inline">Case: 20-50367 Document: 00516299194 Page: 1 Date Filed: 04/28/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 28, 2022 No. 20-50367 Lyle W. Cayce consolidated with Clerk Nos. 20-50372, 20-50380, 20-50408, 20-50453 John Wilson, et al., Plaintiffs—Appellants, versus Brent Stroman, Chief of Police for the Waco Police Department, in his individual capacity; Manuel Chavez, Waco Police Department Detective, in his individual capacity; Abelino “Abel” Reyna, Elected District Attorney for McLennan County, Texas, in his individual capacity; City of Waco, Texas; McLennan County, Texas; Robert Lanning, in his individual capacity; Jeffrey Rogers, in his individual capacity; Sergeant Patrick Swanton, in his individual capacity; Steven Schwartz, in his individual capacity; Christopher Frost, in his individual capacity, Defendants—Appellees, Appeals from the United States District Court for the Western District of Texas USDC Nos. 1:17-CV-453; 1:17-CV-471; 1:15-CV-1040; 1:15-CV-1041; 1:15-CV-1044; 1:17-CV-479; 1:18-CV-1044; 1:18-CV-1045; 1:18-CV-1046; 1:18-CV-1047; 1:17-CV-448; 1:17-CV474; 1:15-CV-1042; 1:15-CV-1043; 1:15-CV-1045; 1:16-CV-575; 1:17-CV-457; 1:17-CV-480; 1:19-CV-475 and 1:17-CV-465 Case: 20-50367 Document: 00516299194 Page: 2 Date Filed: 04/28/2022 No. 20-50367 c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453 Before Richman, Chief Judge, and Clement and Higginson, Circuit Judges. Stephen A. Higginson, Circuit Judge: In this consolidated appeal, Plaintiffs-Appellants challenge the district court’s application of the independent intermediary doctrine to dismiss their Fourth Amendment false arrest claims. We REVERSE and REMAND for further proceedings. I. This case concerns the fallout from the deadly shootout that occurred on May 17, 2015, at the Twin Peaks restaurant in Waco, Texas. This court recently resolved a related set of appeals concerning the Twin Peaks shootout in Terwilliger v. Reyna, 4 F.4th 270

 (5th Cir. 2021). The individual plaintiffs
   here are similar to the plaintiffs in Terwilliger in several respects. All are
   motorcyclists who had gathered at the Twin Peaks for a meeting of the Texas
   Confederation of Clubs & Independents. See

id. at 277

. All were eventually
   arrested following the shootout for Engaging in Organized Criminal Activity
   (“EIOCA”), in violation of Texas Penal Code § 71.02. See Terwilliger, 4
   F.4th at 277. And all were arrested pursuant to the same “form warrant
   affidavit” that was presented to the magistrate judge as the basis for the arrest
   warrants. See id. at 278-79. But for the subject’s name, which was to be
   inserted on a blank line, the affidavit was identical in every respect. Id. In
   total, 177 individuals were arrested using this identical “fill-in-the-name”
   affidavit. Id. at 279. Following their arrests, both the Terwilliger plaintiffs and
   the plaintiffs here filed multiple individual § 1983 actions asserting similar
   false arrest claims, which are premised on alleged defects in the form affidavit
   used to secure the arrest warrants. See id.
          Unlike the Terwilliger plaintiffs, however, the individual plaintiffs
   here—in addition to being arrested pursuant to the magistrate’s warrant—
   were all subsequently indicted by a grand jury for EIOCA. This difference
   proved crucial to the district court’s resolution of the § 1983 actions brought




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                                     No. 20-50367
                    c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
   by each set of plaintiffs. With respect to the Terwilliger plaintiffs, the district
   court held that their Franks false arrest claims survived the motion to dismiss
   stage, at least with respect to some defendants. Id. at 283-84 (citing Franks v.
   Delaware,

