Richard Betker v. Rodolfo Gomez

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3009

R ICHARD B ETKER,

Plaintiff-Appellee,

v.

R ODOLFO G OMEZ, Police Officer,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:08-cv-00760-LA—Lynn Adelman, Judge.

A RGUED JUNE 8, 2012—D ECIDED S EPTEMBER 5, 2012

Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. Richard Betker was shot

twice during a late-night police raid on his home. The

officer who shot him was part of a tactical unit executing

a no-knock search warrant secured by Officer Rodolfo

Gomez. Officer Gomez obtained the warrant after

receiving information from Debbie Capol, the estranged

sister of Richard’s wife, Sharon, regarding Sharon being

a convicted felon allegedly in possession of a firearm.

2 No. 11-3009

Capol now swears that most of the information that

Officer Gomez related in his affidavit to support the

warrant’s issuance was not true.

Richard sued Officer Gomez under section 1983 for

violating his Fourth Amendment right to be free from

unreasonable searches and seizures. Richard claims

that Officer Gomez made a series of false or misleading

statements in the affidavit that he submitted to obtain

the no-knock search warrant and that without those

statements probable cause would not have existed. At

the close of discovery, Officer Gomez moved the

district court for qualified immunity. The district court

denied the motion and Officer Gomez now appeals. We

conclude that qualified immunity is not appropriate in

this case because Betker has produced sworn deposi-

tion testimony of Sharon’s estranged sister contra-

dicting Officer Gomez’s probable cause affidavit. If be-

lieved, that deposition testimony would establish that

Officer Gomez knowingly or with reckless disregard for

the truth made false or misleading statements in the

affidavit. Absent Officer Gomez’s false statements, proba-

ble cause for the no-knock warrant would not have

existed. Therefore, we affirm the district court’s denial

of Gomez’s request for qualified immunity.

I. BACKGROUND

At 10:00 p.m. on August 4, 2006, roughly fifteen

officers from the Milwaukee Police Department’s Tactical

Enforcement Unit (TEU) executed a no-knock search

warrant on the home of Richard and Sharon Betker on a

No. 11-3009 3

tip from Sharon’s estranged sister indicating that Sharon

was a felon in possession of a firearm. Upon arrival,

officers smashed the home’s front window as a “distrac-

tion.” They activated their red and blue police lights and

beamed a powerful, blinding spotlight through the

broken window and into the home. Sharon and Richard

Betker, comfortably asleep in bed, were suddenly awak-

ened by the violent crash of shattered glass and became

disoriented by the loud, screaming voices and the

bright, flashing lights. Unable to comprehend the com-

mands being shouted by TEU officers, Richard instinc-

tively thought that his home had been invaded. He

grabbed one of his firearms, crouched behind a wall

next to the couple’s bedroom doorway, and shouted,

“Who are you? What do you want? Who are you, who

the f__ are you!” Receiving no response, and feeling

that his and his wife’s safety were at risk, Richard

extended his arm into the doorway and brandished

his weapon to show the apparent intruders that he

was armed and ready to defend his domain.

Seeing Richard’s outstretched arm holding a weapon,

TEU Officer Allen Groszczyk immediately fired. His

first shot penetrated the door and bedroom wall, hitting

Richard in his hand. Groszczyk’s other shots traveled

the same path and struck Richard’s shoulder. With

Richard down, officers swarmed the room and detained

both him and his wife. Although Officer Groszczyk

claims to have yelled “search warrant—police!” before

firing, Richard denies hearing or comprehending any

verbal notifications or instructions.

4 No. 11-3009

With Richard and Sharon securely in custody, the TEU

officers began a search of the residence. Officer Rodolfo

Gomez was one of the officers who searched the

home. He discovered and seized live ammunition and a

number of weapons, including five rifles, four shotguns,

and a revolver. Other TEU officers found another hand-

gun located between the headboard and mattress of

the couple’s bed and one more by Richard’s bedside

table. Richard was arrested for recklessly endangering

the safety of others in violation of Wisconsin Statute

§ 941.30. However, he was never charged. And all of

the weapons seized that night have since been returned.

