Reitz v. Woods

Case: 21-11100 Document: 00516953692 Page: 1 Date Filed: 11/02/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

November 2, 2023

No. 21-11100 Lyle W. Cayce

____________ Clerk

Robert Steven Reitz, also known as “Bobby” Reitz,

Plaintiff—Appellant,

versus

Jimmy Woods, Officer; John R. Wilson, III, Detective; Larry

Tatum, Detective; Taylor County, Texas,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:16-CV-181

______________________________

Before Stewart, Elrod, and Graves, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

Using a blocked number, an anonymous individual twice called 9-1-1

in Abilene, Texas, relaying a serious threat of gun violence against officers

and an alleged hostage while providing his location. Abilene Police

responded, only to find the apartment occupied by Plaintiff-Appellant Robert

“Bobby” Reitz and his dog, with no hostage or lethal firearm in sight. Reitz

was detained, taken to the police station, and ultimately released when an

investigation proved inconclusive.

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Weeks later, Reitz was charged with making a false report, though the

charges were eventually dropped. Reitz subsequently sued three individuals

involved in his arrest and prosecution as well as Taylor County, Texas. Each

defendant moved for summary judgment, with the individuals asserting

qualified immunity. The district court granted the Defendants’ motions.

Reitz appeals. We AFFIRM IN PART and REVERSE IN PART and

REMAND for further proceedings.

I

A

On September 4, 2015, the emergency services dispatch in Abilene,

Texas, received an anonymous call wherein an unidentified individual

informed the dispatcher that “I just shot my girlfriend” and “I used a 9mm

to shoot my girlfriend right in the f—ing eye.” The dispatcher then asked

the caller for his location, to which he gave Reitz’s address, including both

the building and apartment numbers. The call concluded shortly after.

Moments later, the caller phoned back, demanding “to speak to a hostage

negotiator” and telling the dispatcher that his “girlfriend is tied up in the

bathroom right now.” Ignoring the dispatcher’s request for his name and

phone number, the caller reiterated his demand and informed the dispatcher

that he was in possession of “a 12-guage, . . . an M-16, and a 9-millimeter.”

Only then did the caller reconfirm he was at the address previously given,

saying he was at the front door “waiting for the police to start knocking so

[he] could start shooting.”

The Abilene Police Department dispatched multiple officers,

including a Special Weapons and Tactics team, to address the volatile

situation. After the officers created a perimeter around the apartment

complex, the SWAT team forcibly breached the apartment’s door without a

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warrant based on their belief that exigent circumstances existed. 1 Once

inside, APD officers found only Reitz, his dog, and a Sig Sauer pellet gun.

Officer Austin Graves then handcuffed Reitz and escorted him to a patrol car.

An unnamed officer then took Reitz to Officer Jimmy Woods’s patrol car and

gave Woods Reitz’s cell phone. 2

Officer Woods, a detective in APD’s Crimes Against Persons

Division, was the “primary officer” for the incident “tasked with compiling

information and drafting a report regarding the false 911 call.” Woods was

initially stationed at the perimeter and did not enter Reitz’s apartment until

after the breach, beginning his investigation by photographing the scene.

Woods next questioned Reitz, who explained that “nothing” happened,

having just arrived home from a weekly visit to his psychiatrist. Woods then

spoke with Reitz’s neighbor, Trevor Watts, who said that Reitz—in Woods’s

words—“acts kind of weird all the time” and “has a girlfriend coming and

going from his apartment.” Woods followed up with Reitz about his

girlfriend, to which Reitz replied that they had ended their relationship nearly

a year prior. Finally, Woods asked Reitz for consent to search his cell

phone’s call log; Reitz consented. The log did not reveal any emergency

calls, but Woods, notwithstanding Reitz’s assistance, was unable to locate a

log of deleted calls. Woods asked Reitz if he would be willing to go to APD

for technicians to search his phone; Reitz agreed.

_____________________

1

The Parties do not dispute that there were exigent circumstances meriting the

breach. Reitz conceded this to Magistrate Judge Parker, and at oral argument before this

court, Reitz’s counsel referred to the initial calls and subsequent response as “that

exigency.” Accordingly, the court deems this point conceded.

2

It is unclear who escorted Reitz to Woods’s car and who gave Reitz the cell phone.

However, neither detail impacts the issues at hand.

3

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Upon arriving at APD, Reitz again consented to having his phone

searched. Technical investigation failed to produce information, as the

APD’s “system was not able to download the call history of the phone . . .

due to either the age of the cell phone, or its software.” Reitz was

subsequently released and taken back to his apartment.

