in the united states court of appeals for the … · decline to exercise interlocutory jurisdiction...
TRANSCRIPT
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
______________________
DOCKET NO.: 12-12385-F ______________________
KENNETH NOBLE
Appellant
v.
JOHN KIRK OWENS
Appellee ______________________________________________________
Appeal from the United States District Court Middle District of Georgia - Macon Division
Civil Action No. 5:09-cv-00399-WLS _______________________________________________________
______________________________________________________________
BRIEF OF THE APPELLEE JOHN KIRK OWENS ______________________________________________________________
WILLIAM J. ATKINS Georgia Bar No. 027060 DAVID B. FIFE Georgia Bar No. 259871
ATKINS & FIFE, LLC 6400 Powers Ferry Road, Suite 355 Atlanta, Georgia 30339 Telephone: (404) 969-4130 www.atkinsfife.com
i
CERTIFICATE OF INTERESTED PERSONS
In compliance with Fed R. of App. Pro. 26.1 and 28(a), and 11th Cir. R. 26,
the undersigned attorney certifies that the following persons and/or
organizations have an interest in the outcome of this appeal:
1. William J. Atkins (Attorney for Plaintiff / Appellee) 2. David B. Fife (Attorney for Plaintiff / Appellee)
3. Atkins & Fife, LLC (Attorneys for Plaintiff/Appellee) 4. The Honorable W. Louis Sands (District Court Judge)
5. Andrew J. Whalen, III (Attorney for Defendant/Appellant)
6. Jessica Whatley (Attorney for Defendant/Appellant) 7. John Kirk Owens (Plaintiff / Appellee)
9. Kenneth Noble (Defendant/Appellant) 10. City of McDonough, Georgia (Defendant) /s/ William J. Atkins William J. Atkins
State Bar No. 027060
ii
STATEMENT REGARDING ORAL ARGUMENT Appellee does not believe oral argument is necessary, as the Court should
decline to exercise interlocutory jurisdiction over this qualified immunity appeal.
In the event that the Court exercises jurisdiction, Appellee believes oral
argument is necessary to address the proper scope of the Court’s review from a
District Court decision denying qualified immunity based upon the existence of
disputed issues of material fact as to the presence or absence of probable cause,
particularly where there is no room for meaningful debate that the applicable
law controlling the core legal question was clearly established. Appellee
welcomes the opportunity to present oral argument if the Court exercises
interlocutory jurisdiction.
iii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ................................................................ i
STATEMENT REGARDING ORAL ARGUMENT ..................................................... ii
TABLE OF CONTENTS ................................................................................................. iii
TABLE OF AUTHORITIES ........................................................................................... v
TABLE OF RECORD REFERENCES .......................................................................... vii
STATEMENT OF JURISDICTION ................................................................................. 1
STATEMENT OF THE CASE ......................................................................................... 2
STATEMENT OF FACTS ................................................................................................ 3
SUMMARY OF ARGUMENT ..................................................................................... 18
ARGUMENT AND CITATION OF AUTHORITIES ................................................. 19
I. THE COURT SHOULD DECLINE TO EXERCISE
INTERLOCUTORY JURISDICTION AND DISMISS DEFENDANTS’ APPEAL ............................................................................................... 19
II. THE COURT SHOULD NOT ENTERTAIN NOBLE’S
CAUSATION ARGUMENT; ALTERNATIVELY, THE COURT SHOULD AFFIRM THE DISTRICT COURT’S DECISION FINDING CAUSATION ............................................................ 21
A. WHETHER THE EVIDENCE SUPPORTS CAUSATION AS TO THE FIRST ARREST AND INCARCERATION IS NOT PART OF THE QUALIFIED IMMUNITY ANALYSIS……………………….. 22 B. THE DISTRICT COURT CORRECTLY CONCLUDED THAT NOBLE MAY BE HELD LIABLE FOR THE FIRST ARREST AND
INCARCERATION………………………………………………………. 23
III. NOBLE IS NOT ENTITLED TO QUALIFIED IMMUNITY……………... 26 A. THE QUALIFIED IMMUNITY STANDARD……………………………… 27
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B. NOBLE VIOLATED THE FOURTH AMENDMENT BY RELYING ON AN UNCORROBORATED TIP, TURNING A BLIND EYE TO
EXCULPATORY EVIDENCE AND MISREPRESENTING FACTS…………... 28
i. NOBLE’S CONTINUED RELIANCE ON AND MISREPRESENTATIONS ABOUT HATCHER’S TIP VIOLATED THE FOURTH AMENDMENT………….... 28
ii. NOBLE TURNED A BLIND EYE TO EXCULPATORY
EVIDENCE, MISREPRESENTED AND OMITTED MATERIAL FACTS……………………………………..... 32
iii. NOBLE’S DECISION TO SEEK HIS OWN ARREST WARRANT FOR JOHN OWENS IN THE ABSENCE OF ANY EVIDENCE VIOLATED THE FOURTH AMENDMENT ………………………………………….. 34
C. PRE-EXISTING LAW GAVE NOBLE FAIR WARNING THAT HIS CONDUCT VIOLATED THE FOURTH AMENDMENT …………….. 39
CONCLUSION…………………………………………………………………….. 41 APPENDIX…………………………………………………………………………... 42
v
TABLE OF AUTHORITIES
SUPREME COURT DECISIONS
Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894 (1978) ................................................. 27 Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct 2727 (1982) ...................................... 27, 28 Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151 (1991) .................................. 1, 20, 21, 22 Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092 (1986) ............................................ 36, 39 Messerschmidt v. Millender, -- U.S. --, 132 S.Ct. 1235 (2012) ....................................... 36 Ortiz v. Jordan, -- U.S. --, 131 S.Ct. 884 (2011) .............................................................. 22 Mitchell v. Forsyth, 742 U.S. 511, 105 S.Ct. 2806 (1986) ........................................... 1, 23 Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961) .................................................. 18, 24 Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009) ............................................... 28 Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001) ..................................................... 28 Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974)................................................. 27 ELEVENTH CIRCUIT DECISIONS Case v. Eslinger, 555 F.3d 1317 (11th Cir. 2009) ............................................................ 32 Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996) ........................................................... 1 Davis v. Williams, 451 F.3d 759 (11th Cir. 2006) ........................................................... 29 Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) ....................................................... 41 Edwards v. Shanley, 666 F.3d 1289 (11th Circ. 2012) ..................................................... 40 Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir. 1994) ......................................................... 26 Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011) ................................................ 41
vi
Garmon v. Lumpkin County, 878 F.2d 1406 (11th Cir. 1989) ................ 19, 36, 37, 40, 42 Ham v. City of Atlanta, 386 Fed. Appx. 899 (11th Cir. 2010) ...................................... 21 Holmes v. Kucynda et al, 321 F.3d 1069 (11th Cir. 2003) ............................................... 35 Jones v. Cannon, 174 F.3d 1271 (11th Cir. 1999) ............................................................ 36 Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. 2004) .............................. 19, 33, 41 Madiwale v. Savaiko, 117 F.3d 1321 (11th Cir. 1997) .............................................. 37, 42 Moran v. Cameron, 362 Fed. Appx. 88 (11th Cir. 2010) ................................................ 41 Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996) ......................................................... 41 Riley v. City of Montgomery, 104 F.3d 1247 (11th Cir. 1997) ........................................ 42 Skop v. City of Atlanta, 485 F.3d 1130 (11th Cir. 2007) ................................................ 41 Tillman v. Coley, 886 F.2d 317 (11th Cir. 1989)............................................................ 39 Vinyard v. Wilson, 311 F.3rd 1340 (11th Cir. 2002) ....................................................... 41 Barts v. Joyner, 865 F.2d 1187 (11th Cir. 1989) .............................................................. 25 Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996) ............................................. 19, 31, 32 Riley v. city of Montgomery, 104 F.3d 1247 (11th Cir. 1997) ......................................... 19 United States v. Gonzalez, 969 F.2d 999 (11th Cir. 1992). ............................................ 31 Koch v. Rugg, 221 F.3d 1283 (11th Cir. 2000) .................................................................. 21 Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) ................................................................ 28 McCullough v. Antolini, 559 F.3d 1201(11th Cir. 2009) ................................................ 29
vii
OTHER CIRCUIT DECISIONS Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006) ............................................ 26 Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988) .......................................................... 33 United States v. Martin, 615 F.2d 318, 319 (5th Cir. 1980). ......................................... 37 Yattoni v. Oakbrook Terrace, 14 F.3d 605 (7th Cir. 1993) ............................................... 38 (unpublished) DISTRICT COURT DECISIONS Evans v. City of Plant City, 2007 WL 2916454 (M.D. Fla. 2007) .................................. 38 (unpublished) GEORGIA SUPREME COURT DECISIONS Gilstrap v. State, 261 Ga. 798 (1991). .............................................................................. 39
STATUTES
28 U.S.C. § 1291 ............................................................................................................... 23 42 U.S.C. § 1983 ......................................................................................................... 18, 24
RULES
11th Cir. R. 28-5 .................................................................................................................. 1
viii
TABLE OF RECORD REFERENCES Docket No. Document Page Number 1 Complaint 3 21 Motion To Dismiss-Abernathy 3 22 Brief Motion To Dismiss-Abernathy 3 38 Order Granting Motion To Dismiss 3 54 Motion For Summary Judgment - Noble 3 56 Statement of Material Facts-Noble 3 64 Motion For Summary Judgment-Stokes 3 65 Statement of Material Facts-Stokes 3 70 Amended Statement of Material Facts 9,13 70-1 Composite Exhibit - Photographs 9 70-8 Surveillance Photographs 6 70-11 Twiggs Co. Photographs of Getaway Truck 6 70-12 Twiggs Co. Incident Report 6 70-13 First Bank Incident Report 7,10,11,12,13,15,16,17 70-15 Colonial Bank Investigative Report 7 70-16 Capitol City Bank Investigative Report 8 70-17 Affidavit of Amanda Crile 6 70-19 Affidavit of Russell Downs 7 70-20 John Kirk Owens-Phone Rec. & Bank Rec. 7 70-21 Twiggs Co. Line-Up Identification Form 15 70-25 Jones Witness Identification Form 15 70-26 Bibb County Arrest Warrant 15 73 Deposition of John Kirk Owens 5,7,12 75 Deposition of Kenneth Noble 10,11,12,17 77 Deposition of Kyle Helgerson 10,11,12,17 80 Deposition of John Abernathy 7,8,13,14,16 81 Deposition of William Stokes 6,9,15,16 87 Summary Judgment Order 2,3,20,22,24 89 Notice of Appeal 4
1
STATEMENT OF JURISDICTION
This case presents a rare instance where the Court does not have
jurisdiction to review the denial of summary judgment on qualified immunity
grounds. See Johnson v. Jones, 515 U.S. 304, 314, 115 S. Ct. 2151 (1991). The district
court denied summary judgment because material issues of fact remain “as to
whether a reasonable officer could have concluded that probable cause existed
in order to seek a warrant against Owens.” (Doc. 87, p. 27). (emphasis added)1
The district court did not “conclusively determine the disputed question and that
question does not involve a claim of right separable from and collateral to, rights
asserted in the action.” Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806
(1985)(citations omitted); see also, Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir.