A few days earlier, on July 27, 2006, Debbie Capol called

the MPD’s “Gun Hotline” to report that her estranged

sister, Sharon Betker, was a felon in possession of a

firearm. MPD established the hotline as part of a con-

certed campaign to reduce the number of illegal firearms

in Milwaukee. Citizens’ calls were usually answered

by MPD officers. When Capol called, she spoke to

Officer Rodolfo Gomez. Capol identified herself, pro-

vided her home address, telephone number, and date of

birth, and then asked whether it was illegal for a felon

to possess a firearm. Officer Gomez affirmatively re-

sponded. Capol then described her sister’s alleged crime.

The parties dispute the content of Capol’s initial state-

ment to Gomez, as well as what she said to him during

their subsequent conversations. Since this case was ap-

pealed from a denial of qualified immunity, we

construe the facts and evidence in the light most

favorable to the plaintiff, Jewett v. Anders, 521 F.3d 818,

No. 11-3009 5

822-23 (7th Cir. 2008), and we do that in the narrative

that follows.

When Capol first spoke to Officer Gomez on July 27,

2006, she told him that Sharon was a convicted felon

and that Sharon and her husband, Richard, possessed

numerous firearms in their Franklin, Wisconsin home.

However, she made clear that she had not personally

seen the firearms in question because she had last

visited Sharon’s home five years earlier, in 2001. Capol

also told Gomez that in light of her rocky relationship

with her sister she “was concerned about appearing to

want to ‘burn’ Sharon, or have Sharon arrested.” Even so,

she expressed fear for her own safety because, moments

earlier, her son, Zachariah Hamburg, had informed her

that Sharon said she would shoot Capol if Capol ever

“drove down 76th Street,” where Sharon lived. Zachariah

relayed the threat to his mother after he and Sharon

had an argument. Capol immediately called the gun

hotline.

After speaking with Capol, Officer Gomez conducted

a preliminary investigation. This consisted of a “property

check” to confirm Sharon and Richard’s ownership of

the home on 76th Street, a brief “drive by” the home, four

days later, to take photos and “verify the address and

location of the residence,” and a routine background

check to determine if Sharon had, in fact, been convicted

of a felony. Officer Gomez’s preliminary investigation

revealed that Sharon was convicted of credit card fraud

in 1982, a felony at that time, and she lived with her

husband Richard at the house on 76th Street. Officer

6 No. 11-3009

Gomez never spoke to Zachariah to corroborate Capol’s

account of Sharon’s alleged threat. He did not speak

directly with Sharon or Richard. And he did not attempt,

in any way, to independently verify that Sharon

and Richard kept firearms in their home.

But Gomez did contact Capol again, on August 3, 2006.

Capol reiterated that she had not been to Sharon’s

home since 2001, but said that when she was last there she

saw a gun in Sharon’s bedroom, gun holsters on each

side of the bed, and a gun in a cabinet that Sharon

said was there “in case anybody was to mess around

with the garage, the cars, or . . . [the] barn.” Richard,

according to Capol, possessed hunting rifles and stuffed

game, hunted illegally, and was once arrested for killing

a coyote. Capol reported that Richard and Sharon main-

tained a home “full of guns.” She reached this con-

clusion based on her pre-2001 visits and information

she received from her boyfriend, Dennis Ham-

burg—who had been told by another friend, William

Acker, that the Betkers recently had a “rummage sale”

during which they did not sell any firearms (the implica-

tion being that the Betkers had guns in the past and did

not sell any, so they must still have them). Neither Capol

nor Dennis attended the rummage sale. And Officer

Gomez did not attempt to contact Acker to obtain

more information about what he did or did not see

while at the Betker’s home.

Following this conversation, Officer Gomez ran a

routine background check on Richard, confirming that

Richard had once been arrested for illegally shooting

No. 11-3009 7

and killing a coyote (a Milwaukee ordinance violation).

