Filed: Dec. 07, 1999
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 98-30595 _ Clarence Willard Spivey, Jr., doing business as Thrifty Instant Print; Karon K. Spivey, doing business as Thrifty Instant Print, Plaintiffs-Appellees, v. Rickey Robertson, individually and in his official capacity as a police officer for the State of Louisiana; et al, Defendants, Charles F. Wagner; Thomas Yeager; Jerry Henderson, Defendants-Appellants. _ Appeal from the United States District Court for the Western District of
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 98-30595 _ Clarence Willard Spivey, Jr., doing business as Thrifty Instant Print; Karon K. Spivey, doing business as Thrifty Instant Print, Plaintiffs-Appellees, v. Rickey Robertson, individually and in his official capacity as a police officer for the State of Louisiana; et al, Defendants, Charles F. Wagner; Thomas Yeager; Jerry Henderson, Defendants-Appellants. _ Appeal from the United States District Court for the Western District of L..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________________
No. 98-30595
___________________________________
Clarence Willard Spivey, Jr., doing business as Thrifty Instant Print;
Karon K. Spivey, doing business as Thrifty Instant Print,
Plaintiffs-Appellees,
v.
Rickey Robertson, individually and in his official capacity as a
police officer for the State of Louisiana; et al,
Defendants,
Charles F. Wagner; Thomas Yeager; Jerry Henderson,
Defendants-Appellants.
___________________________________
Appeal from the United States District Court
for the Western District of Louisiana
___________________________________
December 7, 1999
Before REYNALDO G. GARZA, JOLLY, and, DeMOSS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
I. Factual and Procedural Background
Mr. Spivey owns and operates Thrifty Instant Print, a photocopy business in Alexandria,
Louisiana. In his capacity as the operator of the print shop, he photocopied hundreds of driver’s
licenses belonging to minors who subsequently altered their original licenses with the Spivey
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photocopy so as to allow them to appear of legal age to purchase and consume alcohol or secure
admission to night clubs that served alcoholic beverages.
As part of a crackdown on underage drinking and the use of fake IDs, the police visited
the Spivey shop after concluding that he was the exclusive source of the photocopies. Spivey
freely cooperated with police, even demonstrating his photocopier on a license. At this point in
time, Spivey was not a criminal target.
After this visit, upon urging of their superiors, Officers Cook and Robertson visited the
District Attorney’s office to obtain advice on whether a person could be held liable for making
copies of drivers’ licenses that are then altered to make a minor appear to be of the legal drinking
age. Following a review of the law, the Assistant District Attorneys told the officers with what
crimes Spivey could be charged and instructed the officers to prepare for submission an affidavit
of probable cause for an arrest warrant for Spivey using the term “counterfeited.” Deposition
testimony of Officer Robertson demonstrates that the Assistant District Attorneys suggested
pursuing the source of the fake IDs, and that it was their suggestion to obtain an arrest warrant
for Spivey, including supplying the legal basis for such an arrest. Officer Robertson typed up the
warrant as suggested, the judge issued the arrest warrant, and charges were brought against
Spivey.
State Police arrested Mr. Spivey, escorting him in handcuffs through the front door of his
business into the arms of an alerted media. He was charged with five counts of injuring public
records and one count of unlawful use of a license. Shortly thereafter, however, the District
Attorney’s office dropped all charges against him, the prosecuting district attorney stating that
there was “not a shred” of evidence to support the charges. The Spiveys then filed suit in the
3
Ninth Judicial District Court, Parish of Rapides, against the officers. The suit was removed to the
United States District Court for the Western District of Louisiana. Based on deposition testimony
in that case, Spivey amended his complaint to include the Assistant District Attorneys on the
ground that they “prepared an embellished and false affidavit for [the police officers] to type and
prepare and to submit to the District Judge to obtain a warrant of arrest.”
Subsequently, the defendants brought a 12(b)(6) motion, or in the alternative, a motion for
summary judgment pursuant to Fed.R.Civ.P. 56, asserting their entitlement to absolute, or in the
alternative, qualified immunity. The district court denied the motions. This appeal followed.