Five days after the incident, APD assigned Detective John Wilson, III,

to follow up on the case, including determining whether Reitz placed the

initial calls. About two weeks after the incident, Reitz returned to the APD

police station to obtain a copy of Detective Woods’s report, in part to receive

compensation for the damage done to his apartment in the breach. 3 While

there, Reitz attempted to speak to Woods, who “did not want to talk to

[him]” and who then left for lunch. During this visit, Reitz also met Stacie

Wirmel, an investigative reporter affiliated with KTAB (a local television

station), who asked to interview him regarding the incident. About an hour

after Reitz left the station, Woods called Reitz and, according to Reitz, “was

very abrasive” and “did not want [him] telling a reporter what had

happened[.]” As the district court noted, “[a]lthough a copy of the KTAB

news story was not included in the summary judgment record, it appears

undisputed that it aired on October 13, 2015, in both televised and online

versions.”

After trying but failing to speak with Reitz three times throughout

September, Wilson managed to speak with Reitz over the phone on October

13, 2015—which Wilson recorded. Wilson played Reitz a portion of one of

the 9-1-1 call recordings and Reitz denied he was the anonymous caller.

During this call, Wilson also told Reitz that the “phone was analyzed” and

_____________________

3

The date of this incident is not clearly established in the record. Reitz estimates

it was “[a]bout two (2) weeks after” the incident, an approximation the district court

adopted in its memorandum.

4

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deleted call logs showed Reitz as placing the calls in question, which Reitz

contested given the tests run the day of the incident. Without addressing

Reitz’s objection, Wilson said he believed that the recordings sounded like

Reitz, informed Reitz that he would be “filing this case” with local

prosecutors as a “Terroristic Threat on Public Servants,” suggested that

Reitz call the APD or the district attorney with any questions, and offered to

speak to counsel if Reitz had retained legal representation.

Indeed, according to Wilson’s affidavit, upon listening to the recorded

9-1-1 calls and a recording of his call with Reitz, he “believe[d] that [] Reitz

did make the 911 calls on September 4, 2015.” Wilson also asked the 9-1-1

dispatcher who received the anonymous calls as well as another detective to

compare the three recorded calls, and both “believed . . . that the same

individual made all three calls.” Following these corroborations, Wilson

followed through on his pronouncement to Reitz and filed the case to the

Taylor County District Attorney’s Office as a Terroristic Threat. An

Assistant District Attorney with the Office asked Wilson to re-file the case as

a false report; Wilson complied. Larry Tatum, an Investigator with the

Taylor County District Attorney’s Office, signed the arrest affidavit, and

Wilson executed the warrant at Reitz’s place of work.

On November 25, 2015, following Reitz’s arrest, Wilson decided, in

consultation with an unnamed Assistant District Attorney working on the

case, to send the recordings of all three calls to Dr. Robert Wallace, a

professor in McMurry University’s Sociology Department. Though Wilson

and his supervisor, Sergeant Will Ford, were aware that Dr. Wallace “[was]

not a voice recognition expert,” they believed it was important to “have a

second party look at the evidence.” Per Wilson’s notes: “Dr. Wallace

concluded that in his opinion there is reasonable doubt that the recordings

are the same person. This is a different opinion, and before this new evidence

the officers and the same 911 [dispatcher] clearly stated this was the same

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person.” Wilson phoned the unnamed ADA to discuss Dr. Wallace’s

conclusion, and the ADA recommended dropping the case. Wilson did so,

recognizing that given Dr. Wallace’s conclusion, there was “some reasonable

doubt that” Reitz dialed 9-1-1.

B

Reitz filed his Original Complaint on October 11, 2016. All defendants

would eventually move for summary judgment. In support of his opposition

to each motion, Reitz submitted an affidavit from Robert Gill, a former felony

prosecutor in the Tarrant County District Attorney’s Office and a former

Tarrant County judge.

First, the district court excluded Gill’s affidavits, finding them to be

“invad[ing] the province of the Court,” “encroach[ing] on issues which are

reserved to the Court,” “and thus [] mainly irrelevant.” In the same order,

the district court then granted all of the Defendants’ motions for summary

judgment. 4 Regarding the Fourth Amendment claims, the district court

found that: (1) Woods had probable cause to arrest Reitz; (2) Wilson did not

include false statements in his notes, nor could Reitz establish any

statements—even if assumed untrue arguendo—were included intentionally

or recklessly; and (3) Tatum reasonably relied on the information provided

to him by other officers and the assistant district attorney prosecuting the

case. The district court dismissed Reitz’s First Amendment claims against

Woods and Wilson because it found no adverse action befell Reitz as a result

of his discussions with the news media and because the officers charged him

in light of a determination of probable cause he committed the crime rather

than due to any personal retaliatory animus.

_____________________

4

The parties consented to trial before a magistrate judge.

