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Date: 12-02-2019

Case Style:

Scott Jordan, Jr. v. Town of Waldoboro, et al.

Case Number: 18-2062

Judge: Kayatta

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Karen Wolfram, with whom Fairfield & Associates, P.A. was on
brief, for appellant.

Defendant's Attorney: Kasia S. Park, with whom Edward R. Benjamin, Jr. and Drummond
Woodsum were on brief, for appellees.

Description: Scott M. Jordan ("Senior"), his
health failing, executed a Power of Attorney (POA) authorizing his
son, Scott M. Jordan, Jr. ("Jordan"), to take control and dispose
of Senior's property in any way Senior might do were he able.
Unhappy with Jordan's subsequent decisions concerning his
property, Senior revoked the POA and complained to the Waldoboro
Police Department. Waldoboro Police Officers obtained a warrant
to search Jordan's home for Senior's property, and after finding
Senior's property there, arrested Jordan for theft. The district
attorney dismissed the criminal prosecution after Senior died.
Jordan brought this civil rights action against the Town
of Waldoboro, the Waldoboro Police Department, and several
Waldoboro Police Officers. He alleged that the affidavit
accompanying the search warrant contained intentional or reckless
omissions and misstatements of fact, that an accurate affidavit
would not have supported probable cause for the search of his home,
and that there was no probable cause for his arrest. A magistrate
judge, sitting as the district court with the consent of the
parties, granted summary judgment for the defendants, dismissing
all of Jordan's claims. Jordan timely appealed to this court.
For the following reasons, we reverse in part and affirm in part.
- 4 -
In this appeal from the entry of summary judgment, we
take the facts in the light most favorable to Jordan. See Staples
v. Gerry, 923 F.3d 7, 14 (1st Cir. 2019).
Jordan was employed in the corrections division of the
Cumberland County Sheriff's office. As of May 2014, Senior was
living independently at his home in Waldoboro, Maine, while Jordan
and Jordan's daughter lived together in Standish, Maine. Jordan
and Senior made plans for Senior to move in with Jordan and his
daughter. They agreed that, in anticipation of the move, Jordan
would help fix up Senior's home and sell some of Senior's property
so that Senior's home could be rented or sold.
On May 12, 2014, Senior was taken by ambulance to the
hospital, where he was admitted for progressive confusion. After
improving, Senior was discharged on May 23, 2014, but the next day
he was "[u]nresponsive" and "not able to provide any answers to
questions" and returned to the hospital. Senior was in and out of
the hospital through July of 2014.
In accordance with Senior and Junior's plan for Junior
to sell some of Senior's property, on May 15, 2014, during Senior's
initial hospitalization, Senior directed his attorney to draft an
Appointment of Agent Financial Power of Attorney appointing Jordan
as his agent and attorney-in-fact. Senior executed the POA before
a witness and a notary public. The notary public noted that Senior
- 5 -
was "alert and oriented." The POA granted Jordan "full power to
exercise or perform any act, power, duty, right, or obligation
whatsoever . . . relating to any person, matter, transaction, or
property, real or personal, tangible, intangible, or mixed, now
owned or hereafter acquired by [Senior], as [Senior] might or could
do if personally present." It listed "by way of example" several
"specifically enumerated powers" that did not limit the broad
authority quoted above. One of those enumerated powers was to
"make gifts of any property . . . as [Jordan] may consider
advisable or appropriate, which gifts may be made to or for the
benefit of [Jordan]." Another was to sell "any property
whatsoever," "or any right or interest thereon, or any part
thereof, upon such terms as [Jordan] shall think proper."
Central to this case are Senior's complaints about the
actions Jordan took pursuant to the POA. Acting as Senior's agent
and attorney-in-fact, Jordan either transferred to himself or sold
much of Senior's personal property, and he also withdrew money
from Senior's accounts. Jordan maintained that he took these
actions in accordance with the plan he and Senior had developed
and in order to facilitate and fund his efforts to take care of
his father. Senior claimed that Jordan acted contrary to his
On July 27, 2014, while out of the hospital, Senior
reported to the Waldoboro Police Department that Jordan had
- 6 -
assaulted him. Defendant Andrew Santheson, a Waldoboro Police
Officer, spoke to Jordan over the phone. Jordan said the dispute
began with an argument over Jordan's decision to register Senior's
truck in Jordan's name. Neither party desired criminal prosecution
of the other, and neither provided a statement, so Santheson
investigated no further.
Senior took no steps to revoke the POA until July 31,
2014, when he sent Jordan a notice of revocation. That day, and
in the week or so following, Senior made several demands that
Jordan explain or undo the actions he took under the POA. Of
relevance here, Senior demanded: (1) the return of his truck;
(2) the return of three firearms; and (3) an accounting of the
financial activities Jordan undertook on Senior's behalf,
including "an explanation of the $3,000.00 worth of antiques which
[Senior] believe[d] were sold." In a written response to Senior's
attorney, Jordan explained that he and his father had agreed to
put the truck in Jordan's name "in case [Senior] never came out of
the hospital, and they went after his assets." Jordan refused to
return the firearms, among other reasons, because he was concerned
that Senior was suicidal. He also explained that, in selling
Senior's property, he was acting as authorized under the POA, and
that he did so to cover expenses associated with caring for his
father and improving his father's house.
- 7 -
In the months that followed, Senior made multiple
complaints to the Waldoboro Police Department about the actions
Jordan took under the POA prior to its revocation. In a written
statement dated October 10, Senior stated that, while
hospitalized, "my son came to me about making him my power of
attorney," and that "I did not read it and don't feel at this time
I should have signed it." Senior conceded that he and Jordan
planned to move in together in Standish, and that he had authorized
Jordan to sell some of his things and do some work on his house,
but complained that Jordan held the sale while Senior was
hospitalized even though Senior wanted to be present.
On October 17, Senior told defendant Jeffrey Fuller, a
Waldoboro Police Officer, that he had been hospitalized as a result
of a liver condition that at times made him feel confused and act
abnormally. He explained to Fuller and defendant Lawrence
Hesseltine, also a Waldoboro Police Officer, that he had executed
a POA and that, pursuant to it, Jordan had taken his truck,
transferred ownership to himself, and was refusing Senior's
demands to return it. Senior acknowledged that Jordan left his
own truck for Senior to use, but said that Jordan's truck was too
large for him. Hesseltine confirmed that the title to Senior's
former truck was in Jordan's name. Senior also complained that
Jordan was refusing to return several firearms. Fuller asked
- 8 -
Senior to provide him a copy of the POA, which Senior delivered to
the Waldoboro police station the next day.
Also on October 17, after taking Senior's complaint,
Fuller spoke to Jordan by telephone. Jordan told Fuller about
Senior's plan to move in with him and explained that he had started
executing the plan before Senior changed his mind about it. Jordan
said he had spent a large amount of time and money fixing up his
father's home. When asked if he intended to return his father's
firearms, Jordan responded that he did not because his father was
not mentally stable. Jordan asked Fuller if the police department
might take the firearms for safekeeping, but Fuller responded that
the police would have no legal basis to refuse to return the
firearms to Senior.
Hesseltine then took over the investigation from Fuller,
who left for an extended vacation. Hesseltine received all the
documents Senior and Jordan provided to Fuller, including the POA.
On November 1, Hesseltine met with Senior about the complaint.
