Angello A. D. Osborne v. Peter Georgiade

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-00182-RDB Copies to all parties and the district court/agency. [1000019945].. [15-2468]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2468

ANGELLO A. D. OSBORNE,
Plaintiff - Appellee,
v.
PETER GEORGIADES, Police Corporal,
Defendant – Appellant,
and
DIONE WHITE, LGSW; MEREDITH LYNN PIPITONE,
Defendants.

Appeal from the United States District Court for the District of
Richard D. Bennett, District Judge.
Maryland, at Baltimore.
(1:14-cv-00182-RDB)

Argued:

May 10, 2016

Decided: February 8, 2017

Before GREGORY, Chief Judge, TRAXLER, Circuit Judge, and Joseph
F. ANDERSON, Jr., Senior United States District Judge for the
District of South Carolina, sitting by designation.

Affirmed by unpublished opinion. Chief Judge Gregory wrote the
opinion, in which Judge Anderson joined. Judge Traxler wrote a
dissenting opinion.

ARGUED:
Deborah Street Duvall, HARFORD COUNTY DEPARTMENT OF
LAW, Bel Air, Maryland, for Appellant. Robert Louis Smith, Jr.,
LAW OFFICE OF ROBERT L. SMITH, JR., Baltimore, Maryland,

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for Appellee.
ON BRIEF:
Melissa Lambert, County Attorney,
Kristin L. Lewis Noon, Assistant County Attorney, HARFORD COUNTY
DEPARTMENT OF LAW, Bel Air, Maryland, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Chief Judge:
Plaintiff-appellee Angelo Osborne sued Defendant-appellant
Corporal Peter Georgiades, as well as Dione White and Meredith
Lynn Pipitone, alleging violations of his constitutional rights
under

42

U.S.C.

§§

1983

and

1985.

Specifically,

Osborne

contends that Georgiades, in the process of investigating him
for alleged sexual abuse of his minor child, unreasonably seized
him

in

violation

of

the

Fourth

and

Fourteenth

Amendments.

Georgiades moved for summary judgment on grounds of qualified
immunity.

The district court denied the motion, holding that

Georgiades

is

not

entitled

to

qualified

immunity.

For

the

reasons stated below, we affirm the judgment of the district
court.

I.
A.
As a preliminary matter, we view the facts in the light
most favorable to Osborne, the nonmoving party.

See ACLU of

Md., Inc. v. Wicomico County, 999 F.2d 780, 784 (4th Cir. 1993).
Osborne and Pipitone are the parents of two minor children—a
daughter (“JMLO”), five years old at the time of the events in
question, and a son (“CJP”), then two years old.
2010,

Pipitone

contacted

the

Harford

County

On November 1,
Child

Center to report the alleged sexual assault of JMLO.
3

Advocacy
Pipitone

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claimed
father.

that

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JMLO

did

not

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want

to

spend

Halloween

with

her

JMLO purportedly told Pipitone that a few weeks prior,

Osborne had
Sealed App. 63. *
Later that day, White, a licensed social worker for the
Harford

County

Child

Advocacy

Center,

interviewed

Pipitone.

After speaking with Pipitone, White interviewed JMLO.

Although

Georgiades was not present, he remained in telephone contact
with White and observed the interview from a nearby room via
live video feed for purposes of investigating the allegations.
White

employed

Inquiry,

the

Abuse

questioning

Rapport,

Scenario,

JMLO.

RATAC

Anatomical
Closure

focuses

Identification,

(“RATAC”)

on

reducing

method
any

Touch
when

potential

trauma to the child during the interview.
In

her

initial

responses

to

White’s

questions,

JMLO

consistently denied that Osborne, or anyone else, had touched
her on parts of her body covered by a bathing suit.

Id.
*The

In

Court will cite to the audio and video recording of
JMLO’s interview because the transcript, Sealed App. 36-56,
contains numerous errors.

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total, JMLO denied abuse six times.

See J.A. 250, 252, 255

(classifying JMLO’s responses as “denials”).

Id.

After

approximately

three

minutes

of

similar

questions, JMLO changed course and finally replied, “He did.”
Id.
JMLO went on to state
Id.