438 U.S. 154

 (1978)). For the plaintiffs here, by contrast, the
   district court granted in full the defendants’ motion to dismiss the false arrest
   claims. The district court held that, pursuant to the independent
   intermediary doctrine, the grand jury’s indictment served to break the chain
   of causation for any false arrest claim pertaining to the form affidavit and the
   arrest warrant issued by the magistrate judge. See McLin v. Ard,

866 F.3d 682, 689

 (5th Cir. 2017) (citation omitted).
          Because the district court concluded that the independent
   intermediary doctrine applied, it did not discuss the merits of the plaintiffs’
   false arrest claims. But the nature of the plaintiffs’ false arrest claims is
   relevant to our inquiry here because they argue, in essence, that the
   independent intermediary doctrine should not apply to the grand jury’s
   indictment because the grand jury was misled in the very same way as the
   magistrate who issued the arrest warrants. We will thus begin by discussing,
   at a high level, the nature of the plaintiffs’ false arrest claims.
                                           II.
          The false arrest claims asserted by the plaintiffs here largely mirror
   the claims asserted by the Terwilliger plaintiffs. Broadly, both sets of plaintiffs
   take aim at the form warrant affidavit and allege that defects in that affidavit
   led to them being arrested without particularized probable cause. Terwilliger,
   4 F.4th at 279. More specifically, both sets of plaintiffs asserted two
   alternative false arrest claims, one premised on Malley v. Briggs,

475 U.S. 335

   (1986) and the other premised on Franks v. Delaware,

438 U.S. 154

 (1978).
   See Terwilliger, 4 F.4th at 279.




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                                     No. 20-50367
                    c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
          In Malley, the Supreme Court described that an officer can be held
   liable for a false arrest despite the issuance of an arrest warrant by a
   magistrate if the affidavit the officer presented to the magistrate was “so
   lacking in indicia of probable cause as to render official belief in its existence
   unreasonable.”

475 U.S. at 344-45

 (citation omitted). “The Malley wrong is
   not the presentment of false evidence, but the obvious failure of accurately
   presented evidence to support the probable cause required for the issuance
   of a warrant.” Melton v. Phillips,

875 F.3d 256, 264

 (5th Cir. 2017) (en banc).
          In other words, an officer can avoid liability under Malley if he presents
   a warrant affidavit that facially supplies probable cause to arrest the subject
   of the warrant. See Blake v. Lambert,

921 F.3d 215, 221-22

 (5th Cir. 2019). But
   even if a warrant affidavit supplies probable cause on its face, an officer can
   still be liable under Franks if the apparent probable cause is the result of
   “material misstatements or material omissions.” Terwilliger, 4 F.4th at 281
   (citations omitted). Specifically, an officer is liable under Franks if he
   “deliberately or recklessly provides false, material information for use in an
   affidavit in support of [a warrant]” or “makes knowing and intentional
   omissions that result in a warrant being issued without probable cause”
   Melton,

875 F.3d at 264

 (alteration in original) (emphasis removed) (first
   quoting Hart v. O’Brien,

127 F.3d 424, 448

 (5th Cir. 1997); and then quoting
   Michalik v. Hermann,

422 F.3d 252

, 258 n.5 (5th Cir. 2005)).
In Terwilliger, this court held that the challenged form warrant
affidavit, on its face, “sufficiently alleged probable cause to arrest those to
whom its facts applied” for the offense of EIOCA. 4 F.4th at 282. More
precisely, the court described that the affidavit supplied probable cause to
conclude that “members or associates of the Bandidos or Cossacks instigated
and were involved in the Twin Peaks shootout, and that their conduct rose to
the level of violating the [offense of] EIOCA.” Id. Correspondingly, the
affidavit—in essence—represented that each individual subject that was

