Opinion
No. 99-3496
January 8, 2003
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 164) filed by defendants Sheriff Jack Stephens, Mike Hermann, Harrell Clark, Shannon Jones, Gil Fremin, Pete Tufaro, John Kenney, Ed Sensebe, and John Doran ("the St. Bernard Defendants"), and a Motion for Summary Judgment (Rec. Doc. 165) filed by defendants the City of New Orleans, former Chief Richard Pennington, Kevin Guillot, Paul Toye, Clarence Guillard, Yvonne Favre, Adam Henry, Sergeant Pat Brown, Captain Steven Nicholas, and Lieutenant Bruce Adams ("the NOPD Defendants"). The motions, set for hearing on December 18, 2002, are before the Court on the briefs without oral argument. For the reasons that follow, both motions are GRANTED.
BACKGROUND
This suit arises out of an incident whereupon at least five law enforcement officers, as part of a "drug sting" operation, entered and searched Plaintiffs' Chalmette, Louisiana home pursuant to a search warrant. Plaintiffs were detained for approximately two hours while the house was searched. No drugs or evidence of any illegal activity were found in either the initial search or in a second search conducted with the use of drug dogs. Plaintiffs allege that their home was searched in error because the officers relied upon outdated or stale information to determine that the true drug suspect resided at Plaintiffs' address. In fact, the suspect, Mr. Michalik's stepbrother, had not lived at the residence for several years.Plaintiffs filed their original complaint in November 1999 (Rec. Doc. 1). In their original complaint, Plaintiffs sought damages and other relief based on alleged violations of the U.S. Constitution and Louisiana state law. Claims were brought against the federal, state, and local law enforcement officers involved in the matter and their respective agencies and governmental entities including the United States. Via previous motions, a number of Plaintiffs' claims have previously been dismissed.
St. Bernard Defendants' Motion for Summary Judgment
The St. Bernard Defendants argue that they are entitled to judgment as a matter of law based upon qualified immunity. In particular, they assert that none of the St. Bernard Defendants were affiants on Application for Search Warrant and that Plaintiffs do not allege that any St. Bernard defendant provided information to Louisiana State Trooper John Fitzpatrick — the sole affiant on the application. Furthermore, Plaintiffs assert that the only two St. Bernard Defendants to participate in the execution of the warrant were Hermann and Clark, and as for those two defendants, Plaintiffs have not alleged conduct that overcomes the protective cloak of qualified immunity.
In opposition, Plaintiffs assert that the depositions of Sensebe, Jones, Fremin, and Kenney have yet to be taken and therefore the Court should deny summary judgment pursuant to Federal Rule of Civil Procedure 56(f) and allow discovery to come to completion. However, even without additional discovery, Plaintiffs argue that there is a factual dispute regarding the nature and extent of the St. Bernard Defendants' involvement in collecting wiretap information for use in the warrant application. Further, Plaintiffs assert that Defendants can garner no protection from the warrant because the supporting affidavit did not link Plaintiffs or their residence to any criminal activity. Thus, Plaintiffs say that the warrant was invalid and there was no probable cause to search Plaintiffs' house — a clear violation of their constitutional rights.
Rule 56(f), When Affidavits are Unavailable, provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Fed.R.Civ.Pro. 56(f).
NOPD Defendants' Motion for Summary Judqment
The NOPD Defendants likewise argue that they are entitled to judgment as a matter of law based upon qualified immunity. They point out that Trooper Fitzpatrick was the sole affiant on the warrant application and that NOPD's only involvement in procuring the warrant was providing Fitzpatrick with certain information and listening to wiretaps. Defendants also assert that there is insufficient evidence to support a claim for municipal liability against the City of New Orleans underMonell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)
In opposition to the NOPD Defendants' motion, Plaintiffs make the same arguments raised in opposition to the St. Bernard Defendants' motion. Plaintiffs further assert that officers who were non-affiants on the warrant application nevertheless participated in its procurement and are therefore subject to liability for any constititional violations arising out of the procurment of the warrant.
