Hughes v. Garcia

Case: 22-20621 Document: 85-1 Page: 1 Date Filed: 05/03/2024

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 22-20621

FILED

May 3, 2024

____________

Lyle W. Cayce

Austin Thompson Hughes, Clerk

Plaintiff—Appellee,

versus

Michael Garcia; Joshua Few,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:21-CV-1994

______________________________

Before Jolly, Engelhardt, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

For those who worry that qualified immunity can be invoked under

absurd circumstances: Buckle up.

Austin Thompson Hughes is a Good Samaritan. After 2:30 a.m.,

Hughes called 911 to report a pickup truck swerving violently across a four-

lane highway in Houston. While Hughes was on the phone with emergency

dispatchers, the drunk driver crashed. Still on the phone with 911, Hughes

pulled behind the drunk driver and effectuated a citizen’s arrest in

accordance with Texas law. But when police officers arrived at the scene,

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No. 22-20621

they let the drunk driver go and then arrested Good Samaritan Hughes.

(Seriously.) Piling insanity on irrationality, the officers then charged Hughes

with a felony for impersonating a peace officer. Hughes spent thousands of

dollars defending against the frivolous criminal charges before the City of

Houston dropped them. Then Hughes brought this § 1983 suit against the

two officers who victimized him. The district court denied qualified

immunity. We affirm. (Obviously.)

I.

A.

This case arises from a motion to dismiss. So we take the following

well-pleaded facts as true. See Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).

On March 23, 2019, at approximately 2:37 a.m., Austin Thompson

Hughes, a former police officer, was driving for Uber. While driving, he saw

a white GMC Sierra pickup truck swerving erratically on Interstate 610 in

Houston. Suspecting the truck’s driver was intoxicated, Hughes dialed 911

and followed the Sierra with his Jeep’s flashers on. During the call, Hughes

described the Sierra and his own vehicle and reported the truck swerving at

high speed, hitting the concrete barriers on both sides of the highway, and

finally coming to a stop. Hughes’s two Uber passengers can be heard on the

recording confirming Hughes’s observations. Hughes stopped behind the

Sierra. At some point during this episode, Hughes’s 911 call was transferred

to a Houston Medical 911 call-taker.

Hughes continued his report to the second 911 call-taker. He told the

call-taker “I need to get [the driver] out of the car because, I mean, they’re

going to kill somebody.” ROA.258. Hughes then exited his vehicle, observed

that the driver was “obviously intoxicated,” and retrieved the driver’s keys,

license (which was sitting in the Sierra’s center cupholder), and bottles of

alcohol. A third-party caller corroborated many of these details to another 911

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operator, including Hughes “trying to get [the drunk driver] out of the car.”

ROA.262.

When Hughes returned to his Jeep, still on the phone with 911, he saw

the intoxicated driver exit the Sierra and “attempt to flee towards the center

of the interstate on foot.” ROA.249. Hughes yelled at the driver to get back

in his truck in an attempt to prevent him from being hit by oncoming traffic.

The 911 operator then disconnected the call, assuring Hughes emergency

units were on their way.

The drunk man continued to move into oncoming traffic on foot.

Hughes “felt that the best and safest option would be to physically restrain

the suspect,” so he “retrieved handcuffs from his Jeep and used them to

temporarily detain the DWI Suspect.” ROA.260. At no point did Hughes

identify himself as a police officer. Finally, Hughes suggested his two Uber

passengers request a new ride, which they did.

When HPD Officers Michael Garcia and Joshua Few arrived on the

scene (roughly 17 minutes after Hughes’s initial 911 call), they re-handcuffed

the drunk driver and asked Hughes to meet them at a nearby gas station so

they could take his statement. At the gas station, Officer Garcia interviewed

the drunk driver while Officer Few interviewed Hughes. Hughes recounted

his observations of the pickup truck’s erratic movements, the driver’s

multiple collisions with the median and concrete barrier, and his assessment

of the driver’s intoxication. Hughes also told Few “he used to be a police

officer.” ROA.264. When Garcia finished taking the drunk driver’s

statement, he asked Hughes for his Uber passengers’ contact information.

Hughes explained that Uber’s privacy policies prevented him from accessing

that information. But he showed Garcia his Uber app, including the details of

his most recent trip. Later, at Garcia’s request, Hughes emailed Garcia

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screenshots of his Uber trip details. Inexplicably, the officers did not arrest

the drunk driver.