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No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
arrested (the plaintiffs here among them) was a member or associate of the
Bandidos or Cossacks who was involved in the shootout and the unlawful
activity more generally described in the affidavit. See id. at 278-79, 282-83.
Furthermore, this court described that the Terwilliger plaintiffs had
sufficiently alleged that this latter, particularized representation was based on
materially false statements and omissions that were deliberately or recklessly
made by the defendants. See id. at 282-83. For example, the plaintiffs
“den[ied] affiliation with the Bandidos or Cossacks,” denied “any
involvement with or membership in a ‘criminal street gang’” and, in some
instances, denied wearing any signs or symbols that would identify them as
associated with the Bandidos or Cossacks, or any other alleged criminal street
gang. Id. at 282. They further denied engaging in any of the unlawful conduct
generally described in the affidavit. See id. In addition, the plaintiffs alleged
that the defendants had “deliberately excluded relevant information that
would have weighed against individualized probable cause, such as video
evidence, witness interviews, and membership in motorcycle clubs known to
be independent and not affiliated with the Bandidos or Cossacks.” Id. at 283.
Once the affidavit was “corrected” to account for these alleged false
statements and omissions, this court concluded that “the remaining
particularized facts in the affidavit” were insufficient to establish probable
cause to arrest any of the subjects for EIOCA. Id. As a result, the court held
that the Terwilliger plaintiffs had sufficiently alleged a Franks claim at the
pleading stage (but only against some of the named defendants). Id. at 283-
84.
In sum, Terwilliger sets the lay of the land for analyzing the false arrest
claims in this case. It does so in two ways. First, it construes the challenged
form warrant affidavit as (1) generally alleging that members of the Bandidos
and Cossacks engaged in violent activity at the Twin Peaks that amounted to

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No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
EIOCA, and (2) linking each specific subject of the warrant to that general
set of probable cause-establishing facts, thus creating particularized probable
cause to arrest each subject. See id. at 282-83. Second, Terwilliger describes
that the plaintiffs in that case successfully pleaded Franks claims by plausibly
alleging in their complaints that (1) they were not associated with the
Bandidos or Cossacks and that they had nothing to do with the violent activity
that is described in the affidavit and (2) certain defendants recklessly or
knowingly caused it to be stated otherwise in the affidavit (i.e., a material
misstatement) and/or excluded from the affidavit information in their
possession that would have materially undermined the aforementioned
particularized probable cause (i.e., a material omission). See id.
III.
As discussed above, the district court pretermitted any discussion of
whether the plaintiffs here had adequately alleged a Franks claim with respect
to the form affidavit and their ensuing arrests pursuant to the magistrateissued warrant. It did so because it concluded that any such claim must
necessarily fail as a result of the plaintiffs’ subsequent indictment by the
grand jury and the application of the independent intermediary doctrine.
We review de novo the district court’s grant of the defendants’
motion to dismiss and its application of the independent intermediary
doctrine. McLin v. Ard,

866 F.3d 682, 688

 (5th Cir. 2017). We hold that the
   district court erred in its application of the independent intermediary
   doctrine and take this opportunity to clarify how the doctrine operates with
   respect to Franks (and Malley) claims, especially when two separate
   intermediaries are involved.
                                          A.
          “It is well settled that if facts supporting an arrest are placed before an
   independent intermediary such as a magistrate or grand jury, the




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                                     No. 20-50367
                    c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
   intermediary’s decision breaks the chain of causation for false arrest,
   insulating the initiating party.” McLin,

866 F.3d at 689

 (quoting Deville v.
   Marcantel,

567 F.3d 156, 170

 (5th Cir. 2009)). Thus, a properly secured arrest
   warrant or grand jury indictment will shield a defendant who has committed
   or initiated a false arrest. Buehler v. City of Austin/Austin Police Dep’t,

824 F.3d 548, 553-54

 (5th Cir. 2016). This is true even if the independent
   intermediary’s action occurred after the arrest or if the arrestee was never
   convicted of a crime.

