Phillips v. Whittington

Case: 20-30731 Document: 00516240179 Page: 1 Date Filed: 03/15/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

March 15, 2022

No. 20-30731 Lyle W. Cayce

Clerk

Todd Phillips; Jodi Phillips; Brooke Phillips; Abby

Phillips,

Plaintiffs—Appellees/Cross-Appellants,

versus

Julian C. Whittington, individually and in his official capacity as

Sheriff of Bossier Parish; Bruce Bletz, in his individual capacity;

Shawn Phillips, the supervisor of the investigation division , in his

individual capacity; Charlie Owens, Former Chief Deputy, supervisor of

day-to-day operations and adviser to Sheriff Whittington, in his individual

capacity,

Defendants—Appellants/Cross-Appellees,

Hugo A. Holland, Jr., individually and in his official capacity as Special

Prosecutor for the Bossier Parish District Attorney's Office; J. Schuyler

Marvin, in his official capacity as District Attorney for Bossier Parish,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CV-1524

Before King, Graves, and Ho, Circuit Judges.

Case: 20-30731 Document: 00516240179 Page: 2 Date Filed: 03/15/2022

No. 20-30731

Per Curiam:*

This interlocutory appeal and cross-appeal arise from 42 U.S.C.

§ 1983 claims filed by the Phillips family against Bossier Parish police officers

and district attorneys who were involved in the arrest of Todd Phillips for

two acts of arson. The defendants sought summary judgment based on

qualified immunity, which the district court granted in part and denied in

part. Now, the defendants appeal that denial of summary judgment on the

Phillipses’ false-arrest claim and the Phillipses cross-appeal the grant of

summary judgment on various other claims. For the reasons discussed, we

affirm the district court’s judgments that the Phillipses challenge on cross-

appeal and dismiss the defendants’ interlocutory appeal for lack of

jurisdiction.

I. Factual and Procedural Background

Todd Phillips was arrested for two arsons, but these two arsons were

a small part of a broader crime spree in Bossier Parish, Louisiana. To fully

understand the claims at issue, we must review the full scope of the original

crime spree and the state’s case against Todd, which culminated in a five-day

404(b) evidentiary hearing.

A. The Crime Spree and Initial Investigation

Todd and his family moved to Benton, Bossier Parish, Louisiana,

around 2004.1 The Phillipses purchased 28 acres on Old Plain Dealing Road,

which were heavily wooded and contained a barn and pasture for their horses.

Beginning in 2010 and continuing over the next eight years, a series of

property crimes directed against hunters occurred near the Phillipses’ home.

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

1

The district court states the family’s move occurred in 2004, but the Phillipses

themselves believe it was in 2005. For our purposes, the precise timing is irrelevant.

2

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These crimes included over 60 documented incidents of theft, vandalism,

arson, and property damage by gunfire.

The perpetrator had a recognized modus operandi. He would

frequently use homemade spikes to pop the tires of vehicles, and burn down

or steal from deer camps, deer stands, and camp houses. The perpetrator

would also leave behind or mail various threatening letters to locals, police,

and attorneys involved with this case. Finally, the perpetrator would plant

evidence at crime scenes apparently to frame local residents.2 The consistent

practices led the Bossier Parish Sheriff’s Office (“BSO”) to conclude that all

acts were completed by the same person.

In September 2011, the BSO appointed Lt. Bruce Bletz as the lead

investigator for the case. Lt. Bletz began to use Gary Wilson as his

confidential informant, and the two communicated regularly. The BSO now

believes that Wilson was the real perpetrator of these crimes, and state

charges are currently pending against him; but at the time of the initial

investigation, Lt. Bletz believed Wilson to be another victim of the crime

spree. Wilson would feed Lt. Bletz information that he claimed to have heard

throughout the community about potential suspects.

On October 24, 2012, two deer stands were burned down. At the scene

of those stands, a Coleman fuel bottle was left behind with “Todd Phillips”

2

For example, at the scene of an October 2010 theft, a hammer with the initials of

a local, Larry Coker, was left behind on the property—the police, however, did not suspect

Coker. At the scene of a December 2010 spike planting, a shirt and walkie-talkie were left

behind with the name of a different local, Landon Burns, written on the shirt—that local

was cleared. In June 2011, a town resident received an anonymous call claiming a third local,

Gregory Bickham, was responsible for the various acts and hid the stolen property at his

home—but the BSO executed a search warrant for Bickham’s home, found no stolen

property, and cleared him. And in September 2011, a cell-phone box belonging to a fourth

local, Billy Joe Fletcher, was left behind at the scene of an arson—the BSO investigated

Fletcher and determined he was not a suspect.

3

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written on its side in large letters. Then, on November 12, 2012, another deer

stand, owned by Matt Caston, was burned down. Caston had a small GPS

device at his deer stand, which the perpetrator stole. On that same night, at

another nearby deer stand, the BSO found an incendiary device made from a

grape Powerade Zero bottle filled with red diesel fuel, a veterinary bute

syringe3 with the name “Phillips” written on the syringe’s label, and a blue

plastic bag of trash later traced to the Phillipses’ home.

With this new lead in hand, the BSO obtained a search warrant for the

Phillipses’ home. The search revealed nothing of evidentiary value. But the

officers were able to interview Todd, his wife Jodi, and two of their daughters.

The Phillipses recognized the bute paste as likely their own, but could not

recall whether they had thrown it out at a rodeo the previous weekend or

brought it home; they also recognized the trash. The Phillipses reported that

they place their trash for pick up alongside Old Plain Dealing Road,

approximately 0.3 miles away from their house. Soon after, Todd provided

his fingerprints, DNA, and handwriting exemplars to the police.