Discussion
1. Summary Judgment Standards
In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998)). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. (citingCelotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support then nonmoving party's case. Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2548). If the moving party fails to meet this initial burden, the motion must be denied regardless of the nonmoving party's response. Id.
2. Qualified Immunity
Qualified immunity shields government officials performing discretionary functions from personal civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person should have known." Wren v. Towe, 130 F.3d 1154, 1159 (5th Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). If plaintiff demonstrates that a clearly established constitutional right has been violated, then the court will assess the objective reasonableness of the officer's conduct under the circumstances. Id. (citing Mangieri v. Clifton, 29 F.3d 1012 (5th Cir. 1994)). The defense of qualified immunity protects "all but the plainly incompetent or those who knowingly violated the law." Id. (quoting Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Mere accidents, negligence, and mistakes of judgment will not suffice to expose an officer to personal liability. Id.
Moreover, in the case of a qualified immunity defense, the usual summary judgment burden of proof is altered. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001). An officer need only plead his good faith which then shifts the burden to the plaintiff who must rebut the defense by establishing that the officer's allegedly wrongful conduct violated clearly established law. Id. (quoting Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992); Pierce v. Smith, 117 F.3d 866 (5th Cir. 1997)). In short, the defendant officer need not prove the qualified immunity defense. Rather it is the plaintiff who bears the burden of negating the defense. See id. To do so, plaintiff cannot rest on conclusory allegations and assertions but must demonstrate genuine issues of material fact regarding the reasonableness of the officer's conduct.Id.
a. Execution of the Warrant
Both the St. Bernard Defendants and the NOPD Defendants have argued that they are entitled to qualified immunity on all federal claims arising out of their conduct during execution of the warrant, in essence the Fourth Amendment excessive force claims. For the reasons given in the Court's Order and Reasons (Rec. Doc. 172) partially granting the Federal Defendants' motion to dismiss, the St. Bernard Defendants and the NOPD Defendants are likewise entitled to judgment as a matter of law on all federal excessive force claims arising out of the execution of the warrant. As the Court explained it its prior order,
The officers arrived on the scene to execute a search warrant for drugs on the premises. The actions the officers took were not unreasonable in light of the potential security risks inherent in such a situation. It was mere minutes until they allowed Mrs. Michalik to attend to her daughter and only 20 minutes later they released the child to her aunt. The entire matter lasted only two hours.Michalik v. Hermann, 2002 WL 31844910, *5 (E.D. La. Dec. 16, 2002)
Again, the officers' conduct while executing the warrant does not, as a matter of law, support a Fourth Amendment excessive force claim.
Furthermore, the Court concludes that the warrant was not facially invalid so as to expose the non-affiant officers who executed the warrant to liability for searching the Michalik residence. Only when a warrant is "so facially deficient" in probable cause that officers cannot reasonably presume it to be valid will officers be liable for a Fourth Amendment violation. United States v. Gordon, 901 F.2d 48, 50 (5th Cir. 1990) (quoting United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Where an officer acts on an objectively reasonable belief that a warrant has been properly issued, he faces no liability even where probable cause is ultimately shown to be lacking. See id.
Plaintiffs have never disputed that the officers had probable cause to search the suspect, Gene Taglialavore's, "residence" or temporary abode while in New Orleans, based upon the surveillance information that the investigation had produced. The only problem with the warrant from Plaintiffs' perspective is that the warrant application recites no facts to create a nexus between the Michaliks' address and Taglialavore. The Court's focus at this time is not, however, on whether the application did in fact establish probable cause to search Plaintiffs' residence but rather on whether the executing officers could in objective good faith rely upon the warrant.
Fitzpatrick stated in his deposition that he had inadvertently failed to include in the warrant application that Toye had observed Taglialavore being dropped off at the Michalik address with a bag previously confirmed to contain drugs. NOPD Exhibit G, at 158. Although this fact should have been included in the application, the Court makes no comment as to whether it alone would have been sufficient to establish probable cause with respect to the Michalik address.