1996). The Court should decline to exercise interlocutory jurisdiction and
dismiss this appeal.
1 In accordance with 11th Cir. R. 28-5, references to the record will be to the document number found in the district court docket sheet abbreviated, as follows: “Doc. #, p.#. “ The page number will refer to the page number in the original document unless otherwise indicated. If the document filed in the district court included attachments, the record reference will be abbreviated, as follows: “Doc. # - #. The second number identifies the attachment.
2
STATEMENT OF THE CASE
John Kirk Owens filed this civil rights case on November 18, 2009. He
alleged claims of False Arrest and Malicious Prosecution. Owens sued Bibb
County Sheriff’s Department detective Keith Abernathy; Twiggs County Sheriff’s
Department investigator William Stokes; McDonough Police Department
investigator Kenneth Noble and the City of McDonough, Georgia. (Doc. 1).
Abernathy moved to dismiss Owens’ claims. (Doc. 21 & 22). The district
court granted Abernathy’s motion on September 29, 2010. (Doc. 38).2 After
discovery, McDonough, Noble and Stokes moved for summary judgment. (Doc.
54 & 56; Doc. 64 & 65). The district court entered an Order on March 30, 2012
denying summary judgment to Noble and McDonough, but granting summary
judgment to Stokes.3 (Doc. 87). Noble filed a Notice of Appeal on May 3, 2012
seeking interlocutory review of the district court’s order denying summary
judgment on qualified immunity grounds. (Doc. 89).
2The district court did not enter a separate judgment dismissing Abernathy as a party. Owens reserves the right to file a notice of appeal upon entry of a final judgment. See Fed. R. Civ. Pro. 58 and Fed.R.App.P. 4(a)(1)(A) (“[T]he notice of appeal ... must be filed ... after the judgment or order appealed from is entered.”) Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1286 (11th Cir. 2001). 3 The district court did not enter a separate judgment dismissing Stokes as a party. Owens reserves the right to file a notice of appeal upon entry of judgment in this matter. See infra, n. 1.
3
STATEMENT OF FACTS
A. INTRODUCTION
John Kirk Owens builds fences; he does not rob banks. He owns and
operates the McDonough Fence Company. He has lived and worked in
McDonough his entire adult life. John Owens spent a lifetime building a
reputation as an honest, hard-working, simple man.
Kenneth Noble, relying on nothing more than a causal observation by a jail
trustee, targeted Owens as the prime suspect in a series of robberies committed
by a man nicknamed by the press as “the Bubba Bandit.” Noble misrepresented
key facts and omitted others in his dealings with sister law enforcement agencies
and, ultimately, a magistrate judge, in his rush to crack his first big case. Thanks
to Noble’s reckless actions, Owens’ spent three weeks in jail facing multiple
counts of armed robbery in three jurisdictions. Worse, Noble destroyed Owens’
reputation in the only community he has ever known. As Owens testified, “I
guess I’ll always be known as a bank robber called Bubba Bandit. You know,
I get teased about it a lot.” (Doc. 73, p. 50)(emphasis supplied).
B. THE BUBBA BANDIT
Between September 27, 2007 and December 12, 2007, a burley, middle aged
white male robbed one convenience store and four banks in Twiggs, Bibb and
4
Henry County. (Doc. 70, ¶¶ 28-63).4 Surveillance cameras captured images of a
heavy-set, barrel-chested man, with a very fat, round face. His jowls obscured
any semblance of jaw line, chin or cheekbones. His world-class beer belly hung
out over his waistline. The media aptly named this unidentified criminal the
“Bubba Bandit.“
The Bubba Bandit committed his robberies in broad daylight, usually in
the early afternoon. He always wore a long sleeved denim shirt, jeans and white
tennis shoes. A floppy camouflage hat covered his hair and dark, wrap- around
sunglasses covered his eyes. He spoke in a calm voice and only once brandished
a weapon (although he always claimed to have one). He left the scene of each
robbery in a late-model Chevrolet Silverado pick-up truck, either champagne,
gold or taupe in color, with a cardboard tag. (Doc. 70-11).
• September 27, 2007, Twiggs County. The Bubba Bandit walked into a
Marathon Gas Station and robbed the store clerk at gunpoint. (Doc. 70-12).
The store clerk was the only witness but surveillance cameras captured the
incident and the get away truck. (Doc. 70-8). Twiggs County Sheriff's
4 Document 70 is Owens’ Amended Statement of Material Facts To Which There Remains A Genuine Issue To Be Tried (“Owens ASMF”). Record references for this document direct the Court to the numbered paragraphs therein, rather than page numbers, and are abbreviated, as follows: “Doc. 70, ¶ #.” If the record reference is to an exhibit attached to Owens’ ASMF, the record reference is abbreviated, as follows: “Doc. 70-#”. If the exhibit attached to Owens’ ASMF is a multi-page document, the record reference is abbreviated as “Doc. 70-#-#, with the last # being the relevant page number.
5
Office (“TCSO”) investigator William Stokes investigated the crime. (Doc.
81, p. 10). He interviewed the store clerk and watched the surveillance
footage. (Doc. 81, p. 11-12). Between September 27 and November 20th,
Stokes developed no leads. (Doc. 81, p. 12). It is undisputed that he did
not independently develop Owens as a suspect; Stokes learned about
Owens from Abernathy who, in turn, learned of him through Noble.5
• October 27, 2007, City of McDonough. The Bubba Bandit walked into the
First Bank shortly after midday. He walked up to Nichole Adcock's teller
window. In a deep, calm voice, he said, “this is a robbery, my two brothers
are in the truck and as long as everyone cooperates, no one will get hurt.”
Ms. Adcock complied. He turned around, walked out of the bank and left
the scene in a Chevrolet Silverado pickup. (Doc. 70-13-29). McDonough
Police Department investigator Kenneth Noble was assigned to lead the
investigation, his first robbery investigation. From November 2nd – 16th,
Noble made no progress with his investigation. (Doc. 73, p. 51-53).6
• November 2, 2007, Bibb County. The Bubba Bandit struck again at the
5 On September 27, 2007, while the Suspect was robbing Ms. Cho at gunpoint in the Marathon Store in Twiggs County, Georgia, Owens was making a deposit in his checking account at the McIntosh State Bank in McDonough, Georgia. (Doc. 70-17). 6 While the Bubba Bandit was robbing the First Bank, Owens was installing some gates at the residence of Charles Toll, 110 Emerald Drive, McDonough, Georgia. (Doc. 70-20; Doc. 73, p. 25-35).