A few days after the BSO executed its warrant, a neighbor came up to

Jodi in her driveway. He said he found a GPS device in the bed of his truck

that was parked near the Phillipses’ property line and thought it may be

theirs. Jodi contacted the BSO about the GPS, and the police eventually

picked it up in late December 2012—but not until Lt. Bletz learned about the

GPS from Wilson. The GPS was identified as Caston’s.

Also during December 2012, various anonymous calls were made

from a pay phone in Bossier City, Louisiana. Two are of particular note. The

first call occurred on December 14 and was made to the crime-stoppers

hotline. That caller accused one of the Phillipses’ neighbors, Blake Barton,

3

Bute paste is an anti-inflammatory pain-relief drug given to horses.

4

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of the crime and stated that supporting evidence could be found at Barton’s

home. The BSO searched Barton’s home and identified tire spikes as well as

a bag of trash that had a magazine with a subscription label for Jodi Phillips.

The second call occurred on December 24 and was directed to Barton’s

stepfather; it warned that Barton needed to leave town or else his trailer

would be burned down.

In January 2013, based on the evidence pointing to Todd, Lt. Bletz

obtained a warrant to place a GPS on Todd’s vehicle. Despite tracking the

vehicle from January 14, 2013, through April 19, 2013, the GPS data never

showed the vehicle at or near any property crimes that occurred during that

timeframe. Lt. Bletz subpoenaed the phone records of the Phillipses. The

phone records identified that a cell tower pinged Jodi in the general area of

the pay phone used to make the December 24 call.

Lt. Bletz continued to suspect that Todd was responsible for the crime

spree. The theory was that Todd decided to frame himself in order to clear

his name. Alternatively, Lt. Bletz testified that Todd had intended to burn

the trash and syringe left behind on November 12, but rain had put the fire

out. So, in March 2013, Lt. Bletz placed three white posters with bible verses

along Old Plain Dealing Road across the street from the Phillipses’ residence.

The alleged intent of the posters was to coerce Todd into further acts.

In June 2013, Lt. Bletz consulted with other members of the BSO and

the local district attorney to determine whether they could file charges

against Todd. The district attorney advised that there was not sufficient

evidence to formally charge Todd.

The perpetrator continued to commit crimes from 2013 through

2014—he shot and killed dogs, shot cars and houses, continued to plant

spikes, vandalized homes, and left nails on the driveway of one of the

Phillipses’ neighbors. The perpetrator also continued to send threatening

5

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letters, now often insulting Lt. Bletz. Lt. Bletz continued to suspect Todd and

told members of the community of his suspicions. Concerned for their safety,

the Phillipses moved approximately sixty miles away to Marshal, Texas.

The crime spree continued. In March and June of 2015, a BSO

detective and subordinate of Lt. Bletz, Mike Lombardino, investigated a

vandalism and burglary and concluded that Wilson was the probable

perpetrator of both. He advised Lt. Bletz of his conclusion, but Lt. Bletz said

Wilson was cleared and told the detective to mark those cases inactive.

Lombardino reported Lt. Bletz’s apparent blind spot to Captain

Shawn Phillips, but nobody at the BSO disclosed these incidents to the

district attorney. (Capt. Phillips has no relation to the plaintiffs.) Also in

spring of 2015, Assistant District Attorney Hugo Holland (“ADA Holland”)

was brought onto the case.

In July 2015, Lt. Bletz was tasked with preparing the narrative

supplement that accused Todd of simple criminal damage to property based

on the placing of tire spikes. The report documented dozens of incidents

from the broader crime spree, but it did not include incidents that could be

read to exculpate Todd—such as the perpetrator framing a different local

before Todd, the March and June 2015 incidents where Wilson was the prime

suspect, and several incidents where Todd had an alibi. Lt. Bletz and Wilson

continued to frequently communicate, and Lt. Bletz repeatedly told Wilson

that he believed Todd to be the perpetrator of the crimes.

In August 2015, ADA Holland sent a plea deal to Todd that offered

that Todd plead guilty to simple damage to property and pay $59,578.00 in

restitution. Todd declined, and thus, on September 14, 2015, Capt. Phillips

issued a citation to Todd for a misdemeanor charge of simple criminal

property damage under La. Rev. Stat. § 14.56. Acknowledging that the

state could not rely on direct evidence to support its charge, ADA Holland

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filed a notice of intent to introduce evidence of the approximately 60 other

crimes under rule 404(b); an evidentiary hearing to consider that 404(b)

evidence was scheduled for November 28, 2016. All the while, the

threatening letters continued: Todd’s attorney received an envelope

warning, “U R asking 2 many ?” and stating, “We R Untouchable Better

Make Phillips C the Light.”

B. State Proceedings

As scheduled, the 404(b) hearing began on November 28, 2016. The

hearing lasted five days and involved the testimony of over 30 witnesses. The

state’s key witness was Lt. Bletz.4

The Phillipses allege that Lt. Bletz made various false statements

during his testimony. Regarding the Powerade bottle that was a part of an

incendiary device, Lt. Bletz reported both that Todd identified the bottle as

his own and that only Todd would have been able to identify the bottle due

to its charring. In fact, the Powerade bottle could be identified clearly by any

viewer, and the Phillipses reported that Todd did not purchase that bottle,

but rather, drank Gatorade. Lt. Bletz testified that the failed incendiary

device was put out by rain due to a hole in the deer stand’s roof, but,

according to Caston, that deer stand never had a roof. Regarding Todd’s

motive, Lt. Bletz testified that Todd was aggravated at the suggestion that

the crimes were completed by kids and not a “highly intelligent, motivated

adult with a . . . deep-seeded hatred for hunters,” when in actuality, Todd

did not so react. He testified that he discussed placement of the three signs

outside of the Phillipses’ home with the district attorney and a psychologist

prior to placing them; however, he placed them without such consultations.