Few and Garcia then prepared an incident report. According to

Hughes’s complaint, the report recounted the drunk driver’s statement to

Garcia at the scene:

On 3-23-2019 I was at a flea market with Jesse and his friends

(Uber drivers [sic] alias). Jesse said that we could go back to his

place and that he lived on 59 south near downtown. I told Jesse

that I lived on I10 and he said that he would take me home later.

I said okay because I had been drinking on night [sic] and had

more than 7 beers. I was too drunk to drive but I had a friend at the

bar that could of [sic] taken me home. Jesse said let’s go to his

house and he offered to drive so we went. Mid way [sic] during

the trip I was not familiar with where I was at. I started to ask

Jesse where he was taking me. I finally asked Jesse to just take

me home and[ ]that is when he got mad. Jesse asked if I had

something going on with his wife. I told Jesse no. Jesse then asked

me what I got going on with his wife. I was confused and asked

what he meant. Jesse said he knows there is something going

on. Jesse stopped my truck on the freeway and got out of it. He

came to my passenger side door and was trying to get me out of

the car. I was confused at this point and only wanted to know

what was going on. Jesse kept telling me I am fucked and how I

was going to be deported. I was on the freeway so I could not

just get away from Jesse. Finally Jesse told me to turn around

and put my hands behind my back. When I did not do it fast

enough Jesse kneed my legs to force me to comply. I asked Jesse

why he was doing this and who gave him the right to do this.

Jesse told me he was a police officer. Jesse then put me in

handcuffs. My leg was hurting making it hard for me to stand

and I had scratches on my wrists from him trying to handcuff

me.

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ROA.265–66 (emphases added). The report credited the drunk driver’s

version of events—despite the obvious fact that Hughes’s name is not

“Jesse”; Hughes and the drunk driver had never met; there is no evidence

that Hughes accused the stranger of fooling around with Hughes’s wife;

Hughes never drove the drunk driver anywhere; multiple independent

witnesses and 911 callers (including Hughes’s own, recorded 911 call) and the

Uber app screenshots confirm Hughes was not driving the white GMC

Sierra; and there is no evidence of a flea market open in Houston at 2:00 a.m.,

much less a flea market that doubles as a bar where the drunk driver could

drink more than 7 beers. But the report did indicate that Garcia conducted a

field sobriety test on the drunk driver and that Garcia “got 6/6 clues”

suggesting intoxication under the horizontal gaze nystagmus (“HGN”) test.

ROA.269.

As to Hughes’s statement, Few reported Hughes told him about his

Uber passengers, his decision to stop the drunk driver, and explained he had

handcuffs in his Jeep because “he was a police officer . . . at one time.”

ROA.265 (emphasis in original). The report also included some details from

the Uber screenshots Hughes provided. But the report misinterpreted the

scheduled destination shown in the screenshots as Hughes’s actual stopping

point, ignoring the fact Hughes had obviously stopped on the freeway before

reaching that destination.

Despite the inconsistencies in the drunk driver’s story, the Sierra

driver’s obvious intoxication, and the corroborating evidence for Hughes’s

statement, the report did not address the incident as a DWI investigation.

Instead, it addressed an offense for “Impersonating an Officer” and

identified Hughes as the suspect. The report thus credited the drunk driver’s

statement that Hughes “told [the drunk driver] he was a police officer.”

Officer Few submitted the report.

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B.

Two days later, Garcia signed a probable cause affidavit based on that

incident report. The affidavit asserted Hughes “unlawfully, intentionally

impersonate[d] a public servant, namely a peace officer with intent to induce

[the drunk driver] to submit to his pretended official authority and to rely on

his pretended official acts, by stating he was a Police Officer.” ROA.273–74

(first alteration in original). The affidavit included information gathered by

both Garcia and Few during the investigation.

The affidavit again recounted several details allegedly from Hughes’s

911 call. But the affidavit omitted critical information, like Hughes’s play-by-

play of the Sierra swerving erratically down the highway, his description of

his own vehicle, and Hughes yelling at the drunk driver to get back in the car.

Instead, the affidavit claims Hughes can be heard on the 911 call asking the

drunk driver for his identification. According to Hughes, he never made that

request—the drunk driver’s license was in the cupholder of the Sierra, so

Hughes simply retrieved it.