II. Standard of Review
We accept a plaintiff’s factual allegations as true when considering motions to dismiss
under Fed.R.Civ.P. 12(b)(6). Buckley v. Fitzsimmons, 509 U.S. 259, 261,
113 S. Ct. 2606, 2609
(1993); Blackburn v. City of Marshall,
42 F.3d 925, 931 (5th Cir. 1995). Unless such allegations
show that the plaintiff has failed to state a claim upon which relief can be granted, this court will
not grant a motion to dismiss under 12(b)(6).
Id. This court will not look beyond the face of the
pleadings to determine whether relief should be granted based on the alleged facts, St. Paul Ins.
Co. of Bellaire, Texas v. AFIA Worldwide Ins. Co.,
937 F.2d 274, 279 (5th Cir. 1991), cert.
denied,
502 U.S. 1030 (1992), and will construe all factual allegations in the light most favorable
to the plaintiffs, Rubinstein v. Collins,
20 F.3d 160, 166 (5th Cir. 1994).
We review de novo the denial of motions for summary judgment on the grounds of
qualified or absolute immunity. Hart v. O’Brian, 127 F.3d 424, 437 (5th Cir. 1997). We will
grant a motion for summary judgment under Fed.R.Civ.P. 56 only if the pleadings, answers to
interrogatories, admissions and affidavits on file indicate no genuine issues as to any material fact.
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Fed.R.Civ.P. 56. When the burden at trial rests on the nonmovant, the movant must merely
demonstrate an absence of evidentiary support in the record for the nonmovant’s case. Celotex
Corp. v. Catrett, 477 U.S. 317, 324,
106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986).
Courts of Appeals consider the evidence in the light most favorable to the nonmovant, yet
the nonmovant may not rely on mere allegations in the pleadings; rather, the nonmovant must
respond to the motion for summary judgment by setting forth particular facts indicating that there
is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). After
the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable
juror could find for the nonmovant, summary judgment will be granted. Celotex
Corp., 477 U.S.
at 322; Fed.R.Civ.P. 56(c).
III. Analysis
We are presented in the instant case with an opportunity to clarify the effect of the
Supreme Court’s opinion in Kalina v. Fletcher, 522 U.S. 118,
118 S. Ct. 502 (1997), on the Fifth
Circuit’s decision in Hart v. O’Brien
127 F.3d 424. Both courts apply a functional approach to
absolute immunity. See
Hart, 127 F.3d at 439 (holding that a prosecutor enjoys absolute
immunity when he acts as an advocate for the state, but does not enjoy such immunity for acts of
investigation or administration); see also
Kalina 118 S. Ct. at 509 (emphasizing the functional
approach to determining absolute immunity, and explaining that absolute immunity protects the
prosecutor’s role as an advocate1). The courts differ, however, as to their analysis of the
1
The line between prosecutor as advocate and prosecutor as investigator, administrator,
and/or complaining witness rests, in turn, in part on the policy interest in enabling [the prosecutor]
to exercise independent judgment when ‘deciding which suits to bring and in conducting them in
court.’” Id. at 507 (quoting Imbler v. Pachtman,
424 U.S. 409 (1976)).
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threshold timing of prosecutorial absolute immunity.
In Hart, this court held that the earliest time that absolute immunity may attach to a
prosecutor’s activities is when charges are filed. 2 Shortly after this court’s opinion in Hart, the
Supreme Court decided Kalina. In Kalina, the Supreme Court found that a prosecutor has
absolute immunity when acting as an advocate in supplying legal advice to support an affidavit for
an arrest warrant,3 unless that prosecutor personally attests to the truth of the evidence presented
to a judicial officer, or exercises judgment going to the truth or falsity of evidence. 4 Hart is in
conflict with Kalina, because a prosecutor may select the facts to include in the certification prior
2
In Hart, the Affidavit of Probable Cause supporting the arrest warrant contained two
factual errors supplied by the prosecutor. This court stated that, “until charges have been filed
against an individual, a prosecutor is not absolutely immune for cooperating with law enforcement
officers in obtaining a search warrant against that person based on false information.” Id. at 439.