The next day, August 4, 2006, Officer Gomez drafted a

form affidavit to present to the County Court Commis-

sioner to obtain a no-knock search warrant for the

Betker home. Accepting the advice of the Assistant

District Attorney, Officer Gomez contacted the

Wisconsin Department of Natural Resources (“DNR”) to

determine if Richard had obtained the proper hunting

permits. The DNR check revealed that Richard had ob-

tained hunting licenses in four out of the five previous

years. Officer Gomez incorporated this information into

his affidavit and presented it to the ADA, who signed

it without delay.

The relevant parts of the affidavit that Officer Gomez

submitted to the Commissioner stated:

4) The affiant knows through personal involve-

ment in this investigation and through reports

and documents . . . that a convicted felon named

Sharon Marie Betker (Capol), white female . . . is

reported to be in possession of at least 1 handgun,

a dark colored semi-automatic handgun, at her

residence. . . . A known citizen witness, who

wishes to remain anonymous, stated that within

the last 5 days, the informant has observed

BETKER in possession or control of at least one

handgun, at the above-described address. In

addition, the informant stated that Betker and

her husband RICHARD BETKER (w/m . . . ) possess

numerous hunting rifles and that they both

engage in illegal hunting and the informant has

8 No. 11-3009

seen stuffed animals like eagles, which are a pro-

tected species, in the residence. Affiant checked

with the Wisconsin Department of Natural Re-

sources and confirmed that Richard Betker at

the above address obtained a Resident Gun Deer

License in 2001 and a Small Game License in

2003, thus corroborating the information related

to firearms at the residence.

The witness gave a detailed description of the

address that affiant later corroborated in person.

In addition, affiant went to the location and ob-

served a female matching the informant’s descrip-

tion of BETKER at the residence. (The informant

describes BETKER as a white female 5’6"-5’7",

250lbs).

The confidential informant states that he/she

is familiar with weapons and the affiant con-

firmed through interrogation of the informant

that the informant had a sound understanding

of firearms, and knows the difference between

semi-automatic weapons, revolvers, rifles, shot-

guns, and non-firearm weapons such as com-

pressed air guns. Affiant knows through an

NCIC check . . . that BETKER is a convicted felon

from Case #1982CF004956, Theft by Fraud.

5) The affiant believes that the informant is a

credible person because the informant has given

law enforcement officers information, which has

been directly corroborated by the knowledge

and past experience of law enforcement officers.

No. 11-3009 9

The informant is a citizen witness with prior

criminal convictions but is not currently under

indictment in Milwaukee County for any

criminal charges.

6) Affiant knows that firearms are not readily

consumed and that they remain in close

proximity to individuals engaged in ongoing

criminal enterprises.

***

9) That it is common for more than one firearm

to be located in a residence and that the informa-

tion presented in this affidavit forms the basis

to request a NO-KNOCK warrant. Specifically

affiant states that the possession of firearms on

person(s) involved in criminal activity, or having

immediate access to them, possesses a severe

and real threat to the safety of the officers exe-

cuting the search warrant.

(Alteration of ¶ 6 in original).

The Commissioner immediately granted Officer Gomez’s

request for a no-knock warrant. Within a few hours, Officer

Gomez contacted Capol once more to be sure that

the circumstances she previously described had not

changed and that she did not want to make any correc-

tions to her past statements. A few hours later, at

10:00 p.m., the TEU raided the Betkers’ home, Richard

was severely wounded, and the firearms in his home

were seized. Though he was shot multiple times,

Richard never fired his weapon.

10 No. 11-3009

Richard brought this section 1983 action against several

of the officers involved with the raid (including Officer

Gomez), the police chief, and the City of Milwaukee. He

claimed that the defendants violated his constitutional

rights by obtaining and executing the no-knock search

warrant without probable cause. The defendants re-

moved this case to federal court and moved for

summary judgment. The court granted summary

judgment in favor of all of the defendants except Gomez.

The court found a genuine issue of material fact

regarding whether Gomez intentionally or with reckless

disregard for the truth made false or misleading rep-

resentations in the affidavit he submitted to obtain

the no-knock warrant. Officer Gomez appeals the

denial of his request for qualified immunity.