The affidavit then provided a different version of the drunk driver’s

statement than the incident report offered. According to Hughes’s

complaint, the affidavit said:

[The drunk driver] told me that while he was being detained and

handcuffed by Mr. Hughes, he asked Mr. Hughes if he was a police

officer and Mr. Hughes replied, ‘Yes, I am a police officer.’ [The

drunk driver] stated that when he refused to turn around, Mr.

Hughes struck him multiple times with knees to his legs. [The

drunk driver] stated that he had been drinking at a flea market

on Airline Dr. and met Mr. Hughes and his two female friends

there. [The drunk driver] stated that they talked most of the

night and Mr. Hughes invited [the drunk driver] to his house

to have some drinks. [The drunk driver] stated that Mr.

Hughes offered to drive his white pickup truck and [the drunk

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driver] agreed since he had been drinking. [The drunk driver]

stated that Mr. Hughes told him he lived on the 59 freeway

going to downtown. Mr. Hughes and [the drunk driver] headed

out and two females drove Mr. Hughes’s jeep. [The drunk driver]

stated that mid trip he became uncomfortable with the

situation and asked to be taken home. [The drunk driver] stated

that an argument began and Mr. Hughes got upset and pulled

the vehicle over on the freeway. [The drunk driver] stated that

Mr. Hughes got out and began ordering him out of the vehicle.

[The drunk driver] stated he was forced out of the vehicle and

then handcuffed. [The drunk driver] stated that he was hit

several times in the leg during this process by Mr. Hughes.

[The drunk driver] stated the [sic] he felt pain and wanted to

pursue charges.

ROA.277 (emphasis in original complaint). The new details—like the

previously undiscussed “two female friends” who purportedly drove

Hughes’s Jeep to the scene on Interstate 610—appeared nowhere in the

incident report and contradicted Hughes’s statement. Moreover, Garcia

reported that an “Officer A. Walters” assisted in interviewing Hughes. But

there is no other evidence “Officer A. Walters” had any involvement in this

case at any time.

The new version of the statement also omitted key facts suggesting

the drunk driver’s unreliability. For example, the affidavit made no mention

of the drunk driver calling Hughes “Jesse” or the apparent confusion about

whether the drunk driver was drinking at a “flea market” or a bar. Compare

ROA.265–66, with ROA.277. And perhaps most tellingly, the probable cause

affidavit omitted that the officers’ sole basis for believing Hughes committed

a felony—the drunk driver’s statement—came from the ramblings of a man

who flunked all six clues in the HGN intoxication test.

Finally, as to Hughes’s statement, the affidavit omitted any

corroborating evidence supporting Hughes’s account of the incident. For

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example, the affidavit omitted the third-party 911 call and the screenshots

from Hughes’s Uber app. Instead, the affidavit reported Hughes “would

not” disclose his passengers’ contact information.

Despite these misstatements, omissions, and inconsistencies, Garcia

submitted the probable cause affidavit to the District Attorney’s office. The

DA charged Hughes with felony impersonation of a public servant, and the

262nd Criminal District Court of Harris County issued a warrant for

Hughes’s arrest.

At about 3:00 a.m. on March 25, Officers Few and Garcia went to

Hughes’s home to arrest him. The record does not reveal, and judicial

imagination cannot fathom, why officers needed or wanted to execute this

arrest warrant at 3:00 a.m. But Hughes, who was asleep with his wife at the

time, answered the officers through the door. Few and Garcia asked to see

Hughes’s Uber app, insisting they needed to see his actual cell phone, rather

than the screenshots he had already sent. Hughes “cracked open the door to

give [his cell phone] to the officers. However, instead of taking the phone,

[the] officers grabbed Mr. Hughes’s outstretched arm and pulled him out of

his apartment into the hallway and handcuffed him.” ROA.280. The record

does not reveal, and again judicial imagination cannot fathom, why officers

needed to trick an undressed Hughes into extending his arm through the

cracked door so he could be forcibly arrested in his pajamas. Few and Garcia

allowed Hughes’s wife to clothe him before taking him to the Harris County

Joint Processing Center. Hughes was placed in the jail’s general population

for over 24 hours before being released on March 26.

Hughes was charged with third-degree felony impersonation of a

peace officer under Texas Penal Code § 37.11. The charge carried a minimum

sentence of 2 years in prison, a maximum of 10 years in prison, and a possible

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fine up to $10,000. See Tex. Penal Code § 37.11(b); Tex. Penal

Code § 12.34. Hughes hired a defense attorney.