Id. at 554

.
          But the intermediary must be truly independent. Thus, “the initiating
   party may be liable for false arrest if the plaintiff shows that ‘the deliberations
   of that intermediary were in some way tainted by the actions of the
   defendant.’” Deville v. Marcantel,

567 F.3d 156, 170

 (5th Cir. 2009)
   (emphasis added) (quoting Hand v. Gary,

838 F.2d 1420, 1428

 (5th Cir.
   1988)). This court has sometimes referred to this principle as the “taint
   exception.” See, e.g., McLin,

866 F.3d at 689

.
          Regardless of label, this court has recognized Franks and Malley as
   functional exceptions to the independent intermediary doctrine. See Mayfield
   v. Currie,

976 F.3d 482, 487

 (5th Cir. 2020) (describing Franks and Malley as
   “two ways to overcome the [independent intermediary] doctrine”);
   Terwilliger, 4 F.4th at 281 (“Functionally, the holding of Franks is an
   exception to the independent intermediary doctrine.”); Anokwuru v. City of
   Houston,

990 F.3d 956, 963-64

 (5th Cir. 2021) (discussing Franks as an
   exception to the independent intermediary doctrine); Arizmendi v. Gabbert,

919 F.3d 891, 897

 (5th Cir. 2019) (same); see also Blake v. Lambert,

921 F.3d 215, 220

 (5th Cir. 2019) (describing that a warrant affidavit suffering a Malley




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                                      No. 20-50367
                     c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
   defect “does not provide any supporting facts from which a magistrate could
   independently determine probable cause”).
          Of course, it could not be otherwise. It would defy Supreme Court
   precedent to hold that, for example, a plaintiff had successfully pleaded a
   Malley claim by alleging that an officer had presented a facially deficient
   warrant affidavit to a magistrate but that the officer was nonetheless insulated
   from liability because the magistrate proceeded to issue a warrant based on
   that affidavit. See Malley,

475 U.S. at 345-46

 (holding that an officer is liable
   for submitting a deficient warrant application even if a magistrate approves
   it). Thus, if a plaintiff adequately pleads that an officer has obtained an arrest
   warrant from a magistrate in violation of Malley or Franks, then nothing more
   is required to show that the independent intermediary doctrine does not
   apply with respect to that intermediary’s decision. See Mayfield,

976 F.3d at 487

.
          That being the case, however, does not necessarily prevent a second
   intermediary’s decision—such as a grand jury’s subsequent indictment—
   from triggering the independent intermediary doctrine to ultimately insulate
   the officer from liability. See Winfrey v. Rogers,

901 F.3d 483, 489-90, 496-97

(5th Cir. 2018) (acknowledging that a grand jury’s subsequent indictment,
via the independent intermediary doctrine, could insulate an officer from a
Franks violation committed before a magistrate). And that is the very
situation that the district court held, and the defendants continue to argue, is
presented here.
B.
The district court’s holding—that the grand jury’s indictment
triggered the independent intermediary doctrine and that the plaintiffs failed
to plead facts establishing an exception—turned on both the purported
factual inadequacy of the plaintiffs’ pleadings and legal conclusions about the

8
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No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
nature of the independent intermediary doctrine and its exceptions. We
address these legal conclusions first. To do so, we will temporarily make two
assumptions related to the plaintiffs’ pleadings. 1 First, we will assume that
the plaintiffs have adequately alleged a Franks claim with respect to the
magistrate’s warrant in a manner identical to the plaintiffs in Terwilliger.
Second, we will assume—as the plaintiffs argue—that they have adequately
alleged that the grand jury was misled in the same way that the magistrate
was misled. That is, that the original Franks violation was repeated before the
grand jury. If so, the question is whether that suffices to render the
independent intermediary doctrine inapplicable to the grand jury’s
indictment.
As a legal matter, the district court held that in order to show that the
grand jury’s deliberations were tainted, the plaintiffs had to adequately allege
that (1) each defendant (2) maliciously omitted evidence or misled the jury.
Because the defendants continue to press those purported requirements
here, we address each in turn.
1.
We begin first with the argument that “each” defendant must have
tainted the grand jury. There is no such requirement. Fundamentally, the
argument confuses the scope of liability for a false arrest with what is
necessary to show that an intervening intermediary’s actions were not truly
independent. Consider the present circumstances. To be sure, the plaintiffs
here must adequately plead (and ultimately prove) that each defendant falls
within the scope of liability for the Franks violation allegedly committed in
securing the arrest warrant from the magistrate. See Terwilliger, 4 F.4th at

