CIVIL LIABILITY FOR FALSE AFFIDAVITS

CIVIL LIABILITY FOR FALSE

AFFIDAVITS

Bryan R. Lemons

Acting Division Chief

“Reasonable minds frequently may

differ on the question whether a particular

affidavit establishes probable cause,”

and

“great deference” is to be given to

magistrate’s determination of the matter.

Generally, a law enforcement officer is not

expected to question a probable cause

determination made by a magistrate

judge.

Instead,

a magistrate’s

determination of probable

cause is to be given

considerable weight and

should be overruled only

when the supporting

affidavit, read as a whole in

a realistic and common

sense manner, does not

allege specific facts and

circumstances from which

the magistrate could

reasonably conclude that

the items sought to be

seized are associated with

the crime and located in the

place indicated.

However, a plaintiff may challenge

the presumption of validity afforded a

warrant where the magistrate was misled

by information contained in the affidavit

that the affiant either (1) knew was false or

(2) would have known was false had he

United States v. Leon, 468 U.S. 897, 914 (1984)

Id.

United States v. Krull, 480 U.S. 340, 349 (1987)

United States v. Spry, 1909 F.3d 829, 835 (7th

Cir. 1999)(internal quotation marks omitted), cert.

denied, 528 U.S. 1130 (2000)

not recklessly disregarded the truth. The

purpose of this article is to discuss the

liability that a law enforcement officer

may incur in such a situation. Part I of the

article discusses the mechanisms through

which civil rights lawsuits are generally

brought against state and federal law

enforcement officers. Part II generally

discusses the concept of “qualified

immunity.” And Part III discusses the

requirements for holding a law

enforcement officer liable for submitting

an affidavit with false or misleading

information in it.

BACKGROUND

The primary federal statute under

which lawsuits are filed against state and

local law enforcement officers for

violating a person’s constitutional rights is

Title 42 U.S.C. Section 1983.

This

statute was directed at state officials who

used the authority granted them to deprive

newly freed slaves of constitutional rights.

The purpose of the statute “is to deter state

actors from using their authority to deprive

individuals of their federally guaranteed

rights and to provide relief to victims if

such deterrence fails.”

While section

1983 may be used to sue state actors

acting under color of state law, it may not

be used against the federal government or

Title 42 U.S.C. Section 1983 provides as follows:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

state or territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity or other proper

proceeding for redress. For the purposes of this

section, any act of Congress applicable exclusively

to the District of Columbia shall be considered to

be a statute of the District of Columbia.”

Wyatt v. Cole, 504 U.S. 158, 161 (1992)

federal employees acting under federal

law.

However, “a victim of a

constitutional violation by federal officers

may (in certain circumstances) bring a suit

for money damages against the officers in

federal court,” even though no statute

exists granting such a right.

This type of

lawsuit is referred to as a Bivens action,

after the 1971 Supreme Court case of

Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics.

Similar

in purpose to section 1983, the purpose of

a Bivens action is to “deter federal officers

… from committing constitutional

violations.”

While the Bivens decision

addressed a violation of the Fourth

Amendment, the Supreme Court has also

“recognized an implied damages remedy

under the Due Process Clause of the Fifth

Amendment, … and the Cruel and

Unusual Punishment Clause of the Eighth

Amendment.”

However, the Supreme

Court has responded cautiously to

suggestions that Bivens be extended to

cover constitutional violations other than

those noted.

While section 1983 and

Bivens apply to different actors, the

analysis in either type of suit is the same,

with appellate courts generally

“incorporat[ing] section 1983 law into

Bivens suits.”

QUALIFIED IMMUNITY

When a law enforcement officer is

sued under either section 1983 or Bivens,

the officer is entitled to claim qualified

See, e.g., Robinson v. Overseas Military Sales

Corp., 21 F.3d 502, 510 (2d Cir. 1994)

Correctional Services Corporation v. Malesko,

534 U.S. 61, 66 (2001)

403 U.S. 388 (1971)

Malesko, 534 U.S. at 70 (emphasis added)

Id. at 67 [citing Davis v. Passman, 442 U.S. 228

(1979) and Carlson v. Green, 446 U.S. 14 (1980)]

Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)

Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981)

immunity. Qualified immunity “is an

immunity from suit rather than a mere

defense to liability,”

and entitles an

officer “not to stand trial or face the other

burdens of litigation.”

The doctrine is

designed to protect “all but the plainly

incompetent or those who knowingly

violate the law.”

“The rationale behind

qualified immunity for police officers is

two-fold - to permit officers to perform

their duties without fear of constantly

defending themselves against insubstantial

claims for damages and to allow the public

to recover damages where officers

unreasonably invade or violate” a person’s

constitutional or federal legal rights.