Almost three months later, on June 17, 2019, “the State of Texas

requested that the criminal action against Mr. Hughes be dismissed on the

basis that ‘no probable cause existed . . . to believe the defendant committed

the crime.’” ROA.282 (alterations adopted). The county judge dismissed the

case the same day.

C.

Hughes sued various officials, the City of Houston, and Harris County

under 42 U.S.C. § 1983. As relevant to this interlocutory appeal, Hughes

alleged Few and Garcia violated his Fourth and Fourteenth Amendment

rights to be free from unlawful arrest and malicious prosecution by filing a

false report or by knowingly standing by while the other officer did so. Few

and Garcia moved to dismiss Hughes’s complaint, asserting qualified

immunity. The district court denied both officers’ motions. Few and Garcia

timely appealed.

II.

When a district court denies qualified immunity on a motion to

dismiss, “we may immediately review the denial.” Ramirez v. Escajeda, 921

F.3d 497, 499 (5th Cir. 2019) (citing Rich v. Palko, 920 F.3d 288, 293–94 (5th

Cir. 2019)). But because the denial of a motion to dismiss is not a final order

of the district court, “we have jurisdiction only to decide whether the district

court erred in concluding as a matter of law that officials are not entitled to

[qualified immunity] on a given set of facts.” Ibid.

Qualified immunity protects “all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Government officials are entitled to immunity from § 1983 suits for damages

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arising from their duties unless the plaintiff can show “(1) that the officer

‘violated a federal statutory or constitutional right’ and (2) that ‘the

unlawfulness of the[] conduct was clearly established at the time.’” Ramirez,

921 F.3d at 500 (internal quotation marks omitted) (quoting District of

Columbia v. Wesby, 538 U.S. 48, 62–63 (2018)). The officers’ basic

contention is that, even if they violated Hughes’s constitutional rights, they

are nonetheless shielded from liability by the fact that an independent

intermediary (namely the magistrate who approved their application for an

arrest warrant) blessed their unconstitutional conduct. See Franks v.

Delaware, 438 U.S. 154, 166–67 (1978) (discussing similar argument). Our

review is de novo. See Guerra v. Castillo, 82 F.4th 278, 284 (5th Cir. 2023).

We first (A) explain the independent intermediary doctrine and the

Franks exception to it. Then we (B) apply that doctrine to Few and Garcia’s

reckless or intentional misstatements and omissions in the warrant

documents. Finally we (C) explain that the warrant affidavit could not have

established probable cause without the offending misstatements and

omissions.

A.

Hughes claims Officers Few and Garcia violated his Fourth

Amendment rights by arresting and prosecuting him without probable cause

because they included material misstatements and omissions in their warrant

affidavit and materials. If established, such misstatements constitute a clearly

established Fourth Amendment violation under Franks v. Delaware.

As a baseline, “[t]he constitutional claim of false arrest requires a

showing of no probable cause.” Club Retro, LLC v. Hilton, 568 F.3d 181, 204

(5th Cir. 2009) (citing Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001)).

Similarly, “the gravamen of the Fourth Amendment claim for malicious

prosecution . . . is the wrongful initiation of charges without probable cause.”

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Thompson v. Clark, 596 U.S. 36, 43 (2022). Probable cause in turn requires “a

probability or substantial chance of criminal activity, not an actual showing

of such activity.” Winfrey v. Rogers, 901 F.3d 483, 495 (5th Cir. 2018)

(quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). Both violations

therefore turn on whether a reasonable officer would believe the suspect had

committed a crime. See Terwilliger v. Reyna, 4 F.4th 270, 282 (5th Cir. 2021)

(“[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.” (emphasis added) (quotations omitted)).

The independent intermediary doctrine ensures that officers can

make reasonable probable cause mistakes: “A warrant secured from a judicial

officer typically insulates law enforcement personnel who rely on it” from

liability for unlawful arrest, even in the absence of probable cause. Villarreal

v. City of Laredo, 94 F.4th 374, 393 (5th Cir. 2024) (en banc). The shield

applies because “‘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 the Fourth

Amendment violation.” Jennings v. Patton, 644 F.3d 297, 300–01 (5th Cir.

2011) (quoting Cuadra v. Houston ISD, 626 F.3d 808, 813 (5th Cir. 2010)).