Id.
JMLO also described

She then referred to an incident at Osborne’s
house in which CJP got in “trouble” with Osborne’s girlfriend.
Id.

Although it is not entirely clear what CJP did, JMLO stated

“that’s why I’m never going over there again.”
asked

any

follow-up

questions
5

concerning

Id.
that

White never
incident.

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Instead,

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White

asked

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several

questions

regarding

Osborne’s girlfriend and CJP “saw it happen.”
changed

course

and

stated

that

Osborne’s

Id.

whether

JMLO again

girlfriend

was

not

present when the alleged abuse occurred and that CJP was asleep.
Id.
After

JMLO

described

and

demonstrated

with

dolls

the

alleged acts of abuse, White placed a phone call to Georgiades,
who suggested other topics to discuss.

J.A. 226, 237.

After

this call, she asked JMLO whether CJP was present during the
second instance of abuse.
the bed next to her.

Id. at 55.

JMLO stated that CJP was asleep in

Id. at 54.

JMLO also stated Osborne

White then asked
Id.

Their conversation was then interrupted by a second phone
call from Georgiades.

After this conversation, White asked JMLO

a series of questions regarding

At this point, Georgiades immediately placed a
third phone call, resulting in White terminating the interview.
White and Georgiades spoke on three occasions throughout the
interview.

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After

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White

completed

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the

interview,

Pipitone

called

Osborne to accuse him of sexually assaulting their daughter.
With Pipitone’s consent, Georgiades listened in on the call.
During that conversation, Osborne consistently denied Pipitone’s
accusations.

Osborne

also

told

polygraph test if she took one.

Pipitone

he

would

take

a

J.A. 318, 319-20.

The most recent assault allegedly occurred on October 16,
2010.

Dr. Paul Lomonico conducted a thorough physical exam of

JMLO on November 3, 2010, for evidence of sexual assault.

He

examined her entire body,

Sealed App. 58.
His medical report indicated “no physical signs . . . of sexual
abuse” but noted, “This does not rule out abuse.”
On

December

(“Tobin”),

a

Maryland.

After

15,

Deputy

2010,

Georgiades

State’s

reviewing

met

Attorney

the

video

with

for

of

Tobin accepted the case for prosecution.

Id.
Diane

Harford

the

JMLO

Tobin

County,

interview,

For over a month,

Georgiades attempted to contact Osborne, but was unsuccessful.
On January 21, 2011, Georgiades spoke to Osborne, who stated
that

he

present.

would

only

speak

with

Id. at 68.

7

Georgiades

with

his

attorney

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On

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January

warrant.

24,

2011,

Georgiades’s

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Georgiades

applied

affidavit

for

disclosed

an

only

arrest
JMLO’s

accusations of sexual abuse but not her repeated denials, nor
the results of the medical examination.

An arrest warrant was

issued, and Osborne was arrested on the same day.

Osborne was

charged with eight counts of sexual—assault-based offenses.

On

January 25, 2011, Osborne was detained in the Harford County
Detention Center, with bail set for $500,000.

A grand jury

subsequently indicted Osborne on February 15, 2011, on sixteen
counts

of

sexual-assault-related

crimes.

Osborne

was

incarcerated without bond for over eight months, until October
3, 2011, when a bond was set for $25,000.
declined

to

prosecute

Osborne

on

The state eventually

December

13,

2011,

instead

placing his case on the inactive “stet” docket.
B.
Osborne initiated the present action on January 23, 2014.
Osborne

claims

fabricated
suggestive
cajole

the

Pipitone’s

that

evidence
and

White,
against

leading”

minor

child

accusations.

with
him

questions
into

by

9.

asking

“designed

making

J.A.

Georgiades’s

up

a

Osborne

guidance,

JMLO

and

story
also

“unduly

intended
to

to

support”

claims

that

Georgiades knowingly omitted relevant facts from his application
for Osborne’s arrest warrant.