II. ANALYSIS

The only issue presented on appeal is whether

Officer Gomez is entitled to qualified immunity. We

have jurisdiction to consider this interlocutory appeal

of the district court’s denial of Gomez’s request for quali-

fied immunity because it raises a “purely legal question.”

See Estate of Escobedo v. Bender, 600 F.3d 770, 778 (7th

Cir. 2010). Our review is de novo. Id.

Qualified immunity shields a government official from

liability for civil damages unless his or her conduct violates

a clearly established principle or constitutional right of

which a reasonable person would have known at the time.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Sanville v.

McCaughtry, 266 F.3d 724, 732 (7th Cir. 2011). There is a

No. 11-3009 11

two-part test for qualified immunity: “(1) whether the

facts, taken in the light most favorable to the plaintiff,

show that the defendants violated a constitutional

right; and (2) whether that constitutional right was

clearly established at the time of the alleged violation.”

McComas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012).

But we may address these questions in any order. Id.

“A warrant request violates the Fourth Amendment

if the requesting officer knowingly, intentionally, or

with reckless disregard for the truth, makes false state-

ments in requesting the warrant and the false

statements were necessary to the determination that a

warrant should issue.” Knox v. Smith, 342 F.3d 651, 658

(7th Cir. 2003). We have said that a “reckless disregard

for the truth” can be shown by demonstrating that the

officer “entertained serious doubts as to the truth” of

the statements, had “obvious reasons to doubt” their

accuracy,” or failed to disclose facts that he or she “knew

would negate probable cause.” Beauchamp v. City of

Noblesville, Ind., 320 F.3d 733, 743 (7th Cir. 2003).

An officer who knowingly or recklessly submitted

an affidavit containing false statements may still get

qualified immunity if he can establish that he had an

objectively reasonable basis for believing the facts in

the affidavit were sufficient to establish probable cause.

See Malley v. Briggs, 475 U.S. 335, 344 (1986). But

qualified immunity does not extend where an officer

knowingly or recklessly made false statements and “no

accurate information sufficient to constitute probable

cause attended the false statements.” Lawson v. Veruchi,

12 No. 11-3009

637 F.3d 699, 705 (7th Cir. 2010) (citation omitted). Al-

though the privilege of qualified immunity is a defense,

the plaintiff bears the burden of defeating it. Molina v.

Cooper, 325 F.3d 963, 968 (7th Cir. 2003).

A. A Reasonable Jury Could Find that Officer Gomez

Knowingly or with Reckless Disregard for the

Truth Made False or Misleading Statements in

His Affidavit.

The dispute in this case centers on whether Officer

Gomez “knowingly or with reckless disregard for

the truth” made false or misleading statements in the

affidavit he submitted in support of his application for

the no-knock search warrant. The parties also disagree

about whether probable cause would have existed even

absent the alleged false and misleading statements. Our

task is to decide whether the record contains undisputed

evidence demonstrating Officer Gomez’s entitlement

to qualified immunity as a matter of law. See Olson v.

Tyler, 771 F.2d 277, 281-82 (7th Cir. 1985). Viewing the

facts in the light most favorable to Betker, as we must,

we agree that a reasonable jury could find that

Officer Gomez knowingly or with reckless disregard for

the truth made false statements in his affidavit, without

which probable cause for the no-knock warrant would

not have existed. Three (of the many) disputed facts

are particularly persuasive.

First, in paragraph 4 of his affidavit, Officer Gomez

stated that the informant told him that “within the last

5 days” she “observed” Sharon “in possession or control

No. 11-3009 13

of at least one handgun” at the Betker’s home. Capol’s

deposition testimony, however, contradicts Gomez’s

assertion. Capol denied saying that she observed any

weapons in Sharon and Richard’s home because, as

she explained, “the last time [she] was in the house” was

in 2001. She testified that she did not personally see

Sharon with a gun five days before the warrant was

executed, but she “had somebody who did,” William

Acker. Acker told Dennis Hamburg, who in turn told

Capol. But Acker did not say that he had seen guns at

the Betker home. He said that he did not see the Betkers

selling any firearms at the rummage sale. From this

information, transmitted (and possibly transmuted)

through Dennis Hamburg, Capol concluded that the

Betkers’ home was “full of guns.” A reasonable jury

could find that Officer Gomez knowingly made a false

statement by swearing that Capol saw Sharon possess

a firearm at her home within the last five days.