But the independent intermediary doctrine has an important

exception. If “it is obvious that no reasonably competent officer would have

concluded that a warrant should issue,” a neutral magistrate’s signature will

not protect the offending officers. Villarreal, 94 F.4th at 393 (emphasis

omitted) (quotation omitted). And under Franks v. Delaware, it is equally

obvious that no reasonably competent officer would lie or make material

omissions in a warrant application. See Terwilliger, 4 F.4th at 281

(“Functionally, the holding of Franks is an exception to the independent

intermediary doctrine.”). Franks holds that an officer cannot avoid liability

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where a warrant affidavit (1) contains false statements or material omissions

(2) made with at least “reckless disregard for the truth” that (3) were

“necessary to the finding of probable cause.” 438 U.S. at 155–56; see also

Winfrey, 901 F.3d at 494 (same). An officer’s decision to submit an affidavit

barred by Franks violates the Fourth Amendment because:

The requirement that a warrant not issue “but upon probable

cause, supported by Oath or affirmation,” would be reduced to

a nullity if a police officer was able to use deliberately falsified

allegations to demonstrate probable cause, and, having misled

the magistrate, then was able to remain confident that the ploy

was worthwhile.

Franks, 438 U.S. at 168 (quoting U.S. Const. amend. IV). So if a plaintiff

makes the tripartite Franks showing, then any arrest or prosecution lacked

probable cause, the defendant officers are not entitled to the protection of the

independent intermediary doctrine, and the misstatements or omissions

suffice to establish a Fourth Amendment violation. See Terwilliger, 4 F.4th at

281–82.

Two additional wrinkles to the Franks doctrine bear emphasis. First,

Franks liability is not limited to the person who prepared or signed the

warrant affidavit. Instead, liability can attach to (A) any person directing the

inclusion of false information in the affidavit, see Guerra, 82 F.4th at 288, or

(B) any person who supplied false information for the purpose of compiling

a warrant affidavit, see Melton v. Phillips, 875 F.3d 256, 262 (5th Cir. 2017) (en

banc). So as long as an officer prepared information for the purpose of

inclusion in a warrant affidavit, he can be liable without preparing the

affidavit. See Laviage v. Fite, 47 F.4th 402, 406 (5th Cir. 2022) (citing Franks,

438 U.S. at 171) (“[T]he Supreme Court held an officer violates the Fourth

Amendment if he deliberately or recklessly provides false information

necessary to secure an arrest warrant.”).

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Second, Franks requires courts to conduct a “corrected affidavit”

analysis. Terwilliger, 4 F.4th at 283 (quoting Winfrey, 901 F.3d at 495). Courts

must consider whether the warrant affidavit would support probable cause if

the misstatements and material omissions were eliminated. See Winfrey, 901

F.3d at 495. At the motion to dismiss stage, plaintiffs need only “point out

specifically the portion of the warrant affidavit that is claimed to be

false . . . accompanied by a statement of supporting reasons.” Terwilliger, 4

F.4th at 283 (quoting Franks, 438 U.S. at 171). By pleading such facts,

“[p]laintiffs [meet] their burden of alleging a Franks violation sufficient to

withstand the test of Iqbal/Twombly, [but] if they press [the] litigation, they

must offer tangible proof to overcome the ‘presumption of validity with

respect to the affidavit supporting the warrant.’” Ibid. (quoting Franks, 438

U.S. at 171 (alteration adopted)). Thus, specific examples of misstatements

and omissions—combined with inferential explanation as to their

materiality—can carry a complaint across the Rule 12(b)(6) line.

In sum, an officer who recklessly or intentionally contributed

misleading statements or omissions to a warrant affidavit violates the

arrestee’s constitutional rights. That violation has been clearly established

since Franks. See Winfrey, 901 F.3d at 494. 1

_____________________

1

In the context of split-second excessive force cases, the Supreme Court has

“repeatedly told courts not to define clearly established law at too high a level of

generality.” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021). That is so because in the

typical excessive-force case, officers must make life-or-death split-second decisions, often

at night or in the chaos of a deadly chase or both. See, e.g., Morrow v. Meachum, 917 F.3d

870, 876 (5th Cir. 2019) (“That means the law must be so clearly established that—in the

blink of an eye, in the middle of a high-speed chase—every reasonable officer would know

it immediately.”). This case does not involve excessive force, or split-second decisions, or

the chaos of a chase. Rather, it involves a simple, clearly established rule that all officers

should know at all times under Franks and Winfrey: Do not lie.

