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
2
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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
5
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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.
6
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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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No. 21-11100
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.
8
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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
10
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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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No. 21-11100
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.
16
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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
17
Case: 21-11100 Document: 00516953692 Page: 18 Date Filed: 11/02/2023
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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No. 21-11100
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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No. 21-11100
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
21
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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)).
22
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No. 21-11100
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