6
Colonial Bank. He approached Amy Gorham's teller window, slid a black
bag into her booth, and said, “this is a robbery and I am armed. As long as
you give me the money and be quiet and no one will get hurt.” (Doc. 70-
15). He also robbed Chiquita Harris'. (Doc. 70-15). He walked out of the
bank. No witnesses saw the get away car and the surveillance system
failed to record the incident. (Doc. 80, p. 18; Doc. 80, p. 19). Bibb County
Sheriff’s Office Investigator Abernathy was assigned to investigate the
Colonial Bank robbery. (Doc. 80, p. 13). Between November 2nd and
November 19th, Abernathy developed no leads and had no suspects.7
• November 19, 2007, Bibb County. The Bubba Bandit walked into the
Capitol City Bank. He approached teller Tiffany Coffer with a blue cloth
bag. He told her to put the money in the bag, not to use a dye pack, and
she would not be hurt. Ms. Coffer complied. He walked out and drove off
in a Chevrolet Silverado. (Doc. 70-16). Abernathy responded to the scene
and spoke with Detective Paul Osgood. They decided they were looking
for the same suspect. (Doc. 80, p. 22-23). Abernathy knew about the
Twiggs county robbery, but investigators there “didn’t really have any
more information that we did.” (Doc. 80, p. 27). Like Investigator Stokes
7 While the Bubba Bandit was robbing the Colonial Bank, Owens was repairing a fence for Southern Pipe and Supply located at 165 McDonough Parkway, McDonough, Georgia 30253. (Doc. 70-19).
7
in Twiggs County, Abernathy and Osgood did not independently identify
Owens as a “person of interest” or potential suspect for the Colonial Bank
(11/2) and Capitol City Bank (11/19) robberies. Noble was solely
responsible for presenting Owens as a suspect for the robberies in Bibb
County. (Doc. 80, p. 31-32; 36; 59).8
C. JOHN OWENS LOOKED NOTHING LIKE THE BUBBA BANDIT
There were stark differences between Owens' actual appearance in
November of 2007 and the images of the Bubba Bandit captured on surveillance
cameras.
• Owens does not have broad shoulders and he is not bulked up in his
upper body.
• Owens was 41 years old; witnesses all believed the Bubba Bandit was
in his late forties or mid-fifties.
• Owens weighed 200 pounds; the Bubba Bandit was obviously far, far
heavier. Several witnesses estimated his weight to be in excess of 250
pounds.
• Owens had a goatee, not a bushy mustache like the Bubba Bandit had
just two days prior to his arrest.
8 While the Bubba Bandit was robbing Capitol City Bank, Owens was at the home of Shannon Reyome in McDonough giving her an estimate on a fence job. (Doc. 70-18).
8
• Owens’ face did not appear round. His cheeks were not puffed out and
obviously fat. He did not have excessive fat under his chin that caused his
jaw/chin line to disappear.
• Owens’ stomach area did not protrude significantly over his waistline.
(Doc. 70-1, 3-5, 6, 7, 8, 9 & 10).9
These differences were obvious to the naked eye. When Stokes saw
Owens in person on November 21, he realized that Owens was not the Bubba
Bandit. Stokes saw that “his body mass, his weight” did not remotely resemble
that of the Bubba Bandit. (Doc. 81, p. 31). But Abernathy and Noble did not care
to notice and Stokes did nothing to stop them. (Doc. 81, p. 32).
None of the thirteen witnesses to any of the robberies were ever shown an
image of Owens as he actually appeared in November of 2007. The photographic
lineups used a seven year old drivers’ license photograph of Owens secured by
Noble, who turned it over to Abernathy and Stokes despite the fact that none of
the witnesses to the McDonough robbery picked Owens from the lineup. Noble
caused Owens’ misidentification by two witnesses in Bibb County and the only
witness in Twiggs County. Those misidentifications, in turn, meant that Owens
would spend three weeks in jail for crimes he did not commit.
9 The Record Excerpts submitted by Noble include only black and white copies of these images. To assist the Court in its review, Owens has included color copies of these critical exhibits in the Appendix to Appellee’s Brief.
9
C. NOBLE’S INVESTIGATION
Between October 27th and November 2nd, Noble had made little progress
on his first big case. He turned still photographs of the Bubba Bandit over to the
news media and posted a BOLO for him. He caught his “big break” on
November 16th, when Phillip Daniel Hatcher, an inmate in the Henry County Jail
assigned to clean up duty in the MPD squad room happened to notice the BOLO
on a bulletin board. (Doc. 75, p. 53-54). He told Noble, “I think I know this
person.” (Doc. 75, p. 53; Doc. 70-13, p. 24; see also, Doc. 77, p. 21-25). Hatcher
wrote a statement.
Working at Mc. Police station. Saw a picture (for robbing a bank) of a wanted man. Told detective I think I knew this person. His name is John Owens. Told him where he lives (corner of old Jackson and Coahn (sic)). I worked with him on the side a couple of years ago. He owns McDonough Fence Company. And he last time I saw him (about 4 to 5 months ago) e was going through a divorce. He was talking about bankruptcy and his business was not doing well. And that he wanted to keep his kids. I have know (sic) him since around 1997.
(Doc. 75, p. 55-57; Doc. 70-13-24).
When Hatcher offered his “tip,” Noble knew nothing about him. (Doc. 75,
p. 53-54). Hatcher had never provided information to law enforcement officers
that had been corroborated through further investigation or other sources. (Doc.
75, p. 54-55; Doc. 77, p. 21-22). Hatcher had never given information that had
been used in furtherance of any criminal investigation. (Doc. 75, p. 54-55; Doc. 77,
p. 22). Hatcher had never worn a wire as part of an undercover investigation
10
supervised by law enforcement officials. (Doc. 75, p. 55). Without any
corroboration or support, Noble deemed Hatcher a “reliable source.” (Doc. 75, p.
54). Noble did nothing to determine whether Hatcher’s “tip” was credible. He
did not investigate whether Hatcher had had worked for Owens, whether Owens
was going through a divorce, or whether Owens declared bankruptcy., all each
one of those pieces of information were readily available to Noble.10 (Doc. 75, p.
56).
On November 21st, one of the witnesses from the First Bank robbery,
Bonnie Bray, called Noble because she saw a news story about the Bubba
Bandit’s robbery at the Capitol City Bank. She thought the same person had
committed both robberies. (Doc. 70-13, p. 32). With no other leads, Noble
followed up on Hatcher’s “tip.” (Doc. 75, p. 57-58; Doc. 70-13, p. 75).
Noble pulled Owens' drivers license information; Owens' license was
valid. (Doc. 75, p. 58; Doc. 70-13-36). Noble ran a criminal history on
Owens; besides a twenty year-old DUI, Owens history was clean. (Doc. 75, p. 58-
59; Doc. 70-13-41). Noble pulled a report of vehicles registered to Owens; he did
not own a truck matching the description of the getaway vehicle. (Doc. 75, p. 58;
Doc 70-13-44). Noble secured Owens’ bank records; the records did not reveal
any unusual transactions. Noble put Owen’s property under surveillance but
10 Divorce and bankruptcy records are public records. Hatcher’s employment, or lack thereof, could have been verified through the Department of Labor.
11
saw nothing unusual. (Doc. 77, p. 32). Noble independent police work, such that
it was, revealed nothing that verified Hatcher’s idle speculation that Owens
looked like the Bubba Bandit. (Doc. 75, p. 59-61; 68).
Undeterred by the evidence, Noble ordered a copy of Owens' driver's
license picture. The picture was seven years old because Owens did not have a
new picture taken when he renewed his drivers' license in 2004. (Doc. 73, p. 102-
03; Doc. 75, p. 62). Noble knew that the picture was at least three years old, but
he took no steps to confirm that the photograph fairly and accurately depicted
Owens’ as he appeared in November of 2007. (Doc. 75, p. 62).
Noble did not even bother to show the picture to Hatcher. (Doc. 75, p. 64).
Noble testified that he put Owens' in a Photographic Line-Up because of
Hatcher’s statement that Owens looked like the Bubba Bandit and Owens’
outdated picture seemed to resemble the person in the surveillance images.
(Doc. 75, p. 66; Doc. 77, p. 21).
Noble ordered a Photographic Line-Up from the Henry County Sheriff’s
Department. The other photographs in the line up were “Book In” photographs.