Senior told Hesseltine that, while the POA was in effect, Jordan
had sold upwards of $5,000 of Senior's personal property and
withdrawn more than $2,000 in Social Security and Veterans
Administration benefits from Senior's bank account. Senior gave
Hesseltine copies of the revocation of the POA and the July and
August correspondence between Senior's attorney and Jordan.
- 9 -
Some time that fall, Hesseltine and defendant William
Labombarde, Waldoboro Chief of Police, called Senior's sister,
Raeberta Myers, asking for her "help in clarifying things." They
explained that they had spoken to Senior, and that they "understood
[Junior] had pushed [Senior] into signing a [POA] while he was not
in his right mind." Myers told the officers that "this was
definitely not true." Myers described a phone call she had with
Senior before he was hospitalized. In that phone call, Senior
explained that he intended to grant Jordan a POA and that he
planned to have his lawyer draft one. Myers knew that Senior and
Jordan had "knocked heads" in the past, but she asked Senior "a
number of times" if he was sure about this plan, and "each time he
assured [her that it was] what he wanted to do." Myers told the
officers that Senior "knew exactly what he wanted and what he was
doing" at the time. Myers "had the feeling that [the officers]
did not like what [she] had told them about [Senior] and the
On November 18, 2014, Senior reported to the Waldoboro
Police that he had learned that Jordan was planning to sell the
truck Senior wanted back. Hesseltine found an online posting in
which Jordan offered to sell the truck for $7,900. That day,
Senior also provided Hesseltine with a copy of a $305 AT&T Wireless
bill for a cell phone account that had been opened in Senior's
name but that was associated with Jordan's cell phone number.
- 10 -
On November 20, Hesseltine wrote and filed in Maine
district court an affidavit and request for a warrant to search
Jordan's residence as well as any vehicles, boats, and outbuildings
on the premises. The warrant provided for the seizure of Senior's
property, specifically listing the truck, the firearms, and any
financial documentation relating to the disposition of Senior's
property. Much of this appeal concerns the content of the
affidavit accompanying the search warrant, which we will discuss
in detail below. Before Hesseltine filed the affidavit and
request, Labombarde and Assistant District Attorney Andrew Wright
reviewed it. A Maine district court judge granted the request
that same day.
On November 21, Hesseltine, Santheson, and Maine State
Police officers executed the warrant at Jordan's property. As
expected, they found Senior's truck parked in Jordan's driveway.
In the glove compartment, officers found the title to the truck as
well as a bill of sale, signed by Senior, granting the truck to
Jordan. Officers also recovered the firearms. Jordan told
Hesseltine that he had sold all of the other personal property he
had taken from Senior's home.
Hesseltine arrested Jordan without a warrant for Class B
theft by unauthorized taking or transfer.1 Hesseltine and
1 "A person is guilty of theft if . . . [t]he person obtains
or exercises unauthorized control over the property of another
- 11 -
Santheson took Jordan to the local jail, where he was released the
same day on a $5,000 bond. Foreseeably, the local press coverage
latched on to the story of a corrections officer being arrested
for stealing from his ill father.
A Lincoln County grand jury convened to consider
Jordan's charges. Hesseltine, Senior, and Jordan all testified
before the grand jury. The District Attorney used the POA while
questioning Hesseltine, but Hesseltine recalls telling the grand
jury only "that there was [a POA] in effect and then it was
rescinded." Jordan explained to the grand jury that Senior's
attorney drafted the POA. There is no evidence in the record that
the grand jury viewed a copy of the POA or learned about its broad
grant of power to Jordan. On March 10, 2015, the grand jury
returned an indictment against Jordan for five counts of Class B
Senior died in early September, 2015. The Lincoln County
District Attorney's Office dismissed the criminal proceedings
against Jordan for want of the "victim and key witness." Because
of his bail conditions, Jordan was unable to see Senior again
before his death.
with intent to deprive the other person of the property." Me.
Stat. tit. 17-A, § 353(1)(A). Theft by unauthorized taking is a
Class B crime if "[t]he value of the property is more than $10,000"
or "[t]he property stolen is a firearm or an explosive device."
Id. § 353(1)(B)(1)–(2).
- 12 -
Jordan brought this civil rights action against the Town
of Waldoboro, the Waldoboro Police Department, Chief of Police
Labombarde, and Officers Fuller, Hesseltine, and Santheson. Under
the federal civil rights statute, 42 U.S.C. § 1983, he alleged
Fourth Amendment violations of unlawful search and seizure, false
arrest, malicious prosecution, and "due process/defamation." He
also brought Maine state constitutional claims for false arrest
and unlawful search and seizure under the Maine Civil Rights Act,
Me. Rev. Stat. tit. 5, § 4682, as well as Maine tort claims for
malicious prosecution, false imprisonment, intentional infliction
of emotional distress, negligent infliction of emotional distress,
defamation, and false light. Jordan sought compensatory and
punitive damages. Invoking federal question jurisdiction, 28
U.S.C. §§ 1331, 1367, the defendants removed the case to the United
States District Court for the District of Maine. The parties
stipulated to the dismissal of the defamation claims against all
defendants and the false light claim against two of the defendants.
Adjudicating the case with the consent of the parties, a magistrate
judge entered summary judgment in favor of the defendants on all
remaining counts.
On appeal, Jordan challenges the entry of summary
judgment on: (1) the federal and state constitutional claims for
search and seizure; (2) the federal and state constitutional
claims for false arrest; (3) the federal and state constitutional
- 13 -
claims for malicious prosecution; (4) the Maine tort claims for
malicious prosecution and false imprisonment; and (5) the request
for punitive damages. We take up each issue in turn.
Summary judgment is appropriate "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). We review de novo the grant of summary judgment, "under
the identical criteria governing the district court." Hegarty v.
Somerset Cty., 53 F.3d 1367, 1372 (1st Cir. 1995).
We begin with Jordan's claim that the defendants
violated his rights under the Fourth Amendment to the U.S.
Constitution and article 1, section 5 of the Maine Constitution by
searching and seizing his property.2 The search warrant executed
by a judicial officer stands as an imposing impediment to this
claim. The Fourth Amendment countenances searches conducted
pursuant to warrants issued "upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U.S. Const.
amend. IV. Jordan seeks to overcome this impediment by contending
2 The parties agree that relevant Maine law tracks the
requirements of the Fourth Amendment and 42 U.S.C. § 1983, so we
will assume that to be so.
- 14 -
that the warrant was invalid because the officers procured it by
deliberately misleading the Maine district court judge who granted
The rules for challenging a warrant by attacking the
affidavit used to procure it trace to the Supreme Court's opinion
in Franks v. Delaware, 438 U.S. 154 (1978). Franks addressed the
showing a defendant must make in order to suppress the fruits of
a search by proving that a facially valid warrant was invalidly
obtained. Franks held that a search warrant must be voided if
(1) "a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in
the warrant affidavit"; and (2) "the affidavit's remaining content
is insufficient to establish probable cause." Id. at 155–56; see
also United States v. Owens, 917 F.3d 26, 38 (1st Cir. 2019). We
have since drawn on Franks to observe that "[a]n officer who
obtain[ed] a warrant through material false statements which
result[ed] in an unconstitutional search may be held personally
liable for his actions under § 1983." Aponte Matos v. Toledo
Dávila, 135 F.3d 182, 187 (1st Cir. 1998).

To apply Franks in this case, we find it helpful to break
the two-prong test into its three elements: The affidavit need
contain a falsehood; the falsehood must be such that its deletion
would eliminate probable cause; and the falsehood must have been
- 15 -
made deliberately, or at least with reckless disregard for the
truth. We address each element in turn.