Second, Officer Gomez averred, also in paragraph 4 of

his affidavit, that Capol informed him that both Sharon

and Richard “possess numerous hunting rifles and that

they both engage in illegal hunting.” He also stated

that Capol said she was “familiar with weapons” and

“knows the difference between semi-automatic weapons,

revolvers, rifles, shotguns, and non-firearm weapons

such as compressed air guns.” These declarations—like

Officer Gomez’s statement that Capol personally

observed Sharon with a gun within the previous five

days—are inconsistent with Capol’s sworn deposition

testimony. Capol’s account is that she told Officer

Gomez that Richard “is a hunter . . ., has guns . . ., [and]

14 No. 11-3009

baited deer on his property,” not Sharon. Even Officer

Gomez does not deny this, admitting during his deposi-

tion that Capol told him that Richard owned hunting

rifles and occasionally hunted illegally, and his DNR

check revealed that Richard obtained hunting licenses

during four of the previous five years. Although

Officer Gomez claims that Capol told him that Sharon

kept a “dark colored semi-automatic pistol” near her

bed, Capol testified during her deposition that she was

unsure of “what kind of gun[s]” were in the Betkers’

home and recounted that when Officer Gomez had asked

her about particular types of guns she was confused

because she is “not a gun person.” A reasonable jury

could find that Officer Gomez knowingly made false

statements in his affidavit about that as well.

Third, paragraph 6 of Officer Gomez’s affidavit

declared that Officer Gomez “knows that firearms are

not readily consumed and that they remain in close

proximity to individuals engaged in ongoing criminal

enterprises.” The parties dispute whether the preceding

sentence, which apparently was stricken from the

affidavit, had any bearing on the Commissioner’s

probable cause determination. That sentence linked “guns

and drugs,” and might have been reasonably construed

to suggest that Sharon, in addition to illegally possessing

firearms, was likely engaged in “drug distribution.”

Regardless, a reasonable jury might find that by

including the unaltered sentence in paragraph 6—which

might be technically true—Officer Gomez knowingly or

“with reckless disregard for the truth” intimated that

Sharon (and Richard) “engaged in ongoing criminal

No. 11-3009 15

enterprises,” without any reasonable basis for believing

that to be the case. This is especially true in light of para-

graph 9’s intimation that a no-knock warrant was neces-

sary because the person illegally possessing the firearm,

Sharon, was a person “involved in criminal activity.”

B. Probable Cause Would Be Lacking Without Officer

Gomez’s Material False Statements

A reasonable jury could find that Officer Gomez know-

ingly or with reckless disregard for the truth made false

or misleading statements. So we must decide whether

probable cause would have existed for the no-knock

search warrant absent those disputed statements. A no-

knock warrant requires “reasonable suspicion that knock-

ing and announcing [the police’s] presence, under

the particular circumstances, would be dangerous or

futile, or that it would inhibit the effective investigation

of the crime by, for example, allowing the destruction

of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394 (1997).

In Wisconsin, a person commits a crime if he or she is:

(1) a convicted felon (2) in possession of a firearm. Wis.

Stat § 941.29(2)(a); see also State v. Black, 624 N.W.2d 363,

370-71 (Wis. 2001). Possession in the statute “means

the defendant knowingly had actual physical control of

a firearm.” Black, 624 N.W.2d at 370-71. Because there is

no dispute that Officer Gomez confirmed Sharon’s

status as a convicted felon, we need only decide

whether, absent Officer Gomez’s false and misleading

statements, a reasonably prudent person would believe

that Sharon “possessed” a firearm. We think not.

16 No. 11-3009

Our analysis is fairly straightforward. We eliminate the

alleged false statements, incorporate any allegedly

omitted facts, and then evaluate whether the resulting

“hypothetical” affidavit would establish probable cause.