As Plaintiffs themselves note, the warrant and application comprise six legal sized pages. The magistrate judge, whose neutrality has never been in question, issued the warrant after reviewing the application and apparently did not catch that the recitation of facts supporting probable cause did not link Taglialavore to the ultimate address listed in the warrant. Apparently the magistrate judge assumed that the address listed in the warrant belonged to Taglialavore. Surely if the magistrate judge, who had the opportunity and duty to review the documents, did not catch the discrepancy, then the executing officers who took no part in procuring the warrant could not reasonably be expected to second-guess the magistrate. This was not a situation where the warrant did not particularize the place to be searched or the objects to be seized, see United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999) (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979)), which would have surely put the officers on notice that there was a problem. Rather, the warrant directed the officers to a specific street address for the search and they were entitled to rely on the magistrate's judgment that probable cause to search that address had been established. In order to determine that the warrant failed to link Taglialavore to the Michalik address, the officers would have had to comb through six legal pages of information so as to catch an error that the magistrate judge had overlooked. The probable cause problem was simply not that glaring so as to put the officers' good faith in doubt. As another court has noted, "[p]olice work would not be feasible if officers were required to investigate the background of every search warrant . . . that derived from another officer." Hall v. Lopez, 823 F. Supp. 857, 862 (D. Colo. 1993). In sum, the officers' good faith cannot be impeached for failing to pick up what the issuing judge, who had the benefit of calm and thoughtful review, missed. The Court concludes that the warrant was not invalid on its face and that the officers who relied upon it did so reasonably.
b. Procurement of the Warrant
The only Fourth Amendment claims remaining are those. pertaining to the procurement of the warrant.
A section 1983 plaintiff attempting to strip an officer of qualified immunity on the basis of an improperly procured warrant must show that the affiant knowingly and deliberately, or with reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such statements were necessary to a finding of probable cause. Jones v. City of Bridgeport, 2002 WL 272397, at *6 (D. Conn. Feb. 19, 2002) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). It is well-established that reckless disregard for the truth, so as to establish a violation of the Fourth Amendment, is not established by mere acts of negligence or honest mistakes. Id.; Beard v. City of Northglenn, 24 F.3d 110, 114 (10 Cir. 1994) ("[C]laims of negligence are insufficient to prove a constitutional violation under Franks v. Delaware.")). Further, the failure to investigate a matter fully or to exhaust every possible lead rarely suggests a knowing or reckless disregard for the truth but rather suggests "negligence `at most.'"Beard, 24 F.3d at 116.
Trooper Fitzpatrick was the sole affiant on the warrant application. In his deposition he explained that he was never under the mistaken impression that the Michalik address was Taglialavore's residence. NOPD Exhibit G (Fitzpatrick deposition), at 151. Rather, Fitzpatrick said that Eric Levis, a federal defendant herein, had told him during the investigation that Taglialavore had a family member residing at the Michalik address. Id. Further, Paul Toye, an NOPD defendant herein, had observed Taglialavore arrive at the Michalik address with a confirmed bag of drugs, although Taglialavore was never seen entering the house. Id. at 152; NOPD Exhibit F (Toye deposition), at 54-60. Fitzpatrick said that he knew that Taglialavore lived in Las Vegas but that the team believed that drugs were being stored at the Michalik residence while Taglialavore was in town. NOPD Exhibit G, at 152, 159. Fitzpatrick assumed that Taglialavore was staying at the Michalik home because of Toye's surveillance of him arriving at the house with drugs, and because Levis told Fitzpatrick that Taglialavore lived there, and that Levis had had prior dealings with Taglialavore at that address. Id. at 159. Fitzpatrick admitted that he did not independently verify Taglialavore's nexus to the address but rather relied solely on the information that Levis and Toye gave him as well as a police "Motion report" from 1991. Id. at 167, 196. The benefit of hindsight has now shown that Fitzpatrick, Toye, and Levis were woefully wrong in tying Taglialavore to the Michalik address, at least in 1998. The legal question is whether their error rises to the level of a constitutional violation.