In examining the affidavit for the presence of
falsehoods, we look not only for affirmative misrepresentations,
but also for material omissions. United States v. Tanguay, 787
F.3d 44, 49 (1st Cir. 2015) ("Material omissions from a warrant
affidavit also may furnish the basis for a successful Franks
challenge."). We conclude that the record in this case would allow
a jury to find that there was at least one affirmative
misrepresentation and two material omissions.
First, the affidavit plainly suggested that Jordan
prepared the POA and foisted it on his ill father. The affidavit
stated that Jordan "presented [Senior] with paperwork requesting
he appoint himself as his father's [f]inancial [POA]." But, as
Myers explained, even before his hospitalization Senior intended
to give Jordan a POA, and Senior's own attorney eventually prepared
the POA at Senior's behest.
Second, Hesseltine's affidavit failed to disclose that
the POA (which Hesseltine did not attach to the affidavit)
expressly provided for the type of self-dealing in which Jordan
engaged, and which Jordan claimed was his father's basic purpose
in granting the POA.
- 16 -
Third, although the affidavit acknowledged Jordan's
claim that he took his father's firearms because he feared that
his father might harm himself, it omitted the highly corroborating
fact that Jordan offered to turn over the firearms to the police
for safekeeping.
The defendants argue -- and the magistrate judge in this
federal case agreed -- that the foregoing omissions are not
relevant to the Franks analysis because "probable cause does not
require officers to rule out a suspect's innocent explanation for
suspicious facts." Jordan v. Town of Waldoboro, No. 2:17-CV-
00025-JHR, 2018 WL 4688724, at *9 (D. Me. Sept. 28, 2018) (quoting
District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)). But
Jordan is not arguing that the police had to rule out his innocent
explanations. Rather, he argues that his offer to give the
firearms to the police as well as the provenance and terms of the
POA were undisputed facts that were material to the assessment of
the conduct described in the affidavit. And as we have said,
material omissions can be the basis of a Fourth Amendment violation
if all three elements of Franks's two-part test are satisfied.
See United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990).
We turn now to the question of whether a more complete
and accurate affidavit would have nevertheless supported a finding
of probable cause for the search and seizure. In answering this
- 17 -
question, we "take into account the cumulative effect of the
multiple omissions" and misstatements in the affidavit. United
States v. Vigeant, 176 F.3d 565, 572 n.8 (1st Cir. 1999).
Though only a jury can resolve reasonably disputed
issues of fact, whether a given set of facts constitutes probable
cause is a legal question. See Ornelas v. United States, 517 U.S.
690, 699 (1996); Dir. Gen. of R.R.s v. Kastenbaum, 263 U.S. 25, 28
(1923) ("Probable cause is a mixed question of law and fact. The
court submits the evidence of it to the jury, with instructions as
to what facts will amount to probable cause if proved."); Bolton
v. Taylor, 367 F.3d 5, 8 (1st Cir. 2004) ("[N]o deference should
be given to the fact-finder as to probable cause or reasonable
suspicion where the raw facts are undisputed or settled and the
only issue is one of law application.").
In assessing whether probable cause exists, we consider
"the whole picture." Wesby, 138 S. Ct. at 588 (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981)). Probable cause does
not require proof of guilt beyond a reasonable doubt, but "only an
objectively reasonable basis for believing 'that evidence of [the
crime] can likely be found at the described locus at the time of
the search.'" United States v. Flores, 888 F.3d 537, 548 (1st
Cir. 2018) (alteration in original) (quoting United States v.
Floyd, 740 F.3d 22, 32 (1st Cir. 2014)).
- 18 -
The probable cause question here turns on the underlying
Maine law. As noted above, "[a] person is guilty of theft if . . .
[t]he person obtains or exercises unauthorized control over the
property of another with intent to deprive the other person of the
property." Me. Rev. Stat. tit. 17-A, § 353(a). The critical
question is whether the affidavit, had it not contained the abovenoted
deficiencies, would still have established probable cause to
believe that Jordan's exercise of control over Senior's property
was unauthorized.
The origin and terms of the POA weigh heavily in favor
of a "no" answer to this question because it expressly granted
Jordan the authority to take control of Senior's property. The
affidavit sought to diminish the exculpatory weight of the POA by
giving the impression that Jordan prepared the POA and foisted it
on his befuddled parent. In other words, it tacitly suggested
that the POA was not validly executed and therefore that it could
not authorize the seizure. But once one learns that the POA was
the product of pre-hospitalization discussions, that Senior's
lawyer prepared the POA, and that Senior authorized Jordan to
transfer property to himself, all of Jordan's behavior is cast in
a very different, markedly benign light.
The defendants try another tack, arguing that the POA,
although legitimately executed, did not actually grant Jordan
authority to transfer Senior's property to himself because any
- 19 -
such grant of power would be invalid under Maine law. They point
out that the Maine Uniform Power of Attorney Act, Me. Rev. Stat.
tit. 18-A, § 5-914, incorporates section 802 of the Maine Uniform
Trust Code, which in turn provides that "[a] trustee shall
administer the trust solely in the interests of the beneficiaries."
Me. Rev. Stat. tit. 18–B, § 802(1). But under that section of the
Trust Code, a trustee has no such duty if "[t]he transaction was
authorized by the terms of the trust." Id. § 802(2)(A). Leaving
no doubt on this point, the Maine Uniform Power of Attorney Act
provides that the agent shall "[a]ct loyally for the principal's
benefit," "[e]xcept as otherwise provided in the power of
attorney." Me. Rev. Stat. tit. 18-A, § 5-914(b)(1) (emphasis
added). Therefore, since the POA expressly authorized the
challenged self-dealing, Jordan was not obligated to act solely in
Senior's interests.
Jordan still had the basic obligation under Maine law to
"[a]ct in accordance with the principal's reasonable expectations
to the extent actually known by the agent." Id. § 5-914(a)(1)
(emphasis added). The defendants argue that Jordan violated this
duty by declining to follow Senior's directives about the
disposition of Senior property. But the POA authorized Junior to
"make gifts of any property . . . as [Jordan] may consider
advisable or appropriate, which gifts may be made to or for the
benefit of [Jordan]." This express authorization to sell any
- 20 -
property seriously undercuts any argument that Senior reasonably
expected Jordan to keep Senior's property in Senior's name.
Moreover, Jordan maintains that he took all the disputed actions
in furtherance of a plan he and Senior agreed to before Senior
executed the POA. There is no evidence that Senior ever denied
the existence of the pre-hospitalization plan to move assets out
of his name by having his lawyer prepare a POA that granted Jordan
discretion to decide what property to sell. And Myers confirmed
the existence of the pre-hospitalization plan. Moreover,
everything Jordan did is consistent with that plan. Conversely,
Senior's belated, post-hospitalization critique of Jordan's
actions seemed inconsistent with his reason for granting the POA
in the first place. Under these circumstances, it seems
implausible that Jordan "actually kn[ew]" that Senior
"reasonabl[y] expect[ed]" Jordan to cease implementing their prehospitalization
agreement. Id.3
Seriously weakened by the facts concerning the
provenance and breadth of the POA, the affidavit's remaining
3 Maine law also makes it an affirmative defense to theft
"that the defendant acted in good faith under a claim of right to
property." Me. Rev. Stat. tit. 17-A, § 361. We do not address,
however, whether the officers violated the Fourth Amendment by
failing to include known facts that established an affirmative
defense, because Jordan has made no such claim. See Sparkle Hill,
Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("Our
precedent is clear: we do not consider arguments for reversing a
decision of a district court when the argument is not raised in a
party's opening brief.").