Noble met separately with the six witnesses to the First Bank Robbery and
showed them the McDonough Photographic Line-Up. (Doc. 75, p. 74; Doc. 70-13-
22). None of the witnesses from the First Bank robbery picked Owens out of
the line up.
12
Before Noble provided any information about Owens to Abernathy in Bibb
County, Noble knew definitively that: (a) none of his witnesses had identified
Owens; (b) Owens did not own a Chevrolet Silverado; he owned several Ford
trucks; (c) Owens had a clean driving history and no significant criminal history;
(d) surveillance at his house uncovered no evidence at all; (e) Owens’ bank
records showed no suspect transactions; and (f) Noble had been unable (or
simply did not bother) to corroborate any aspect of Hatcher’s tip. All Noble had
was a uncorroborated “tip” from an unreliable jail trustee. (Doc. 70, ¶¶ 90-114).
With no basis in fact to believe Owens was the Bubba Bandit, Noble forged
ahead, willfully turning a blind eye to the obvious: Owens had nothing to do
with robbing anyone. He called Abernathy at the Bibb County Sheriff’s Office
on November 21 and informed him that MPD had a “potential suspect.” (Doc.
80, p. 30). Noble told him that “he had a reliable informant that had seen the
pictures from the [First Bank] robbery . . . and he gave me a physical description.
Said the guy had seen a picture, gave him a name, and gave him a little more
information. And he thought he could have a possible suspect up there.”
(emphasis added) (Doc. 80, p. 31). Noble said Owens “had been falling – kind of
fallen on some hard times, his business-wise and his personal life . . .” but failed
to mention that Noble had no independent evidence to confirm this part of
Hatcher’s tale. (Doc. 80, p. 31).
13
When Noble described Hatcher to Abernathy as a “reliable informant,” the
term meant something specific to Abernathy based upon his prior experience in
law enforcement. (Doc. 80, p. 36-38). Based upon that material
misrepresentation of fact, Abernathy assumed that Noble had been able to
corroborate Hatcher’s story through independent police work or, at a bare
minimum, had reason to believe Hatcher could be counted upon to provide good
information. As a matter of undisputed fact, neither supposition was true.
Abernathy testified, “[w]e didn’t know John Owens. I had never seen John
Owens and nobody went and looked.” (Doc. 80, p. 42-43). Abernathy knew that
the age of a particular photograph is important in considering how to construct a
Photographic Line Up but, once again, he was relying on Noble, who gave
Abernathy Owens’ picture. (Doc. 80, p. 43). Abernathy compiled a
Photographic Line-Up in Bibb County. (Doc. 80 p. 44-48). Two of the six
witnesses to the Bibb County robberies misidentified Owens as the Bubba
Bandit. ( Doc. 70-25; 26). Abernathy called Stokes and gave him the Bibb County
Photographic Line Up. (Doc. 81, p. 21). Stokes showed it to his victim, who also
misidentified Owens as the Bubba Bandit. (Doc. 81, p. 19-21; Doc. 70-21).
Abernathy and Stokes immediately secured arrest warrant for Owens from
their respective jurisdictions. (Doc. 81, p. 22-23; Doc. 70-26). Abernathy alerted
Noble, who applied for a search warrant for Owens’ home. In the search
warrant application, Noble described the Twiggs County robbery and the
14
Capitol Bank robbery in Bibb County. As to the First Bank robbery in
McDonough, Noble testified under oath that, “on November 16, 2007, a reliable
source while n the City of McDonough Police Department observed a BOLO
with a photograph of the male seen in the video surveillance from the Robbery.
The source identified the male picture as John Kirk Owens of Locust Grove,
Georgia.” (Doc. 70-13-15).11,12
Abernathy and Stokes drove to McDonough to meet Noble and serve their
arrest warrants. (Doc. 80, p. 50-51) (Doc. 81, p. 24-25). Noble went along with
them to execute the search warrant. (Doc. 70-13-14). Owens was home
preparing Thanksgiving dinner for his family. His kids were playing in the yard
when SWAT team officer appeared all around them and approached the front
door. Owens came to the door; he found himself staring down the barrel of an
assault rifle. Abernathy explained the Bibb County charges, handcuffed him,
and placed him in the back of his squad car. (Doc. 80, p. 62-63). Owen saying
something to the effect, “bank robbery? I ain’t robbed any bank.“ (Doc. 80, p. 63).
Noble executed the search warrant. He went rummaging through Owens’
home looking for evidence linking him to the robberies. Noble found nothing.
Yet that still was not enough to stop Noble from putting the finishing touches on
his first big case. On November 29th, Noble filed out a warrant application for
11 This document is reproduced in the Appendix. 12 Owens raised no claim against Noble related to the search warrant.
15
Robbery By Intimidation. In his application, Noble alleged,
John Kirk Owens did enter the First Bank on 10/27/08 and demanded currency from Hannah Jones. Owens Advised Jones to coropate (sic) and no one would be hurt. Kirk left the location with $1983.92
(Doc. 70-13-13). Noble prepared a bare-bones arrest warrant stating,
John Kirk Owens entered the First Bank . . . with the intent to commit theft, advised teller Hannah Jones to cooperate and no one would be hurt. Teller Hannah turned over $1,983.92 to Defendant who then fled from the scene.”
(Doc. 70-13-13).
Noble’s affidavit contains material errors. The Bubba Bandit did not rob
Hannah Jones, she was just a witness to the First Bank robbery. The victim was
Nichole Adcock. (Doc. 75, p. 95). Noble's warrant application and testimony to
the magistrate omitted material exculpatory facts that plainly established the
absence of probable cause, to support an arrest warrant, including, but not
limited to: (a) six out of six witnesses at First Bank had rejected Owens as the
perpetrator; (b) Owens did not own or drive a Chevrolet Silverado; (c) a search
warrant of Owens' home uncovered no evidence at all; and (d) Noble's “reliable
informant” was nothing more than a jail trustee who happened to see a likeness
between the Bubba Bandit and Owens (e) he engaged in no unusual banking
activity and, (f) Owens obviously looked nothing like the Bubba Bandit. (Doc. 75,
pp. 57-59, 68, 74, 97-98 and Doc. 77, pp. 47-48).
16
Owens appeared before a Bibb county magistrate on December 7, 2007.
The magistrate judge set a $3,000.00 bond, however, Owens had a hold from
Twiggs County. (Doc. 70-24). Had Owens made bond, he would have been
transported to Twiggs County and remained in jail. (Doc. 70-24; Doc. 81, p. 46-
48). Twiggs County finally dismissed the warrant and Owens made bond on
December 10th, 2007. (Doc. 73, p. 32). But when he got home, he learned that
Noble’s warrant was waiting for him. Owens turned himself into the Henry
County Jail the next day. (Doc. 73, p. 32-35).
We will never know, but the Bubba Bandit may have felt sorry for John
Owens. The day Owens turned himself in, the Bubba Bandit robbed the
Enterprise Banking Company in. (Doc. 70-13-10). Owens was in custody when
the robbery occurred. Captain Kyle Helgerson showed up at Owens’ committal
hearing, took one look at him, and immediately recognized that Owens should
never have been mistaken for the Bubba Bandit. (Doc. 77, pp. 47-48).
17
SUMMARY OF ARGUMENT
The Court should dismiss this appeal. There is on meaningful debate that
clearly established law gave Noble fair warning that his constitutionally deficient
investigation, reliance on an uncorroborated tip, and material misrepresentations
and omissions to fellow officers violated the Fourth Amendment. There is no
discrete legal issue presented here and, accordingly, no basis for exercising
interlocutory jurisdiction. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806
(1985).
The Court should not accept Noble’s implicit invitation to review the
district court’s determination that material issues of fact remain as to whether
Owens may recover damages measured from his November 21, 2007 arrest on
Abernathy’s Bibb County warrants. That issue is not inextricably intertwined
with Noble’s qualified immunity defense. But even if the Court addresses
causation, Noble may be held liable for “the natural consequences of his actions”
under 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473 (1961).
Noble is not entitled to qualified immunity. No reasonable officer could
have concluded that probable cause existed in order to seek a warrant against
Owens. Pre-existing law gave Noble fair warning that (a) an uncorroborated tip
from an unreliable informant does not support probable cause; (b) that he could
not turn a blind eye to readily available, exculpatory evidence; (c) that he could
not omit material facts or make material misrepresentations to fellow officers and
18
magistrate judges; and (d) could not rely upon a conclusory, bare-bones
allegations to establish probable cause. See Ortega v. Christian, 85 F.3d 1521 (11th
Cir. 1996)(informant’s tip, uncorroborated by independent police work or other
evidence of reliability, insufficient to establish probable cause); Kingsland v. City of
Miami, 382 F.3d 1220, 1231, (11th Cir. 2004) (officers should not be permitted to turn a
blind eye to exculpatory information that is available to them, and instead
support their actions on selected facts they chose to focus upon); Riley v. city of
Montgomery, 104 F.3d 1247, 1253 (11th Cir. 1997)(“It is well established in 1989
that fabricating incriminating evidence violated constitutional rights.”); Garmon
v. Lumpkin County, 878 F.2d 1406, 1408 (11th Cir. 1989)(“conclusory assertions in
warrant affidavit clearly insufficient to establish probable cause”).