At the outset, the Court notes that no evidence has been offered to even remotely support an inference that Trooper Fitzpatrick lied to the magistrate, deliberately misled the magistrate, or concealed facts from the magistrate which would have affected the probable cause determination. Rather, all of the evidence of record supports the conclusion that the erroneous search arose out of incomplete or botched investigatory work and not some nefarious desire to harass the Michaliks. The Court is unpersuaded that any additional discovery that Plaintiffs would conduct at this late stage would alter that conclusion. Thus, the remaining questions to be resolved are whether the incomplete investigatory work rises to the level of "reckless disregard for the truth" in procuring the warrant and which defendants face exposure if it does.
In fact, as noted in note 2 supra, the information Fitzpatrick did inadvertently omit from the application would likely have only helped bolster the magistrate's finding of probable cause.
On the second question, i.e., which defendants are culpable for any alleged reckless disregard for the truth, Plaintiffs seek to cast the net of exposure far wider than what the law will allow. For instance, Plaintiffs attempt to hold liable the officers who merely reviewed wiretaps that eventually were recited in the warrant application because their activities made them "participants" in procuring the warrant. Plaintiffs cite no authority for imposing such broad liability, and the Court's extensive research has likewise revealed no such basis for tagging these "participants," who had no role in actually preparing the warrant affidavit, with a Franks violation. Such liability would fly in the face of qualified immunity and the protections it is intended to provide to officers. Thus, if liability exists at all on the procurement issue, the Court is convinced that it possibly lies only with Fitzpatrick, Toye, and Levis. Fitzpatrick prepared what the magistrate ultimately reviewed and he explained in his deposition that Toye and Levis were his key sources of information vis a vis the Michalik address.
The Court need not decide at this time whether a non-affiant can be liable for reckless disregard for the truth when determining whether aFranks violation had occurred in the procurement of a warrant. Levis, the only defendant for which this issue of law will matter, currently has no motion before the Court.
The Court is cognizant that Plaintiffs want to conduct additional discovery in hopes of creating an issue of fact as to the involvement of other officers. If the record currently before the Court contained evidence to even remotely suggest that other officers were culpable, then the Court would consider withholding any conclusions pending the close of the discovery. However, the Court remains wholly unpersuaded that the additional discovery sought by plaintiffs would alter any of the conclusions reached in these Reasons. Plaintiffs' arguments based upon Rule 56(f) simply fail to explain how the remaining discovery Plaintiffs seek would be material to the issues of law currently before the Court, for example, the facial validity of the warrant. Given, however, that the state law claims and the federal claims against other defendants not currently before the Court are still pending, discovery will likely continue. If plaintiffs happen to uncover evidence that would tend to create an issue of material fact so as to impact these Reasons, the Court would entertain a motion for reconsideration.
Of the three, Toye is the only defendant with a motion currently before the Court. After reviewing Fitzpatrick's and Toye's depositions, the Court is convinced that Toye did nothing to constitute reckless disregard for the truth in procuring the warrant. In fact, his most important contribution to Fitzpatrick's conclusion that Taglialavore was at the Michalik's residence, i.e., his first-hand observation of Taglialavore being dropped off in front of the Michalik house, was inadvertently omitted from the application. Plaintiffs have simply failed to create an issue of fact as to Toye's culpability in procuring the warrant. Any claims for constitutional violations arising out of his role in procuring the warrant cannot survive.
c. Claims Against the City of New Orleans
Plaintiffs' opposition does not address the viability of their Monell claim against the City of New Orleans. Further, the evidence of record does not create an issue of fact on the Monell claim. Therefore, Plaintiffs' claims under 42 U.S.C. § 1983 against the City of New Orleans are dismissed.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 164) filed by defendants Sheriff Jack Stephens, Mike Hermann, Harrell Clark, Shannon Jones, Gil Fremin, Pete Tufaro, John Kenney, Ed Sensebe, and John Doran should be and is hereby GRANTED. Plaintiffs' federal claims against these defendants are
DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. 165) filed by defendants the City of New Orleans, former Chief Richard Pennington, Kevin Guillot, Paul Toye, Clarence Guillard, Yvonne Favre, Adam Henry, Sergeant Pat Brown, Captain Steven Nicholas, and Lieutenant Bruce Adams should be and is hereby GRANTED. plaintiffs' federal claims against these defendants are DISMISSED WITH PREJUDICE.