3
The Court concluded:
These cases make it quite clear that petitioner’s activities in connection with the
preparation and filing of two of the three charging documents -- the information and the
motion for an arrest warrant -- are protected by absolute immunity. Indeed, except for her
act in personally attesting to the truth of the averments in the certification, it seems
quite clear that the preparation and filing of the third document in the package was part of the
advocate’s function as well. The critical question, however, is whether she was acting as a
complaining witness rather than a lawyer when she executed the certification “[u]nder penalty
of perjury.”
Id. 118 S.Ct. at 508. Before coming to this conclusion, the Court noted that “her drafting of the
certification, her determination that the evidence was sufficiently strong to justify a probable cause
finding, her decision to file charges, and her presentation of the information and motion to the
court” could appropriately be characterized as the work of an advocate.
Id. “Each of the
matters involved the exercise of the professional judgment; indeed, even the selection of the
particular facts to include in the certification to provide the evidentiary support for the finding of
probable cause required the exercise of the judgment of the advocate.”
Id.
4
The Court stated in reference to the immediately above-cited statement: “[T]hat
judgment could not affect that truth or falsity of the factual statements themselves. Testifying
about facts is the function of the witness, not of the lawyer.”
Id. at 510.
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to when charges are filed. The starting point must be earlier than the formal onset of judicial
proceedings, at least encompassing preparatory moments.
Kalina now governs when absolute immunity may apply, thus the district court erred in
applying Hart’s chronological analysis to the facts of the instant case. Hart is no longer valid law
regarding the threshold timing for absolute immunity. The district court, however, expressly
applied Kalina to the facts, deciding that the Assistant District Attorneys were not entitled to
absolute immunity because they had manufactured evidence for the police to place in an affidavit
for probable cause. Therefore, under Kalina the Assistant District Attorneys were acting not as
advocates but as complaining witnesses. Pursuant to Kalina, this would be a legally correct
conclusion. We must disagree, however, with the district court’s factual conclusion.
The district court’s finding under Kalina that the Assistant District Attorneys in the instant
case acted as complaining witnesses rather than as advocates turned entirely on the finding of
manufactured evidence. However, the facts do not support a finding of manufactured evidence,
but instead a reasonable inference that an individual repeatedly photocopying other persons’
licenses for the same small set of individuals, and selling them laminating paper, might know of
the ultimate use and thus be charged as a principal in falsifying public records. The Assistant
District Attorneys point to deposition testimony of one of the officers involved that a limited set
of individuals -- two or three people -- were purchasing all the photocopies, bringing in three or
four licenses at a time, all belonging to minors and all not belonging to the purchaser, to be copied
by Spivey, and that their photocopy purchase included laminating paper. This evidence either
contradicts or undermines the district court’s finding that the prosecutors “[told] the officers to
include certain facts (which, we note, did not even exist in reality or even in the minds of the
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Troopers) and swear to them . . .” and that “it was the ADA’s who creatively ‘filled in the gaps’
in the evidence and decided a warrant could be gotten.” Indeed, the district court stated, “[i]n
doing so, the ADA’s were not merely evaluating existing evidence and deciding what would best
support an arrest warrant.” On the basis of the above-stated facts, that conclusion is in error.
The prosecutors were not creating or manufacturing new facts for the police officers to
include in an affidavit for an arrest warrant, but suggesting legal conclusions on the facts already
given to them by the police. Under Kalina, a prosecutor acts as an advocate in supplying legal
advice to support an affidavit for an arrest warrant and is entitled to absolute immunity as long as
a prosecutor does not personally attest to the truth of the evidence presented to a judicial officer,
or exercise judgment going to the truth or falsity of evidence. Because the prosecutors were
acting as advocates in supplying legal advice based on facts provided by police officers to support
an affidavit for an arrest warrant, the prosecutors in the instant case are absolutely immune.
In conclusion, we hold, in light of the Supreme Court’s decision in Kalina, that the district
court erred by ruling that absolute immunity does not attach until charges have been filed. The
district court also erred in finding that the prosecutors acted as complaining witnesses rather than
advocates. Thus, the Appellants are entitled to absolute immunity for their role in providing legal
advice based on facts provided to them by police officers in preparation of an arrest warrant.
Accordingly, we REVERSE AND RENDER, dismissing Spivey’s suit on the grounds of absolute
immunity.
The two pending motions that were carried with the case are hereby denied.
