On April 8, 2015, the Eleventh Circuit Court of Appeals decided Elmore v. Fulton County School District et al. [i], which is instructive regarding federal lawsuits for false arrest and malicious prosecution under the Fourth Amendment. The facts of Elmore, taken directly from the case, are as follows:
Elmore was employed by the Fulton County School District (the “District”) as a paraprofessional educator. In that capacity, he assisted a classroom teacher in a class with moderately to severely disabled students. One student, who was wheelchair-bound and non-verbal, had a history of biting and scratching himself whenever he got angry or frustrated. The student would also bite at others if they attempted to stop him.
On December 7, 2011, the student began scratching himself in class. To distract him and to stop him from scratching, according to the amended complaint, the teacher, Ms. Morrow, lightly sprayed the student with a fine mist of water. A special-needs nurse who had been meeting with the teacher saw the spraying. The nurse later determined that she had witnessed child abuse and made a complaint.
Nicole Sauce, a police officer for the District, investigated the nurse’s complaint. Initially, Sauce prepared a memorandum. The entire allegation in the memo stated, “Teacher was observed by special needs nurse spraying a special needs student in the face for acting out in class.” Sauce then conducted several interviews regarding the incident. These interviews, which involved at least four witnesses—the classroom teacher, Elmore, the nurse, and a student—concerned, among other issues, who, if anyone, had sprayed the student. The classroom teacher, Ms. Morrow, specifically stated that Elmore had not sprayed the student with water. Elmore denied spraying the student and stated that the spray bottle was used to demonstrate various things like rain. Sauce later falsely stated that Elmore had admitted spraying the student.
After Sauce’s investigation, the principal of the school, Demarcos Holland, made a complaint against Elmore, alleging child abuse. Holland directed Sauce to obtain a warrant for Elmore’s arrest. Sauce did so without revealing the exculpatory information provided by Ms. Morrow. A Georgia state magistrate judge issued two warrants for Elmore’s arrest, one for “Cruelty to Children,” O.C.G .A § 16–5–70, and one for “Simple Battery,” O.C.G.A. § 16–5–23. In the affidavits for each warrant, Sauce swore that Elmore did spray a severe and profound juvenile repeatedly about the arms and face because he was agitated that the radio was turned down. [Elmore] used the spray to try any [sic] stop the juvenile from screaming only to further agitate him…. The incident took place in the presence of two witnesses, a cluster nurse and a student that confirmed the incident. Elmore was arrested and charged with cruelty to children in the third degree and simple battery. As a result, Elmore was fired by Holland and the District. [ii]
Elmore sued Sauce and Holland in their individual capacities for, among other things, illegal arrest under the Fourth Amendment. The Fourth Amendment claims will be the basis of this discussion. The district court granted the defendant’s motions to dismiss and Elmore appealed to the Eleventh Circuit Court of Appeals. The basis of Elmore’s argument on appeal is that Sauce, the officer, omitted relevant facts from the warrant affidavits that, if included, would have negated probable cause to believe he committed simple battery and cruelty to children.
The Eleventh Circuit, in examining relevant precedent, noted that in Franks v. Delaware [iii], the Supreme Court of the United States held that:
[A] warrant violates the Fourth Amendment if the affidavit supporting the warrant contains “deliberate falsity or … reckless disregard” for the truth. However, only false statements which are necessary to the finding of probable cause will invalidate a warrant. Franks, 438 U.S. at 155–56, 98 S.Ct. at 2676. [iv] [Internal citations omitted] [emphasis added]
Further the Eleventh Circuit noted some additional rules that are relevant to this case. The rules are as follows:
- Omissions that are made negligently will not invalidate a warrant. Madiwale v. Savaiko, 117 F.3d 1321, 1326–27 (11th Cir.1997) [v] [emphasis added]
- [E]ven intentional or reckless omissions will invalidate a warrant only if inclusion of the omitted facts would have prevented a finding of probable cause.” Id.; see also Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir.2002) [vi] [emphasis added]
- Probable cause exists when the facts and circumstances, of which the official has reasonably trustworthy information, would cause a prudent person to believe that the suspect has committed, is committing, or is about to commit an offense. Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir.2007). “No officer has a duty to prove every element of a crime before making an arrest. Police officers are not expected to be lawyers or prosecutors.” Id. (citation and quotation marks omitted). Rather, in assessing probable cause, we deal with “the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998) (internal quotation marks omitted). [vii] [emphasis added]
Thus, as long as, when considering the facts that were omitted, probable cause still exists, there is no Fourth Amendment violation. Further, to avoid liability for a Fourth Amendment violation, the officer needs only arguable probable cause, which is less than probable cause. Arguable probable exists when other reasonable officers would believe that probable cause exists to make an arrest, even if later a court determines actual probable cause was not present. Thus, the presence of arguable probable cause shields the officer from liability by allowing for a grant of qualified immunity.