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B.

We next apply the Franks doctrine to this case. The officers’ probable-

cause case hinges on the drunk driver’s allegation that Hughes said, in effect,

“I am a police officer.” So we consider each officer’s efforts to convince the

magistrate that Hughes in fact said that.

1.

First, Officer Few. Hughes alleged Few contributed false statements

to the incident report, knowing that report would be used in the warrant

affidavit. Hughes also alleged Few knew Officer Garcia had omitted critical

information in the two documents and failed to correct them. Under either

theory, Hughes presented enough facts to support a Fourth Amendment

claim against Few.

First and foremost, Hughes pleaded a direct Franks violation based on

Few’s contributions to the incident report. As discussed above, Few may be

liable for a Franks violation if he produced information containing false

statements or material omissions made with at least “reckless disregard for

the truth,” Winfrey, 901 F.3d at 494 (quoting Franks, 438 U.S. at 155), and

he knew that information would be used in a warrant affidavit, see Melton, 875

F.3d at 262.

Here, Few submitted the incident report entitled “Impersonating an

Officer.” That report omitted critical pieces of information from Hughes’s

statement while including statements from the drunk driver that the officers’

own lawyer called “crazy.” Oral Arg. at 8:01–17. For example, Hughes

alleges he told Few about the drunk driver’s erratic driving, that the driver’s

truck had hit the median before coming to a stop on the side of the interstate,

and that the drunk driver repeatedly tried to “walk onto the interstate in the

way of oncoming traffic.” ROA.263–64. But according to the complaint, the

incident report noted only that Hughes told his Uber passengers to get a new

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ride, detained the drunk driver, and had handcuffs because “he was a police

officer . . . at one time.” ROA.265 (emphasis in original).

Meanwhile, the incident report relayed an entire narrative from

Officer Garcia’s conversation with the drunk driver. But that narrative was

“crazy.” (Again, the Houston Assistant City Attorney’s word.) Among

other things, the drunk driver referred to Hughes as “Jesse,” suggested the

drunk driver and “Jesse” were drinking at a flea market or a bar at 2:00 a.m.,

implied Hughes and the drunk driver had a prior relationship, and said

Hughes was driving the white Sierra. ROA.265–66. But Hughes’s name is

not Jesse; no flea markets in Houston are open and serving beer at 2:00 a.m.;

Hughes did not know the drunk driver; and Hughes’s black Jeep was also at

the scene when the officers arrived. The incident report noted none of these

obvious, “crazy” inconsistencies.

Few had access to ample evidence suggesting both that Hughes’s

statement was reliable and that the drunk driver’s was not. For example,

Hughes sent the officers screenshots of his last Uber trip, corroborating his

story. But the report misstated the information in the screenshots, suggesting

the displayed endpoint of the ride should have matched Hughes’s actual

stopping point, when in reality it reflected only the requested destination.

Moreover, Few presumably had access to Hughes’s recorded 911 calls, with

the play-by-play description of the white Sierra’s actions and the Uber

passengers’ voices. Again, Few omitted any such discussion. Finally and

most importantly, the inconsistencies or falsehoods in the drunk driver’s

story should have decreased or eliminated its relative weight. But Few’s

report contained none of these facts. That evinces at a bare minimum that

Few recklessly disregarded the truth.

And there can be little doubt Few submitted the incident report “for

the purpose of its being included in [the] warrant application.” Melton, 875

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F.3d at 262. Few’s deep involvement with the case raises a plausible

inference that he knew the incident report would be used to prosecute

Hughes. Few conducted Hughes’s interview. He submitted the incident

report labeled “Impersonating an Officer,” indicating the focus of the

investigation had already shifted to Hughes. He went with Garcia two days

later and arrested Hughes. That Few completed the incident report while

Garcia completed the warrant affidavit does not absolve Few of liability given

these strong indications that he knew exactly what purpose the incident

report would serve. See Bledsoe v. Willis, No. 23-30238, 2023 WL 8184814

(5th Cir. Nov. 27, 2023) (per curiam) (unpublished) (denying qualified

immunity as to both officers where one initially investigated and the other

prepared the warrant affidavit). Hughes’s allegations suffice to raise a

plausible inference that Few knew his reckless omissions and misstatements

would be used in the warrant affidavit, “and that is all he must show.” Id.

at *5.