Osborne denies ever assaulting or

even attempting to assault the minor child.
8

He argues that his

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arrest

and

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ensuing

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incarceration

without

probable

cause,

wanton,

malicious[,]

and

and

were

were

reckless

“without

motivated
desire

justification,

by
to

[Defendants’]
inflict

great

emotional and physical distress and pain and suffering upon”
him.

Id. at 11.
After the district court dismissed all claims against White

and Pipitone, Georgiades moved for summary judgment on the sole
remaining
right

claim

against

that

he

violated

unreasonable

seizure

Osborne’s
under

Fourth

42

Amendment

U.S.C.

§ 1983.

Georgiades argued that he is entitled to qualified immunity for
his actions.

The district court concluded that Georgiades is

not entitled to immunity for the acts underlying Osborne’s §
1983

claim—fabrication

of

evidence

facts from the warrant application.
because

the

Georgiades

contents
were

not

of

the

and

omission

material

First, the court held that

conversations

“disclosed,”

of

a

between

reasonable

White
jury

and

could

conclude that Georgiades exerted pressure that resulted in the
fabrication of evidence against Osborne.
the

court

found

Georgiades’s
deliberately

that

warrant
or

with

a

reasonable

application
reckless

jury

J.A. at 331.
could

contained

disregard

for

Second,

conclude

omissions
any

that
made

misleading

effect and that the omitted evidence had the potential to negate
probable cause.

Id. at 333.

This appeal timely followed.

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II.
We review an award of summary judgment on the basis of
qualified immunity de novo.
(4th Cir. 2012).

Durham v. Horner, 690 F.3d 183, 188

In reviewing the district court’s denial of

summary judgment based on qualified immunity, “we accept as true
the facts that the district court concluded may be reasonably
inferred from the record when viewed in the light most favorable
to the plaintiff.”
2016) (citation

Yates v. Terry, 817 F.3d 877, 884 (4th Cir.

omitted).

“To

the

extent

that

the

district

court has not fully set forth the facts on which its decision is
based, we assume the facts that may reasonably be inferred from
the

record

when

plaintiff.”

viewed

Id.

in

(citation

the

light

omitted).

most

favorable

“[T]his

to

usually

adopting . . . the plaintiff’s version of the facts.”

the

means
Iko v.

Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (quoting Scott v.
Harris, 550 U.S. 372, 378 (2007)).

III.
Qualified
liability

in

immunity
a

§

1983

shields
suit

government

unless

their

officials
conduct

from

violated

“clearly established statutory or constitutional rights of which
a reasonable person would have known.”
457 U.S. 800, 818 (1982).

Harlow v. Fitzgerald,

To determine whether an official is

entitled to qualified immunity, we ask (1) whether the facts
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illustrate

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that

constitutional

the

right;

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official
and

(2)

violated

whether

the

the
right

plaintiff’s
was

clearly

established law at the time of the alleged event such that “a
reasonable

officer

would

have

violated the asserted right.”

understood

that

his

conduct

Miller v. Prince George’s County,

475 F.3d 621, 627 (4th Cir. 2007) (quoting Saucier v. Katz, 533
U.S. 194, 201-02 (2001)).

The answer to both questions must be

in the affirmative to defeat the official’s motion for summary
judgment on qualified immunity grounds.

Id.

A.
First,

we

Georgiades

consider

violated

whether

Osborne’s

the

facts

asserted

demonstrate

constitutional

that
right.

Osborne maintains that the facts outlined above, considered in
the light most favorable to him, allege a claim that he was
seized

without

Amendment.

probable

“The

Fourth

cause

in

violation

of

Amendment

prohibits

law

the

Fourth

enforcement

officers from making unreasonable seizures, and seizure of an
individual

effected

without

probable

cause

is

unreasonable.”

Brooks v. City of Winston–Salem, 85 F.3d 178, 183 (4th Cir.
1996).

Osborne

unreasonable

specifically

because

it

contends

resulted

that

from

his
(1)

seizure

was

Georgiades’s

fabrication of evidence and (2) the omission of material facts
from the warrant application.

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1.
Osborne
directing

alleges

White

to

that
ask

Georgiades
JMLO

fabricated

misleading

evidence

questions,

resulting in JMLO’s false account of sexual abuse.

by

thereby

The district

court held that a reasonable jury could conclude that Georgiades
committed a constitutional violation by exerting pressure that
caused the fabrication of evidence against Osborne and directly
resulted in his unreasonable seizure.