- 21 -
inculpatory force would further dissipate if the affidavit
correctly described Jordan's offer to give the firearms to the
police. A reader of the affidavit might think that Jordan's stated
reason for taking the firearms was pretextual. Indeed, the fact
that the warrant authorized the officers to search for the very
same firearms that Jordan had offered to the police suggests that
the Maine district court judge believed that Jordan took the guns
for his own benefit. Once one includes in the picture Jordan's
undisputed proffer, such a belief becomes implausible.
Collectively, correction of the misrepresentation and
the two omissions would have painted a fundamentally different
picture of Jordan's actions in trying to assist an episodically
confused and often hostile parent. It is not a reasonable picture
of a thief in action and, thus, would fall short of establishing
probable cause for a search warrant.
That leaves the matter of state of mind. Officers can
easily forget information or fail to perceive its significance in
seeking warrants, so the law provides no evidentiary exclusion or
legal liability for such errors, even when made negligently.
Franks, 438 U.S. at 171 ("Allegations of negligence or innocent
mistake are insufficient."); Tanguay, 787 F.3d at 49 ("Negligent
omissions -- even negligent omissions of highly probative
information -- do not satisfy [the Franks] standard."). For Jordan
- 22 -
to prevail, there must be evidence upon which a jury could
reasonably find that the defects in the affidavit were made
"knowingly and intentionally, or with reckless disregard for the
truth." Franks, 438 U.S. at 155 (1978). And in the case of
omissions, there is an additional element: "Because there is no
requirement that every shred of known information be included in
a warrant affidavit," an omission satisfies the Franks test "only
if it is 'designed to mislead or . . . made in reckless disregard
of whether [it] would mislead, the magistrate' in his appraisal of
the affidavit." Tanguay, 787 F.3d at 49 (alterations in original)
(quoting United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir.
Determining an actor's mental state is traditionally a
role for the jury. See Stepanischen v. Merchs. Despatch Transp.
Corp., 722 F.2d 922, 928 (1st Cir. 1983) (noting that "where, as
here, the state of mind of one of the parties is crucial to the
outcome of the case," "courts are particularly cautious about
granting summary judgment").
An intent to deceive, and certainly recklessness, need
not be proven by direct evidence. "In the case of allegedly
material omissions, 'recklessness may be inferred where the
omitted information was critical to the probable cause
determination.'" Burke v. Town of Walpole, 405 F.3d 66, 81–82
(1st Cir. 2005) (quoting Golino v. New Haven, 950 F.2d 864, 871
- 23 -
(2d Cir. 1991)); see also United States v. Gifford, 727 F.3d 92,
101 (1st Cir. 2013) (inferring recklessness from the omission of
critical information).
Viewing the record as a whole, we find that there is
enough evidence that a jury could reasonably conclude that
Hesseltine had such a mental state. As for the misrepresentation,
the jury could decide -- based on Myers's testimony -- that
Hesseltine, at best, recklessly disregarded the true origins of
the POA, and that the exculpatory force of the correct information
would have been obvious to him. As for the omissions, the
defendants conceded that Fuller disclosed to Hesseltine all the
information he received from Senior and Junior, which would include
the terms of the POA and the fact that Junior offered to turn the
firearms over to the Waldoboro Police Department. And if jurors
concluded that the misrepresentation was the result of an intent
to deceive the judicial officer to serve a warrant, it would
require no unreasonable leap to find that the two omissions were
part of the same effort.
We conclude, therefore, that the record viewed favorably
to Jordan would support findings satisfying all three elements of
the Franks test: The affidavit contained a false statement and
two omissions; correction of those three deficiencies,
collectively, would eliminate probable cause; and those three
deficiencies were designed to mislead or made in reckless disregard
- 24 -
of whether they would mislead the magistrate in considering whether
to issue a warrant. The magistrate judge therefore erred by
granting summary judgment on the claims under the federal and state
civil rights acts that the officers unlawfully searched Jordan's
property. Instead, a factfinder will need to determine that the
POA was Senior's idea and the handiwork of his lawyer, that it
contained a clause allowing transfers to Jordan, and that Jordan
offered the firearms to the police. The factfinder would further
need to find that a defendant4 knew (or recklessly disregarded)
all three facts, and that through the combined use of falsehoods
and omissions the defendant prepared an affidavit designed to
mislead (or made in reckless disregard of whether it would mislead)
the judicial officer in his appraisal of the affidavit.
We turn now to Jordan's argument that the magistrate
judge erroneously granted summary judgment on Jordan's federal and
state civil rights claims for false arrest. Again, both parties
assume that the disposition of the federal claim controls the
disposition of the parallel state constitutional claim, so we
assume as much as well.
To make a claim for false arrest, Jordan must show that
an arresting officer lacked probable cause to believe that Jordan
4 See infra Part II.E.
- 25 -
had committed theft. See Morelli v. Webster, 552 F.3d 12, 19 (1st
Cir. 2009). The only fact that distinguishes this probable cause
analysis from the preceding one is that the officers, while
conducting the search, found a title to the truck in Jordan's name,
signed by Senior -- further indication that Senior consented to
swapping trucks. This additional piece of evidence shrunk the
already insufficient probability that the transfer of ownership of
the truck was unauthorized. We therefore conclude, a fortiori,
that a reasonable juror could find that anyone aware of the
deficiencies in the warrant application would know (or recklessly
disregard the fact that) there was no probable cause to arrest
Next, Jordan argues that the magistrate erred in
granting summary judgment for the defendants on his federal
constitutional claims for malicious prosecution. The parties
agree that to make out a claim for malicious prosecution, Jordan
must show that "the defendant (1) caused (2) a seizure of the
plaintiff pursuant to legal process unsupported by probable cause,
and (3) criminal proceedings terminated in plaintiff's favor."
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013)
(quoting Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)).
The district court held that -- even assuming Jordan could meet
the first two requirements -- he could not show that the criminal
- 26 -
proceedings terminated in his favor, and it therefore concluded
that summary judgment was appropriate.
It was recently a live question in our circuit whether
post-Hernandez-Cuevas Supreme Court precedent rendered the
favorable termination element "an anachronism." See Pagán-
González, 919 F.3d at 609 (Barron, J., concurring) (citing Manuel
v. City of Joliet, Ill., 137 S. Ct. 911, 925–26 (2017) (Alito, J.,
dissenting)). But the Supreme Court arguably resolved this
question when it reiterated that a plaintiff cannot bring a
section 1983 fabricated-evidence claim that is analogous to the
common-law tort of malicious prosecution "prior to favorable
termination of [the] prosecution." McDonough v. Smith, 139 S. Ct.
2149, 2156 (2019). And in any event, Jordan's brief to this court
accepts the Hernandez-Cuevas elements, and Jordan has therefore
waived any argument that he need not satisfy the favorable
termination element of a malicious prosecution claim. See Sparkle
Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir.
So, we face the question of whether the state criminal
proceedings against Jordan terminated in Jordan's favor.