See, e.g., United States v. Robinson, 546 F.3d 884, 888 (7th

Cir. 2008) (querying whether the “hypothetical affidavit”

would “still establish probable cause”); see also Whitlock

v. Brown, 596 F.3d 406, 411 (7th Cir. 2010) (“One way

of approaching the materiality question is to ask

‘whether a hypothetical affidavit that included the

omitted material would still establish probable cause.’ ”

(citation omitted)). “In making this determination, we

keep in mind that probable cause is a common-sense

inquiry requiring only a probability of criminal activity.”

Whitlock, 596 F.3d at 410-11. A search-warrant applica-

tion will be sufficient to support a probable-cause

finding if, “based on the totality of the circumstances,

the affidavit sets forth sufficient evidence to induce a

reasonably prudent person to believe that a search will

uncover evidence of a crime.” United States v. Peck, 317

F.3d 754, 756 (7th Cir. 2003).

Eliminating the disputed statements would strip

Officer Gomez’s affidavit of details essential to a finding

of probable cause. The “hypothetical” affidavit would

effectually allege that Sharon is a convicted felon and

that an unidentified informant reported that Sharon’s

husband, Richard, likes to hunt and has been licensed

to hunt in the past. Accepting Capol’s version of the

events, Officer Gomez knew that Capol last saw guns

in the Betkers’ home five years earlier in 2001. She told

him that guns were still in the home, but she drew that

No. 11-3009 17

conclusion from Dennis Hamburg’s report to her that

he received from information from Acker about the

Betkers not selling any guns at their recent rummage

sale. And Gomez knew about Capol’s strained relation-

ship with Sharon, a fact that should have raised a red

flag. See Peck, 317 F.3d at 757. This was all of the infor-

mation Officer Gomez had to believe that Sharon

illegally possessed a firearm, and none of it was corrobo-

rated. Statements that are both unreliable and uncorrobo-

rated do not support probable cause. See United States v.

Bell, 585 F.3d 1045, 1053 (7th Cir. 2009); United States v.

Koerth, 312 F.3d 862, 871 (7th Cir. 2002).

Officer Gomez’s affidavit stated that Capol personally

saw Sharon with a gun, but Capol denies telling him

that, under oath. This material fact dispute must be

resolved at trial. See Lawson, 637 F.3d at 705 (“[Judging]

the credibility of the competing versions . . . is a question

for the jury.”). Our conclusion is consistent with our

past cases finding no probable cause where the

affidavit submitted in support contains materially false

or misleading statements. In Lawson v. Veruchi, for

example, we found probable cause lacking where, like

here, the parties disputed the facts that the officer

alleged in the affidavit he submitted to obtain a warrant.

637 F.3d at 705. In that case, Kimberly Colvin was

assaulted by an unknown man, later identified as Jeffrey

W. Lawson (“Jeffrey W”). While investigating Colvin’s

complaint, Detective Veruchi presented Colvin with a

photo lineup that included a picture of Jeffery A. Lawson

(“Jeffery A”), which he had obtained by searching

“Jeffrey Lawson” in the jail-records system. Veruchi

18 No. 11-3009

showed Colvin a number of photos, which included

pictures of both Jeffrey W and Jeffery A. Colvin allegedly

identified Jeffrey W as the suspect, but Veruchi

flipped over the photos and told Colvin to sign the

photo of Jeffery A. Veruchi also showed the lineup to

another witness, who reported she could not identify

the suspect. That witness claimed to have ultimately

relented to Veruchi’s pressure to identify Jeffrey A, not-

withstanding her indication to Veruchi that she was

only about 75% sure he was the attacker. In the affidavit

he submitted to obtain an arrest warrant for Jeffery A,

Veruchi declared that Colvin identified Jeffery A as

the person who assaulted her, signed the back of his

photograph, and initialed the back of all other photos

in the lineup. He also stated that the second witness

identified Jeffery A about twenty seconds after she

said that she was not sure if she could identify the sus-

pect. Finding a material fact dispute over whether

Veruchi tricked Colvin and pressured the second

witness, we held that the plaintiff presented sufficient

evidence to support his claim that Veruchi knowingly

included false information in the arrest warrant applica-

tion, and Veruchi was not entitled to qualified im-

munity as a matter of law. Id. at 705.