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Reitz now appeals. 5

II

“This court reviews a grant of a motion for summary judgment de

novo, and applies the same standard as the district court, viewing the evidence

in the light most favorable to the nonmovant.” Clark v. Dep’t of Pub. Safety,

63 F.4th 466, 469 (5th Cir. 2023) (citation omitted) (italics added). Summary

judgment is proper “if the movant shows that there is no genuine dispute as

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

law.” Fed. R. Civ. P. 56(a). “When assessing whether a dispute to any

material fact exists, we consider all of the evidence in the record but refrain

from making credibility determinations or weighing the evidence.” Turner

v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

“Preserved challenges to evidentiary rulings are reviewed for abuse of

discretion.” Crandel v. Hall, 75 F.4th 537, 550 (5th Cir. 2023). “A district

court abuses its discretion if it bases its decision on an erroneous view of the

law or on a clearly erroneous assessment of the evidence.” Certain

Underwriters at Lloyd’s of London v. Axon Pressure Prods., Inc., 951 F.3d 248,

256 (5th Cir. 2020) (citation omitted). Furthermore, “[e]videntiary rulings

are ‘subject to the harmless error doctrine’; therefore, even if the court

abused its discretion, ‘the ruling will be reversed only if it affected the

substantial rights of the complaining party.’” Crandel, 75 F.4th at 550

(quoting Adams v. Mem’l Hermann, 973 F.3d 343, 349 (5th Cir. 2020)); see

also Perez v. Tex. Dept. of Crim. Just., Inst. Div., 395 F.3d 206, 210 (5th Cir.

_____________________

5

For clarity, we reverse the order of challenges raised—considering the

admissibility of Gill’s affidavits before the substantive claims—recognizing that the

adjudication of the former could influence the adjudication of the latter.

7

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2004) (“An erroneous evidentiary ruling is reversible error only if the ruling

affects a party’s substantial rights.”).

III

Reitz appeals the district court’s exclusion of Gill’s affidavits that he

submitted in opposition to Defendants’ motions for summary judgment.

“The admissibility of expert testimony is governed by the same rules,

whether at trial or on summary judgment.” First United Fin. Corp. v. U.S.

Fid. & Guar. Co., 96 F.3d 135, 136–37 (5th Cir. 1996). Accordingly,

“[m]aterial that is inadmissible will not be considered on a motion for

summary judgment[.]” Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192

(5th Cir. 1991) (quoting Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir.

1990)).

“The Supreme Court’s landmark case of Daubert v. Merrell Dow

Pharmaceuticals, Inc. provides the analytical framework for determining

whether expert testimony is admissible under Rule 702 of the Federal Rules

of Evidence.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002)

(footnotes omitted). “Under Daubert, Rule 702 charges trial courts to act as

‘gate-keepers,’ making a ‘preliminary assessment of whether the reasoning

or methodology underlying the testimony is scientifically valid and of

whether that reasoning or methodology properly can be applied to the facts

in issue.’” Id. at 243–44 (quoting Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 592–93 (1993)). But such an opinion is confined to questions of

fact, as “an expert may never render conclusions of law.” Goodman v. Harris

County, 571 F.3d 388, 399 (5th Cir. 2009) (quoting Snap–Drape, Inc. v.

Comm’r of Internal Revenue, 98 F.3d 194, 198 (5th Cir. 1996)) (emphasis

added); see also Renfroe v. Parker, 974 F.3d 594, 598 (5th Cir. 2020) (same).

With these guardrails established, we turn to the evidence at bar.

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The Gill affidavits proffered a primer on relevant precedent, from the

Fourth Amendment’s protections and probable cause determinations to

First Amendment retaliation claims and criminal trial practice. Regarding

their conclusions, the district court aptly summarized:

Gill’s opinions can be distilled down to his conclusions that (1)

there was no probable cause for Reitz’s arrests and charging

(Woods and Wilson), (2) the information relied upon by

Tatum in executing the probable cause affidavit was

insufficient and thus he lacked sufficient knowledge of probable

cause (Tatum and the County), (3) Woods and Wilson violated

Reitz’s First Amendment rights (Woods and Wilson), (4) the

County had a policy, practice, or custom of permitting probable

cause affidavits to be executed by affiants who lacked sufficient

knowledge of probable cause, and (5) the County ratified

Tatum’s actions for purposes of establishing Monell liability

(the County).

The district court found that the affidavits were replete with “numerous

flaws in both methodology and substance,” and while “stop[ping] short of

finding that Gill’s opinions are unreliable,” the court excluded the evidence

as an attempt to “supply both the law and the ultimate legal conclusions Reitz

seeks.” In so doing, the district court did not abuse its discretion.

Consider the first and second conclusions proffered, which concern

the existence of probable cause. “The question of probable cause is a mixed

question of law and of fact. Whether the circumstances alleged to show it

probable are true, and existed, is a matter of fact; but whether, supposing

them to be true, they amount to a probable cause, is a question of law.”