Hernandez-Cuevas, 723 F.3d at 101. Jordan concedes that, to
satisfy the favorable termination element, a plaintiff must show
that the prosecution was terminated in such a way as to imply the
plaintiff's innocence. See Restatement (Second) of Torts § 660
- 27 -
cmt. a (1977) ("Proceedings are 'terminated in favor of the
accused' . . . only when their final disposition is such as to
indicate the innocence of the accused."); cf. Jones v. City of
Boston, 135 F. App'x 439, 440 (1st Cir. 2005) (unpublished opinion)
(affirming the dismissal of a constitutional malicious prosecution
claim because the plaintiff did "not allege facts that would permit
an inference that the charges were dismissed because of his
innocence or the Commonwealth's lack of reasonable grounds for the
The district attorney dismissed the criminal proceedings
against Jordan because "[t]he victim and key witness in the case
for the State, Scott Jordan[,] Sr[.], ha[d] died." Jordan contends
that this dismissal was "indicative of innocence." To support
this claim, Jordan cites section 660 of the Restatement (Second)
of Torts, which lists examples of terminations insufficient to
state a malicious prosecution claim.5
5 Section 660 provides:
A termination of criminal proceedings in favor
of the accused other than by acquittal is not
a sufficient termination to meet the
requirements of a cause of action for
malicious prosecution if
(a) the charge is withdrawn or the prosecution
abandoned pursuant to an agreement of
compromise with the accused; or
(b) the charge is withdrawn or the prosecution
abandoned because of misconduct on the part of
- 28 -
Jordan argues that, since none of the enumerated circumstances
describes the reason for the dismissal of his criminal case, we
should conclude that the dismissal was a favorable termination.
However, the Restatement itself makes clear that section 660's
list of insufficiently favorable reasons for termination is not
exhaustive; section 661 states that "[t]he formal abandonment of
proceedings by a public prosecutor is not a sufficient termination
in favor of the accused if the abandonment is due to the
impossibility or impracticability of bringing the accused to
trial." Jordan's criminal case was dismissed because the death of
the key witness made the prosecution impracticable. Therefore,
the dismissal was not sufficiently favorable to the accused, and
Jordan cannot satisfy the favorable termination element under
Hernandez-Cuevas, 723 F.3d at 101.6
the accused or in his behalf for the purpose
of preventing proper trial; or
(c) the charge is withdrawn or the proceeding
abandoned out of mercy requested or accepted
by the accused; or
(d) new proceedings for the same offense have
been properly instituted and have not been
terminated in favor of the accused.
6 Oddly, and possibly for no good reason as Judge Barron's
concurring opinion explains, a malicious prosecution claim appears
to require favorable termination, McDonough, 139 S. Ct. at 2156,
while a claim for false arrest does not, see Wallace v. Kato, 549
U.S. 384, 388–92 (2007).
- 29 -
Jordan also challenges the district court's entry of
summary judgment on the Maine tort claims for malicious prosecution
and false imprisonment. For each of these claims, his brief to
this court relies entirely on his arguments regarding the analogous
constitutional claims of malicious prosecution and false arrest.
Therefore, the malicious prosecution claim fails in view of
Jordan's failure to satisfy the favorable termination element, as
discussed above in subpart D. And the false imprisonment claim
fails because Jordan provides no analysis as to how the Maine
common-law tort would apply to the facts here, even assuming a
false arrest. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."). We therefore affirm the entry of summary
judgment as to the state-law tort claims.
Next, we address the defendants' argument that -- should
we disagree with the district court's decision to enter summary
judgment on all claims -- we should nevertheless affirm the entry
of summary judgment for the federal claims against Santheson,
Fuller, Labombarde, and the Town of Waldoboro on the alternative
basis that they had too minimal a role in the conduct giving rise
to Jordan's claims.
- 30 -
Jordan has alleged sufficient facts that a jury might
reasonably find Chief of Police Labombarde liable on the Fourth
Amendment claims. Recall that, according to Myers, Labombarde
participated in the phone call in which Myers refuted the theory
conveyed by the affidavit. In his affidavit in this litigation,
Labombarde stated that he received regular updates about the status
of the investigation and conceded that he reviewed the affidavit
and the application for a search warrant before Hesseltine
submitted them to the Maine district court judge. And Hesseltine
stated, in his deposition, that Labombarde "was well aware of all
the evidence that [Hesseltine] had" because Hesseltine "bounced
everything off" Labombarde. These facts, taken together, convince
us that -- should the jury find for Jordan -- it could reasonably
find Labombarde partially responsible.
We agree, though, that Jordan has failed to allege facts
upon which a jury could reasonably find Officers Fuller and
Santheson culpable. Though Fuller interviewed Senior and Jordan,
and heard Jordan offer to turn the firearms over for safekeeping,
he had no role in applying for the search warrant, searching
Jordan's home, or arresting Jordan. And though Jordan alleges
that "Santheson was also an active participant in the
investigation," he has marshalled no facts supporting an inference
that Santheson had any material involvement aside from
participating in the execution of the search warrant. Jordan
- 31 -
raises the specter of conspiracy and intervenor theories of
liability, but he neither presents facts tending to show a
conspiracy or intervenor liability nor develops any argumentation
supporting these theories. These points are therefore waived.
See Zannino, 895 F.2d at 17.
We also agree with the defendants that summary judgment
is warranted for the claims against the Town of Waldoboro. "[A]
municipality can be found liable under § 1983 only where the
municipality itself causes the constitutional violation at issue."
City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell
v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 694–95 (1978)).
"Thus, a plaintiff must show that a policy or custom of the city
led to the constitutional deprivation alleged." Santiago v.
Fenton, 891 F.2d 373, 381 (1st Cir. 1989). Jordan posits that the
"unwritten policies, customs and/or practices of officers
destroying notes of their investigations, not documenting witness
interviews and exculpatory evidence in investigations, and not
writing timely police reports was the cause" of the alleged
constitutional deprivations. But Jordan's case theory is not that
exculpatory information slipped through the cracks. Rather, he
necessarily contends that officers recklessly or intentionally
drew up a misleading affidavit in order to secure a warrant. We
fail to see, on the record before us, how this misbehavior can be
attributed to a custom or policy of the Town of Waldoboro. We
- 32 -
therefore affirm the entry of summary judgment for the claims
against the municipality.
Having concluded that a jury could find that Officer
Hesseltine and Chief Labombarde violated Jordan's constitutional
rights to be free from unreasonable search and seizure and false
arrest, we turn to these two defendants' contention that we should
affirm on the alternative grounds that they are entitled to
qualified immunity. "[O]fficers are entitled to qualified
immunity under § 1983 unless (1) they violated a federal statutory
or constitutional right, and (2) the unlawfulness of their conduct
was 'clearly established at the time.'" Wesby, 138 S. Ct. at 589
(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). We have
already concluded that the officers violated a federal
constitutional right, so the sole question is whether the
unlawfulness of their conduct was "clearly established at the
time." Id. at 589. "[T]he relevant, dispositive inquiry in
determining whether a right is clearly established is whether it
would be clear to a reasonable [officer] that his conduct was
unlawful in the situation he confronted." Rocket Learning, Inc.
v. Rivera-Sanchez, 715 F.3d 1, 9 (1st Cir. 2013) (emphasis omitted)
(quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)).