We reached a similar conclusion about probable cause

in Junkert v. Massey, 610 F.3d 364, 367 (7th Cir. 2010).

There, we found probable cause wanting because “the

sum of the [confidential source’s] information essentially

says that [he], a known thief and cocaine dealer,

claimed that he paid off his lawyer, also a cocaine

user, with stolen laptop computers at some unspecified

No. 11-3009 19

time and place.” Id. at 368. The confidential source, like

Capol here, lacked first-hand knowledge of the places to

be searched and the evidence to be discovered. We

did however shield the officer in Junkert from civil

liability because until then we had “never clearly held

that an affidavit materially similar to [the officer’s]

failed to establish probable cause,” and “the affidavit

was [not] so deficient on its face that [the officer’s]

reliance on it was unreasonable.” Id. at 369.

Like in Lawson and Junkert, probable cause would

have been lacking here absent Officer Gomez’s disputed

declarations. This violated the Fourth Amendment’s

prohibition on unreasonable searches and seizures. See

Kentucky v. King, ___ U.S. ___, 131 S. Ct. 1849, 1856 (2011)

(“The text of the Amendment thus expressly imposes

two requirements. First, all searches and seizures must

be reasonable. Second, a warrant may not be issued

unless probable cause is properly established and the

scope of the authorized search is set out with particular-

ity.”).

C. The Lack of Probable Cause Was Clearly Estab-

lished at the Time of the Raid

The final part of our qualified immunity inquiry is

whether the constitutional right at stake “was clearly

established at the time of the alleged violation.” McComas,

673 F.3d at 725; see also Michael C. v. Gresbach, 526 F.3d

1008, 1013 (7th Cir. 2008) (“If the right was ‘clearly estab-

lished,’ the official is not entitled to qualified immunity

20 No. 11-3009

from suit.”). A brief review of our case law convinces

us that it was.

The question is whether, at the time of the violation

in this case, a “reasonably well-trained police officer

would have known that the arrest was illegal.” Olson, 771

F.2d at 281. In 1985, we held in Olson that immunity

does not extend “[w]here the judicial finding of

probable cause is based solely on information the

officer knew to be false or would have known was

false had he not recklessly disregarded the truth.” Id. In

1992, in Juriss v. McGowan, we stripped an officer of

qualified immunity where only his false and misleading

statements provided probable cause to arrest a woman

for aiding a fugitive. 957 F.2d 345, 349-50 (7th Cir.

1992). We reiterated this point in Knox, 342 F.3d at 658

(“We have held in previous cases that a warrant request

violates the Fourth Amendment if the requesting officer

knowingly, intentionally, or with reckless disregard for the

truth, makes false statements in requesting the warrant and

the false statements were necessary to the determination

that a warrant should issue.”). And this principle has been

firmly established in the criminal context since the Su-

preme Court decided Franks v. Delaware, 438 U.S. 154

(1978). See also United States v. Whitley, 249 F.3d 614, 621-22

(7th Cir. 2001). The Court held in Franks that a search

violates the Fourth Amendment if after setting aside the

false or misleading statements in the affidavit submitted to

obtain the warrant, the “ ‘remaining content is insufficient

to establish probable cause.’ ” See United States v. Spears, 673

F.3d 598, 604 (7th Cir. 2012) (quoting Franks, 438 U.S. at

156). In the civil context, the plaintiff need only “point to

No. 11-3009 21

a closely analogous case decided prior to the challenged

conduct in order to defeat qualified immunity.” Sonnleitner

v. York, 304 F.3d 704, 716 (7th Cir. 2002). We think there

are plenty. So Officer Gomez is not entitled to qualified

immunity as a matter of law.

III. CONCLUSION

For the above-stated reasons, the district court’s denial

of the defendant’s request for qualified immunity

is A FFIRMED.

9-5-12