J.A. 331.

The district

court further held that the right to be free from deprivation of
liberty due to an officer’s fabrication of evidence was clearly
established at the time of Georgiades’s alleged conduct.
332.

J.A.

As such, the district concluded that Georgiades was not

entitled to qualified immunity for the alleged fabrication.
Georgiades has waived his challenges to these holdings by
raising them for the first time in his reply brief.

See Metro.

Reg’l Info. Sys., Inc. v. Am. Home Realty Network, 722 F.3d 591,
602 n.13 (4th Cir. 2013) (stating that appellant’s failure to
address

issue

abandoned).

in

opening

brief

will

deem

issue

waived

or

Therefore, Georgiades’s challenges are not properly

before us, and we will not address the district court’s holdings
on the fabrication claim.
2.
Osborne, arrested pursuant to a warrant, also contends that
Georgiades unlawfully omitted certain key facts from the warrant
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application.
Franks

v.

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Relying on the two-prong standard set forth in

Delaware,

438

U.S.

154,

155-56

(1978)

(requiring

intent and materiality), the district court held that Osborne
must

show

that

Georgiades

“deliberately

or

with

reckless

disregard for the truth made material false statements in his
affidavit, . . . or omitted from that affidavit material facts
with the intent to make, or with reckless disregard of whether
they thereby made, the affidavit misleading.”

J.A. 332 (quoting

Miller, 475 F.3d at 627).
Below, we consider the district court’s holdings as to the
intent and materiality prongs to determine whether Georgiades’s
omissions amount to a constitutional violation.
a.
Initially,

we

conclude

that

Georgiades

has

waived

any

challenge to the district court’s holding regarding his intent
to mislead.

The district court held that a reasonable jury

could conclude that Georgiades’s warrant application contained
omissions made deliberately or with reckless disregard for any
misleading effect.
reference

to

footnote

that

the

J.A. 332.
district

“Osborne

Georgiades only makes a passing

court’s

has

failed

holding,
to

contending

demonstrate

that

in

a

the

omissions were made with reckless disregard for the truth. . . .
However,

the

Court

need

not

reach

this

issue

cause existed for the warrant against Osborne.”
13

since

probable

Appellant’s Br.

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15 n.4.

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Georgiades makes no attempt to explain the basis for

his belief, nor does he present any argument on why summary
judgment should have been granted in his favor on this issue.
The issue is therefore waived.

See, e.g., Belk, Inc. v. Meyer

Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (concluding that
defendant

waived

issue

for

failure

to

develop

argument

in

brief).
b.
Next, we consider the district court’s holding regarding
the materiality of the omitted facts.

Id. at 333.

argues that

by

the

omitted

facts

finding

of

district

“could”

probable

court

and

erred

“had

cause.

the

J.A.

concluding

potential”

333.

We

to

agree

Georgiades
that

the

negate
that

a

the

district court employed the wrong standard, but the error was
harmless because the omissions met the proper standard under
Franks.
The correct materiality standard under Franks requires that
the

omissions

be

necessary

to

the

neutral

magistrate’s finding of probable cause.

and

disinterested

Evans v. Chalmers, 703

F.3d 636, 650 (4th Cir. 2012) (quoting Miller, 475 F.3d at 628).
The omission “must be such that its inclusion in the affidavit
would

defeat

probable

cause

for

arrest.”

Colkley, 899 F.2d 297, 301 (4th Cir. 1990).

United

States

v.

The court must

insert the facts recklessly omitted and determine whether or not
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the

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“corrected”

cause.

warrant

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affidavit

Miller, 475 F.3d at 628.

affidavit

establishes

probable

would

establish

probable

If the “corrected” warrant

cause,

amount to a constitutional violation.

the

omissions

do

not

Id.

Probable cause for an arrest “exists where the facts and
circumstances within [the officer’s] knowledge and of which [he
or she] had reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief
that an offense has been . . . committed by the person to be
arrested.”