Second, Hughes established a plausible claim against Few as a

bystander. Bystander liability attaches when an officer “(1) knows that a

fellow officer is violating an individual’s constitutional rights; (2) has a

reasonable opportunity to prevent the harm; and (3) chooses not to act.”

Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (citations omitted).

Here, Few allegedly knew the information Garcia contributed to the

incident report (and then to the warrant affidavit) contained material

misstatements and omissions that did not accurately reflect the evidence

from their investigation. Few had access to substantial evidence

contradicting the drunk driver’s narrative and Garcia’s recitation of the facts.

Even if Few himself did not write the false statements, he submitted the

report containing them. That raises a reasonable inference that he knew of

the harm about to be perpetrated but submitted the report anyway. That is

enough for bystander liability at this stage.

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2.

Second, Officer Garcia. Hughes alleged the standard Franks claim

against Garcia. Therefore, Garcia may be liable if he knowingly, or with

reckless disregard for the truth, included false statements or material

omissions in the warrant affidavit. See Franks, 438 U.S. at 155–56.

In addition to his incident report contributions, Garcia prepared and

submitted the warrant affidavit that directly led to Hughes’s arrest. That

affidavit contained numerous false statements and material omissions. Most

importantly, Garcia materially altered the drunk driver’s statement from the

incident report. The version of the drunk driver’s statement in the warrant

affidavit patched many of the obvious holes in the incident report. For

example, it omitted any reference to “Jesse.” It also resolved the

inconsistency as to whether the drunk driver was at a flea market or a bar,

only mentioning a flea market (though it again did not address which flea

markets in Houston were open and serving beer at 2:00 a.m.). And the new

version of the story explained that Hughes’s Jeep arrived at the side of the

highway because “two female friends drove [the] jeep.” ROA.277. By

altering these details, Garcia’s affidavit manufactured a more credible

narrative.

Garcia’s affidavit also omitted external evidence undermining the

drunk driver’s credibility or supporting Hughes’s. For example, the affidavit

failed to mention the HGN test or that Garcia “got 6/6 clues” indicating

intoxication. It excluded reference to the Uber receipts showing Hughes

picked up his passengers at approximately 2:30 a.m. and so could not have

been out drinking with the drunk driver at a flea market. Then, despite

admitting that he listened to the recording of Hughes’s 911 call, Garcia

omitted the stated purpose of the call, Hughes’s description of his Jeep and

the Sierra, Hughes’s real-time descriptions of the drunk driver’s actions,

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Hughes’s explanation for restraining the driver, and his repeated

exclamations to the driver to “stay” and “get back in the car.” ROA.275.

Finally, Garcia did not mention the third-party 911 call that corroborated

Hughes’s statement.

The affidavit also added false details, beyond those in the drunk

driver’s narrative. Most significantly, Garcia’s affidavit claimed an “Officer

A. Walters” was also at the scene. According to Garcia, “Walters” reported

that Hughes “handed documents to [Walters] that he said he retrieved from

[the drunk driver’s] vehicle.” ROA.276. But Officer Walters’s name appears

nowhere else in the record, including the incident report, and Hughes’s

statement made no mention of any officer other than Few and Garcia arriving

at the scene. At oral argument, counsel for the officers was unable to offer

any information or justification for “Officer A. Walters” suddenly appearing

in Garcia’s report.

All told, Garcia’s affidavit made at least eight material misstatements

or omissions. Any reasonable officer would have known, based on the

evidence available, that the affidavit contained these errors. See Terwilliger, 4

F.4th at 284 (holding Franks liability attaches to a defendant who acts

“contrary to the information provided to him”). Hughes therefore

sufficiently pleaded Garcia violated his clearly established Fourth

Amendment rights by producing and submitting the affidavit.

C.

Finally, the “corrected affidavit” analysis. Officers are liable for their

false statements only if those statements were “necessary to the finding of

probable cause.” Franks, 438 U.S. at 155–56. We consider whether probable

cause existed to arrest Hughes for the felony of impersonating an officer even

without the erroneous statements and omissions in the affidavit. See

Terwilliger, 4 F.4th at 283.