1
We return to the factual adequacy of the plaintiffs’ pleadings below. See infra
Section III.C.

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No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
283-84; Melton,

875 F.3d at 263

 (holding that “an officer must have assisted
   in the preparation of, or otherwise presented or signed a warrant application
   in order to be subject to liability under Franks”). That is because the Franks
   violation with respect to the magistrate’s warrant is the plaintiffs’ cause of
   action. See Hart v. O’Brien,

127 F.3d 424, 442

 (5th Cir. 1997) (describing that
   a Franks violation “states a valid cause of action under the Fourth
   Amendment”), abrogated on other grounds as recognized in Anokwuru,

990 F.3d at 964

; see also Blake,

921 F.3d at 217-18

 (discussing the plaintiff’s Malley and
   Franks “claims” and making no mention of the independent intermediary
   doctrine).
          By contrast, despite its conceptual overlap with Franks, the “taint
   exception” to the independent intermediary doctrine is not a cause of
   action—it is an exception to a doctrine that insulates an official who would
   otherwise be liable for a false arrest. See McLin,

866 F.3d at 689

. In other
   words, no defendant is being held liable for “tainting” the intermediary as
   that concept is deployed within the independent intermediary doctrine. As a
   practical matter, in cases involving only one intermediary, the allegations that
   prove a Franks claim will do double duty as the allegations that also establish
   the taint exception. That is why, in addition to being an independent cause of
   action, this court also describes Franks as a functional exception to the
   independent intermediary doctrine, as discussed above. Terwilliger, 4 F.4th
   at 281. But in a Franks case where a second intermediary is involved, a
   plaintiff need only show that the deliberations of the intermediary were
   tainted such that the second intermediary, like the first, did not have “all the
   facts” before it necessary to render an independent determination of
   probable cause. Winfrey,

901 F.3d at 497

 (quoting Cuadra v. Hous. Indep. Sch.
   Dist.,

626 F.3d 808, 813

 (5th Cir. 2010)).
          To conclude otherwise would allow for scenarios that would render
   the independent intermediary doctrine meaningless. For example, assume



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                                        No. 20-50367
                       c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
   that a police officer would be liable for a Franks violation for patently lying in
   a warrant affidavit submitted to a magistrate in order to arrest an individual
   innocent of a crime. And assume that after the individual is arrested, a
   prosecutor secures a separate witness to repeat identical lies in order to
   obtain a grand jury’s indictment. In such a scenario, no one could describe
   that the grand jury acted independently to determine probable cause or that
   its deliberations were not tainted, even though the defendant police officer
   was not presented as a witness to lie to the grand jury himself. See Winfrey,

901 F.3d at 497

 (holding that the grand jury did not act as an independent
   intermediary because the “material information” that was omitted from the
   arrest warrant affidavit was not shown to have been submitted to the grand
   jury). 2
              In sum, while each defendant must fall within the scope of liability for
   the Franks violation alleged here (centering on the arrest warrant obtained




              2
             The cases cited by the defendants and the district court below do not hold
   otherwise. In Shaw and McLin, for example, it was true that the defendants who allegedly
   committed the false arrest also allegedly tainted the intermediary’s decision, but neither
   case holds that the same actors must have tainted the intermediary. See Shaw, 918 F.3d at
   417-18; McLin,

866 F.3d at 689-90

. Likewise, in Hand v. Gary, this court simply did not
   confront the situation where a separate actor taints the intermediary—rather, in that case
   the grand jury had not been tainted at all.

838 F.2d 1420, 1428

 (5th Cir. 1988).