Stewart v. Sonneborn, 98 U.S. 187, 194 (1878); see also Davis v. Hodgkiss, 11

F.4th 329, 334 (5th Cir. 2021) (holding that the “ultimate determination of

probable cause . . . is a question of law” (quoting United States v. Ho, 94 F.3d

932, 936 (5th Cir. 1996))), cert. denied, 142 S. Ct. 1127 (2022); United States

v. Triplett, 684 F.3d 500, 504 (5th Cir. 2012) (“Whether the facts establish

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probable cause is a legal question.” (citing United States v. Hearn, 563 F.3d

95, 103 (5th Cir. 2009))); United States v. Muniz-Melchor, 894 F.2d 1430, 1439

n.9 (5th Cir. 1990) (explaining that whether an officer has probable cause is a

mixed question of law and fact, but the ultimate determination is a question

of law).

The same is true regarding Gill’s conclusion on Reitz’s First

Amendment retaliation claims; Gill brings no additional facts or analysis to

bear with respect to these claims, merely parroting Reitz’s testimony,

“dress[ing] [it] up and sanctify[ing] [it] as the opinion of an expert.” Viterbo

v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987). Accordingly, Gill’s

“opinions” in these arenas “invade[] the court’s province and [are]

irrelevant.” Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).

The final two areas of Gill’s affidavits suffer related infirmities. Once

again, Gill fails to provide any additional evidence or discussion in his role as

an expert beyond rendering bare legal conclusions regarding Taylor County’s

policies and actions, rendering discussion thereof inadmissible. See

Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 225 (5th

Cir. 1991) (holding that expert opinions “setting forth ultimate or conclusory

facts and conclusions of law” are inadmissible and noting that that is

“especially applicable where, as here, the expert is opining on . . . issue[s]

more properly left to judges and juries” (internal quotation marks and

citation omitted)). We cannot say the trial court abused its discretion in

excluding these affidavits.

IV

Reitz asserts, under 42 U.S.C. § 1983, constitutional claims sounding

in violations of his First and Fourth Amendment rights against three

individuals (Woods, Wilson, and Tatum) as well as Taylor County. Because

the three individuals assert a qualified immunity defense that the

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municipality cannot, we review this defense first in the context of both First

and Fourth Amendment claims. Thereafter, we turn to the municipality’s

liability.

“The doctrine of qualified immunity protects government officials

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

citation and quotation marks omitted). In other words, the doctrine shields

public servants acting within their discretion from civil liability “as long as

their actions could reasonably have been thought consistent with the rights

they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638

(1987). “Qualified immunity includes two inquiries. The first question is

whether the officer violated a constitutional right. The second question is

whether the ‘right at issue was “clearly established” at the time of the alleged

misconduct.’” Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019)

(quoting Pearson, 555 U.S. at 232 (alteration accepted)); see also Ashcroft v. al-

Kidd, 563 U.S. 731, 735 (2011) (“Qualified immunity shields . . . state officials

from money damages unless a plaintiff pleads facts showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was

clearly established at the time of the challenged conduct.” (internal citation

and quotation marks omitted)).

We begin with Reitz’s alleged First Amendment retaliation claims and

then turn to his Fourth Amendment claims.

A

To establish a First Amendment retaliation claim, a plaintiff must

show that: “(1) [he was] engaged in a constitutionally protected activity, (2)

the defendant[’s] actions caused [him] to suffer an injury that would chill a

person of ordinary firmness from continuing to engage in that activity, and

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(3) the defendant[’s] adverse actions were substantially motivated against the

plaintiff[’s] exercise of constitutionally protected conduct.” Keenan v.

Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). As to the second element, “a

retaliation claim requires some showing that the plaintiff[’s] exercise of free

speech has been curtailed.” Id. at 259. It is in this arena that Reitz’s claim

falls short: he cannot establish that he “suffer[ed] an injury that would chill a

person of ordinary firmness from continuing to engage in” his speech or that

his speech was curtailed. Id. at 258, 259.

As the district court stated, Reitz “alleges only that the actions of

Woods made him ‘scared.’” In the district court’s view, this was insufficient

to constitute injury under First Amendment retaliation jurisprudence

because, “from the excerpts from the news story that appear in the summary

judgment record, Reitz apparently felt free not only to speak to the reporter,

but to speak frankly and express views critical of the police.”

Regarding his alleged injury, Reitz described his phone call with

Woods as “very scary.” Elsewhere, Reitz referred to Woods’s calls as

“threatening” and Wilson’s outreach as “scary.” We are not indifferent to

the difficulties and fears Reitz alleges, but neither are we indifferent to this

court’s precedent.

In Colson v. Grohman, this court held that a First Amendment

retaliation injury was not sufficient for such a claim where a plaintiff “alleged

only that she was the victim of criticism, an investigation (or an attempt to

start one), and false accusations,” referring to these as “harms that . . . are

not actionable under our First Amendment retaliation jurisprudence.” 174

F.3d 498, 512 (5th Cir. 1999). Following Colson, we have held that being

subjected to and defending oneself from an investigation while suffering its

concomitant stress does not satisfy the injury requirement. See Slegelmilch v.

Pearl River Cnty. Hosp. & Nursing Home, 655 F. App’x 235, 239–40 (5th Cir.