4

Other witnesses included the Phillipses, Wilson and his son, various victims, and

expert testimony regarding handwriting, cell phones, and incendiary devices.

7

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He reported that the Phillipses told him that they “fundamentally disagreed

with hunting,” when in fact they expressed support for hunting. He reported

that the Phillipses told him it was impossible for someone to access their

property without them knowing due to the attentive, aggressive nature of

their guard dogs; but the Phillipses stated it could be possible for someone to

access their property without their knowing and that their dogs were not

guard dogs, but family pets. Lt. Bletz also stated Todd had told him that the

Coleman fuel bottle was likely his, but Todd did not say that.

Plaintiffs also allege that Lt. Bletz falsely testified as to the conclusions

of the handwriting expert and cell-phone-records expert. Regarding the

handwriting, Lt. Bletz claimed the handwriting expert found an “obvious

anomaly” in Todd’s exemplar—in fact, the expert concluded there was no

intent to deceive within the exemplar but there were attempts to deceive in

the writings found at the crime scenes. Regarding the cell-phone records, Lt.

Bletz reported that the cell towers placed Todd’s phone at the pay phone,

but in actuality the expert identified the phone as Jodi’s, and the tower could

place her only in the general vicinity. They further allege that Lt. Bletz

purposefully excluded various pieces of exculpatory evidence from his

narrative report and testimony, such as incidents that fit into a pattern of the

perpetrator framing local residents, incidents where Wilson was the prime

suspect, and incidents that occurred where Todd had an alibi.

Unbeknownst to the plaintiffs and the state court, and while the state

court was ruling on the 404(b) hearing, the crimes were escalating. In January

2017, a booby trap was set up to harm BSO deputies. At the advice of Wilson,

Todd’s friend was identified as the suspect. The BSO created a task force to

determine whether that friend was the perpetrator of the crime spree. The

task force was soon disbanded—though not until after the task force

consulted with ADA Holland, and ADA Holland advised the task force that

he did not need more evidence to convict Todd of the crimes.

8

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In May 2017, the state court issued its opinion. It concluded that the

vast majority of the crimes could not be considered as evidence against Todd,

but it found five incidents could. Relevant to the instant case is the

admissibility of the November 12, 2012, arsons. The court found that the

prosecution proved Todd committed those acts by a preponderance of

evidence. The court found compelling the GPS entering the Phillipses’

property and the testimony of Lt. Bletz regarding the “attentive and

protective dogs” on the property that would prevent intruders from

accessing it. So, “[c]onsidering the consistent pattern of motive,

opportunity, intent, preparation, plan and knowledge of [Todd] and the

method by which his objectives were carried out, the Court [was] satisfied

that the State ha[d] met it[s] burden and proven by a preponderance of the

evidence that this incident should be admissible.”

In August 2017, ADA Holland sought a warrant to arrest Todd for the

November 12 arsons. The arrest warrant was not supported by an affidavit,

but rather, was premised on “the entirety of the evidence adduced at the

previous 404([b]) hearing which the state avers is more than sufficient to

establish probable cause to believe the defendant committed” the offense of

“intentionally damag[ing] the deer stands belong[ing] to Gary Wilson and

Matthew Caston by setting fire thereto.” The state court issued the warrant

without further reasoning, and the jury trial was ultimately set for May 29,

2018.

In the fall of 2017, the perpetrator began sending threatening letters to

schools, churches, and businesses that claimed Todd was framed and

Lt. Bletz committed perjury, among other things. So, despite the pending

trial, the chief deputy of the BSO wanted to re-examine the case. He created

a task force, now excluding Lt. Bletz, and the task force identified Wilson as

the sender of the letters and thus the likely perpetrator of the crimes. The

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state brought charges against Wilson in February 2018; and in March 2018,

the state dropped the charges against Todd.

C. Federal Proceedings

On November 20, 2017, the Phillipses filed the instant case against

BSO officers Lt. Bletz, Capt. Phillips, Sheriff Julian Whittington, Chief

Deputy Charlie Owens (collectively, the “BSO Defendants”); ADA

Holland, District Attorney J. Schuyler Marvin (collectively, the “DA

Defendants”); and Gary Wilson and the estate of Coty Wilson. 5 As

ultimately amended, the Phillipses alleged sixteen causes of action against the

defendants. Relevant to this appeal are the claims under 42 U.S.C. § 1983 for

false arrest, failure to intervene, failure to maintain adequate evidentiary

practices, failure to adequately supervise, failure to disclose exculpatory

evidence, and a state law claim for malicious prosecution. After motion

practice and discovery, the BSO Defendants moved for summary judgment,

while the DA Defendants moved to dismiss for failure to state a claim and

partial summary judgment. The district court granted summary judgment to

the defendants on nearly all these claims; however, it denied summary

judgment as to the Phillipses’ false arrest claim against Lt. Bletz.

After the court issued its opinions, the BSO Defendants sought an

interlocutory appeal regarding the court’s rejection of Lt. Bletz’s qualified

immunity defense. The Phillipses then sought entry of judgment under

Federal Rule of Civil Procedure 54(b) and cross-appealed various grants of

5

After charges were filed against Wilson, his wife (Jennifer Wilson) and son (Coty

Wilson) died together in what appeared to be a joint suicide. Coroner Concludes Mother and

Son Died in Joint Suicide Plunge, KTBS 3 (Apr. 25 2018),

https://www.ktbs.com/news/3investigates/coroner-concludes-mother-and-son-died-in-

joint-suicide-plunge/article_1fe50bfa-489f-11e8-9bb6-f714dc817e4f.html.