Law enforcement officers are entitled to

qualified immunity where their actions do

not “violate clearly established statutory or

constitutional rights of which a reasonable

person would have known.”

Stated

differently, where law enforcement

officers reasonably, albeit mistakenly,

violate a person’s constitutional rights,

those “officials - like other officials who

act in ways they reasonably believe to be

lawful - should not be held personally

liable.”

In deciding whether to grant an

officer qualified immunity, courts use a

two-part analysis. This analysis “is

identical under either section 1983 or

Bivens.”

First, the court must determine

Mitchell v. Forsyth, 472 U.S. 511, 526

(1985)(emphasis in original)

Saucier v. Katz, 533 U.S. 194, 200 (2001)

Malley v. Briggs, 475 U.S. 335, 341 (1986)

Green v. City of Paterson, 971 F. Supp. 891, 901

(D.N.J. 1997)(citation and internal quotation marks

omitted); see also Lennon v. Miller, 66 F.3d 416,

424 (2d Cir. 1995)(Qualified immunity “serves to

protect police from liability and suit when they are

required to make on-the-spot judgments in tense

circumstances”)(citation omitted)

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

Anderson v. Creighton, 483 U.S. 635, 641 (1987)

Wilson v. Layne, 526 U.S. 603, 609 (1999)

whether a constitutional violation

occurred; if no violation has occurred, that

ends the inquiry.

If a constitutional

violation can be established, the court

must then decide whether the right was

“clearly established” at the time of the

violation.

“Deciding the constitutional

question before addressing the qualified

immunity question … promotes clarity in

the legal standards for official conduct, to

the benefit of both the officers and the

general public.”

In addressing what is

meant by the term “clearly established,”

the Supreme Court has stated:

“Clearly established” for

purposes of qualified

immunity means that “the

contours of the right must

be sufficiently clear that a

reasonable official would

understand that what he is

doing violates that right.

This is not to say that an

official action is protected

by qualified immunity

unless the very action in

question has previously

been held unlawful, but it is

to say that in the light of

pre-existing law the

unlawfulness must be

apparent.”

Although courts differ, typically, a

right is “clearly established” for qualified

immunity purposes where the law “has

been authoritatively decided by the

Supreme Court, the appropriate United

States Court of Appeals, or the highest

court of the state in which the action

Saucier, 533 U.S. at 201

Id.

Wilson, 526 U.S. at 609

Id. at 614-15

arose.”

In these circumstances, the

decisions “must both point unmistakably

to the unconstitutionality of the conduct

complained of and be so clearly

foreshadowed by applicable direct

authority as to leave no doubt in the mind

of a reasonable officer that his conduct, if

challenged on constitutional grounds,

would be found wanting.”

“This is not

to say that an official action is protected

by qualified immunity unless the very

action in question has previously been

held unlawful, … but it is to say that in the

light of pre-existing law the unlawfulness

must be apparent.”

“The determination

whether a right was clearly established at

the time the defendant acted requires an

assessment of whether the official’s

conduct would have been objectively

reasonable at the time of the incident.”

LIABILITY FOR FALSE

AFFIDAVITS

Before an arrest warrant is issued,

the Fourth Amendment requires a truthful

factual showing in the affidavit used to

establish probable cause.

Because “the

Constitution prohibits an officer from

making perjurious or recklessly false

statements in support of a warrant,”

Norwood v. Bain, 166 F.3d 243, 252 (4th Cir.),

cert. denied, 527 U.S. 1005 (1999); see also Wilson

v. Strong, 156 F.3d 1131, 1135 (11th Cir.

1998)(citation omitted);Durham v. Nu’Man, 97

F.3d 862, 866 (6th Cir. 1996)(citation omitted)

Durham, 97 F.3d at 866 (citation omitted)

Anderson, 483 U.S. at 640 (citations and internal

citation omitted)

Kinney v. Weaver, 301 F.3d 253, 263 (5th Cir.

2002)(citation and internal quotation marks

omitted)

Franks v. Delaware, 438 U.S. 154, 165-66

(1978)(“When the Fourth Amendment demands a

factual showing sufficient to compromise ‘probable

cause,’ the obvious assumption is that there will be

a truthful showing”)

Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir.

complaint that an officer knowingly filed a

false affidavit to secure an arrest warrant

states a claim under section 1983 or

Bivens.

And, “where an officer knows,

or has reason to know, that he has

materially misled a magistrate on the basis

for a finding of probable cause, … the

shield of qualified immunity is lost.”

A plaintiff in a section 1983 or

Bivens action who alleges

misrepresentations or omissions in the

affidavit of probable cause “must satisfy

the two-part test developed in Franks v.

Delaware.”

The first part of the test

requires a plaintiff to show “that the

affiant knowingly and deliberately, or with

a reckless disregard for the truth, made

false statements or omissions that create a

falsehood in applying for a warrant.”