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                                       No. 20-50367
                      c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
   from the magistrate), 3 there is no requirement to show that each and every
   defendant also tainted the secret grand jury deliberations. 4
                                                2.
           “At common law, in cases where probable cause to arrest was lacking,
   [an officer’s] immunity turned on the issue of malice, which was a jury
   question.” Malley,

475 U.S. at 341

. Although that is no longer the case, 5 this
   court’s jurisprudence on the independent intermediary doctrine developed
   when an officer’s malice was still the central inquiry for immunity. See
   Rodriguez v. Ritchey,

556 F.2d 1185, 1193

 (5th Cir. 1977) (en banc); Smith v.
   Gonzales,

670 F.2d 522, 526

 (5th Cir. 1982). Thus, in describing the doctrine,
   this court emphasized that an independent intermediary’s decision would
   insulate an officer who had acted with malice in making an arrest without
   probable cause—i.e., an officer who would otherwise be liable for false arrest.
   See Thomas v. Sams,

734 F.2d 185, 191

 (5th Cir. 1984) (citing Smith,

670 F.2d at 526

)). But recognizing that an officer’s malice could lead him to undermine
   the intermediary’s independence, this court clarified that “the chain of
   causation is broken only where all the facts are presented to the grand jury,
   or other independent intermediary, where the malicious motive of the law


           3
              For example, this court in Terwilliger held that the plaintiffs there did not
   adequately allege that Chief Stroman or Assistant Chief Lanning, who are also defendants
   in this case, fell within the scope of the alleged Franks violation and thus affirmed the
   district court’s decision to dismiss them from the case. Terwilliger, 4 F. 4th at 284 (citing
   Melton,

875 F.3d at 263

). As explained below, we do not decide if that is also true here and
   instead leave that determination to the district court, in the first instance, on remand.
           4
             This is, of course, also true for claims premised on Malley violations, as Malley
   violations are similarly a functional exception to the independent intermediary doctrine.
   See Mayfield,

976 F.3d at 487

.
           5
             See Malley,

475 U.S. at 341

 (“Under the Harlow standard, on the other hand, an
   allegation of malice is not sufficient to defeat immunity if the defendant acted in an
   objectively reasonable manner.” (citing Harlow v. Fitzgerald,

457 U.S. 800

 (1982))).




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                                       No. 20-50367
                      c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
   enforcement officials does not lead them to withhold any relevant
   information from the independent intermediary.” Hand,

838 F.2d 1427

-28
   (emphasis added). 6 In short, our cases establishing the independent
   intermediary doctrine and the taint exception were concerned about the
   typical false arrest scenario of the era—an officer who maliciously sought to
   arrest someone without probable cause.
           Now that the Supreme Court has subsequently made clear that there
   are false arrest claims for which an officer can be liable that do not turn on
   the officer’s malice—e.g., Malley and Franks claims—it is unclear why an
   actor’s “malice” in tainting the intermediary is relevant in such cases. But
   regardless of its provenance, this court has continued to quote the “malicious
   motive” language in modern cases when describing the independent
   intermediary doctrine and the taint exception. See, e.g., McLin,

866 F.3d at 689

; Buehler,

824 F.3d at 554

; Cuadra,

626 F.3d at 813

. And although our
   independent intermediary cases rarely turn on the mens rea requirements of
   the taint exception, in cases where mens rea has been relevant, this court has
   held that “[t]o satisfy the taint exception, omissions of exculpatory
   information must be ‘knowing[].’” Buehler,

824 F.3d at 555

 (second
   alteration in original) (quoting Cuadra,

626 F.3d at 813-14

).




           6
              This court often credits Hand as the foundational case setting forth the
   independent intermediary doctrine and the taint exception. See Murray v. Earle,

405 F.3d 278, 292

 (5th Cir. 2005) (“The rule of Hand v. Gary has since prevailed in this circuit for
   almost two decades.”). Hand does not cite the Supreme Court’s decision in Malley (or any
   other modern qualified immunity caselaw) despite being issued over two years after Malley.
   This is notable because Malley appeared to cast doubt on the “break the causal chain”
   theory later enshrined in Hand. See Malley,

475 U.S. at 345

 n.7 (describing that the “break
   the causal chain” theory “is inconsistent with [the Supreme Court’s] interpretation of
   § 1983”). However, this court has since described Malley’s critique of the “break the causal
   chain” theory as dictum. See Murray,

405 F.3d at 290-92

.