As the defendants correctly conceded at oral argument,
the law clearly prohibited officers from "us[ing] deliberately
- 33 -
falsified allegations to demonstrate probable cause." Franks, 438
U.S. at 168; see also Martínez-Rodríguez v. Guevara, 597 F.3d 414,
420 (1st Cir. 2010) ("It is . . . beyond peradventure that arrests
procured on the basis of material false statements or testimony
given in reckless disregard for the truth violate the Fourth
Amendment."); Miller v. Prince George's Cty., 475 F.3d 621, 630
(4th Cir. 2007) ("[T]he Supreme Court has made . . . clear that
police officers cannot intentionally lie in warrant affidavits, or
recklessly include or exclude material information known to
them."); Aponte Matos, 135 F.3d at 185 ("It has long been well
established that . . . a material fabrication [in a warrant
application] violates the Warrant Clause of the Fourth
Despite this concession, the defendants' brief could be
read to argue that -- even assuming Hesseltine and Labombarde
deliberately included falsehoods in the warrant affidavit -- they
are entitled to qualified immunity unless Jordan can show that any
reasonable officer would have understood that, absent the
falsehoods, probable cause would not have existed. We must
disagree. See Aponte Matos, 135 F.3d at 187 (1st Cir. 1998)
(holding that "[a]n officer who obtains a warrant through material
false statements which result in an unconstitutional search may be
held personally liable for his actions under § 1983.")
- 34 -
The aim of the doctrine of qualified immunity "is to
avoid the chilling effect of second-guessing where the officers,
acting in the heat of events, made a defensible (albeit imperfect)
judgment." Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010).
There is no good reason to provide such protection to an officer
who deliberately paints a misleading picture of the facts in order
to procure a warrant. Whether or not it would have been clear to
a reasonable officer that the false picture was necessary to
establish probable cause, it certainly would be clear to any law
enforcement officer that trying to mislead the judicial officer in
seeking a warrant is highly improper. See Aponte Matos, 135 F.3d
at 185 (noting that, because there was "no doubt that officers
reasonably understand that they may not lie in order to establish
probable cause in a warrant application," defendants would not be
protected by qualified immunity if plaintiffs satisfied the Franks
Leon itself makes clear that among the "circumstances
[in which an] officer will have no reasonable grounds for believing
that the warrant was properly issued" is when "the magistrate or
judge in issuing a warrant was misled by information in an
affidavit that the affiant knew was false or would have known was
false except for his reckless disregard of the truth." Leon, 468
U.S. at 922–23 (citing Franks, 438 U.S. at 171); see also Vigeant,
176 F.3d at 572 (observing that the Leon good-faith exception would
- 35 -
be difficult to invoke "where the shortcomings in probable cause
were attributable to 'the inspectors' omissions in the warrantapplication
process.'" (quoting United States v. Ricciardelli,
998 F.2d 8, 16 (1st Cir. 1993))).
As the Seventh Circuit explained when confronting this
question, "[q]ualified immunity depends on whether it would have
been 'clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.'" Rainsberger v. Benner, 913 F.3d
640, 652 (7th Cir. 2019) (emphasis omitted) (quoting Wesby, 138
S.Ct. at 590). An officer "d[oes] not face a choice about whether
the facts in the hypothetical affidavit established probable
cause," but rather "a choice about whether to make false or
misleading statements in the affidavit." Id. And, needless to
say, "a competent officer would not even entertain the question
whether it was lawful for him to lie in a probable cause
affidavit." Id.
The Seventh Circuit does distinguish between omissions
and affirmative misstatements in warrant affidavits, holding that
qualified immunity protects an officer who omitted material
information from a warrant affidavit unless "it would have been
clear to a reasonable officer that the omitted fact was material
to the probable-cause determination." Id. at 654 (quoting Leaver
v. Shortess, 844 F.3d 665, 669 (7th Cir. 2016)). The Seventh
Circuit based its distinction between omissions and affirmative
- 36 -
misstatements on the need to protect "an officer acting in good
faith [who] make[s] a reasonable mistake about his disclosure
obligation." Id. But the question of qualified immunity arises
only if we first presume a constitutional violation. And under
Franks, such a violation in the case of an omitted fact requires,
among other things, a finding that the omission was "'designed to
mislead, or . . . made in reckless disregard of whether [it] would
mislead, the magistrate' in his appraisal of the affidavit."
Tanguay, 787 F.3d at 49 (alterations in original) (quoting Colkley,
899 F.2d at 301). So we are not so sure that there is any reason
to treat omissions differently than misrepresentations in the
qualified immunity analysis. In any event, on this record we
consider the cumulative impact of what jurors might find to be a
deliberate attempt to convey a knowingly false picture by combining
a falsehood and two omissions in an effort to secure a warrant.
So we are confident that the requirements for establishing a
constitutional violation in this case provide sufficient
protection for the officers so as to render any further qualified
immunity analysis unnecessary.
We therefore decline to affirm the judgment on qualified
immunity grounds.7
7 Nothing in this opinion should be read as saying that either
Hesseltine or Labombarde actually did anything improper. Rather,
we hold only that if the facts are viewed favorably to Jordan,
rational jurors could reasonably so conclude.
- 37 -
Finally, we confront Jordan's argument that the district
court erred in its conclusion that punitive damages are not
available in this case. The sole basis of the district court's
decision regarding punitive damages was "plaintiff's failure to
generate triable issues as to his substantive federal and statelaw
claims." Jordan, 2018 WL 4688724, at *26. Since we have
concluded that summary judgment was not appropriate on the
constitutional false arrest and search and seizure claims, we
vacate the district court's decision forbidding Jordan from
seeking punitive damages. In so doing, we take no position on the
availability of punitive damages.
For the foregoing reasons, we affirm in part and reverse
in part the entry of summary judgment against Chief of Police
Labombarde and Officer Hesseltine. We affirm the entry of summary
judgment against the other defendants, and we remand for
proceedings consistent with this opinion. The parties shall bear
their own costs.
–Concurring Opinion Follows–
- 38 -
BARRON, Circuit Judge, concurring. Scott Jordan, Jr.
brings a pair of claims under 42 U.S.C. § 1983 for damages that
target the pretrial criminal detention that he allegedly endured
in violation of the Fourth Amendment of the federal Constitution.
He styles his first such § 1983 claim, which targets the pretrial
detention that followed his initial warrantless arrest, as one for
"false arrest." He styles his second such § 1983 claim, which
targets the pretrial detention that, it appears, followed a
criminal complaint and summons, as one for "malicious
prosecution." Without assessing the relative strength of the
underlying alleged Fourth Amendment violations, we hold that this
"false arrest" § 1983 claim may proceed but that this "malicious
prosecution" § 1983 claim may not. The question that prompts this
concurrence thus arises: how can our different treatment of these
two § 1983 claims be justified?
Our answer relies on Jordan's concession that a
"favorable termination" requirement applies to this "malicious
prosecution" § 1983 claim but not to this "false arrest" § 1983
claim. Maj. Op. at 26. Because the criminal proceedings ended
upon the alleged victim's death before the criminal trial and not
after, say, an acquittal, Jordan cannot satisfy that requirement.
Id. I thus join our opinion in full.
I write separately, however, to register my doubt that
the "favorable termination" requirement applies to a § 1983 claim
- 39 -
that targets a pretrial criminal seizure simply because it is made
pursuant to an arrest warrant, as some of the precedent that Jordan
cites in support of his concession appears to indicate.8 Even an
arrest pursuant to a warrant violates the Fourth Amendment if law
enforcement secures it by tricking the magistrate into finding
probable cause. See Franks v. Delaware, 438 U.S. 154, 168-172
(1978). I am thus not convinced that a plaintiff must show that
any follow-on criminal proceedings ended in his favor when he seeks
damages under § 1983 for a seizure pursuant to an arrest warrant.