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summary judgment for the BSO and DA Defendants. We address these in

turn.

II. The BSO Defendants’ Appeal

The Phillipses submitted that Todd was subjected to an

unconstitutional arrest in 2017 because the arrest warrant was based on the

false statements of Lt. Bletz. The district court concluded that the Phillipses

presented sufficient evidence to create a genuine dispute of material fact as

to whether Lt. Bletz intentionally lied or recklessly disregarded the truth in

his narrative report and testimony, and thus, reserved for trial whether Todd

was subjected to a violation of his rights under the Fourth Amendment. The

court further determined Lt. Bletz was not entitled to qualified immunity at

the summary judgment stage because (1) he may have intentionally or

recklessly made false and misleading statements in support of the arrest

warrant; and (2) those statements may have been necessary for the warrant

issuer to find probable cause. As to the other defendants, however, the court

found that the Phillipses could not state a claim because they failed to put

forward any evidence to show that those other officers engaged in any

intentional or reckless untruthful conduct.

When a defendant appeals a denial of qualified immunity at the

summary judgment stage, we review that decision de novo. Oliver v. Arnold,

3 F.4th 152, 160 (5th Cir. 2021). That said, we are limited in what aspects of

the ruling we may review. Id. “[W]e must accept that the evidence gives rise

to the factual disputes identified by the district court, and we may only review

whether the version of those facts that is most favorable to the plaintiff’s

claim is sufficient to overcome qualified immunity.” Id. In other words, the

district court’s conclusions regarding whether a genuine dispute exists are

final, and we may review only whether that genuine dispute is material.

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The BSO Defendants appeal the denial of summary judgment as to

the Phillipses’ false arrest claim and argue that Lt. Bletz is entitled to

qualified immunity. The qualified immunity inquiry has two

prongs: (1) “whether the officer’s alleged conduct has violated a federal

right” and (2) “whether the right in question was ‘clearly established’ at the

time of the alleged violation, such that the officer was on notice of the

unlawfulness of his or her conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th

Cir. 2019) (en banc). In the context of a false arrest claim, it is clearly

established that a constitutional violation occurs, even if an independent

magistrate approves a warrant application, when “(1) the affiant, in support

of the warrant, includes ‘a false statement, knowingly and intentionally, or

with reckless disregard for the truth,’ and (2) the allegedly false statement is

necessary to the finding of probable cause.” Arizmendi v. Gabbert, 919 F.3d

891, 897 (5th Cir. 2019) (quoting Winfrey v. Rogers, 901 F.3d 483, 494 (5th

Cir. 2018)).6 Likewise, an officer may not omit exculpatory information that

would preclude a magistrate from viewing all facts material to a finding of

probable cause. Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006).

First, the BSO Defendants contend that the district court erred by

finding that the Phillipses created a genuine dispute of fact as to whether

Lt. Bletz knowingly or recklessly made false statements. At most, they

contend, Lt. Bletz negligently made such statements. But that argument

engages in precisely the sort of reweighing of facts that we are forbidden to

engage in at this interlocutory stage, Oliver, 3 F.4th at 160; so, we lack

jurisdiction to consider the argument.

6

On the other hand, if the statements were not necessary to the finding of probable

cause, there is no constitutional violation at all. Id. at 898.

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Second, the BSO Defendants argue that the district court erred by

finding that Lt. Bletz’s alleged false statements were material to a finding of

probable cause to support the 2017 arrest warrant for Todd Phillips. They

argue that even if the hearing record is stripped of Lt. Bletz’s allegedly false

statements and includes his allegedly fraudulent omissions, there would still

be probable cause to support Todd’s arrest for arson, and thus, those

statements and omissions were immaterial. But we agree with the district

court that the materiality of these statements is dependent on the resolution

of various factual disputes, and the resolution of such disputes must be

reserved for trial.

When ruling on a summary judgment motion sounding in qualified

immunity, like in any case, “courts may not resolve genuine disputes of fact

in favor of the party seeking summary judgment.” Tolan v. Cotton, 572 U.S.

650, 656 (2014) (per curiam). Factual disputes ordinarily are not a problem

when reviewing a warrant for probable cause: the court simply strikes the

statements determined to be false from the warrant’s supporting affidavit and

then reviews whether the affidavit’s remaining facts still support finding

probable cause. E.g., Davis v. Hodgekiss, 11 F.4th 329, 333-34 (5th Cir. 2021).

Similarly, where an affiant omits exculpatory evidence, courts “insert the

omitted facts into the affidavit and ask whether the reconstructed affidavit

would still support a finding of probable cause.” Kohler, 470 F.3d at 1113. If

so, then the officer’s statements were not necessary, and there was no

constitutional violation.

The problem with the instant case is that there is no underlying

affidavit. Rather, the state supported its application for a warrant “[b]y

reference” to “the entirety of the evidence adduced at the previous 404([b])

hearing which the state avers is more than sufficient to establish probable

cause to believe the defendant committed this offense.” Thus, the district

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court concluded that the facts were not easily reviewable and that it could not

conclude as a matter of law that probable cause still exists.

The district court’s logic is sound. The clearly established law here is

that an officer may not make false statements to the magistrate judge to

establish probable cause. Arizmendi, 919 F.3d at 897. It follows that if the

court would need to resolve questions of fact to determine whether the false

statements were necessary to the probable cause finding, then summary

judgment must be denied.