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2016) (unpublished); Matherne v. Larpenter, No. 99-30746, 2000 WL

729066, at *3 (5th Cir. May 8, 2000) (unpublished) (holding “that retaliatory

criticisms, investigations, and false accusations that do not lead to some more

tangible adverse action are not actionable under § 1983” (quoting Colson, 174

F.3d at 513)). In line with these decisions, Reitz’s injuries, such as they are,

do not rise to the level of a constitutional violation. See, e.g., Colson, 174 F.3d

at 514 (dismissing First Amendment retaliation claim under § 1983 where an

insufficient injury was alleged). Accordingly, we need not review the

remaining elements of Reitz’s First Amendment retaliation claims as applied

to each defendant.

B

Nearly four decades ago, the Supreme Court made clear that:

when the police, without probable cause or a warrant, forcibly

remove a person from his home or other place in which he is

entitled to be and transport him to the police station, where he

is detained, although briefly, for investigative purposes . . .

such seizures, at least where not under judicial supervision, are

sufficiently like arrests to invoke the traditional rule that arrests

may constitutionally be made only on probable cause.

Hayes v. Florida, 470 U.S. 811, 816 (1985). We turn then to whether Reitz

was detained or arrested absent probable cause and, if so, whether the

probable cause analysis was unreasonable, which would overcome the

qualified immunity defense.

“The Supreme Court has defined probable cause as the ‘facts and

circumstances within the officer’s knowledge that are sufficient to warrant a

prudent person, or one of reasonable caution, in believing, in the

circumstances shown, that the suspect has committed, is committing, or is

about to commit an offense.’” Club Retro, L.L.C. v. Hilton, 568 F.3d 181,

204 (5th Cir. 2009) (internal citation omitted). In other words, probable

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cause means a “‘fair probability’ that the defendant committed [the crime],

which requires more than a ‘bare suspicion’ but less than a preponderance of

evidence.” United States v. Watson, 273 F.3d 599, 602–03 (5th Cir. 2001)

(internal citation omitted). Finally, the adjudication of probable cause is an

objective test: “[C]ourts must look to the ‘totality of the circumstances’ and

decide ‘whether these historical facts, viewed from the standpoint of an

objectively reasonable police officer’ demonstrate ‘a probability or

substantial chance of criminal activity.’” Terwilliger v. Reyna, 4 F.4th 270,

282 (5th Cir. 2021) (internal citation omitted).

As Reitz argues in his brief, his Fourth Amendment rights were

violated “at different stages of the case in different ways” by the three

individual defendants: Woods in detaining Reitz following a search of his

apartment, Wilson in preparing a report to support an arrest warrant, and

Tatum in signing an incomplete and incorrect affidavit without reviewing the

underlying investigative materials. We review these claims separately.

Reitz’s Fourth Amendment claim against Woods sounds in his

allegedly unlawful, prolonged detention following the anonymous calls and

apartment breach. Neither party contests the permissibility of Reitz’s initial

detention under the exigent circumstances: the officers credibly believed that

both their lives and the life of a wounded hostage were in danger. But officers

“may not disregard facts tending to dissipate probable cause.” Bigford v.

Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988). Here, the officers at the scene

could not disregard that the key details of both calls were proven untrue: no

one shot at any officers as they breached the door, none of the three firearms

named in the call were located, no injured hostage was found in the

apartment, and no evidence of injury was present. Accordingly, probable

cause for detention pursuant to any concern about a violent or terroristic

threat had been vitiated.

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Woods seemingly agrees, asserting that the nature of the probable

cause changed from the time of Reitz’s initial arrest to the duration of his

continued detention. Whereas Reitz’s initial arrest was based on probable

cause related to the reported hostage situation, his continued detention was

based on probable cause related to making a false police report.

This tracks the district court’s reasoning, which found that probable

cause existed to continue restraining Reitz after the exigent circumstances

had dissipated in light of five facts: (1) Reitz’s living at the address given by

the anonymous caller; (2) Reitz’s ownership of a pellet gun; (3) Reitz’s

regular visits with a mental health professional, including that day; (4) Reitz’s

neighbor’s statements that he acts “weird”; and (5) Reitz’s conflicting

account of his love life vis-à-vis a neighbor. On appeal, Woods urges us to

adopt the district court’s reasoning in reliance upon the same facts. We

decline to do so.

Reitz’s ownership of a legal and non-lethal firearm, for example, has

no bearing on the notion that he would falsely call 9-1-1. Further, visits with

a mental health professional are only relevant to probable cause

determinations if said visits specifically connect the patient to a crime or a

particular concern, typically in the form of the professional’s express

representations on the subject. See Rich v. Palko, 920 F.3d 288, 296 (5th Cir.