Or, at least, I am not convinced that a plaintiff should have to
make that showing even when the challenged seizure occurs so early
in the criminal case that it precedes a grand jury handing up an
indictment or a prosecutor filing a criminal information.9 For,
as our treatment of Jordan's "false arrest" § 1983 claim
demonstrates, a plaintiff need not make that showing when he seeks
damages for the harm caused by a similarly early-stage warrantless
8 See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir.
2013) (stating that a Fourth Amendment-based § 1983 "malicious
prosecution" claim challenging a pre-indictment, warrant-based
seizure is subject to a favorable termination requirement,
seemingly no matter how early on in the case the warrant-based
arrest occurs); cf. McDonough v. Smith, 139 S. Ct. 2149, 2156
(2019) (applying that requirement to a § 1983 malicious
prosecution claim seeking damages, in part, for restraints on
liberty resulting from pretrial detention).
9 In referencing these types of charging events, here and
throughout this concurrence, I do not mean to exclude any
comparable ones that may be permitted in a particular state under
that state's law.
- 40 -
seizure. See Manuel v. City of Joliet, 137 S. Ct. 911, 925-26
(2017) (Alito, J., dissenting) ("The Fourth Amendment . . .
prohibits all unreasonable seizures -- regardless of whether a
prosecution is ever brought or how a prosecution ends."); see also
Pagán-González v. Moreno, 919 F.3d 582, 609 (1st Cir. 2019)
(Barron, J., concurring) (describing the "favorable termination"
requirement as applied to such a claim as an "anachronism").10
10 I focus in this concurrence on whether, just because a
seizure is made pursuant to an arrest warrant, the "favorable
termination" requirement applies to a Fourth Amendment-based
§ 1983 claim for damages from that seizure. Jordan's "malicious
prosecution" § 1983 claim does not, however, involve a seizure
made pursuant to an arrest warrant. Rather, according to the
stipulated facts, following his warrantless arrest on November 21,
2014, law enforcement personnel served Jordan with a Uniform
Summons and Complaint that same day for a violation of Me. Stat.
tit. 17-A, § 353.1A.2 by unauthorized taking/transfer. Law
enforcement then transported Jordan to Two Bridges Jail, from which
Jordan was released that same day on bail with conditions of
release pursuant to a bail bond. It thus appears that this Fourth
Amendment-based § 1983 claim -- unlike his Fourth Amendment-based
"false arrest" § 1983 claim -- seeks damages for a period of
detention that followed some legal process, in which that legal
process took the form of the issuance of a mere criminal complaint
and summons, which, under Maine law, may occur even without the
involvement of a prosecutor and simply upon the action of a law
enforcement officer. See Me. Stat. tit. 17-A, § 15-A. I do not
address whether detention that follows that kind of relatively
informal legal process -- unlike detention that follows legal
process that takes the form of an indictment, a criminal
information filed by a prosecutor, or some comparable charging
event -- justifies subjecting a Fourth Amendment-based § 1983
claim to a "favorable termination" requirement to ensure that its
pursuit will not interfere with any state criminal prosecution
that may ensue. See infra. I also do not address whether the
seizure that grounds this claim ended upon Jordan’s release on
bail or instead only upon the termination of certain bail
conditions that restricted his liberty.
- 41 -
Jordan's "false arrest" § 1983 claim borrows its
elements from the common-law tort of false arrest, which permits
recovery for an unlawful seizure without legal process and which
does not impose the "favorable termination" requirement. See
Wallace v. Kato, 549 U.S. 384, 389 (2007) (describing the elements
for such a § 1983 claim as: (1) causing "unlawful detention,"
i.e., detention without probable cause, and (2) "without legal
process"). The accrual rule for this type of § 1983 claim is also
borrowed from the claim for the common-law tort of false arrest,
which accrues when the "alleged false imprisonment end[s]." Id.
(internal quotation marks omitted). Because both the § 1983 and
common-law types of "false arrest" claims target seizures that
precede any criminal process, moreover, it makes sense that no
"favorable termination" requirement applies. Neither the
seizure's lawfulness nor the harm that it inflicts turns on how
any follow-on criminal proceedings end.
There is, however, another type of Fourth
Amendment-based § 1983 claim that also takes aim at a seizure that
occurs early in a criminal case and thus before even, say, a grand
jury has handed up an indictment or a prosecutor has filed a
criminal information. See, e.g., Hernandez-Cuevas v. Taylor, 723
F.3d 91, 93-94 (1st Cir. 2013). But, this type of Fourth
Amendment-based § 1983 claim targets a seizure that is made
- 42 -
pursuant to at least some legal process, as it targets a seizure
that is made pursuant to an arrest warrant. Thus, in accord with
how plaintiffs often style such § 1983 claims, the common-law tort
of malicious prosecution, which is subject to a "favorable
termination" requirement, is often thought to supply the proper
common-law analog for this type of § 1983 claim, as our precedent
has also indicated. See id. at 97-98.11 But, although this type
of § 1983 claim, like the claim for the common-law tort of
malicious prosecution, seeks recovery for a seizure pursuant to
legal process, the two types of claims differ in important ways.
A claim for the common-law tort of malicious prosecution
focuses on whether "criminal proceeding[s]" have been initiated or
continued with malice and without probable cause. Manuel, 137 S.
Ct. at 925 (Alito, J., dissenting). For that reason, "[a]lmost
any kind of criminal proceeding" can ground such a claim, 3 Dan B.
Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 587
(2d ed. 2011), including not only a magistrate's issuance of an
arrest warrant but also a grand jury indictment, a summons for the
criminal defendant to appear at a hearing in his criminal case, a
magistrate's determination in a criminal case at a probable-cause
11 Insofar as the common-law abuse-of-process tort is a good
analog, it appears not to have a "favorable termination"
requirement. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton
& David G. Owen, Prosser and Keeton on The Law of Torts § 121 (5th
ed. 1984).
- 43 -
hearing that the criminal defendant should be held, or the
prosecutor's filing of a criminal information, Restatement
(Second) of Torts § 654 & cmt. (c)-(e) (Am. Law Inst. 1977); W.
Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen,
Prosser and Keeton on The Law of Torts § 119 (5th ed. 1984).
After all, the initiation of the criminal process -- and
the stigma inherent in its initiation -- is the source of the
injury for the common-law tort of malicious prosecution. Thus,
such a claim for that tort "always involves defamation" while
"detention or confinement is no part of the issue," 3 Dobbs, Hayden
& Bublick, supra, § 586, and "any damages recoverable" must be
based "on the wrongful use of judicial process rather than
detention itself," Keeton, Dobbs, Keeton & Owen, supra, § 119.
The source of the injury for a Fourth Amendment-based
§ 1983 claim that seeks recompense for a seizure pursuant to legal
process, however, is the detention itself, not the legal process
used to effect it.12 Thus, per Congress's instruction in 42 U.S.C.
§ 1988, we likely must look beyond the common-law tort of malicious
prosecution to determine this type of § 1983 claim's requirements.
12 I do not address the question of "whether injury from the
issuance of a warrant without arrest" "may itself deprive a person
of his liberty in violation of the Fourth Amendment." Ord v.
District of Columbia, 587 F.3d 1136, 1146 (D.C. Cir. 2009).
