The opinion
Case: 20-50602 Document: 00516350984 Page: 1 Date Filed: 06/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 9, 2022
No. 20-50602
Lyle W. Cayce
Clerk
Steven Walker,
Plaintiff—Appellant,
versus
Chief Brent Stroman, in his individual capacity;
Detective Manuel Chavez, in his individual capacity;
Sheriff Parnell McNamara, in his individual capacity;
Abelino “Abel” Reyna, District Attorney of McLennan
County, in his individual capacity; John Doe, employee
of the Texas Department of Public Safety; John Doe,
M.D., employee or possible contractor for McLennan
County Sheriff’s Office,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-372
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No. 20-50602
Before Jones, Stewart, and Duncan, Circuit Judges.
Per Curiam:*
Steven Walker filed this civil rights lawsuit against various law
enforcement officers, asserting claims for Fourth Amendment false arrest,
among others. The district court dismissed Walker’s claims. For the reasons
that follow, we AFFIRM in part and REVERSE in part, and we
REMAND for further proceedings consistent with this opinion.
I. Facts & Procedural History
This case is one of many arising out of the infamous Twin Peaks
shootout, a gruesome event that occurred on May 17, 2015, in Waco, Texas.
The shootout resulted from a conflict between two warring motorcycle clubs,
the Bandidos and the Cossacks, attending a motorcycle rally at the Twin
Peaks restaurant. Gunfire erupted, and when the dust settled, nine people
were dead and many others were injured. In response to the melee, police
officers conducted a mass arrest of the motorcyclists who attended the rally.
Of the 177 arrests made, none led to convictions.1
The mass arrest led to the mass filing of civil rights lawsuits
challenging those arrests. This court has had several occasions to consider
those cases on appeal, starting with Terwilliger v. Reyna, 4 F.4th 270 (5th Cir.
2021). More recently, this court resolved a related set of appeals concerning
the Twin Peaks shootout in Wilson v. Stroman, 33 F.4th 202 (5th Cir. 2022),
and Redding v. Swanton, No. 20-50769, 2022 WL 1283931 (5th Cir. Apr. 29,
2022) (unpublished).
*
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opinion should not be published and is not precedent except under the limited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
For additional background on the Twin Peaks shootout, see Terwilliger v. Reyna,
4 F.4th 270, 277–79 (5th Cir. 2021).
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Like Walker, the plaintiffs in those cases were all motorcyclists who
attended the rally at Twin Peaks and who “were eventually arrested
following the shootout for Engaging in Organized Criminal Activity
(‘EIOCA’), in violation of Texas Penal Code § 71.02.” Wilson, 33 F.4th at
205. Also like Walker, they were all arrested pursuant to a boilerplate warrant
affidavit, subsequently issued by a magistrate judge, that “was identical in
every respect” save for the individual arrestees’ names. Id. The Terwilliger
plaintiffs were never indicted for EIOCA following their arrests. See id.
Neither was Walker. In contrast, the Wilson and Redding plaintiffs were
subsequently indicted. Id.; Redding, 2022 WL 1283931, at *1. All these
plaintiffs, including Walker, eventually filed “individual § 1983 actions
asserting similar false arrest claims, which are premised on alleged defects in
the form affidavit used to secure the arrest warrants.” Wilson, 33 F.4th at
205.
Walker specifically pleaded claims pursuant to 42 U.S.C. § 1983 for
Fourth Amendment false arrest, substantive due process violations under the
Fourteenth Amendment, conspiracy, and municipal liability. He named
several city and county officials as defendants. The city officials were Brent
Stroman, the Waco Police Department’s Chief of Police, and Manuel
Chavez, a Waco police officer. The county officials were Sheriff Parnell
McNamara, District Attorney Abelino “Abel” Reyna, and two John Doe
defendants. The defendants moved to dismiss, asserting qualified immunity.
Reyna additionally asserted absolute prosecutorial immunity. The district
court granted the defendants’ motions to dismiss and entered final judgment.
Walker timely appealed.
II. Standard of Review
“We review a district court’s ruling on a motion to dismiss de novo,
accepting all well-pleaded facts as true and viewing those facts in the light
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most favorable to the plaintiffs.” Dyer v. Houston, 964 F.3d 374, 379 (5th Cir.