2019) (“Based on the representations of credible persons [including a

treating psychiatrist] and their own observations, the officers reasonably

concluded that Dupuis-Mays was mentally ill and posed a substantial risk of

serious harm to himself or others”); Sullivan v. Cnty. of Hunt, 106 F. App’x

215, 218 (5th Cir. 2004) (unpublished) (holding that there existed probable

cause to detain an individual for a mental health evaluation where psychiatrist

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indicated that the person “could be suicidal”). 6 The same holds true for the

two other factors identified: that a neighbor would have a different account

of Reitz’s guests is apropos of nothing, while the neighbor’s vague

description of Reitz as “weird” does not appropriately factor into the

probable cause analysis. Cf. United States v. Sandoval, 847 F.2d 179, 185 (5th

Cir. 1988) (“[A]n officer’s bare ‘hunch’ that a person has committed a crime

does not constitute probable cause.”). Accordingly, there was no probable

cause to continue to detain Reitz after the facts supporting the initial

detention had dissipated.

We must now ask whether Woods could have reasonably thought his

actions were lawful, as “[p]olice officers who ‘reasonably but mistakenly

conclude that probable cause is present’ are entitled to qualified immunity.” 7

Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1994) (quoting Hunter v.

Bryant, 502 U.S. 224, 227 (1991)). This inquiry asks “whether ‘[t]he

contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates the right.’” Fraire v. City of

Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992) (quoting Anderson, 483 U.S. at

640).

_____________________

6

We agree, too, with Reitz’s argument against reasoning otherwise: holding that

mental health treatment contributes to a finding of probable cause of a crime “would

establish a dangerous precedent perpetuating blanket stereotypes and mistaken

assumptions about psychiatric treatment.”

7

“To be clear, the objective reasonableness of the defendant officers’ conduct goes

to the question of whether [Reitz’s] constitutional right against [being arrested absent

probable cause] was violated, not the question of whether that right was clearly established

under these particular circumstances.” Baker v. Coburn, 68 F.4th 240, 251 n.10 (5th Cir.

2023), as revised (May 19, 2023). This inquiry does not aim to “add[] a standalone

‘objective reasonableness’ element to the Supreme Court’s two-pronged test for qualified

immunity.” Id.

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No. 21-11100

We are not persuaded by Woods’s argument. For the reasons

outlined above, the factors Woods identified as giving rise to probable cause

for an arrest on the charge of making a false police report are wholly unrelated

to the charge. Furthermore, “this is not a situation in which we must be

concerned with second-guessing an officer’s decision that was required to be

made in a split second.” Evett v. DETNTFF, 330 F.3d 681, 689 (5th Cir.

2003). In Evett, having found as a matter of law that “that there was no

probable cause for [the plaintiff’s] arrest,” we “look[ed] to the facts to

determine whether a reasonably competent officer in [the arresting officer’s]

position could reasonably have thought his actions to be consistent with the

rights he is alleged to have violated.” Id. at 688. Those facts considered both

the tenuousness of what purportedly gave rise to probable cause as well as the

“unhurried setting” in which a reasonable officer could have investigated

further absent any pressing or exigent circumstances but chose not to. See id.

at 689.

The same concept presents itself here. Reitz’s detention was

prolonged as Woods undertook his preliminary investigation and any

exigency or threat had long since dissipated. The only stone then still

unturned was a review of any deleted call logs that Woods and Reitz were

jointly unable to retrieve from Reitz’s phone at the apartment. But an

inability to retrieve those logs is far from sufficient to arrest Reitz, particularly

where a reasonable officer who has already begun an initial investigation

could have continued doing so by requesting that Reitz voluntarily submit his

phone for review or seeking a warrant solely to search his phone—an

investigative step later taken. Moreover, as Reitz noted in oral argument, it

would be nonsensical for someone to file a false report on himself that could

have easily resulted in damage to his own apartment, if not his death at the

hands of the police. Given the totality of the circumstances, “[w]e cannot

conclude that based on such minuscule information in an unhurried setting

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No. 21-11100

such as in this case, that arresting [Reitz] was objectively reasonable.” Id.

Accordingly, Woods is not entitled to qualified immunity on this claim; it

must proceed to trial.

Reitz’s claim against Wilson is based on Reitz’s belief that Wilson

provided false statements to prepare the arrest warrant. The record evidence

undermines Reitz’s argument.

Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), even if an

independent magistrate judge approves a warrant application, “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).

Although the Franks inquiry is often described as two prongs,

the inquiry effectively consists of three questions, all of which

must be met. First, does the affidavit contain a false statement?

Second, was the false statement made intentionally or with

reckless disregard for the truth? And third, if the false

statement is excised, does the remaining content in the

affidavit fail to establish probable cause?

United States v. Ortega, 854 F.3d 818, 826 (5th Cir. 2017) (citations omitted).

We have extended Franks liability to any “officer who has provided

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

and therefore “has assisted in preparing” it. Melton v. Phillips, 875 F.3d 256,

262 (5th Cir. 2017) (en banc). There is little doubt Wilson is such an officer.

