and the costs from both

actions, pursuant to which the debtor was arrested and detained

for four weeks. Id. The court held that the creditor was liable for

procuring the writ “maliciously and without any reasonable or

probable cause” with a “motive . . . to oppress and injure the

debtor” because the creditor knew the debt had been paid when he

procured the writ. Id. at 1392. Even though the creditor’s collection

efforts had been ongoing, it was not until he procured the writ—a

stage in the legal process—that liability attached. See id. (conclud-

ing that the creditor was liable for “put[ting] into force the process

of law”).

The understanding of what constituted “continuing a pros-

ecution” in 1871 also supports an affirmative-act requirement. A

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20-12148 Opinion of the Court 37

criminal prosecution was defined as “[t]he means adopted to bring

a supposed offender to justice and punishment by due course of

law.” Prosecution, 2 BOUVIER (14th ed.), supra. And the “means

adopted” meant, in this context, “[t]hat which is used in order to

an end” or the “instrument” adopted. Mean, JOSEPH E.

WORCESTER, A DICTIONARY OF THE ENGLISH LANGUAGE (London,

Frederick Warne & Co. new ed. 1884); see also Mean, WILLIAM G.

WEBSTER & WILLIAM A. WHEELER, A DICTIONARY OF THE ENGLISH

LANGUAGE, EXPLANATORY, PRONOUNCING, ETYMOLOGICAL, AND

SYNONYMOUS (N.Y.C. & Chi., Ivison, Blakeman, Taylor & Co.

1881) (“Intermediate agency or measure; instrument.”). So, a pros-

ecution was the instrument used to pursue punishment through

the due course of law. And to continue it meant to take action in

pursuit of that instrument, not to set it aside.

If inaction had sufficed to continue a prosecution, then it

would have been nonsensical to say that a litigant who had initiated

an action had then “omi[tted] to prosecute [that] action.” See

Burhans v. Sanford, 19 Wend. 417, 418 (N.Y. Sup. Ct. 1838). But

the phrases, “want of prosecution” and “omit,” “neglect,” or “fail

to prosecute,” in the middle of the nineteenth century commonly

referred to the failure to take any affirmative act in the prosecution.

See, e.g., Hammond v. Will, 60 Ill. 404, 408 (1871) (citing Gorton

v. DeAngelis, 6 Wend. 418, 420–21 (N.Y. Sup. Ct. 1831), approv-

ingly for the proposition that “mere neglect to prosecute a suit

commenced” is not evidence of a want of probable cause); Dailey

v. Wynn, 33 Tex. 614, 617 (1870) (discussing the effect of a creditor

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38 Opinion of the Court 20-12148

“omit[ting] to prosecute [a suit] brought”); State v. Phillips, 36 Mo.

149, 149 (1865) (dismissing an appeal when “the appellant ha[d]

failed to prosecute her appeal”); Harter v. Johnson, 16 Ind. 271, 272

(1861) (affirming a judgment because a statute that allowed third

parties to bring suit against the father for maintenance of the child

when the mother “commences a suit and fails to prosecute the

same to final judgment” had been repealed); Karth v. Light, 15 Cal.

324, 327 (1860) (explaining that a dismissal of an appeal for “mere

neglect to prosecute” operated as an affirmance); Hughes v. Lane,

25 Tex. 356, 367 (1860) (discussing approvingly the practice of dis-

missing an appeal for “failure to prosecute”), overruled on other

grounds by Bomar v. Parker, 4 S.W. 599, 606 (Tex. 1887); Furber v.

Carter, 34 Tenn. (2 Sneed) 1, 3–4 (1854) (discussing the effect of a

“failure to prosecute” an “appeal in error”); BIGELOW, supra, ch. III,

§ 3, at 82–83 (“The mere omission . . . to appear and prosecute a

civil action . . . is no evidence of a want of probable cause.”).

Further, a litigant’s “failure . . . to prosecute”—that is, his

failure to take an affirmative act to pursue the prosecution—had

legal consequences. Green v. Doane, 1 Cal. Unrep. 86, 86 (1860).