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                                        No. 20-50367
                       c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
          However, no case has applied this “knowing” requirement when the
   underlying claim is premised on Malley or Franks. See generally Buehler,

824 F.3d 548

 (making no mention of Malley or Franks); Cuadra,

626 F.3d 808

   (same). As we have explained above, the reason why should be obvious: to do
   so would conflict with Supreme Court precedent. Again, the Supreme Court
   held in Malley that an officer who is objectively unreasonable in presenting a
   warrant application that facially lacks probable cause can be held liable for
   false arrest even if a magistrate approves it.

475 U.S. at 345-46

. Nowhere does
   the Court describe that the officer must also “knowingly” misdirect the
   magistrate. Similarly, an officer can be liable under Franks for “deliberately
   or recklessly” including a material false statement or omission in a warrant
   application submitted to a magistrate. Melton,

875 F.3d at 264

 (emphasis
   added). To superimpose a stricter threshold of liability would supplant
   Supreme Court law.
          And although the grand jury here acts as a second intermediary,
   following the magistrate, nothing in this court’s precedent suggests that the
   mens rea requirement with respect to the taint exception increases when a
   second intermediary is involved, or that magistrates and grand juries are
   treated differently. See Hand,

838 F.2d at 1427

(describing that an official will
not be liable “if the facts supporting the warrant or indictment are put before
an impartial intermediary such as a magistrate or a grand jury” (emphasis
removed) (quoting Sams, 734 F.3d at 191)). Thus, just as an adequately pled
Malley or Franks claim will also suffice to functionally apply the taint
exception to the magistrate’s decision, ante at 7-8, if a plaintiff adequately
pleads that a second intermediary, such as a grand jury, has been misled in
similar fashion, then the taint exception will apply to that intermediary’s
decision as well.

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Case: 20-50367 Document: 00516299194 Page: 15 Date Filed: 04/28/2022

No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
C.
Having clarified what the plaintiffs here must allege in order to satisfy
the taint exception with respect to both the magistrate and the grand jury, the
question remains whether their complaints have adequately done so.
This court has squarely addressed a plaintiff’s burden at the pleading
stage with respect to the taint exception. At the pleading stage, “‘mere
allegations of “taint”’ . . . may be adequate to survive a motion to dismiss
where the complaint alleges other facts supporting the inference.” McLin,

866 F.3d at 690

 (quoting Cuadra,

626 F.3d at 813

). As always, the court must
   accept all factual allegations as true, evaluating whether the complaint states
   a plausible claim. Id.; Shaw v. Villanueva,

918 F.3d 414, 418

 (5th Cir. 2019).
           Given that “a general rule of secrecy shrouds the proceedings of grand
   juries,” Shields v. Twiss,

389 F.3d 142, 147

 (5th Cir. 2004), it is
   understandably difficult for a plaintiff to know what was said—or wasn’t
   said—to the grand jury absent any form of discovery. While that reality
   doesn’t excuse pleading requirements, it does mean that allegations about
   what was presented or omitted in the grand jury room will in some sense be
   speculative, which is why plaintiffs like the ones here will need to allege
   “other facts supporting the inference” of what they allege to have occurred
   in the grand jury room. See McLin,

866 F.3d at 690

. 7



           7
              The district court appeared to hold that the plaintiffs could not use a grand jury
   witness’s testimony as evidence (or as the basis of an allegation) that the grand jury’s
   deliberations had been tainted, citing Rehberg v. Paulk,

566 U.S. 356, 369-70

 (2012). That
   conclusion is erroneous. Rehberg held only that grand jury witnesses, like witnesses at trial,
   enjoy absolute immunity for their testimony to the grand jury.