As the district court summarized, Wilson “reviewed the original incident

reports, investigated the facts and circumstances surrounding the 911 calls,

and prepared his own reports documenting his findings,” ultimately

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No. 21-11100

submitting the case to the District Attorney’s Office. Indeed, Wilson

concedes in his briefing that he submitted his report to the District

Attorney’s office “knowing that the arrest warrant would be drafted from the

entirety of that information.”

The district court found that “Reitz does not direct the Court to any

statement by Wilson that was false or misleading.” Rather, the district court

correctly noted that the statements of which Reitz complains—Wilson’s

identifying Reitz as the 9-1-1 caller—are “phrased as his subjective

impression, not an incontrovertible fact.” We agree.

Wilson stated in his report that “[i]t appears that the recorded calls are

from the same person.” Furthermore, Wilson qualified this statement again,

writing: “It should be noted that the suspect in this case stated that he did

not make the calls[.]” These are not misstatements, but qualified statements

that do not give rise to Franks liability. Because Reitz’s Fourth Amendment

claim against Wilson fails the first Franks prong, further discussion is

unnecessary, and we affirm the district court’s determination on this claim. 8

Reitz’s final individual Fourth Amendment claim concerns the

affidavit Tatum signed and presented to the magistrate judge to secure

Reitz’s arrest warrant. Reitz homes in on the following misstatements and

omissions in the affidavit: (1) providing an incorrect date for when the

incident occurred, (2) failing to include that Reitz believed none of his

neighbors had a problem with him, (3) omitting Reitz’s statements about his

former girlfriend, and (4) omitting details regarding the APD’s search of

Reitz’s phone as yielding no evidence of a call to the emergency services line.

_____________________

8

Wilson’s affidavit for the search warrant issued after his arrest includes an untrue

statement—“The call logs had been deleted.” But because this is an altogether separate

affidavit filed after the arrest warrant was issued, it is of no consequence here.

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Reitz argues that because “Tatum had no personal knowledge” concerning

the investigation and failed to make any effort to obtain such knowledge, the

misstatements and omissions evince a reckless disregard for the truth.

Reitz is correct on the law: not only does Franks concern

misstatements, discussed above, but also “the intentional or reckless omission

of material facts from a warrant application[.]” Kohler v. Englade, 470 F.3d

1104, 1113 (5th Cir. 2006) (citing Hale v. Fish, 899 F.2d 390, 400 n.3 (5th Cir.

1990)) (emphasis added). Applying the Franks framework to both falsehoods

and omissions, assuming misstatements are present or relevant omissions

were made and assuming the requisite intentionality or recklessness be

found, courts are to “consider the faulty affidavit as if those errors and

omissions were removed,” meaning we “must examine the ‘corrected

affidavit’ and determine whether probable cause for the issuance of the

warrant survives the deleted false statements and material omissions.”

Winfrey, 901 F.3d at 495 (quoting Franks, 438 U.S. at 156). Assuming

arguendo the four statements listed above were false or omitted and done so

either intentionally or recklessly, if the affidavit was amended to remedy the

errant date and include those statements, a reasonable magistrate judge could

still determine that there was probable cause to arrest Reitz on the charge of

making a false alarm or report. 9

_____________________

9

In his complaint, Reitz writes that the affidavit was “was false and so defective as

to be in fact fraudulent.” The Supreme Court’s decision in Malley v. Briggs stands for the

basic proposition that an affiant is liable where “if, on an objective basis, it is obvious that

no reasonably competent officer would have concluded that a warrant should issue” due to

a lack of probable cause. 475 U.S. 335, 341 (1986). Notwithstanding his statement in his

complaint, Reitz does not expressly argue on appeal that the warrant was facially invalid,

which by definition impliedly concedes that the warrant as constituted gives rise to probable

cause. Given this apparent concession, citations to Malley as well as its progeny

Messerschmidt v. Millender, 565 U.S. 535 (2012) bear only on the second Franks question,

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Insofar as “‘probable cause’ means something more than ‘mere

suspicion,’” it still does not reach the preponderance-of-the-evidence

standard. United States v. Gordon, 580 F.2d 827, 832 (5th Cir. 1978) (citing

Brinegar v. United States, 338 U.S. 160, 175 (1949)); see United States v.

Watson, 273 F.3d 599, 602–03 (5th Cir. 2001) (noting that probable cause is

“less than a preponderance of evidence”). A reasonable magistrate judge

could find probable cause based on the opinion of the police officer who spoke

directly to Reitz and believed him to be the anonymous 9-1-1 caller. “What

is more, a complete affidavit would include other information” that could

further buttress a finding of probable cause, including that Wilson

corroborated his belief with another police officer as well as the 9-1-1

dispatcher that received the anonymous calls. Loftin v. City of Prentiss, 33

F.4th 774, 782 (5th Cir. 2022). Because a corrected “affidavit still would

have shown probable cause,” we affirm the district court’s order granting

summary judgment to Tatum. Laviage v. Fite, 47 F.4th 402, 407 (5th Cir.