For example, it was a ground for dismissing a civil action or deny-

ing a motion. E.g., Smith v. Whiting, 100 Mass. 122, 123 (1868)

(“fail[ure] to prosecute” a writ of replevin entitled the defendant to

nominal damages); Sherrerd v. Frazer, 6 Minn. 572, 574 (1861)

(quoting Deuel v. Hawke, 2 Minn. 50, 54 (1858)) (“[I]f [the plaintiff]

neglects to prosecute unreasonably, the Defendant may have an

order of dismissal . . . .”); Green, 1 Cal. Unrep. at 86 (explaining that

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20-12148 Opinion of the Court 39

a motion for new trial was denied for “failure . . . to prosecute”);

Johnson’s Adm’rs v. Ward, 23 Tex. 628, 630 (1859) (discussing

when “neglect . . . to appear and prosecute” would warrant dismis-

sal); Aubrey v. Almy, 4 Ohio St. 524, 528 (1855) (discussing a statute

directing courts to “render judgment” with “costs” for the defend-

ant if the plaintiff “shall fail or neglect to prosecute the said suit to

final judgment”); Farrin v. Kennebec & Portland R.R. Co., 36 Me.

34, 36 (1853) (affirming a dismissal for “neglect to prosecute the ac-

tion”); Burhans, 19 Wend. at 418 (noting that an “omission to pros-

ecute” is ground for “obtain[ing] a judgment”); Pinner v. Edwards,

27 Va. (6 Rand.) 675, 677 (1828) (differentiating between a dismissal

for “a voluntary failure to prosecute,” for which a state statute

awarded the defendant five dollars, and a dismissal because the

plaintiff could not afford “to give a security for costs”); Morgan v.

Currie, 10 Ky. (3 A.K. Marsh) 293, 293 (1821) (affirming a dismissal

and judgment for costs for “failing to prosecute the[] suit”); see also

Cohn v. Borchard Affiliations, 250 N.E.2d 690, 695 (N.Y. 1969) (dis-

cussing the development of dismissing civil actions for “failure to

prosecute”).

This understanding remained the same in the criminal con-

text. Cf. FED. R. CRIM. P. 48(b) & advisory committee’s note b

(1944) (“[T]he court may dismiss” the case “if there is unnecessary

delay.” “This rule is a restatement of the inherent power of the

court to dismiss a case for want of prosecution. Ex parte Altman,

34 F. Supp. 106 (S.D. Cal. 1940).”). For example, in New York in

1850, the Commissioners on Practice and Pleading recommended

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40 Opinion of the Court 20-12148

giving criminal courts the inherent power to dismiss a criminal ac-

tion “For Want of Prosecution.” People v. Douglass, 456 N.E.2d

1179, 1183 (N.Y. 1983) (quoting Commissioners’ Report on Code

of Criminal Procedure (1850), ch. VII, p. 341 (explaining that

through inaction, “the indictment may be kept forever suspended

over the head of the defendant” and that “[t]he only remedy he can

obtain . . . [for] inexcusable neglect to bring him to trial, is by an

order of the court, discharging him either upon bail or upon his

own recognizance”)). And there could be no “[w]ant of [p]rosecu-

tion” by inaction if inaction sufficed to continue the prosecution.

Caselaw from the middle of the nineteenth century and con-

temporaneous treatises confirm that this understanding of “prose-

cute” subsisted in the context of malicious prosecution. See, e.g.,

Williams v. Vanmeter, 8 Mo. 339, 341 (1844) (“The conduct of the

defendant gives the cause of action.” (emphasis added)); see also

James v. Phelps (1840) 113 Eng. Rep. 499, 501 (opinion of Cole-

ridge, J., dissenting) (citing Delegal v. Highly (1837) 132 Eng. Rep.

677, for the proposition that probable cause must exist in the mind

of the plaintiff “at the time of the act in question” (emphasis

added)); For example, a prosecutor’s acts in “caus[ing] a search war-

rant to issue,” “lodging a complaint or information,” and “obtain-

ing a warrant,” were all actionable. 2 ADDISON, supra, ch. XIII,

§§ 859, 878, at 77, 90 (“In all actions . . . for going before justices of

the peace, and lodging a complaint or information . . . , and obtain-

ing a warrant for his arrest, and causing him to be arrested, it must

be proved that the . . . acts of the defendant . . . were done

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20-12148 Opinion of the Court 41

maliciously, and without reasonable and probable cause.” (empha-

ses added)); see also 1 HILLIARD, supra, ch. XVI, § 19, at 454 (ex-

plaining that the probable cause determination is based on whether

the prosecutor “had been informed of, or knew,” the relevant facts

“at the time of the charge”). In 1871, to “continue a prosecution”

referred to taking an affirmative act to further it. And the common

law made performing those affirmative acts with malice and with-

out probable cause actionable.

Two nineteenth century decisions from the United States,

see Stone v. Swift, 21 Mass. (6 Pick.) 389 (1828); Mann v. Holbrook,

20 Vt. 523 (1848), could be read to suggest that allowing a prosecu-

tion to continue to exist without acting was actionable. See 1

HILLIARD, supra, ch. XVI, §§ 13, 19(b), at 446–47, 456 (citing those

two decisions). But neither is applicable. And even if they were,

they could not establish a well-settled principle in the light of the

weight of the evidence on the other side. See Nieves, 139 S. Ct. at

1726.