The second part of the test requires the

plaintiff to show that the false statements

or omissions were “material, or necessary,

to the finding of probable cause.”

closer examination of this two-part test

makes it clear that, in order to obtain a

hearing under Franks, a plaintiff must

make a “substantial preliminary showing”

of three separate facts.

First, the plaintiff must make a

showing that the warrant affidavit includes

1994)(citation omitted)

See Wilson v. Russo, 212 F.3d 781, 786-87 (3d

Cir. 2000)(citation omitted)

Golino v. City of New Haven, 950 F.2d 864, 871

(2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992)

Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d

Cir. 1997); see also Velardi v. Walsh, 40 F.3d 569,

573 (2d Cir. 1994)(“A section 1983 plaintiff

challenging a warrant on this basis must make the

same showing that is required at a suppression

hearing under Franks v. Delaware”)

Id.

See United States v. Whitley, 249 F.3d 614, 620

(7th Cir. 2001)

false information.

In addition to a false

statement in the affidavit, “a material

omission of information may also trigger a

Franks hearing,”

because “by reporting

less than the total story, an affiant can

manipulate the inferences a magistrate will

draw.”

After showing that a false

statement or material omission was made,

the defendant must next show that the

false statement or omission was made

either (1) knowingly and intentionally, or

(2) with reckless disregard for the truth.

“Knowingly and intentionally” requires a

separate analysis for false statements as

opposed to omissions. With regards to

false statements, it should be remembered

that the Supreme Court does not require

that all statements in an affidavit be

completely accurate. Instead, the Court

simply requires that the statements be

“believed or appropriately accepted by the

affiant as true.”

“The fact that a third

party lied to the affiant, who in turn

included the lies in a warrant affidavit

does not constitute a Franks violation. A

Franks violation occurs only if the affiant

knew the third party was lying, or if the

affiant proceeded in reckless disregard of

the truth.”

Accordingly, “misstatements

resulting from negligence or good faith

mistakes will not invalidate an affidavit

which on its face establishes probable

cause.”

With regard to omissions, “the

defendant must show that the facts were

omitted with the intent … to make the

Franks, 438 U.S. at 155

United States v. Castillo, 287 F.3d 21, 25 (1st

Cir. 2002)

United States v. Stanert, 762 F.2d 775, 781 (9th

Cir. 1985)

Franks, 438 U.S. at 165

United States v. Jones, 208 F.3d 603, 607 (7th

Cir. 2000)

United States v. Hammett, 236 F.3d 1054, 1058

(9th Cir.), cert. denied, 534 U.S. 866 (2001)

affidavit misleading.”

As with false

statements, “negligent omissions will not

undermine the affidavit.”

Like “knowingly and

intentionally,” the phrase “’reckless

disregard for the truth’ means different

things when dealing with omissions and

assertions.”

Assertions are made with

“reckless disregard for the truth” when,

“viewing all the evidence, the affiant must

have entertained serious doubts as to the

truth of his statements or had obvious

reasons to doubt the accuracy of the

information he reported.”

Omissions, on

the other hand, are made with “reckless

disregard for the truth” when a law

enforcement officer omits facts that “any

reasonable person would have known the

judge would wish to have brought to his

attention.”

Finally, the plaintiff must show

that the false statements or omissions were

“material” to a finding of probable cause.

“Disputed issues are not material if, after

crossing out any allegedly false

information and supplying any omitted

facts, the ‘corrected affidavit’ would have

supported a finding of probable cause.”

Thus, “even if the defendant makes a

showing of deliberate falsity or reckless

disregard for the truth by law enforcement

officers, he is not entitled to a hearing if,

when material that is the subject of the

alleged falsity or reckless disregard is set

to one side, there remains sufficient

United States v. Clapp, 46 F.3d 795, 799 (8th

Cir. 1995)

United States v. McCarty, 36 F.3d 1349, 1356

(5th Cir. 1994)

Wilson, 212 F.3d at 787

Clapp, 46 F.3d at 801 n.6

United States v. Jacobs, 986 F.2d 1231, 1235

(8th Cir. 1993)

Velardi, 40 F.3d at 574 (citation omitted)

content in the warrant affidavit to support

a finding of probable cause.”

CONCLUSION

State and federal law enforcement officers

may be sued for violating a person’s

Fourth Amendment rights under either

section 1983 or Bivens, accordingly.

When such suits are brought, the officer

may be entitled to qualified immunity in

situations where the arrest was based on a

valid warrant. However, qualified

immunity will not be granted in those

cases where the magistrate or judge

issuing the warrant was misled by

information contained in the affidavit that

the affiant either (1) knew was false or (2)

would have known was false had he not

recklessly disregarded the truth.

United States v. Dickey, 102 F.3d 157, 161-162

(5th Cir. 1996)(citation omitted)