19
ARGUMENT AND CITATION OF AUTHORITIES I. THE COURT SHOULD DECLINE TO EXERCISE INTERLOCUTORY
JURISDICTION AND DISMISS DEFENDANTS’ APPEAL
The collateral order doctrine limits interlocutory jurisdiction in qualified
immunity cases to instances where the order on appeal, “concerned, not which
facts the parties might be able to prove, but rather whether or not certain given
facts showed a violation of clearly established law.” Mitchell v. Forsyth, 472 U.S.
511, 528, 105 S. Ct. 2806 (1985).13 “A defendant entitled to invoke a qualified
immunity defense may not appeal a district court’s summary judgment order
insofar as that order determines whether or not the pretrial record sets forth a
‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20, 115 S. Ct.
2151 (1995) (emphasis added).
The district court found that,
“there exists questions of fact as to whether a reasonable officer could have concluded that probable cause existed in order to seek the arrest warrant against [Owens] The court notes several significant facts that form the basis of its finding that probable cause, and arguable probable cause, did not exist. These facts include, but are not limited to, Defendant’s reliance on the jail trustee’s identification of Plaintiff, and Defendant’s transmission of Plaintiff’s photograph and representation of reliability in the absence of eyewitness identifications or other corroborating evidence.”
(Doc. 87, p. 27). Addressing qualified immunity, the district court explained that,
13 Mitchell involved the application of “clearly established” law to an undisputed set of facts. The opinion was limited to that holding. Id. at 528-30; Jones, 515 U.S. at 313.
20
“if the Plaintiff’s version of the facts is true, a question of fact exists as to whether
Defendant conducted a reasonable investigation that gave rise to probable
cause.” (Doc. 87, p. 32).
Based on the foregoing, the Court simply cannot conclude that as a matter of law probable cause, or arguable probable cause existed. A Genuine material dispute of fact exists as to whether an objective police officer would have perceived there to be probable cause for arrest.
(Doc. 87, p. 33).14
Noble disagrees with the district court’s assessment of the evidence, but
that is not enough to justify burdening scarce appellate resources with an appeal
over hotly contested evidence; that is what trial courts and juries do. Jones, 515
U.S. at 316 (“the existence or nonexistence of a triable issue of fact is the kind of
issue that trial judges, not appellate judges, confront almost daily”); see also, Koch
v. Rugg, 221 F.3d 1283 (11th Cir. 2000). This interlocutory appeal asks the Court to
ignore “the inconvenience and costs of piecemeal review” and concern itself only
with the “danger of denying justice by delay.” Jones, 515 U.S. at 315. That
“danger” is nonexistent here as Noble should be held liable for violating Owens’
clearly established Fourth Amendment rights.
14 See also, Doc. 87, p. 33-34 (Denying summary judgment on qualified immunity grounds as to Owens’ malicious prosecution claims because “[t]here are genuine material facts in the record in dispute from which a reasonable fact finder could deduce that Plaintiff’s constitutional right to be free from malicious prosecution was infringed by [Noble]. As discussed above, the absence of arguable probable cause supports a finding that Plaintiff has shown that a genuine issue of fact for trial exists regarding Plaintiff’s malicious prosecution claim.”
21
Noble suffers no harm from dismissal as he will have every opportunity to
raise qualified immunity as a defense at trial and, in the event of a verdict in
Owens’ favor, on appeal to this Court. See Jones, 515 U.S. at 316.15 It is Owens,
not Noble, who should be concerned about “justice delayed.” This interlocutory
appeal has already delayed trial by four months and, if accepted by the Court,
will likely keep this matter from getting tried this year. The Court should
dismiss this appeal without further delay.
II. THE COURT SHOULD NOT ENTERTAIN NOBLE’S CAUSATION ARGUMENT; ALTERNATIVELY, THE COURT SHOULD AFFIRM THE DISTRICT COURT’S DECISION FINDING CAUSATION
At summary judgment, Noble argued that since Owens was arrested and
jailed on a Bibb County warrant, he should escape responsibility for presenting
Owens to Abernathy as a “potential suspect” identified by a “reliable
informant.”16 The trial court rejected Noble’s argument.
[T]he Court does give weight to Defendant’s arguments relating to the fact that Plaintiff was not incarcerated due to the Henry County charges – only booked and released. However, the Court finds Plaintiff’s response persuasive where Plaintiff asks the Court to consider the interconnectedness of the three counties’ investigations, outstanding arrest warrants and holds and their effect on Plaintiff’s
15 To preserve the issue for final appeal, Noble must raise qualified immunity at the conclusion of Owens’ evidence and, in the event of a judgment, in post-trial briefings. See Ortiz v. Jordan, -- U.S. --, 131 S. Ct.884 (2011)(failure to raise qualified immunity on Rule 50(a) and (b) stages waives appeal of trial court’s denial of qualified immunity at summary judgment stage). 16 There is no dispute that Owens turned himself in to the Henry County Jail on December 12th on Noble’s warrant. Noble’s warrant was executed; the issue thus goes to damages only. (Doc. 77, p. 48).
22
incarceration, bond amount and release. Defendant Noble cannot reasonably argue that the arrests were unrelated to his knowing conduct.
(Doc. 87, p. 31). Noble now implicitly tries to raise this issue on appeal as part of
his challenge to the district court’s denial of qualified immunity. The Court
should reject that effort and concern itself only with discrete issues of fact that
are inextricably intertwined with the qualified immunity.
A. WHETHER THE EVIDENCE SUPPORTS CAUSATION AS TO THE FIRST ARREST AND INCARCERATION IS NOT PART OF THE QUALIFIED IMMUNITY ANALYSIS
The district court found that Noble cannot reasonably argue that the
[November 21st arrest was] unrelated to his knowing conduct.” (Doc. 87, p. 31).
Stated differently, a rational fact finder could find that Abernathy and Stokes
would not have independently identified Owens as a suspect, much less arrested
him, in the absence of Noble’s knowing misrepresentations and omissions. The
court’s decision does not prevent Noble from arguing causation, or lack thereof,
at trial. For present purposes, it should be obvious that the issue has nothing at
all to do with whether clearly established law gave Noble fair warning that his
conduct violated the Fourth Amendment.
The collateral order doctrine is a limited exception to the “final decisions”
predicate for appellate jurisdiction. 28 U.S.C. § 1291; Mitchell v. Forsyth, 742 U.S.
511, 524, 105 S.Ct. 2806 (1986). A decision is reviewable only if review will
23
finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.
Id. at 525-26. The district court’s determination that Owens’ first arrest was a
reasonably foreseeable consequence of Noble’s knowing acts is not separable,
collateral or independent of Owens’ claims. Review of that portion of the district
court’s order plainly violates the collateral order doctrine.
B. THE DISTRICT COURT CORRECTLY CONCLUDED THAT NOBLE MAY BE HELD LIABLE FOR THE FIRST ARREST AND INCARCERATION
When it first breathed life into 42 U.S.C. § 1983, the Supreme Court held
that it constitutional-tort cases, “a man [is] responsible for the natural
consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473 (1961).
Noble is no exception.
The record demonstrates that Noble was solely responsible for
orchestrating a constitutionally deficient investigation that virtually guaranteed a
misidentification by one of the thirteen witnesses to the Bubba Bandit’s crimes.
Noble knew he was relying on the uncorroborated tip of a unreliable jail trustee,
but chose to misrepresent Hatcher to Abernathy as a “reliable informant” who
“identified” Owens as the Bubba Bandit. Noble had access to readily available
exculpatory evidence uncovered in his own investigation, but did not disclose
that evidence to Abernathy or, later, the magistrate judge who signed Noble’s
24
arrest warrant for Owens. Noble knew Owens’ drivers’ license picture was at
least three years old, but he made no effort to confirm that it accurate depicted
Owens’ appearance. Before he turned Owens over to Abernathy as a “possible
suspect,” Noble had ample evidence of Owens’ actual innocence.
Noble knew full well that there was a substantial risk that one or more
witnesses would pick Owens out of a photographic line up in Bibb or Twiggs
County. That is why he gave Abernathy his outdated picture. Noble was hoping
Owens would get picked out because he thought – wrongly – that such an
identification would give him probable cause. He admitted as much in his
deposition when he testified that he relied on Hatcher’s tip and the
identifications in other robberies to support his warrant application. The district
court rightly dismissed Noble’s effort to reverse-engineer probable cause by
relying on Abernathy and Stokes’ identifications (Doc. 87, p. 31, n. 5).
In Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir. 1989), the Eleventh Circuit
explained that intervening acts of other parties to a criminal prosecution –
prosecutor, grand jury, judge and jury – do not break the chain of causation
where a plaintiff “can show that these intervening acts were the result of
deception or undue pressure by a defendant policemen.” Owens has
demonstrated that Noble misrepresented and omitted key facts to Abernathy
when he told Owens was a possible suspect and asked him to put Owens in a
photo lineup.
25
This case bears no resemblance to Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir.
1994) and the contrast further demonstrates that Noble should be held liable for
the totality of Owens’ injuries. In Eubanks, an officer relied on a tip from an
individual who had previously served as a reliable informant for his agency. He
was also able to corroborate elements of the informant’s story through
independent police work. The officer arrested the plaintiff on a drug possession
charge, but the plaintiff claimed the informant framed him. The informant took
two polygraphs and appeared deceptive in one of them. In the civil case, the
district court denied summary judgment on plaintiff’s malicious prosecution
claim. The Eleventh Circuit reversed. The evidence revealed that the
defendant/officers “fully apprise[d] the State Attorney of all relevant
information known to them, including that which weighed for and against
[plaintiff’s] guilt.” Id. at 1165-66. See also, Gregory v. City of Louisville, 444 F.3d
725 (6th Cir. 2006)(officer who created an impermissibly suggestive identification
procedure could be held liable even though prosecutor subsequently relied upon
the identification at trial).
Noble did not apprise Abernathy, Stokes or the magistrate judge of all the
information known to him weighing for and against Owens’ guilt. He
intentionally omitted ever shred of evidence demonstrating Owens’ actual
innocence and misrepresented the credibility of his only evidence – Hatcher’s
uncorroborated tip. Noble is liable for the foreseeable consequences of his
26
actions including Owens’ November 21st arrest and three week incarceration in
Bibb County.
III. NOBLE IS NOT ENTITLED TO QUALIFIED IMMUNITY
The Supreme Court fashioned qualified immunity through a series of
decisions addressing whether certain members of the Executive branch should be
absolutely immune from civil liability for their official acts. See e.g., Scheuer v.
Rhodes, 416 U.S. 232, 94 S. Ct. 1683 (1974)(state governor and his aides not
entitled to absolute immunity); Butz v. Economou, 438 U.S. 478, 508-512, 98 S. Ct.
2894 (1978)(Secretary of Agriculture not entitled to absolute immunity); Harlow v.
Fitzgerald, 457 U.S. 800, 102 S. Ct 2727 (1982)(presidential aides not entitled to
absolute immunity). The Court universally rejected these demands.
The greater power of high officials affords a greater potential for a regime of lawless conduct. Damages actions against high officials were therefore an important means of vindicating constitutional guaranties.
Harlow, 457 U.S. at 809.
42 U.S.C. § 1983 says nothing at all about immunity, so the Supreme Court
looked to the common law. At common law, public officials were entitled to
good-faith immunity; a subjective standard that was not readily amenable to
summary adjudication. The Supreme Court rejected that approach and
fashioned a new “objective” standard - qualified immunity. Qualified immunity
is “an attempt to balance competing values, not only the importance of a
27
damages remedy to protect the rights of citizens, but also the need to protect
officials who are required to exercise their discretion and the related public
interest in encouraging the vigorous exercise of official authority.” Id., see also,
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009).
All too frequently, members of our increasingly conservative federal
judiciary give due deference to the latter value, and entirely ignore the former.
This imbalance has turned a qualified defense into an absolute one, particularly
in matters involving law enforcement. If civil actions for damages are still meant
to be “the only realistic avenue[s] for vindication of constitutional guarantees,”
then this Court should affirm the district court’s decision denying qualified
immunity to Noble.. Harlow, 457 U.S. at 813-14.
A. THE QUALIFIED IMMUNITY STANDARD
A public official asserting qualified immunity must initially prove that “he
was acting within his discretionary authority when the allegedly wrongful acts
occurred.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002).17 If the public
official succeeds, the burden shifts to the plaintiff, who must prevail on both
prongs of the Supreme Court’s sequential qualified immunity analysis. See
Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151 (2001); but see, Pearson, supra
(overruling Saucier to the extent that it required that courts always reach both
17 There is no dispute that Noble was acting within the scope of his discretionary authority as an employees of McDonough at all times relevant to this action.
28
prongs on the inquiry in sequential order). The “threshold inquiry” is whether
the plaintiff’s allegations, if true, state a constitutional violation. If the plaintiff
succeeds, the court next considers whether that right was “clearly established.”
See Davis v. Williams, 451 F.3d 759 (11th Cir. 2006).
B. NOBLE VIOLATED THE FOURTH AMENDMENT BY RELYING ON AN UNCORROBORATED TIP, TURNING A BLIND EYE TO EXCULPATORY EVIDENCE AND MISREPRESENTING FACTS
The district court denied qualified immunity to Noble because issues of
material fact remained as to whether a reasonable officer could have concluded
that probable cause existed in order to seek the arrest warrant against Owens.
“These facts include, but are not limited to, Defendant’s reliance on the jail
trustee’s identification of Plaintiff, and Defendant’s transmission of Plaintiff’s
photograph and representation of reliability in the absences of eyewitness
identifications or other corroborating evidence.” (Doc. 87, p. 27). The district
court’s sound analysis should be affirmed and this matter should be remanded
for trial.
i. NOBLE’S CONTINUED RELIANCE ON AND MISREPRESENTATIONS ABOUT HATCHER’S TIP VIOLATED THE FOURTH AMENDMENT
Phillip Hatcher was a jail trustee when he mentioned to Noble that “he
thought he knew” the person depicted in the Bubba Bandit’s BOLO. Hatcher
“was not completely certain regarding the suspect’s identity.” (Doc. 87, p. 27-28).
The district court found that the jail trustee’s statement “was not a positive
29
identification.” The court found “that the statement [was] vague and
ambiguous. Taken alone, the statement cannot be considered a reliable positive
identification.” (Doc. 87, p. 28, n. 3).
Noble did not know Hatcher and he had never been used as a reliable
source by law enforcement. Noble took no steps to corroborate any aspect of his
story about Owens. He did not look for divorce records, bankruptcy records or
Hatcher’s employment records. He investigated Owens anyway, but
surveillance of Owens’ property, and a review of his driving history, vehicle
records, criminal history and bank records, uncovered nothing that remotely
suggested Owens had robbed several banks.
But Noble turned a blind eye to his inability to corroborate Hatcher’s tip,
and pulled an outdated license picture of Owens for a photographic line up. He
knew the picture was at least three years old, but did nothing to see if the picture
actually depicted Owens’ appearance at the time. He did not show the picture to
Hatcher before putting it in the line up.
Noble’s failure to confirm that the picture accurately depicted Owens’
appearance was critical to the ultimate misidentifications outside McDonough.
In the photograph, Owens has a mustache and a very fat face - two prominent,
consistent features in the descriptions of the Bubba Bandit. But in November of
2007, Owens did not have a mustache and his face was no longer fat.
30
Despite his incompetence, the witnesses at First Bank did not pick Owens
out of the line-up. Any reasonable law enforcement official would have stopped
pursuing Owens right then and there, if not long before. Noble had no evidence
supporting Hatcher’s tip. He had no evidence that Owens robbed the First Bank
in McDonough.
In Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996), Metro-Dade Police
Department was investigating a robbery and confidential informant informed
them that he knew the person who committed the robbery. Id. at 1523. At the
plaintiff's residence, the informant identified the plaintiff as the perpetrator. Id.
The victim of the robbery, however, never identified the plaintiff as the
perpetrator and was never shown a photo lineup. Id.
The Eleventh Circuit considered whether an informant's tip rises to the
level of probable cause. The Court cited several factors to consider including the
informant's veracity, reliability and basis of knowledge. Id. at 1525. See United
States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992). "In addition, the
corroboration of the details of an informant's tip through independent police
work adds significant value to the probable cause analysis." Ortega, 85 F.3d at
1525; Gonzalez, 969 F.2d at 1003 (emphasis added). The Court applied these
factors and concluded that the informant’s tip lacked essential elements to
support probable cause. Id.
31
Noble knew Hatcher had “no past history [with MPD] which could lend
support to the informant’s veracity and reliability.” Ortega, 85 F.3d at 1525.
Noble took “no independent steps to investigate the informant’s tip” and he had
no evidence “corroberat[ing] the informant’s identification of [Owens].” Id.