2020) (quoting Anderson v. Valdez, 845 F.3d 580, 589 (5th Cir. 2016)). “To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
When a motion to dismiss asserts qualified immunity, “[t]he crucial
question is ‘whether the complaint pleads facts that, if true, would permit the
inference that Defendants are liable under § 1983 . . . and would overcome
their qualified immunity defense.’” Terwilliger, 4 F.4th at 280 (quoting
Hinojosa v. Livingston, 807 F.3d 657, 664 (5th Cir. 2015)). The plaintiff bears
the burden of showing that qualified immunity is inappropriate. Id. “To
discharge this burden, plaintiffs must successfully allege that the defendants
‘violated a statutory or constitutional right, and . . . that the right was “clearly
established” at the time of the challenged conduct.’” Id. at 284
(quoting Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)).
III. Discussion
On appeal, Walker only presses his claims for Fourth Amendment
false arrest against Chavez and Reyna; he concedes that the district court
properly dismissed his other claims. His Fourth Amendment claim closely
tracks the claims brought in Terwilliger. There, as here, the plaintiffs took
“aim at the form warrant affidavit,” alleging “that defects in that affidavit
led to them being arrested without particularized probable cause.” Wilson, 33
F.4th at 206 (citing Terwilliger, 4 F.4th at 279). They, like Walker, alleged
two distinct types of Fourth Amendment false arrest claims: (1) that the
“affidavit facially failed to establish probable cause” under Malley v. Briggs,
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475 U.S. 335 (1986); and (2) that “intentional or reckless false statements in
the affidavit resulted in a warrant lacking probable cause” under Franks v.
Delaware, 438 U.S. 154 (1978). Terwilliger, 4 F.4th at 279.
Walker complains that although he pleaded the same claims against
the same defendants as the Terwilliger plaintiffs, their claims survived
dismissal whereas his did not. Specifically, the district court in Terwilliger
declined to dismiss the plaintiffs’ Franks claim. 4 F.4th at 279. This court
affirmed that part of the district court’s judgment, agreeing that the plaintiffs
“state[d] a plausible Franks claim against” Chavez and Reyna. Id. at 285.
Walker asserts that because his Fourth Amendment claim is materially
identical to the Terwilliger plaintiffs’ claim, the district court erred in
reaching a different result here. The defendants respond that, unlike the
Terwilliger plaintiffs, Walker alleged only conclusory allegations that are
insufficient to state a claim or overcome qualified immunity. Separately,
Reyna reasserts prosecutorial immunity. He also says that Walker lacks
standing to pursue a Fourth Amendment claim against him and that Walker
waived the Fourth Amendment claim. We address these arguments below.
A. Standing
We start with Reyna’s standing argument. This court has subject-
matter jurisdiction only over “Cases” and “Controversies.” U.S. Const.
art. III, § 2. This requires that a plaintiff have standing, meaning that the
plaintiff must establish “(1) that he or she suffered an injury in fact that is
concrete, particularized, and actual or imminent, (2) that the injury was
caused by the defendant, and (3) that the injury would likely be redressed by
the requested judicial relief.” Thole v. U.S. Bank N.A., ___ U.S. ____, 140
S. Ct. 1615, 1618 (2020). In other words, the plaintiff must show “personal
injury fairly traceable to the defendant’s allegedly unlawful conduct and
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likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 342 (2006).
Reyna argues that Walker lacks standing to pursue a Fourth
Amendment claim against him because he did not cause Walker’s alleged
injury. For support, he exclusively relies on Daves v. Dallas County, 22 F.4th
522 (5th Cir. 2022) (en banc), which considered the promulgation of bail
schedules in Texas.. The plaintiffs in Daves were indigent pretrial detainees
while the relevant defendants were state district, county, and magistrate
judges. Id. at 529. Allegedly, the defendants unconstitutionally imposed
secured money bail on the plaintiffs without providing “procedural
safeguards or substantive findings that” money bail was necessary. Id. at 528.
The en banc court held that the plaintiffs lacked standing to sue the district
and county judges because they did not cause the plaintiffs’ injuries. Id. at
543–44. It emphasized that although the district and county judges
promulgated the bail schedules, they did not make them binding on the
magistrate judges who applied them. Id. at 543. Accordingly, the magistrate
judges retained discretion in applying the bail schedules, meaning that the
plaintiffs could only trace their injuries to the magistrate judges. Id. at 543–
44.
Reyna contends that he is similarly situated to the district and county
judges who promulgated the bail schedules in Daves. He acknowledges that
he “provided criteria for law enforcement personnel to apply to determine
whether probable cause existed.” But he argues that he did not cause
Walker’s arrest, which he frames as an unpredictable misapplication of the
criteria he provided by independent, third-party law enforcement officers.
Walker’s allegations thwart this argument. Reyna allegedly told officers that
probable cause existed to arrest all individuals who were present at Twin
Peaks and wearing gear reflecting support for the Bandidos or Cossacks. He
did so despite knowing that these criteria were overinclusive. As explained
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below, this court has already determined that similar “allegations are
sufficient to tie him to potential Franks liability.” Terwilliger, 4 F.4th at 284.