Clipper v. Takoma Park, Md., 876 F.2d 17, 19 (4th

Cir. 1989) (citing Dunaway v. New York, 442 U.S. 200, 208 n.9
(1979)).
Osborne

contends

that

a

“corrected”

affidavit

have established probable cause for his arrest.

would

not

As corrected,

Georgiades’s warrant application would have shown that (1) JMLO
repeatedly denied (six times in total) that she was sexually
abused
using

by

Osborne;

(2)

she

then

stated,

and

demonstrated

by

dolls,

; (3) the most recent acts of abuse occurred on October 16,
2010; and (4) a thorough medical exam conducted on November 3,
2010 revealed no physical signs of sexual abuse.

Considering

the totality of the circumstances presented by this information,
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the “corrected” warrant application would not have established
probable cause to arrest Osborne.
The facts and circumstances presented by the “corrected”
warrant application are not sufficient in themselves to warrant
a

person

of

reasonable

caution

in

the

belief

committed the offense stated in the application.

that

Osborne

The corrected

warrant application would have asked the magistrate to issue a
warrant for Osborne’s arrest in spite of JMLO’s inconsistent
allegations of abuse and direct evidence that may contradict
that any abuse occurred-Dr. Lomonico’s medical examination and
report.

As such, the omitted facts
are

material

because

their

inclusion

would

have

defeated

probable cause.
B.
Georgiades has never contended that the right asserted by
Osborne was not clearly established.
above,

this

issue

is

undoubtedly

For the reasons stated

waived.

And

even

if

not

waived, this contention is without merit.
The Fourth Amendment right to be arrested only on probable
cause was clearly established at the time of the events at issue
here.

Miller, 475 F.3d at 632; Brooks, 85 F.3d at 183.

specifically,

it

was

also

clearly
16

established

“that

More
the

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Constitution did not permit a police officer deliberately, or
with reckless disregard for the truth, to make . . . omissions
to

seek

a

cause.”

warrant

that

would

otherwise

be

without

probable

Miller, 475 F.3d at 631-32 (collecting cases).

objective

standard

for

qualified

immunity

accommodates

The
the

allegation of material omissions “because a reasonable officer
cannot believe a warrant is supported by probable cause if the
magistrate is misled by [omitted facts] that the officer knows
or should know [would negate probable cause].”

Smith, 1010 F.3d

at 355.
We therefore conclude that Georgiades is not entitled to
qualified immunity.

IV.
Georgiades also argues that the February 15, 2011, grand
jury

indictment

probable
Osborne’s

“conclusively

cause,

which

claims

Appellant’s Br. 9.

of

unless
false

determined
rebutted

arrest

by

and

the

existence

Osborne,

false

of

nullifies

imprisonment.”

Georgiades, however, failed to raise this

argument in the district court.
This Court has repeatedly held that issues raised for the
first time on appeal generally will not be considered.
United
cases).

States,

1

F.3d

246,

250

(4th

Cir.

1993)

Muth v.

(collecting

“The matter of what questions may be taken up and
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resolved for the first time on appeal is one left primarily to
the discretion of the courts of appeals, to be exercised on the
facts of individual cases.”

In re Under Seal, 749 F.3d 276, 285

(4th Cir. 2014) (quoting Singleton v. Wulff, 428 U.S. 106, 121
(1976)).

In

sparingly.

Exceptions to this general rule are made only in

very

limited

argument

this

circumstances,

establishes

fundamental justice.
Cir. 1985).

circuit,

we

such

“fundamental

exercise

as

that

when

error”

the
or

discretion

newly
a

raised

denial

of

Stewart v. Hall, 770 F.2d 1267, 1271 (4th

The error must be “so serious and flagrant that it

goes to the very integrity of the trial.”

Id.

Because fundamental error is a more limited standard than
the plain-error standard applied in criminal cases, we use the
plain-error standard “as something of an intermediate step in a
civil case.”

In re Under Seal, 749 F.3d at 285-86.

If a party

in a civil case fails to meet the plain-error standard, it is
clear that he also fails to establish fundamental error.

Id.