Elmore alleged that facts omitted by the officer in the warrant affidavits would have negated probable cause for each charge. The court then examined the information that Sauce omitted to determine if probable cause was present, even with the additional facts. Considering all facts, including the omitted facts, the court stated:
The revised affidavit provides that two witnesses confirmed that Elmore sprayed the student, while the teacher and Elmore stated that he did not. Although Sauce’s initial memo reflects that “Teacher” sprayed the student, Sauce was not present and did not witness the incident. Moreover, Sauce is not an educator, and Elmore, a “paraprofessional educator” could fairly have been considered or described by her and others such as the nurse to be a “teacher.” In addition, during the interview, the nurse apparently named Elmore as the person who had sprayed the student. Significantly, the nurse’s account of the incident was also corroborated by a juvenile student.
In any event, even if consideration of all of the facts did not establish actual probable cause for the offense of simple battery, the facts are adequate to establish arguable probable cause to believe that Elmore violated O.C.G.A. § 16–5–23. [viii]
Thus, the court held that, at least, arguable probable cause was present to believe that Elmore committed Simple Battery. However, the court also held that there was no arguable probable cause to believe that Elmore committed Cruelty to Children.
After the court determined that arguable probable cause was present for Simple Battery and not present for Cruelty to Children, they had to determine if the officer was entitled to qualified immunity for false arrest and malicious prosecution. The district court granted the officer qualified immunity based on the fact that there was arguable probable cause for one offense so that shielded the officer from liability.
The court first stated:
So long as the circumstances known to the officers, viewed objectively, give probable cause to arrest for any crime, the arrest is constitutionally valid even if probable cause was lacking as to some offenses, or even all announced charges. Id. at 153–55, 125 S.Ct. at 593–94; Lee v. Ferraro,284 F.3d 1188, 1195–96 (11th Cir.2002). [ix] [emphasis added]
The district court treated Elmore’s claim as a false arrest claim because of the language in the complaint which described an arrest without probable cause and used the phrase “illegal arrest.” However, Elmore argued that his case should proceed for the malicious prosecution claim on the Cruelty to Children charge because the above rule should only apply to warrantless arrests. He argued that an arrest based on a warrant is more akin to a claim for malicious prosecution.
In contrast to a claim for false arrest which is dismissed if probable cause exists for any charge, the Eleventh Circuit left open the possibility that a claim for malicious prosecution can proceed even when probable cause was present for other charges against the plaintiff. The Eleventh Circuit stated:
Generally, in contrast to false-arrest claims, “probable cause as to one charge will not bar a malicious prosecution claim based on a second, distinct charge as to which probable cause was lacking.” Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir.2007) (concerning malicious prosecution under Illinois state law); Johnson v. Knorr, 477 F.3d 75, 83 (3d Cir.2007); cf. Uboh v. Reno,141 F.3d 1000, 1005 (11th Cir.1998) (conviction on some charges in indictment does not preclude malicious prosecution claim based on dismissal of other charges). In Holmes, the Seventh Circuit explained the distinction in this way: when an individual is arrested, the seizure is the same whether the arrest was based on one or multiple grounds; but once an individual is prosecuted, each additional charge imposes additional costs and burdens. Holmes, 511 F.3d at 682–83. [x] [emphasis added]
Elmore argued that his case, which was initiated with a warrant, should be viewed as a claim for “malicious prosecution.” Regarding this argument, the Eleventh Circuit stated:
Elmore may be correct that he could have maintained a § 1983 malicious-prosecution claim based on the lack of probable cause to arrest for cruelty to children in the third degree. See Holmes, 511 F.3d at 682–83; Johnson, 477 F.3d at 83. Accordingly, the district court arguably may have erred in failing to consider the substance of Elmore’s claim as one alleging malicious prosecution…
Nonetheless, even assuming—as Elmore contends—that this Court’s decision in Uboh controls this case, the amended complaint fails to allege facts necessary to state a § 1983 claim for malicious prosecution. As the Court in Uboh explained, “[I]n order to state a cause of action for malicious prosecution, a plaintiff must allege and prove that the criminal proceeding that gives rise to the action has terminated in favor of the accused.” Uboh, 141 F.3d at 1004; see also Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 2371, 129 L.Ed.2d 383 (1994) (“One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.”).