Walker thus has standing to sue Reyna notwithstanding Daves.2
B. Waiver
Next, we dispense with Reyna’s argument that Walker waived his
Franks-based Fourth Amendment claim by failing to sufficiently brief it
below. Reyna contends, as he did before the district court, that Walker did
not respond to his argument that Walker inadequately pleaded a Franks
claim. The district court seemingly agreed, observing that Walker “did not
even try to defend his allegation[s] [regarding the Franks claim] in his
response to Defendants’ motion to dismiss.” Accordingly, Reyna argues that
Walker did not preserve his Franks claim. For his part, Walker contends that
the district court erroneously dismissed his Franks claim because it
concluded that he failed to adequately respond to the motion to dismiss.
As an initial matter, the district court did not dismiss Walker’s Franks
claim based on waiver. To be sure, the district court found Walker’s briefing
on the issue to be wanting. But the district court dismissed his Franks claim
because it concluded that his “[c]omplaint only pleads conclusions,” not
because he waived the claim. Walker’s argument otherwise is speculative at
best. Moreover, even if the district court had dismissed this claim on waiver
grounds, that would not preclude this court from reviewing the sufficiency of
Walker’s complaint. Even where a party “ha[s] not briefed [an] issue at
all, Rule 12 does not by its terms require an opposition; failure to oppose a
2
What is more, this court decided Wilson, 33 F.4th 202, and Redding, 2022 WL
1283931, several months after it decided Daves. Reyna was a named defendant in both cases,
but neither considered the possibility that the plaintiffs lacked standing to sue him.
Although we must independently confirm our jurisdiction, the failure of Wilson and Redding
to address Daves underscores that the case has little relevance here.
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12(b)(6) motion is not in itself grounds for granting” a motion to dismiss.
Servicios Azucareros de Venez., C.A. v. John Deere Thibodeaux, Inc., 702 F.3d
794, 806 (5th Cir. 2012). Instead, “a court assesses the legal sufficiency of
the complaint.” Id. (citing Fed. R. Civ. P. 12(b)(6)). A district court thus
abuses its discretion when it dismisses a complaint “as a penalty for [a
plaintiff’s] perceived failure to properly brief its opposition to” a motion to
dismiss. Id. Accordingly, Walker’s admittedly terse response to Reyna’s
motion to dismiss did not waive his Franks claim.3
C. Merits
We now turn to the merits of this appeal. Walker argues that the
district court’s dismissal of his Franks claim contradicts this court’s analysis
in Terwilliger, where plaintiffs pleaded essentially the same claim against the
same defendants. Comparing his allegations “point-by-point” against those
deemed sufficient in Terwilliger, Walker insists that he sufficiently pleaded a
3
Similarly, we disagree with Reyna’s assertion that Walker has improperly raised
arguments for the first time on appeal. The arguments in question concern Terwilliger,
4 F.4th 270, which this court decided a year after the district court dismissed Walker’s
complaint and Walker appealed. Because Walker’s arguments were unavailable before this
court decided Terwilliger, he has not waived them. Nor did Walker broadly waive all other
arguments supporting his Franks claim, as Reyna suggests. Although Walker did not
vigorously defend this claim below, the issue was certainly “raised to such a degree that the
trial court may rule on it,” as the district court did here. HSBC Bank USA, N.A. v. Crum,
907 F.3d 199, 207 (5th Cir. 2018) (quotation omitted). Walker therefore preserved this
issue.
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Franks claim. The defendants counter that Walker’s allegations are
conclusory and that they are entitled to qualified immunity.4
“Liability under Franks can arise from either material misstatements
or material omissions in warrant affidavits.” Terwilliger, 4 F.4th at 281.
Franks is as an exception to the independent intermediary doctrine. Wilson,
33 F.4th at 208 (collecting cases). That doctrine provides that “if facts
supporting an arrest are placed before an independent intermediary such as
a magistrate or grand jury, the intermediary’s decision breaks the chain of
causation for false arrest, insulating the initiating party.” McLin v. Ard, 866
F.3d 682, 689 (5th Cir. 2017) (quoting Deville v. Marcantel, 567 F.3d 156, 170
(5th Cir. 2009)).