Under the plain-error standard, we may correct an error not
raised

before

the

demonstrates:

district

court

only

where

the

appellant

(1) there is in fact an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute;
(3) the

error

meaning

it

affected

affected

the
the

appellant’s
outcome

of

substantial
the

district

rights,
court

proceedings; and (4) the error seriously affects the fairness,
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integrity, or public reputation of judicial proceedings.
States v. Marcus, 560 U.S. 258, 262 (2010).

United

We have refused,

however, to conduct plain error review where the party “failed
to make its most essential argument in its briefs or at oral
argument: . . . that the district court fundamentally or even
plainly erred.”

In re Under Seal, 749 F.3d at 292.

Here, Georgiades has not made his most essential argument.
His “failure to argue for plain error and its application on
appeal surely marks the end of the road for [his] argument for
reversal not first presented to the district court.”

Id.

Thus,

Georgiades’s argument is waived.

V.
For the foregoing reasons, the district court’s denial of
Georgiades’s summary judgment motion is

AFFIRMED.

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TRAXLER, Circuit Judge, dissenting:
We are talking about a five year old little girl.

She

described how her father sexually molested her to a trained and
experienced

forensic

interviewer,

using

anatomically

correct

drawings and dolls to demonstrate what he did to her.

The

majority holds it was illegal to arrest the father.
The little girl initially denied being abused during the
interview and a medical examination conducted over two weeks
after

the

abuse

showed

no

signs

of

physical

injury.

Notwithstanding the fact that a trained and experienced social
worker

and

additional

interviewer,
facts,

with

determined

full

that

knowledge

sexual

of

abuse

was

the

two

indicated

under Maryland law, the majority holds there can be no arrest
because there was no probable cause.

If this were a published

case which would set precedent for this circuit, you could say
goodbye to the prosecution of many child sexual abuse cases,
because

those

two

facts

are

common

to

sexual

abuse

cases

involving children.
This little girl is like most five year olds who have
been sexually abused.

She does not want to talk about it.

video of her forensic interview makes that plain.

The

There are

many reasons why this occurs and why children, more often than
not,

initially

parent

or

other

deny

sexual

trusted

abuse,

adult.
20

particularly
The

child

may

abuse
have

by

a

been

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threatened not to talk by her abuser.

She may have been told

not to tell (as was the case with this little girl) or led into
a promise to “keep our secret.”

She may be simply embarrassed.

A child’s reluctance to talk about sexual abuse happens all the
time.

But such initial denials do not mean the abuse did not

occur and they cannot be accepted at face value.
must

be

asked

explored.

and

different

interview

More questions

approaches

must

be

It takes a trained and skilled interviewer to get

past these initial denials to uncover the truth of what happened
in a reliable way.

That is precisely what happened here.

Likewise, the absence of physical trauma is not unusual,
because there are degrees of sexual abuse.
does not mean no sexual abuse occurred.

A lack of injury

This child told the

interviewer
46.

S.J.A.

The particular incident caused pain to her but not physical

injury.

Hence the validity of the examining doctor’s conclusion

that the absence of physical trauma did not mean that no sexual
abuse occurred.
According to the majority’s holding in this case, if a
small child initially and briefly denies sexual abuse and the
medical

examination

inconclusive,
abuser.

then

shows

there

is

no
no

injury,
probable

but
cause

is
to

otherwise
arrest

the

Yet, in Maryland, a sex offender can be convicted at

trial solely on the testimony of his young victim.
21

There is no

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requirement of corroboration, and initial denials by the child
do

not

affect

happened.

the

admissibility

of

her

testimony

about

what

It is for the jury to decide whether the child’s

statement is enough, or whether the initial denials render her
testimony unreliable.

The majority is requiring more evidence

for an arrest than Maryland requires for a conviction.
I.
A.
Under
social

Maryland’s

abuse

§

5-706.

At

the

along

local

See

Law

charged,

statute,

enforcement, with investigating allegations of child abuse.
Fam.

are

neglect

law

Code

departments

and

with

Md.

services

child

conclusion

of

an

investigation, the department must determine whether child abuse
is “indicated,” “ruled out,” or “unsubstantiated.”