The 404(b) hearing included the competing testimonies of dozens of

witnesses, but Lt. Bletz was the state’s primary witness, the primary

proponent of Todd’s guilt, and the bolstering force for non-testimonial

evidence against Todd. The state court weighed Lt. Bletz’s testimony and

ultimately credited it over the testimony of others when the court made its

404(b) admissibility determinations. So, finding that Lt. Bletz testified falsely

would also undermine the remaining evidence that supports probable cause

for the arrest. As a relevant example, Lt. Bletz testified that the Phillipses’

dogs prevented a stranger from entering their property and that Todd

confirmed ownership of both the green Coleman fuel bottle and the purple

Powerade bottle; if it is found that those statements were false, that physical

evidence loses much of its probative value. Assuming those statements were

false, the district court must reweigh the remaining evidence and make new

credibility determinations to make an informed probable cause

determination—and these are questions reserved for trial.

Lt. Bletz’s allegedly fraudulent omissions of exculpatory evidence

compound this problem. Whether these events were inappropriately

excluded depends on genuinely disputed facts. The Phillipses highlight up to

fifteen incidents where Todd had an alibi, which, if all were admitted, would

exculpate Todd given the BSO’s understanding that all the crimes were

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committed by the same perpetrator. But it would take factual determinations

regarding Lt. Bletz’s knowledge to determine whether he improperly

excluded them.7 Thus, the appropriate course is to send the issue to trial.

The need for a trial is made clear by reviewing the state court’s

justification for finding the November 2012 arsons admissible against Todd.

The state court credited three pieces of evidence. First, it credited Caston’s

testimony about the GPS. Caston’s testimony “established [that] the GPS

left his now burned deer stand, made its way to the road and traveled directly

to the property of Phillips. He further detailed it traveled up the driveway and

moved about extensively over the Phillips property.” Specifically, Caston

testified that the perpetrator took the GPS at the deer stand, turned the GPS

on, and traveled down Old Plain Dealing Road to the Phillipses’ driveway.

Once there, the holder of the GPS stopped at the end of the driveway, walked

in several circles, moved up the driveway, made several more circles, and

then turned the GPS off. Second, the state court credited the attentive and

protective nature of the dogs at the Phillipses’ home, as testified to by

Lt. Bletz, which persuaded the court “that others could not come on to the

property and move around extensively on the property without being

detected by man or beast.” Finally, it credited “the consistent pattern of

motive, opportunity, intent, preparation, plan and knowledge of Phillips and

the method by which his objectives were carried out[.]”

Striking Lt. Bletz’s allegedly false statements, the second and third

supporting pieces of evidence are lost. Without Lt. Bletz’s testimony about

the dogs, it is no longer clear that someone would have difficulty entering the

Phillipses’ property, as several witnesses testified that they were able to enter

7

For instance, Lt. Bletz explained why he excluded one incident but not the

fourteen others. Factual determinations about the legitimacy of the exclusions must be

made for each incident.

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the property and that the dogs were not aggressive. Cf. Hale v. Fish, 899 F.2d

390, 400 (5th Cir. 1990) (noting as a relevant distinction for the purposes of

probable cause that an officer mislabeled “guard dogs” as “attack dogs”).

Todd’s motive and intent also are dependent on disputed portions of

Lt. Bletz’s testimony, as it was Lt. Bletz who testified that Todd disdained

hunters and offered a negative psychological profile of Todd.

All that remains is the stolen GPS that entered the Phillipses’

property. The court acknowledged there were two theories offered at the

404(b) hearing regarding the GPS: (1) the perpetrator was attempting to

frame Todd; or (2) Todd had turned the GPS on and tracked himself. The

state court found the latter more persuasive. But that finding may be

undermined based on what exculpatory evidence is added and what current

evidence is removed. For instance, several omitted incidents include the

perpetrator attempting to frame other people and crimes for which Todd had

an alibi. If it is found that those incidents, among others, were fraudulently

omitted by Lt. Bletz, a court may instead find the former theory more

persuasive. But this depends on questions of fact, and thus, cannot be

determined at summary judgment.

In conclusion, the district court properly denied summary judgment

because any finding regarding whether probable cause could still exist once

Lt. Bletz’s false statements are removed, and improperly omitted evidence is

included, depends on the answers to genuinely disputed questions of fact.

Tolan, 572 U.S. at 656 (“[A] ‘judge’s function’ at summary judgment is not

‘to weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.’” (quoting Anderson v. Liberty Lobby

Inc., 477 U.S. 242, 249 (1986))); Burge v. Parish of St. Tammany, 187 F.3d

452, 481–82 (5th Cir. 1999) (“[B]ased on the present disputed state of factual

development, it is not now possible to conclude as a matter of law . . . that

[the officer] acted in an objectively reasonable manner in arresting [the

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plaintiff.]”). The district court correctly analyzed the issue, and so, we must

dismiss the interlocutory appeal. See Oliver, 3 F.4th at 162 (explaining that a

court must dismiss an interlocutory appeal where the appellants’ “legal

arguments are inextricably intertwined with his challenges to the facts . . .

over which we lack jurisdiction”).

Finally, the BSO Defendants challenge the surviving Monell claim

arguing that there is no constitutional violation on which the Monell claim

could lie. Piotrowski v. City of Hous., 237 F.3d 567, 578–79 (5th Cir. 2001)

(explaining that a Monell claim cannot exist without an underlying

constitutional violation). Since the district court did not err in finding the

false arrest claim survives summary judgment, however, the Monell claim also

survives.