Noble did nothing to determine the jailhouse informant's "veracity," "reliability,"
or "basis of knowledge." Hatcher’s tip did not support probable cause or even
continued investigation of Owens.
In contrast to the circumstances here, the Eleventh Circuit granted
qualified immunity to the officer in Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir.
2009) because the officer was “entitled to rely on allegations of an informant and
corroborating evidence” for probable cause. The officer’s investigation began
with specific, verifiable information provided by an informant. The record
established that the officer was “able to corroborate several of the [informant’s”
statements through his own investigation.” Id. at 1328. The officer’s
independent investigation uncovered physical evidence and several other
witnesses provided evidence supporting probable cause. Id.
Noble, unlike the officer in Eslinger, had no evidence to corroborate
Hatcher’s tip and located no independent evidence suggesting that Owens might
be the Bubba Bandit. Noble’s continued reliance on Hatcher’s tip in the absence
of corroboration or other evidence violated the Fourth Amendment.
32
ii. NOBLE TURNED A BLIND EYE TO EXCULPATORY EVIDENCE, MISREPRESENTED AND OMITTED MATERIAL FACTS.
A qualified immunity analysis "must charge [the officer] with possession
of all the information reasonably discoverable by an officer acting reasonably
under the circumstances . . . '[A] police officer may not close his or her eyes to
facts that would help clarify the circumstances of an arrest.'" Kingsland v. City of
Miami, 382 F.3d 1220, 1228 (11th Cir. 2004) quoting Sevigny v. Dicksey, 846 F.2d 953
(4th Cir. 1988). Applying these principles in Kingsland, the Eleventh Circuit held
that "officers should not be permitted to turn a blind eye to exculpatory
information that is available to them, and instead support their actions on
selected facts they chose to focus upon." Id. at 1228.
The plaintiff in Kingsland was involved in an accident with an off-duty City
of Miami police officer. Officers from the Miami Police Department responded
to the scene, conducted an investigation and arrested the plaintiff for driving
under the influence of marijuana. Kingsland, 382 F.3d at 1223-25. The officers
ignored several witnesses at the scene and failed to take typical steps to collect
physical evidence that – if it existed – would have supported their claim that the
plaintiff was under the influence of marijuana. Id. at 1225-1230. The Eleventh
Circuit faulted the district court for focusing on the “reasonableness of
Kingsland’s arrest given what the officer did investigate, ignoring the fact that
they may have subjectively failed to investigate both sides of the story.” Id.
33
An officer cannot “ignore information that has been offered to him . . . nor
may the officer conduct an investigation in a biased fashion or elect not to obtain
easily discoverable facts.” The Eleventh Circuit noted the absence of “exigencies”
that might justify a less thorough investigation. Ultimately, “[t]he lack of
corroboration through independent police work” proved noteworthy to “the
probable cause analysis.” Id.
When his investigation into Hatcher’s tip turned up nothing, a reasonably
competent officer might well have continued surveillance or made an effort to
interview Owens. But after six witnesses failed to pick Owens from a
Photographic Line-Up, an objectively reasonable officer would have stopped
pursuing Owens as a suspect. Instead, Noble ignored evidence of Owens’ actual
innocence and continued his mindless pursuit of his first big arrest.18
At a bare minimum, no reasonably competent officer would contact a
sister law enforcement agency and lie – telling them that Hatcher was a reliable
source who had identified Owens – just to induce that agency to consider Owens
as a legitimate suspect. Abernathy testified that “reliable source” meant
18 Noble literally “turned a blind eye” to exculpatory evidence when he saw Owens on November and ignored the obvious: Owens looked nothing like the Bubba Bandit. Owens was lighter – by all appearances, at least fifty pounds lighter – than the perpetrator. Owens had a goatee; just two days earlier, the suspect had a mustache at Capitol City bank. Noble’s fellow officer - Stokes – knew right away that John Owens was not the guy; he just decided not to do anything about it.
34
something to him and he relied on that representation when he decided to put
Owens in his Photographic Line Up. Abernathy also relied on Noble’s
representation that Hatcher identified Owens. Hatcher’s statement was not a
reliable identification; it was at best a vague and ambiguous statement. (Doc. 87,
p. 28). Noble made these same material misrepresentations in his affidavit in
support of the search warrant executed at Owens’ home at the time of his arrest.
(Doc. 70-13-15).
Noble violated the Fourth Amendment when he misrepresented material facts to
fellow officers and a magistrate judge to secure Owens’ arrest. See e.g. Holmes v.
Kucynda et al, 321 F.3d 1069, 1084 (11th Cir. 2003)(“the law was clearly established
in 1998 that the Constitution prohibits a police officer from knowingly making
false statements in an arrest affidavit about the probable cause for an arrest”).
iii. NOBLE’S DECISION TO SEEK HIS OWN ARREST WARRANT FOR JOHN OWENS IN THE ABSENCE OF ANY EVIDENCE VIOLATED THE FOURTH AMENDMENT
On November 29th, Noble finished up his paperwork. He appeared before
a magistrate judge and swore out an arrest warrant charging Owens with
Robbery by Intimidation at the First Street Bank. Noble had no reliable evidence
of probable cause and he knew it; but he went and got an arrest warrant anyway.
Noble secured an arrest warrant, so the relevant line of authority flows
from the Supreme Court’s decision in Malley v. Briggs, 475 U.S. 335, 344 106 S. Ct.
1092 (1986). See, e.g., Garmon v. Lumpkin County, 878 F.2d 1406 (11th Cir. 1989);
35
Jones v. Cannon et al, 174 F.3d 1271 (11th Cir. 1999). In Malley, the Supreme Court
held that officers who apply for arrest warrants with a magistrate judge would
be protected by qualified immunity, unless “on an objective basis, it is obvious that
no reasonably competent officer would have concluded that a warrant should issue.” Id.
at 341. The Court explained the pertinent inquiry to be: “whether a reasonably
well-trained officer in petitioner’s position would have known that his affidavit
failed to establish probable cause and that he should not have applied for the
warrant.” Id. at 345. The Court also concluded that a magistrate’s subsequent
decision to issue the warrant affords no protection to the officer. Instead, the
Court held that, “[w]e find it reasonable to require the officer applying for the
warrant to minimize this danger19 by exercising reasonable professional
judgment.” Id.; but see Messerschmidt v. Millender, -- U.S. --, 132 S.Ct. 1235 (2012)(a
magistrate’s decision to issue a warrant may be considered as part of the court’s
inquiry as to whether the officer acted in an objectively reasonable fashion in
securing a warrant).
An officer who makes “knowingly or recklessly false, or materially
misleading statements to support a warrant” violates the Fourth Amendment.
See, e.g., Garmon, 878 F.2d at 1410-11; Kelley v. Curtis, 21 F.3d at 1554; Jones v.
19“[T]his danger” refers to the subject of the previous sentence. “But ours
is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should.” Id.
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Cannon, 174 F.3d at 1285 (11th Cir. 1999). Noble knew the witnessed did not pick
Owens from a photographic line-up; but he did not share that information with
the magistrate. Owens knew his investigation and search of Owens’ home had
uncovered no evidence; but he did not share that information with the
magistrate. He knew that he had been unable to corroborate Hatcher’s tip; but
he told the magistrate that Hatcher was a reliable source. He knew Hatcher’s
statement about Owens was equivocal; but he told the magistrate that Hatcher
had identified Owens as the Bubba Bandit. He knew first hand that Owens’ no
longer looked like he appeared in his drivers’ license picture; but he still told the
magistrate that witnesses to other crimes had identified Owens.
An officer "who intentionally or with reckless disregard omits facts
material to an affidavit's probable cause violates the Fourth Amendment."
Madiwale v. Savaiko, 117 F.3d 1321, 1326-27 (11th Cir. 1997). The Court can infer
recklessness from the omission itself if the fact is "'clearly critical to a finding of
probable cause.'" Id. at 1327 quoting United States v. Martin, 615 F.2d 318, 319 (5th
Cir. 1980). The omitted fact is material if, when added to the application,
probable cause no longer exists. Madiwale, 117 F.3d at 1327.
Noble did not tell the magistrate that none of the witnesses to the First
Bank robbery identified him from a photographic line-up. He also omitted every
other material fact pointing to Owens’ actual innocence. Instead, he told the
magistrate judge that Owens robbed Hannah Jones and implied that she had
37
identified Owens as the Bubba Bandit. Noble admitted as much in his
deposition. Only a jury can determine if Noble omissions were intentional or
demonstrated a reckless disregard for the truth. Noble violated the Fourth
Amendment and is not entitled to summary judgment. See e.g. Evans v. City of
Plant City, 2007 WL 2916454 (M.D. Fla. 2007)(finding that “officer misled the
reviewing judge by suggesting, if not directly stating that [fellow gang members]
had identified the plaintiff.")