Id. at 369

. Here, none of the
plaintiffs asserts any cause of action that seeks to hold a defendant liable for his testimony
to the grand jury. Rather, their claims seek to hold the defendants liable for their actions in
securing an arrest warrant from a magistrate. As already explained, the taint exception is
not a cause of action, ante at 10; relying on a grand jury witness’s testimony to prove that

15
Case: 20-50367 Document: 00516299194 Page: 16 Date Filed: 04/28/2022

No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
Here, the plaintiffs allege that some of the same officials alleged to
have participated in preparing the challenged warrant affidavit testified
before the grand jury. They further allege that these officials made similar
representations and omissions to the grand jury as they made to the
magistrate. To further support such an inference, they allege that these same
officials testified during public “examining trials” related to the Twin Peaks
arrests and allege that this testimony also resembled the representations
made to the magistrate. The plaintiffs also claim that video evidence which
materially undermined probable cause was withheld from the grand jury,
similar to how the defendants allegedly withheld exculpatory video evidence
from the magistrate. See Terwilliger, 4 F.4th at 283. Finally, the plaintiffs
allege that they have attempted to gain lawful access to records of the grand
jury proceedings but were told that no transcript of the proceedings exists,
nor any other recording from which a transcript could be made.
In sum, plaintiffs allege that specific representations and omissions
that were made to the magistrate were also made to the grand jury and they
allege “other facts” that support that inference. The only remaining question
is whether those representations were false and whether the omitted
information was material to probable cause with respect to these plaintiffs. That
question, as explained above, overlaps with whether plaintiffs have
adequately alleged a Franks violation with respect to the warrant application
presented to the magistrate. 8

the grand jury deliberations were tainted is not the same as bringing a claim against a
witness for such testimony.
8
It is not necessarily the case that the representations made to the magistrate that
were false with respect to the Terwilliger plaintiffs are false with respect to the plaintiffs
here. For example, notably absent from many of the plaintiffs’ complaints are any specific
statements denying affiliation with the Bandidos or Cossacks or denying that they were
wearing the “signs and symbols” of either group (and that the defendants recklessly or

16
Case: 20-50367 Document: 00516299194 Page: 17 Date Filed: 04/28/2022

No. 20-50367
c/w Nos. 20-50372, 20-50380, 20-50408, 20-50453
We decline to decide whether the plaintiffs here have adequately
pleaded a Franks violation with respect to any of the named defendants. This
consolidated case comprises five separate appeals that in turn encompass
close to twenty separate district court cause numbers and nearly 100
individual plaintiffs. While it may be the case that the plaintiffs’ theories are
similar, individual pleadings may make the difference. More fundamentally,
the district court did not reach the question below, instead resting its holding
on a legally erroneous application of the independent intermediary doctrine.
With the benefit of this court’s decision in Terwilliger and the present
decision clarifying our law with respect to the independent intermediary
doctrine, the district court is best suited to decide in the first instance
whether each plaintiff here has adequately alleged a Franks violation with
respect to the arrest warrant, and, if so, whether each plaintiff has also
adequately alleged that the taint exception should apply to the grand jury’s
subsequent indictment. See Montano v. Texas,

867 F.3d 540, 546

 (5th Cir.
   2017) (“[A] court of appeals sits as a court of review, not of first view.”
   (citation omitted)).
                                        *       *        *
           We REVERSE and REMAND for further proceedings consistent
   with this opinion.




   deliberately misrepresented otherwise). See ante at 5. Moreover, it does not get the
   plaintiffs very far to generally deny membership in a “criminal street gang.” Indeed, it does
   not seem far-fetched that many members of the Bandidos or Cossacks would also deny
   being members of a criminal street gang, as that term is understood within the meaning of
   the offense of EIOCA. If the plaintiffs wish to establish a Franks violation, or, similarly,
   wish to establish the taint exception to the independent intermediary doctrine, they must
   point to omitted or misrepresented facts, not legal conclusions. See Terwilliger, 4 F.4th at
   281-82.




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