III. The Phillipses’ Cross-Appeal

A. Standard of Review

“We review the district court’s grant of summary judgment de novo,

viewing all admissible evidence ‘in the light most favorable to the nonmoving

party and drawing all reasonable inferences in that party’s favor.’” Great Am.

Ins. Co. v. Emps. Mut. Cas. Co., 18 F.4th 486, 489 (5th Cir. 2021) (quoting

Kariuki v. Tarango, 709 F.3d 405, 501 (5th Cir. 2013)). That said, a plaintiff

cannot defeat summary judgment by submitting a mere scintilla of evidence

in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

B. Claims Against the BSO Defendants

The Phillipses appeal the summary judgment dismissing four of their

claims. We address each in turn.

1. Failure to disclose exculpatory evidence

The Phillipses claim that the BSO defendants violated their Brady

obligations by failing to disclose exculpatory evidence. The district court

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found these arguments were without merit because a Brady violation does not

occur as long as the evidence at issue is disclosed before the end of trial. Since

there was no trial in this case, the district court concluded that Brady did not

apply. On appeal, the Phillipses argue that the district court erred in reaching

this conclusion. They contend that the 404(b) hearing was being used to

admit evidence for the purposes of the later trial, and that later trial itself

would be summary; thus, Brady obligations were triggered.

The district court did not err. Brady forbids the prosecutors in a

criminal case from suppressing material evidence regarding a defendant’s

innocence. Brady v. Maryland, 373 U.S. 83, 87 (1976); United States v. Beasley,

576 F.2d 626, 630 (5th Cir. 1978). It “is not a discovery rule, but a rule of

fairness and minimum prosecutorial obligation.” Beasley, 576 F.2d at 630.

And “[i]t requires a retrial only if, after conviction of a defendant, it is learned

that evidence requested and not produced creates a reasonable doubt that did

not otherwise exist as to the guilt of the accused.” Id. If evidence is provided

to the defendant during trial, the court asks instead whether the defendant

was prejudiced by the tardy delivery of evidence. United States v. Neal, 27

F.3d 1035, 1050 (5th Cir. 1994). So, if the defendant is not prejudiced, then

he cannot state a claim for a Brady violation. Here, the prosecution dropped

the charges against Todd prior to trial, and Todd was never convicted. The

necessary implication of this is that Todd was never prejudiced at trial by the

evidence, and therefore, his Brady claim fails.

2. Failure to intervene

The Phillipses argue that Capt. Phillips knew Lt. Bletz was violating

Todd’s rights and had a reasonable opportunity to intervene, but failed to do

so. The court was troubled by Capt. Phillips’s failure to act on Detective

Lombardino’s report, but nevertheless concluded there was insufficient

evidence to prove all the elements of a failure-to-intervene claim. The

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Phillipses contend that they put forward enough facts to support their claim.

They argue that, through the report of Detective Lombardino, Capt. Phillips

was aware of the exculpatory evidence and knew Lt. Bletz was withholding

that evidence, but did not order Lt. Bletz to disclose it. Thus, they posit, they

have sufficiently supported their claim against Capt. Phillips to proceed to

trial.

In order to hold an officer liable for failing to intervene, the plaintiff

must demonstrate that the officer “(1) knew a fellow officer was violating an

individual’s constitutional rights, (2) was present at the scene of the

constitutional violation, (3) had a reasonable opportunity to prevent the harm

but nevertheless, (4) chose not to act.” Joseph v. Bartlett, 981 F.3d 319, 343

(5th Cir. 2020). “Bystander liability requires more than mere presence in the

vicinity of the violation; ‘we also consider whether an officer “acquiesced

in” the alleged constitutional violation.’” Id. (quoting Whitley v. Hanna, 726

F.3d 631, 647 (5th Cir. 2013)). Applying these rules, we found an excessive

force claim of bystander liability survived summary judgment when the

defendant officer stood by, laughed, and encouraged the beating of the

plaintiff. Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). On the other hand,

we dismissed false arrest claims against defendant officers when the officers

reported an awareness of the general events of the false arrest but did not

actively acquiesce to the violating officer’s behavior. Westfall v. Luna, 903

F.3d 534, 547 (5th Cir. 2018) (per curiam).

Capt. Phillips participated in the interviews of the Phillipses during

the execution of the search warrant, was involved in the decision to place

posters along Old Plain Dealing Road, met with several victims, and

discussed the case with various officers and the DAs. He was also briefed by

Detective Lombardino regarding the detective’s suspicions that Wilson was

responsible for several vandalisms in 2015 and that Lt. Bletz had advised

Detective Lombardino to inactivate those cases. So, he was certainly involved

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in the investigation. But this does not establish that Capt. Phillips knew that

Lt. Bletz was omitting exculpatory evidence and submitting false testimony

to the court. The facts as alleged do not suggest that Capt. Phillips reviewed

Lt. Bletz’s narrative report that led to Todd’s arrest or that he encouraged

Lt. Bletz to make misstatements or omit exculpatory evidence. Indeed, he

“scoffed at the idea that he would review a report submitted to the DA’s

Office.” The facts suggest that Capt. Phillips may have been generally aware

of Lt. Bletz’s investigation’s strengths and shortcomings but was not

sufficiently involved to have acquiesced in the false statements. Thus, the

district court correctly granted summary judgment to the BSO Defendants.

3. Failure to maintain adequate evidentiary practices

The Phillipses brought a Monell claim against the BSO Defendants

claiming that BSO’s evidentiary policies led to the false arrest. The BSO

maintained a policy that provided:

A detective completing a case shall prepare the case file for the

prosecution. This shall include providing the DA’s Office

copies of all reports, warrants, subpoenas, photographs, and

any other documentation related to the case that would aid in a

conviction.