But “the initiating party may be liable for false arrest if the plaintiff
shows that ‘the deliberations of that intermediary were in some
way tainted by the actions of the defendant.’” Wilson, 33 F.4th at 208
(emphasis in original) (quoting Deville, 567 F.3d at 170). In other words, the
causal chain remains unbroken if the initiating officer “deliberately or
recklessly provides false, material information for use in an affidavit” or
“makes knowing and intentional omissions that result in a warrant being
issued without probable cause.” Anokwuru v. City of Houston, 990 F.3d 956,
964 (5th Cir. 2021) (quoting Melton v. Phillips, 875 F.3d 256, 264 (5th Cir.
4
Reyna also asserts that, as a prosecutor, he is entitled to absolute immunity. But
Terwilliger foreclosed this argument. There, this court observed that because Reyna “was
allegedly ‘[c]reating or manufacturing new facts,’” his actions were distinguishable from
“those of an advocate supplying legal advice.” Terwilliger, 4. F.4th at 281 (quoting Spivey
v. Robertson, 197 F.3d 772, 776 (5th Cir. 1999)). The Terwilliger plaintiffs alleged that Reyna
actively investigated the shooting, received continuous updates regarding the investigation,
and had access to exculpatory video and interview evidence but nonetheless authorized a
mass arrest. Id. Based on these allegations, this court concluded that “Reyna’s immunity
is limited to that of a law enforcement officer.” Id. Walker alleged the same material facts,
so we similarly conclude that Reyna is not entitled to absolute immunity.
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2017) (en banc)). “To determine whether facts omitted from a warrant
affidavit are material to the determination of probable cause, courts ordinarily
insert the omitted facts into the affidavit and ask whether the reconstructed
affidavit would still support a finding of probable cause.” Loftin v. City of
Prentiss, ___ F.4th ____, 2022 WL 1498876, at *5 (5th Cir. May 12, 2022)
(quoting Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006)).
Terwilliger “sets the lay of the land for analyzing . . . false arrest
claims” arising from the Twin Peaks shootout and subsequent mass arrest.
Wilson, 33 F.4th at 207. First, Terwilliger reads the challenged affidavit “as
(1) generally alleging that members of the Bandidos and Cossacks engaged in
violent activity at the Twin Peaks that amounted to EIOCA, and (2) linking
each specific subject of the warrant to that general set of probable cause-
establishing facts, thus creating particularized probable cause to arrest each
subject.”5 Id. (citing Terwilliger, 4 F.4th at 282–83). Second, Terwilliger held
that the plaintiffs there “successfully pleaded Franks claims by plausibly
alleging” that:
(1) they were not associated with the Bandidos or Cossacks and
that they had nothing to do with the violent activity that is
described in the affidavit and (2) certain defendants recklessly
or knowingly caused it to be stated otherwise in the affidavit
(i.e., a material misstatement) and/or excluded from the
5
Accordingly, Walker cannot prevail on his Malley-based Fourth Amendment
claim. “The Malley wrong is not the presentment of false evidence, but the obvious failure
of accurately presented evidence to support the probable cause required for the issuance of
a warrant.” Melton v. Phillips, 875 F.3d 256, 264 (5th Cir. 2017) (en banc). An officer avoids
Malley liability “if he presents a warrant affidavit that facially supplies probable cause to
arrest the subject of the warrant.” Wilson, 33 F.4th at 206. The district court dismissed
Walker’s Malley claim, concluding that the challenged affidavit did not facially lack
probable cause. Because Terwilliger construed the challenged affidavit as “creating
particularized probable cause to arrest each subject,” we agree that Walker’s Malley claim
fails. Id. at 207 (citing Terwilliger, 4 F.4th at 282–83).
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affidavit information in their possession that would have
materially undermined the aforementioned particularized
probable cause (i.e., a material omission).
Id. (citing Terwilliger, 4 F.4th at 282–83). Thus, to establish a Franks
violation, Walker must have plausibly alleged that he was not involved with
the Bandidos, the Cossacks, or the violence at Twin Peaks and that the
defendants recklessly or knowingly caused his false arrest by either including
material misstatements in the affidavit or excluding material exculpatory
information from the affidavit. See id.
Like the Terwilliger plaintiffs, Walker (1) “den[ies] affiliation with the
Bandidos or Cossacks, and any involvement with or membership in a
‘criminal street gang’”; (2) alleges that his behavior and any motorcycle-
related gear he wore on the day of the shootout was lawful; and (3) alleges
that the defendants “deliberately excluded” exculpatory information “such
as video evidence, witness interviews, and membership in motorcycle clubs
known to be independent and not affiliated with the Bandidos or Cossacks.”
Terwilliger, 4 F.4th at 282–83 (footnote omitted). Therefore, as in Terwilliger,
“the remaining particularized facts in the affidavit are that ‘[a]fter the
altercation, the subject was apprehended at the scene, while wearing
common identifying distinct signs or symbols.’” Id. at 283. Accepting
Walker’s allegations as true and viewing them in his favor, this “corrected
affidavit” does not establish probable cause for arresting Walker on an
EIOCA charge. See id.