In the first, Stone brought an action for malicious prosecu-

tion against Swift for purchasing a writ of attachment against

Stone’s property despite knowing that he had no probable cause.

Stone, 21 Mass. (6 Pick.) at 389–90. To support his claim, Stone of-

fered as evidence that, after Swift caused a sheriff to execute the

attachment, he consulted an attorney who told him that he had no

basis for attaching Stone’s property. Id. at 391. On appeal, the Su-

preme Judicial Court of Massachusetts explained that Stone needed

to provide evidence that “Swift knew, when he commenced his

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42 Opinion of the Court 20-12148

action, that he had no cause of action” because the plaintiff’s decla-

ration was “grounded upon” the commencement of the action. Id.

at 393. But it also said that if the declaration had alleged that, after

initiating the suit, Swift discovered that he did not have probable

cause and nevertheless “continued his attachment maliciously . . . ,

it would have presented a very different inquiry.” Id.

Stone does not undermine an affirmative-act requirement

for three reasons. First, the opinion itself is unclear whether “con-

tinu[ing] his attachment” meant to allow the sheriff to continue to

detain the property after having attached it or to cause the sheriff

to execute the writ of attachment. Id. at 394; see also id. (recount-

ing the background and differentiating between “attaching and de-

taining [the] property”); see generally 3 WILLIAM BLACKSTONE,

COMMENTARIES *270–92 (explaining that an action was com-

menced by purchasing a writ and that afterwards an officer exe-

cuted that writ by, for example, attaching property). Second, the

statement was dictum—not an alternative holding—and did not

explain what the “different inquiry” would have been. See Stone,

21 Mass. (6 Pick) at 394. And third, in 1828, the allegedly malicious

prosecution might have been subject to different rules than a crim-

inal prosecution or a civil action that resulted in an arrest because

it was a civil action that did not result in bodily confinement. Com-

pare Adams v. Lisher, 3 Blackf. 241, 244 (Ind. 1833) (“There is a

distinction between malicious arrests in civil suits . . . and a mali-

cious prosecution of an offence, misdemeanor, or wrong, which

affects the public” because in criminal prosecutions “the prosecutor

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20-12148 Opinion of the Court 43

is much more favoured.”), with Stewart v. Sonneborn, 98 U.S. 187,

192 (1879) (“Notwithstanding what has been said in some decisions

of a distinction between actions for criminal prosecutions and civil

suits, both classes at the present day require substantially the same

essentials.” (emphasis added)), and Collins v. Hayte, 50 Ill. 353, 354

(1869) (“[A] civil suit . . . is governed by rules of law precisely the

same” as those in a criminal suit.). So, even if a contrary principle

could be derived from Stone, it is unclear how the principle would

have applied to a criminal prosecution.

In the second decision, Holbrook had caused an officer to

execute a writ of attachment against Mann’s property, but he did

not enter it to inform the magistrate of the litigation. Mann, 20 Vt.

at 523–24. Mann prepared his defense and appeared for the trial,

but neither Holbrook nor the magistrate—who was unaware of the

matter because Holbrook never entered the writ—appeared. Id.

The Supreme Court of Vermont concluded that Holbrook could

be liable for the “expense and loss” Mann incurred in preparing for

the trial. Id. at 524. But Mann did not bring a malicious prosecution

action, so the court did not address the elements of that tort. See

id. at 524, n.* (citing Griffin v. Farwell, 20 Vt. 151 (1848)); Griffin,

20 Vt. at 153 (explaining that “the law has provided no other ade-

quate remedy” in those circumstances). So, rather than requiring a

lack of probable cause and malice, the court explained that Mann

need only show Holbrook’s “neglect of duty.” Id. Mann does not

undermine the requirement that, to continue a prosecution for the

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44 Opinion of the Court 20-12148

purposes of malicious prosecution, one must have taken an affirm-

ative action to advance the legal process.

To succeed on a Fourth Amendment claim for a seizure pur-

suant to legal process in this context, a plaintiff must prove that the

officer took an affirmative act to continue the prosecution because

an officer has no duty to “run after his [warrant].” See Page, 102

Eng. Rep. at 619. Washington cannot prove that Howard took an

affirmative act to continue her seizure, so she cannot prove that

Howard “violated [her] Fourth Amendment right.” See Luke, 975

F.3d at 1144. This reason provides a separate ground for affirming

the summary judgment in Howard’s favor.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of Howard.