2022). 10

_____________________

namely whether such statements and omissions were the result of a reckless disregard for

the truth.

10

Our recent decision in Rogers v. Smith does not dictate otherwise. In that case,

the District Attorney “warned [the defendants] that the arrest would be unconstitutional,”

and “the warrant application for Plaintiff’s arrest omitted key information when it failed to

advise the judge regarding the DA’s position that the arrest would be unconstitutional.”

Rogers v. Smith, 603 F. Supp. 3d 295, 302 (E.D. La. 2022), aff’d, No. 22-30352, 2023 WL

5144472 (5th Cir. Aug. 9, 2023). Though the trial court did not explicitly find a Franks

violation, it noted that the arrest warrant application omitted vital information by failing to

advise the judge of the DA’s position that the arrest would be unconstitutional. See id.

Thus, that omission likely constituted a Franks violation because, if disclosed, that would

have vitiated probable cause, else it was cognizable as a Malley violation by putting forward

a facially invalid affidavit. Furthermore, even though the district court did not make an

express finding under either Franks or Malley, the district court concluded that “no

reasonable officer could have believed that probable cause existed where the

unconstitutionality of Louisiana’s criminal defamation statute as applied to public officials

has long been clearly established and where the officers had been specifically warned that

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No. 21-11100

C

Finally, Reitz brings a claim against Taylor County premised upon his

allegations and claims against Tatum. Specifically, Reitz alleges that Tatum

acted pursuant to the County’s unconstitutional policy, practice, and

procedure, and that the County ratified the unconstitutional misconduct.

This claim cannot succeed.

A citizen may sue a municipality that violates his or her constitutional

rights “under color of any statute, ordinance, regulation, custom, or usage.”

42 U.S.C. § 1983; see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

(1978). “To succeed, the plaintiff must identify a federal right that was

violated ‘pursuant to an official municipal policy.’” Edwards v. City of Balch

Springs, 70 F.4th 302, 307 (5th Cir. 2023) (quoting Liggins v. Duncanville, 52

F.4th 953, 955 (5th Cir. 2022)). “This claim, also known as a Monell claim,

requires ‘(1) an official policy (2) promulgated by the municipal policymaker

(3) [that] was the moving force behind the violation of a constitutional

right.’” Id. (quoting Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th

Cir. 2009)).

Further discussion of Monell’s elements, contours, and jurisprudence

is unnecessary. As the third element makes clear, “without a predicate

_____________________

the arrest would be unconstitutional.” Rogers, 603 F. Supp. 3d at 302. Given the facts and

the district court’s holding, our court’s affirmance in that case does not give rise to separate

procedural liability.

We also state that this conclusion in no way suggests that an otherwise uninformed

officer should serve as an affiant solely to enable a police department to deploy the

“collective knowledge doctrine . . . as a subterfuge to evade probable cause requirements.”

United States v. Webster, 750 F.2d 307, 323 (5th Cir. 1984). We have previously reminded

“police departments to ‘seek to provide magistrates with warrant applications from the law

enforcement official most directly involved in the investigation and most directly involved

with the facts stated in the affidavit.’” Michalik v. Hermann, 422 F.3d 252, 259 n.6 (5th

Cir. 2005) (quoting Bennett v. City of Grand Prairie, 883 F.2d 400, 407 (5th Cir. 1989)).

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constitutional violation, there can be no Monell liability.” Loftin, 33 F.4th at

783 (citing Garza v. Escobar, 972 F.3d 721, 734 (5th Cir. 2020)); see also Hicks-

Fields v. Harris Cnty., 860 F.3d 803, 808 (5th Cir. 2017) (“[E]very Monell

claim requires an underlying constitutional violation.” (internal citation and

quotation marks omitted)). Tatum is the only Taylor County employee

involved in this suit, serving in the Taylor County District Attorney’s Office.

Reitz’s suit against Taylor County is therefore wholly premised on Tatum’s

alleged wrongdoing. Affirming the district court’s grant of summary

judgment on Reitz’s Fourth Amendment claim against Tatum as we have

vitiates Reitz’s Monell claim. See Loftin, 33 F.4th at 783 (“Because Loftin

failed to demonstrate any constitutional violation . . . , the associated Monell

claims must also fail.”).

***

We AFFIRM IN PART and REVERSE IN PART and

REMAND for further proceedings. Specifically, we AFFIRM the district

court’s order regarding the exclusion of the Gill affidavits, the dismissal of

Reitz’s First Amendment claims against Wilson and Woods, and the

dismissal of Reitz’s Fourth Amendment claims against Wilson, Tatum, and

Taylor County. We REVERSE the district court’s order regarding Reitz’s

Fourth Amendment claim against Woods.

23