With the misstatements and omissions stripped away, Noble admits that
his arrest affidavit was based on (1) Hatcher’s statement; and (2) the
Bibb/Twiggs county identifications. But as the district court explained, Noble
cannot “boot strap” his way to probable cause by relying on evidence from the
Bibb and Twiggs county investigations. (Doc. 87, p. 31, n. 5). "[P]robable cause
for the first warrant, cannot of itself supply probable cause for the second
warrant. Instead, the latter warrant must rest on its own bottom--its own factual
predicate." Yattoni v. Oakbrook Terrace, 14 F.3d 605 (7th Cir. 1993)(unpublished).20
Under Malley, officers may be found liable in the absence of a “knowingly
or recklessly false statement” if the warrant application “is so lacking in indicia
20 This premise is consistent with Georgia law on the use of similar transactions. In a prosecution for the First Bank robbery, the Bibb and Twiggs county robberies could only be introduced for a limited purpose as “similar transaction” evidence. The State could only use evidence from these offenses subsequent to putting up evidence that the defendant committed the offense charged in the indictment. See e. g., Gilstrap v. State, 261 Ga. 798, 799 (1991).
38
of probable cause as to render official belief in its existence unreasonable.”
Malley, 475 U.S. at 345. (emphasis supplied).21
For example, in Tillman v. Coley, 886 F.2d 317 (11th Cir. 1989), an
undercover officer purchased a quantity of marijuana from a person giving the
name "Mary Tillman" and looked to be about 24 years old. Id. at 318. The
defendant, Sheriff Coley, knew a Mary Tillman in the community; knew she
lived 200-300 feet from the drug transaction, but knew that she was about forty-
one years old rather than closer to the age the undercover officer had reported.
Id. Despite this knowledge, the defendant did no investigation to clear up or
dispel the age discrepancy. Furthermore, the defendant did not inform the
magistrate judge of the age discrepancy or the defendant's concerns about it. Id.
The Eleventh Circuit considered whether a reasonably well-trained officer
with the information in the undercover police officer's report and the knowledge
that the defendant had in regard to the age of the plaintiff would have known
that probable cause did not exist. Id. at 320. The court found the defendant's
application for the arrest warrant to be unreasonable and denied qualified
immunity. Id. at 320-21; see also, Garmon v. Lumpkin Co., 878 F.2d 1406, 1408 (11th
Cir. 1989)(conclusory assertions insufficient to establish probable cause).
21The Supreme Court’s decision in Malley actually turned on this second inquiry,
thereby confirming that veracity in the warrant application is not the sole consideration in evaluating liability.
39
Noble averred that Owens entered the bank and robbed Hannah Jones. He
did not even get the victim right; the Bubba Bandit robbed Nichole Adcock.
Besides that rather glaring mistake, Noble bare bones affidavit is precisely what
this Court disapproved in Garmon, 878 F.2d at 1408. Just like Noble’s affidavit,
the affidavit in Garmon “contained nothing but the investigator's conclusion that
[the plaintiff] had committed the crime;” accordingly, “the magistrate could not
possibly have conducted the independent assessment required by the Fourth
Amendment . . ." Id. at 1409.
Noble testimony does little to fill in the blanks in his affidavit. Noble
admitted that he did not give the magistrate any evidence of probable cause
related to the First Street bank robbery; instead, he told him that Owens had been
identified for robberies that occurred in other counties. (Noble Dep., p. 97-98).
C. PRE-EXISTING LAW GAVE NOBLE FAIR WARNING THAT HIS CONDUCT VIOLATED OWEN’S FOURTH AMENDMENT RIGHTS.
This Circuit traditionally recognized three distinct forms of clearly
established law; however, recent decisions suggest that there are now only two
forms. Edwards v. Shanley, 666 F.3d 1289 (11th Circ. 2012)(“our circuit uses two
methods to determine whether a reasonable officer would know that his conduct
is unconstitutional.”); see also, Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir.
2011). In false arrest cases, this Circuit has defined the clearly established prong
40
as an arguable probable cause inquiry.” Draper v. Reynolds, 369 F.3d 1270, 1276 n.
7 (11th Cir. 2004); Moran v. Cameron, 362 Fed. Appx. 88 (11th Cir. 2010). Arguable
probable cause exists when “reasonable officers in the same circumstances and
possession the same knowledge as the Defendant could have believed that
probable cause existed to arrest.” Skop v. City of Atlanta, 485 F.3d 1130, 1144 (11th
Cir. 2007).
Noble had no arguable probable cause to pursue Owens as a suspect after
the First Bank witnesses failed to identify him and he was otherwise unable to
corroborate Hatcher’s tip. Noble certainly had no arguable probable cause to
pursue an arrest warrant for Owens days after a search warrant revealed no
evidence tying Owens to the crimes.
Owens points to pre-existing law that is not at all “distinguishable in a fair
way” giving Noble fair warning that his conduct violated the Fourth
Amendment. Vinyard v. Wilson, 311 F.3rd 1340, 1351. Ortega v. Christian, 85 F.3d
1521 (11th Cir. 1996) confirmed years of pre-existing law that an informant’s tip,
uncorroborated by independent police work or other evidence of reliability, is
not sufficient to establish probable cause. Kingsland v. City of Miami, 382 F.3d
1220, 1231, (11th Cir. 2004) establishes that officers cannot turn a blind eye to
exculpatory information that is available to them, and instead support their
actions on selected facts they chose to focus upon. Riley v. City of Montgomery,
104 F.3d 1247, 1253 (11th Cir. 1997) restated the obvious: fabricating incriminating
41
evidence violated constitutional rights. Madiwale v. Savaiko, 117 F.3d 1321 (11th
Cir. 1997) established that material omissions of fact from a warrant application
violate the Fourth Amendment. Garmon v. Lumpkin County, 878 F.2d 1406 (11th
Cir. 1989) established that conclusory assertions in warrant affidavit are clearly
insufficient to establish probable cause.
Noble had fair warning that his conduct violated the Fourth Amendment.
The district court properly denied qualified immunity. This Court should affirm
that decision and remand this case for jury trial.
CONCLUSION
For the within and foregoing reasons, Owens respectfully requests that the
Court dismiss this appeal or, alternatively, affirm the decision of the District
Court and remand this case for jury trial.
This 23rd day of August, 2012.
/S/William J. Atkins William J. Atkins Georgia Bar No. 027060 ATKINS & FIFE, LLC 6400 Powers Ferry Road, Suite 355 Atlanta, GA 30339 404-969-4130 [email protected]
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APPENDIX
Pursuant to FRAP 30(d) and (e) and Eleventh Circuit Rule 30-1(f) and (k),
Owens’ includes documents from the Record whose interpretation is central to
the issues on appeal in the Appendix to Appellee’s Brief.
Composite Exhibit – Photographs of Bubba Bandit and John Owens Doc. 70-1
John Kirk Owens – Drivers’ License Photograph Doc. 70-2
John Kirk Owens-Bibb County Jail-Book In Photograph Doc. 70-3
John Kirk Owens Photograph –November 10, 2007 Doc. 70-4 Bubba Bandit Photograph -McDonough Bank, December 12, 2007 Doc. 70-6 Bubba Bandit Photograph -Capitol City Bank, November 19, 2007 Doc. 70-7
Henry County Police Department – BOLO Doc. 70-10
Henry County Application Criminal Arrest Warrant Doc. 70-13-13
Henry County Application Search Warrant Doc. 70-13-15
McDonough Police Department Photographic Line Up Doc. 70-13-21
Statement of Phillip Hatcher Doc. 70-13-24
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains no more than 9,593 words.
This 23rd day of August, 2012. s/William J. Atkins William J. Atkins Georgia Bar No. 027060 [email protected] ATKINS & FIFE, LLC 6400 Powers Ferry Road, Suite 355 Atlanta, Georgia 30339 Tel. 404-969-4130
www.atkinsfife.com
44
CERTIFICATE OF SERVICE
I certify that Brief of the Appellee John Kirk Owens was electronically filed using the CM/ECF system which will automatically send email notification of such filing to all attorneys of record. I further certify that a true and correct copy of Brief of the Appellee John Kirk Owens was served via United States mail upon:
Andrew J. Whalen, III Leigh Crouch Hancher
Jessica Whatley The Whalen Firm, LLP
101 S. Hill Street, P.O. Box 133 Griffin, Georgia 30224-0004
This 23rd day of August, 2012.
/s/William J. Atkins William J. Atkins Georgia Bar No. 027060 [email protected] ATKINS & FIFE, LLC 6400 Powers Ferry Road, Suite 355 Atlanta, Georgia 30339 Tel. 404-969-4130 www.atkinsfife.com