Here, Elmore did not allege in his amended complaint any facts establishing the common-law element of “favorable termination,” such as the charges being dropped or dismissed. Indeed, the amended complaint contains no allegations regarding a prosecution following his arrest pursuant to an invalid warrant. [xi]
The common law elements to a malicious prosecution claim that must be proven are generally (1) that the original charge was terminated in favor of the plaintiff (the defendant in the criminal case, (2) the civil case defendant played an active role in the prosecution, (3) there was no probable cause, and (4) there was improper (or malicious) intent. Additionally, in order to prevail in a malicious prosecution claim under Section 1983 in federal court, a plaintiff would also need to prove that his rights under the Fourth Amendment to be free from an unreasonable seizure were violated.
In Elmore’s case, Elmore failed to allege in his complaint that his criminal case was terminated in his favor. As such, he failed to properly allege a malicious prosecution claim. Therefore, the Eleventh Circuit affirmed the district court’s decision to dismiss the case against Sauce whether for false arrest or malicious prosecution.
Additionally, Elmore sued Holland, the school principal, under Section 1983 for ordering his unlawful arrest. The law regarding supervisory liability was stated by the Eleventh Circuit as follows:
Supervisors cannot be held liable under § 1983 on the basis of vicarious liability or respondeat superior. Keating, 598 F.3d at 762. Nonetheless, “supervisors are liable under § 1983 either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional violation.” Id. (internal quotation marks omitted). The requisite causal connection can be established by facts supporting an inference that the supervisor directed his subordinates to act unlawfully or failed to stop his subordinates when the supervisor knew they would act unlawfully. Id. [xii]
In the complaint, Elmore failed to allege facts that showed Holland had supervisory authority over Sauce, and failed to allege facts that Holland was involved in or directed Elmore’s arrest. As such, the Eleventh Circuit affirmed the district court’s dismissal of the case against Holland.
While this case ultimately was resolved in favor of the officer and principal in this case, that was largely because the plaintiff failed to properly allege his complaint. What officers should consider in light of rules in this case are as follows:
- When an officer arrests a person, as long has he or she has arguable probable cause for any offense (charged or even not charged), the officer will be entitled to qualified immunity from suit for a false arrest claim under the Fourth Amendment.
- When an officer obtains a warrant and charges a person with a crime or multiple crimes, the officer may be liable to a claim for malicious prosecution for any charge for which at least arguable probable cause did not exist.
- One possible method to mitigate damages regarding the above is to work with the prosecutor to dismiss any charge as early as possible in the criminal proceedings when it is determined that the probable cause is lacking. This can mitigate damages which the plaintiff will need to prove in his case.
- Officer should closely evaluate charges when obtaining a warrant and ensure that they are alleging sufficient facts to support each element of each crime being charged.
- Officers, when writing a warrant affidavit, should write the affidavit with sufficient facts to support a finding a probable cause. Officer should not merely put conclusion statements in the warrant affidavit. Support the elements of each crime with facts in the affidavit.
- Officers should disclose all facts relevant to the finding of probable cause to the magistrate in the affidavit, including exculpatory facts.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 14-14063, 2015WL1542697 (11th Cir. 2015)(Unpublished)
[ii] Id. at 1-2
[iii] 438 U.S. 154 (1978)
[iv] Elmore, 2015WL1542697 at 3
[v] Id. at 4
[viii] Id. at 5-6
[ix] Id. at 8
[x] Id. at 9
[xi] Id. at 10