The Phillipses argued to the district court that this policy led to Todd’s

harms because it explicitly requires that detectives provide only inculpatory

evidence. The court agreed that the policy was flawed, but found that the

Phillipses failed to raise a genuine dispute of material fact because (1) the

BSO Defendants provided affidavits that stated that the general practice was

to turn over the entire case file and (2) the policy was not the “moving force”

underlying Lt. Bletz’s conduct.

The district court was correct. A municipality may be held liable for a

Monell claim if there is (1) an official policy or custom, of which (2) a

policymaker can be charged with actual or constructive knowledge, and (3) a

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constitutional violation occurred whose “moving force” was that policy or

custom. Piotrowski v. City of Houston, 237 F.3d 567, 578–79 (5th Cir. 2001).

“[M]oving force” refers to a requirement that there be a “causal link”

between the challenged policy and the underlying constitutional violation. Id.

at 580. If the policy is not facially unconstitutional, a plaintiff must show that

it was “adopted with deliberate indifference to the known or obvious fact that

such constitutional violations would result.” James v. Harris Cnty., 577 F.3d

612, 617 (5th Cir. 2009) (cleaned up) (quoting Johnson v. Deep E. Tex. Reg’l

Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004)).

Generally, to find deliberate indifference, a plaintiff must present a pattern

of abuses, not an isolated violation. See Piotrowski, 237 F.3d at 582.

Here, the constitutional violation is the allegedly false arrest. That

violation is premised on Lt. Bletz making false statements in and omitting

exculpatory evidence from his narrative report and testimony. To be sure,

the BSO’s policy is questionable—it is not hard to imagine that a policy like

this one would lead to police failing to disclose to the DA exculpatory

evidence. The problem with the Phillipses’ claim is that they did not put

forward sufficient facts to support that this is what happened here. Various

officers testified that the actual practice was to turn over the entire case file,

not only the parts of the file that aided a conviction. Indeed, Lt. Bletz’s

behavior in this case presents the only known instance of an officer failing to

provide the entire file, and there is no evidence that he acted in this manner

because of the policy. Thus, the plaintiffs have not demonstrated a pattern or

practice of fraudulent conduct by BSO officers that BSO policymakers were

aware of but ignored. Therefore, the Phillipses did not show that the policy

was the “moving force” behind the false arrest and the district court

correctly dismissed this claim.

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4. Failure to supervise

The Phillipses also argued to the district court that Capt. Phillips

failed to adequately supervise his deputies, and this failure to supervise

ultimately led to Todd’s unlawful arrest and prosecution. But the court found

that the Phillipses failed to raise a genuine issue of material fact given the

uncontested facts that much of the case work was supervised by

Capt. Phillips.8

When a plaintiff alleges a failure to train or supervise, he or she must

show three things: “(1) the supervisor either failed to supervise or train the

subordinate official; (2) a causal link exists between the failure to train or

supervise and the violation of the plaintiff’s rights; and (3) the failure to train

or supervise amounts to deliberate indifference.” Davis v. City of N. Richland

Hills, 406 F.3d 375, 381 (5th Cir. 2005) (quoting Smith v. Brenoettsy, 158 F.3d

908, 911–12 (5th Cir. 1998)). Deliberate indifference in turn generally

requires that the plaintiffs demonstrate a pattern of misconduct that the

defendants chose to ignore. Id. The Phillipses must show that Capt. Phillips’s

lack of supervision was the cause of Lt. Bletz’s false statements to the state

court. They failed to do so. First, the facts demonstrate that Capt. Phillips

took a fairly active role within the investigation of Todd—he attended the

search and interview of the Phillipses, he assisted in placing the signs outside

of the Phillipses’ home, he personally issued the citation for Todd’s arrest,

and he discussed the investigation with Lt. Bletz. Second, while Capt. Phillips

did fail to review Lt. Bletz’s narrative report, and reportedly does not review

most case files, the Phillipses do not raise facts that suggest his choice not to

review the case file reflected the knowing disregard of the risk that Lt. Bletz

8

The district court did not dismiss the Phillipses’ claim of negligent supervision

with regard to how the BSO officers interacted with their confidential informants.

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would submit false statements. Thus, the Phillipses failed to offer evidence

of deliberate indifference by Capt. Phillips and the district court properly

dismissed the claim.

C. Claims Against the DA Defendants

The Phillipses also appeal the summary judgment dismissing their

false arrest and malicious prosecution claims against ADA Holland.

1. False Arrest

The Phillipses lodge their false arrest claims against the DA

Defendants as well as the BSO Defendants. The DA Defendants, like the

BSO Defendants, argued that (1) the arrest was supported by probable cause

or (2) they were entitled to qualified immunity. Specifically, the Phillipses

argued that ADA Holland would not be entitled to qualified immunity

because he purposefully elicited and submitted false information to the state

court. Unlike the claim against Lt. Bletz, however, the district court declined

to find that ADA Holland intentionally or recklessly submitted false evidence

to the court as the fraudulent actions were attributable solely to Lt. Bletz. The

Phillipses contend this was error. Like Lt. Bletz, they argue, ADA Holland

acted with tunnel vision and ignored all evidence that would have supported

Todd’s innocence, even going so far as to shut down a potentially exculpatory

investigation.