To avoid this conclusion, Chavez argues that Walker defeated his own
Franks claim by alleging that the defendants “arbitrarily decided” whether
Walker’s clothing demonstrated “support” for the Bandidos or Cossacks.
Chavez asserts that the Terwilliger plaintiffs did not plead these allegations in
their complaint and that the “allegations affirmatively defeat the necessary
mens rea element of a viable Franks claim.” But reading Walker’s complaint
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in the light most favorable to him, these allegations are consistent with his
contention that the defendants submitted false information in reckless
disregard of exculpatory evidence. Further, Chavez does not provide any
authority to support his argument. In any event, the plaintiffs in Terwilliger
did in fact plead similar allegations, as Walker points out. Chavez’s argument
is thus unavailing.
Reyna separately argues that Walker failed to allege facts establishing
his individual liability under Franks. For Franks liability to attach to an
officer, the officer “must have assisted in the preparation of, or otherwise
presented or signed a warrant application.” Melton, 875 F.3d at 263. “If an
officer does not present or sign the affidavit, liability attaches only if ‘he
helped prepare the complaint by providing information for use in
it.’” Terwilliger, 4 F.4th at 283 (quoting Melton, 875 F.3d at 263).
Because Reyna did not sign or swear to the challenged affidavit, he is
liable under Franks only “if he provided material information for use in the
affidavit.”6 Id. at 284. In Terwilliger, this court held that the plaintiffs’
allegations were sufficient for Franks liability to attach to Reyna. Id. The
plaintiffs pleaded that Reyna, notwithstanding contrary evidence, ordered a
mass arrest for EIOCA, thereby “generat[ing] the basic facts set out in the
probable cause affidavit.” Id. Allegedly, Reyna “knew the exact wording of
the affidavit” and “knew or recklessly disregarded the fact that, based on the
exculpatory evidence he had learned, probable cause did not exist to arrest
some individuals potentially fitting the warrant’s criteria.” Id. Likewise,
Walker alleged that Reyna “knew the exact wording of the probable cause
affidavit,” was “involved in every aspect of the investigation,” and
6
In contrast, Chavez “is within the compass of potential Franks liability because
he signed the warrant affidavit and swore to the validity of the facts included in it.”
Terwilliger, 4 F.4th at 283.
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knowingly or recklessly disregarded exculpatory evidence. For this reason,
Reyna cannot escape Franks liability.7
To close, Walker sufficiently pleaded a Franks claim against Chavez
and Reyna for essentially the same reasons stated in Terwilliger. It has long
“been clearly established that a defendant’s Fourth Amendment rights are
violated if (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.’” Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018) (quoting Franks,
438 U.S. at 155–56). Accordingly, we conclude that the defendants are not
entitled to qualified immunity for violating Walker’s Fourth Amendment
rights and that the district court erred when it dismissed this claim.
IV. Conclusion
For the foregoing reasons, the district court’s judgment that Chavez
and Reyna are not subject to potential Franks liability is REVERSED, and
7
Reyna additionally argues that he is not subject to § 1983 liability because he was
not legally authorized to direct Chavez to arrest Walker and thus did not act under color of
state law. See Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1416 (5th Cir. 1995)). We
disagree. For starters, Reyna waived this argument by not raising it below despite having
the opportunity to do so. Sindhi v. Raina, 905 F.3d 327, 333 (5th Cir. 2018).
Further, this argument would fail even if it were preserved. This case does not
involve an attempt to hold a third party liable for the conduct of an “immediate
perpetrator.” Doe, 66 F.3d at 1407. Rather, Walker’s claim against Reyna is for Reyna’s
alleged independent actions: contributing false or incomplete information to the affidavit
that led to Walker’s arrest. An officer acted under color of law for § 1983 purposes if he
“misused or abused his official power” and “there is a nexus between the victim, the
improper conduct, and the officer’s performance of official duties.” Gomez v. Galman, 18
F.4th 769, 776 (5th Cir. 2021) (per curiam) (quoting Bustos v. Martini Club, Inc., 599 F.3d
458, 464–65 (5th Cir. 2010)). Viewing Walker’s complaint in the light most favorable to
him, Reyna acted under color of state law when he used his authority as the District
Attorney to involve himself in the investigation and contribute to the warrant affidavit.
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its judgment that they are not subject to potential Malley liability is
AFFIRMED. This case is REMANDED for further proceedings
consistent with this opinion.
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