- 44 -
See Carey v. Piphus, 435 U.S. 247, 258 n.13 (1978) (discussing 42
U.S.C. § 1988).
Manuel also supports our doing so. The plaintiff
contended there that his pretrial detention violated the Fourth
Amendment because the magistrate's finding of probable cause
relied on evidence that law enforcement authorities had
fabricated. See 137 S. Ct. at 915-16. Manuel permitted that
Fourth Amendment-based § 1983 claim, even though the plaintiff had
styled it as one for "malicious prosecution," to proceed, without
referring to the § 1983 claim at issue as one for "malicious
prosecution." Id. at 918, 921 (explaining that "pretrial detention
can violate the Fourth Amendment not only when it precedes, but
also when it follows, the start of legal process in a criminal
case"). In fact, although Manuel explained that judges should
"look first to the common law of torts" to identify the Fourth
Amendment-based § 1983 claim's requirements, id. at 920, the Court
also warned that judges should keep in mind that "[c]ommon-law
principles are meant to guide rather than to control the definition
of § 1983 claims, serving more as a source of inspired examples
than of prefabricated components," id. at 921 (internal quotation
marks omitted). Thus, the Court cautioned in Manuel, "[i]n
applying, selecting among, or adjusting common-law approaches,
courts must closely attend to the values and purposes of the
constitutional right at issue." Id.
- 45 -
Manuel ultimately left open whether a "favorable
termination" requirement applied to the claim there at issue, id.
at 922, and, prior to Manuel, we did state that the "favorable
termination" requirement applied to such a claim, see Hernandez-
Cuevas, 723 F.3d at 99 n.8. But, Hernandez-Cuevas declined to
borrow the requirements of the common-law tort of malicious
prosecution wholesale in defining the requirements for that Fourth
Amendment-based § 1983 claim, even though it involved a seizure
made pursuant to an arrest warrant. Id. at 99-105 (discussing the
omission of the common-law malice element from a Fourth Amendmentbased
challenge, per Franks, to a pre-indictment, warrant-based
arrest and impliedly adjusting the probable-cause element). And,
after Manuel, we suggested that the "favorable termination" might
not apply to such a Fourth Amendment-based § 1983 claim,
notwithstanding that it seeks recompense for a seizure made
pursuant to legal process. See Pagán-González, 919 F.3d at 602;
id. at 605-11 (Barron, J., concurring) (discussing the possible
need for adjustment of the probable-cause and favorabletermination
But, while all these signs point away from applying the
"favorable termination" requirement to this type of Fourth
Amendment-based § 1983 claim for damages from a seizure pursuant
to an arrest warrant, there is one important sign that arguably
does not. In McDonough, the Supreme Court recently held that the
- 46 -
"favorable termination" requirement did apply to the "malicious
prosecution" § 1983 claim at issue there, even though the plaintiff
sought damages, in part, for restraints on his liberty that he
attributed to his pretrial seizure. 139 S. Ct. at 2156. Thus, I
must address whether McDonough calls for a different analysis than
the one that, in Pagán-González, I suggested would be proper.
I do not think that McDonough does. The Court described
the § 1983 claim in that case as one that targeted "the integrity
of criminal prosecutions undertaken 'pursuant to legal process'"
rather than only the plaintiff's initial seizure pursuant to an
arrest warrant. Id. (emphasis added) (citing Heck v. Humphrey,
512 U.S. 477, 484 (1994)). Nor did McDonough indicate that --
like the claims in Manuel and Pagán-González, and like the claim
that Jordan brings -- the § 1983 claim there was based on the
Fourth Amendment as opposed to, for example, the federal
constitutional right to procedural due process. Moreover, while
McDonough did identify practical reasons for applying a "favorable
termination" requirement to the § 1983 claim before it, I am not
convinced that these practical reasons apply equally to all purely
Fourth Amendment-based § 1983 claims that seek damages for the
harm caused by a warrant-based seizure.
McDonough invoked the need to prevent a "ticking
limitations clock on criminal defendants as soon as they become
aware that fabricated evidence has been used against them," given
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"practical problems in jurisdictions where prosecutions regularly
last nearly as long as -- or even longer than -- the relevant civil
limitations period" and thus where "criminal defendants could face
an untenable choice between (1) letting their claims expire and
(2) filing a civil suit against the very person who is in the midst
of prosecuting them." Id. at 2158. But, that concern would not
necessitate the imposition of a "favorable termination"
requirement if such a Fourth Amendment-based § 1983 claim would
not accrue until the assertedly unlawful detention terminates.
Such termination could occur upon either the plaintiff's release
from detention (including bail conditions) or the emergence of a
separate legal basis for the detention -- whether that separate
legal basis takes the form of a subsequent lawful arrest warrant,
the handing up of an indictment by a grand jury, or a prosecutor's
filing of a criminal information -- and thus would have nothing to
do with the way that any follow-on criminal proceedings end.
McDonough also explained that the "favorable
termination" requirement "avoid[s] parallel criminal and civil
litigation over the same subject matter and the related possibility
of conflicting civil and criminal judgments." Id. at 2156–57.
But, the Fourth Amendment's warrant requirement stems from
concerns about trusting law enforcement to assess probable cause
for itself. See Mincey v. Arizona, 437 U.S. 385, 394 (1978).
Thus, a Fourth Amendment-based § 1983 claim for damages from a
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warrant-based arrest -- at least when that seizure precedes a grand
jury's indictment or a prosecutor's filing of a criminal
information -- poses no greater inherent risk of interfering with
follow-on state criminal proceedings than does a § 1983 claim that
targets an equally early-stage warrantless arrest. Yet, "in accord
with [the] common practice," a federal court that faces a § 1983
claim of that latter, warrantless-seizure-based sort may simply
"stay the civil action until the criminal case or the likelihood
of a criminal case is ended." Wallace, 549 U.S. at 393–94.
McDonough did also emphasize that "clear accrual rules
are valuable." 139 S. Ct. at 2160. A termination requirement
such as I have described, however, would not appear to be unduly
hard to administer. That is especially so, given how uncertain
even the "favorable termination" requirement itself can be.13
The time that a criminal defendant may spend in pretrial
detention after a warrant-based arrest but before a prosecutor
files a criminal information or a grand jury hands up an indictment
may be brief. But then, so too is the time that a criminal
13 I note that, as long as the Franks violation is clear, it
is not evident to me that, to overcome a qualified immunity
defense, a plaintiff who brings a Fourth Amendment-based § 1983
claim of this sort needs also to demonstrate that it is clearly
established that the claim is not subject to the "favorable
termination" requirement. See Pagán-González, 919 F.3d at 616
(Barron, J., concurring).
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defendant may spend in such early-stage detention after a
warrantless arrest. The brevity of that detention has never been
thought to justify conditioning a plaintiff's right to recover
damages under § 1983 for that detention on his capacity to show
that any criminal proceedings that may thereafter ensue ended in
his favor. That is why we permit Jordan's "false arrest" § 1983
claim to proceed. But, for that very reason, I am not convinced
that a plaintiff should have to make that "favorable termination"
showing to obtain such recompense under § 1983 when he seeks
damages for the harm caused by an equally early-stage
unconstitutional seizure just because it is made pursuant to an
arrest warrant. For, brief though the detention caused by that
seizure may have been, there are few protections more basic than
the right to be free from unjustified imprisonment, and thus there
are few that are more in need of the kind of fulsome remedy that
Congress supplied in § 1983 -- even if the common law itself does
not supply one, too.


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