As a preliminary matter, ADA Holland does not assert that he is

entitled to absolute immunity. Thus, we examine only whether he is entitled

to qualified immunity. The Phillipses assert the same false arrest claim

against ADA Holland as they do against Lt. Bletz—that is, that ADA Holland

intentionally or recklessly made false statements of material fact and omitted

exculpatory information by submitting Lt. Bletz’s testimony and report to the

court. See Arizmendi v. Gabbert, 919 F.3d 891, 897 (5th Cir. 2019); Kohler v.

Englade, 470 F.3d 1104, 1113 (5th Cir. 2006). The issue here is whether the

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Phillipses submitted facts that support that ADA Holland knew or recklessly

disregarded the truth of Lt. Bletz’s testimony and narrative report at the time

of Todd’s 2017 arrest.

The Phillipses have not put forward such facts. Lt. Bletz omitted

exculpatory evidence from the case file and narrative report prior to

submitting the report to ADA Holland. Thus, accepting plaintiff’s facts as

true, it appears that Lt. Bletz deceived ADA Holland as well as the state

court. The Phillipses contend that ADA Holland’s review of the narrative

report and case file should have put him on notice that Todd was not the right

culprit, but that does not allow for the inference that ADA Holland knew or

recklessly disregarded the truth—at best, it shows that ADA Holland may

have been negligent. And while ADA Holland likely should have been more

thorough in his own review, negligence alone cannot satisfy the false arrest

standard. Cf. Franks v. Delaware, 438 U.S. 154, 170 (1978) (explaining there

is no constitutional violation in “instances where police have been merely

negligent in checking or recording the facts relevant to a probable-cause

determination”).9

As noted by the district court, ADA Holland’s advice to the BSO to

end its January 2017 task force is concerning. When ADA Holland learned of

the task force, he told Sheriff Whittingham that he had an “ample, solid

9

And to the extent the Phillipses do provide examples of ADA Holland allowing

testimony that he should have known was false, the record shows ADA Holland also

introduced evidence that undermined that evidence. The Phillipses point to Lt. Bletz’s

testimony about the Powerade bottle being unidentifiable, but ADA Holland also submitted

a picture of the bottle; they point to Lt. Bletz’s testimony about the statement of the

handwriting expert, but ADA Holland also called that expert directly; and they point to Lt.

Bletz’s statement regarding the cell-phone records, but ADA Holland also called the cell-

phone-record expert. That ADA Holland did not think highly of Lt. Bletz’s investigatory

skills also does not lend itself to an inference that he was enabling Lt. Bletz to lie on the

stand.

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case” against Todd and that he did not need more evidence, so the Sheriff

halted the task force. ADA Holland’s advice was questionable, given a

prosecutor’s duty under Brady to “learn of any favorable evidence known to

others acting on the government’s behalf in the case.” Kyles v. Whitley, 514

U.S. 419, 437 (1995). Nevertheless, it still does not permit the inference that,

in January 2017, ADA Holland knew that the task force revealed exculpatory

evidence and sought to halt its disclosure. Moreover, to lose his claim of

qualified immunity, ADA Holland must have violated law that is clearly

established, and the Phillipses have not directed this court to any case that

demonstrates a prosecutor may not inform an investigatory team that he

believes he has sufficient evidence to bring charges. Therefore, the district

court properly granted summary judgment on behalf of ADA Holland.

2. Malicious Prosecution

The Phillipses claimed that ADA Holland’s prosecution of Todd was

an act of malicious prosecution. The DA Defendants responded that the

Phillipses did not put forward any evidence of malice, and the court agreed.

The issue, per the court, was that all acts of malice were attributable to Lt.

Bletz and not ADA Holland. Thus, it granted summary judgment to the DA

Defendants.

Under Louisiana law, malicious prosecution requires:

(1) the commencement or continuance of an original criminal

proceeding; (2) its legal causation by the present defendant

against plaintiff who was defendant in the original proceeding;

(3) its bona fide termination in favor of the present plaintiff;

(4) the absence of probable cause for such proceeding; (5) the

presence of malice therein; (6) damages conforming to legal

standards resulting to plaintiff.

Miller v. E. Baton Rouge Parish Sheriff’s Dep’t, 511 So. 2d 446, 452 (La. 1987).

Malice is a question of fact, and “may be inferred from the lack of probable

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cause or inferred from a finding that the defendant acted in reckless disregard

of the other person’s rights.” Id. at 453. As the district court properly

concluded, if the lack of probable cause cannot be attributed to ADA

Holland’s actions, then one cannot use that lack of probable cause to infer

ADA Holland’s malice. The Phillipses also submitted independent acts of

ADA Holland. These included his statements that he would file more charges

against Todd in order to coerce a plea; that he wished to “sip a beer and

smoke a cigar [at] Hooter’s” to discuss trial strategy with Lt. Bletz; and that

he had a “constitutional right to prosecute whomever [he] want[s] when [he]

want[s].” Malice, however, requires that “hatred, animosity, or ill will [be

directed] toward the plaintiff.” Miller, 411 So. 2d at 453. This conduct does

not amount to particularized hatred or ill will toward Todd more than any

other defendant. Cf. Jenkins v. Baldwin, 801 So. 2d 485, 500–01 (La. App.

2001) (finding no malice by a city when it, through negligence or confusion

but not ill will toward the defendant, sent home a potentially exculpatory

witness before that witness testified). While ADA Holland’s actions may not

reflect the virtues that we wish to see from prosecutors, they do not reflect

malice. Thus, the district court’s granting of summary judgment is affirmed.

IV. Conclusion

Because neither the appellants nor the cross-appellants demonstrated

an error on the part of the district court, we DISMISS the appellants’

interlocutory appeal for lack of jurisdiction and we AFFIRM the summary

judgments challenged by the cross-appellants and granted by the district

court.

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