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The answer is easily “no.” Once the officers’ misstatements and

omissions are corrected, there is no basis to find probable cause that Hughes

committed a felony. To the contrary, in the absence of the officers’

misstatements and omissions, Hughes effectuated a valid citizen’s arrest

under Texas law.

State law provides: “A peace officer or any other person, may, without

a warrant, arrest an offender when the offense is committed in his presence

or within his view, if the offense is one classed as a felony or as an offense

against the public peace.” Tex. Code Crim. Proc. art. 14.01(a)

(emphasis added). And Texas’s highest court for criminal matters has held

this authorizes a citizen’s arrest of a DWI suspect. Miles v. Texas, 241 S.W.3d

28, 39–44 (Tex. Crim. App. 2007).

Consider the facts of Miles. The citizen in that case was a tow-truck

driver who chased a fleeing DWI suspect from a crash scene, at high rates of

speed, over a median, and the wrong way down a one-way street into heavy

oncoming traffic. Id. at 30–31. The Texas court understood the issue as

“whether [the citizen] effectuated that arrest in a reasonable manner—a

manner that a peace officer, standing in the citizen’s shoes, could have legally

done under the Fourth Amendment—and without significantly increasing

the risk of danger and harm to the public welfare.” Id. at 45. Because a police

officer could have driven the way the citizen tow-truck driver did, that was

sufficient to show that the citizen effectuated a reasonable and lawful arrest.

So too here. Miles allowed Hughes to arrest the drunk driver in “a

manner that a peace officer, standing in the citizen’s shoes, could have legally

done under the Fourth Amendment.” Ibid. Hughes retrieved the drunk

driver’s license and keys and then used handcuffs to further restrain him—

all of which a police officer obviously could have done. So there can be no

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doubt that, under the allegations in Hughes’s complaint, his citizen’s arrest

was plainly lawful.

Other evidence confirmed the lawfulness of Hughes’s actions and

further eliminated any whiff of probable cause. His two 911 recordings

revealed the urgency of the situation and the need for a citizen’s arrest when

the drunk driver repeatedly endangered himself and others. There was also

the unmentioned 911 call from another concerned citizen, corroborating

Hughes’s story. And when the officers arrived, the driver was visibly

intoxicated, failing the HGN test on six out of six factors. Thus, no one could

reasonably conclude Hughes was impersonating a police officer simply

because he detained another citizen.

Hughes’s story confirmed what the evidence suggested. At every

turn, Hughes repeated that he was a former police officer. He had been driving

two passengers for Uber when he saw the GMC Sierra driving erratically.

When the Sierra came to a stop after two collisions, he pulled up behind it.

And finally, concerned for the drunk driver’s safety and that of other drivers

on the interstate, he used handcuffs—which he possessed because of his

previous work as a police officer—to detain the drunk driver while he waited

for help to arrive. According to Hughes’s complaint, at no point did Hughes

suggest to anyone that he was currently a police officer.

The only evidence suggesting Hughes ever impersonated a law

enforcement officer—thus the only evidence that could possibly have

established probable cause—came from the drunk driver’s statement. As

discussed above, the drunk driver reportedly told Officers Few and Garcia

that Hughes had claimed to be a police officer. But even the officers’ counsel

admitted that this assertion came in the midst of the drunk driver’s “crazy

statement[s].” Oral Arg. at 8:01–17. Given the vast inconsistencies (indeed,

impossibilities) reflected in both versions of the drunk driver’s statement, the

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driver’s obvious intoxication, and the evidence supporting Hughes’s

account, no reasonable officer could have suspected Hughes committed a

felony. 2 Therefore, a corrected warrant affidavit could not have established

probable cause to arrest and prosecute Hughes.

* * *

It is unclear which part of this case is more amazing: (1) That officers

refused to charge a severely intoxicated driver and instead brought felony

charges against the Good Samaritan who intervened to protect Houstonians;

or (2) that the City of Houston continues to defend its officers’ conduct.

Either way, the officers’ qualified immunity is denied, and the district court’s

decision is

AFFIRMED.

_____________________

2

The district court correctly noted Laviage v. Fite is distinguishable. ROA.747. In

Laviage, this court reversed the denial of qualified immunity because it found the alleged

omission immaterial to the finding of probable cause. Laviage, 47 F.4th at 407. Here, the

slew of misstatements and omissions were obviously material because the only evidence

supporting probable cause came from the drunk driver’s statement, which the

misstatements and omissions bolstered.

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