See Md. Code

Regs. § 07.02.07.12.
On

November

Harford

County

1,

2010,

Child

Meredith

Advocacy

Pipitone

Center

reported

that

her

5

to

the

year-old

daughter, “JMLO,” had been sexually abused by Osborne, JMLO’s
father.
advocacy

Later that day, Pipitone brought JMLO to the child
center

and

talked

to

Dion

White,

a

licensed

social

worker and trained forensic interviewer in child sexual abuse
cases.
In
conducted

accordance
a

forensic

with

Maryland

interview
22

of

law,
JMLO.

White

immediately

White’s

interview

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followed the RATAC method.

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See Jennifer Anderson et al, The

Cornerhouse Forensic Interview Protocol:

RATAC, 12 T.M. Cooley

J. of Prac. & Clinical L. 193, 202 (2010).
for

“Rapport,

Scenario,

and

Anatomy

Identification,

Closure,”

see

id.,

RATAC, an acronym

Touch

is

a

Inquiry,

Abuse

well-recognized

and

widely-accepted model for interviewing and questioning children
about
through

sexual
the

abuse.
steps

A

trained

sequentially

interviewer

and

begins

rapport and gaining the child’s trust.

generally

by

goes

establishing

a

The interviewer then

utilizes anatomical drawings “to identify different parts of the
body, to develop a common language,” for the child to use in
identifying body parts.

J.A. 210.

She then moves to the Touch

Inquiry, wherein the child is asked about “what parts of the
body may not be okay for someone to touch.”

J.A. 211.

Finally,

the interviewer delves into whether the allegations of abuse
have occurred – the “Abuse Scenario” – and ultimately reaches
closure with the child.
Of

particular

relevance

in

this

case

is

the

“Abuse

Scenario” component, pursuant to which the interviewer seeks to
determine if the allegations of abuse have actually occurred.
Generally, the interviewer “start[s] with open-ended questions”
and “use[s] the child’s spontaneity.”

J.A. 211.

However, the

interviewers are also taught to use direct questions, or yes-no
questions,

or

multiple

choice

when
23

necessary.

According

to

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J.A.

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46-47.

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At

that

point,

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JMLO

proceeded

to

describe

in

S.J.A. 55.
Based

on

the

results

of

the

RATAC

interview,

White’s

written assessment was “that th[e] child was sexually abused” as
described

in

detail

during

the

forensic

interview.

White

provided the following official disposition, pursuant to state
law:

“Sexual

Abuse

of

[JMLO]

is

ruled

‘Indicated,’

in

accordance with the provisions of [Maryland] Family Law Article
5-701 and [the Code of Maryland Regulations] 07.02.07.12 (A-2).”
S.J.A. 63.
Corporal Peter Georgiades of the Harford County Sheriff’s
Office was assigned to investigate the case and appeared at the
child advocacy center to monitor the interview of JMLO.

There

is no evidence in the record that Corporal Georgiades talked to
JMLO before the interview. There is no evidence in the record
that he knew JMLO or her mother or her father.

He was not

physically present in the room while White interviewed JMLO, but
instead observed what transpired from another room by means of a
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live video feed.

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Georgiades and White were able to communicate

by phone during the interview, which they did three times during
the 37 minutes White talked to JMLO.
Following the interview, JMLO’s mother called Osborne and
relayed what JMLO had described to White during the interview.
Law enforcement recorded the call.
Rather

than

seek

a

warrant

Osborne denied JMLO’s story.

immediately,

elected to continue the investigation.

Corporal

Georgiades

In particular, Corporal

Georgiades wanted to afford Osborne an opportunity to provide an
explanation for JMLO’s statements; however, Georgiades’ attempts
to contact Osborne were unsuccessful, despite Georgiades having
left his card at Osborne’s residence multiple times.
On November 3, 2010, Dr. Lomonico was advised by DSS that
JMLO had reported
S.J.A. 58.
Although Dr. Lomonico found “no physical signs in today’s exam
for sexual abuse,” he concluded that “[t]his does not rule out
abuse.”

S.J.A. 58.

Maryland law specifically provides that

“[p]hysical injury is not required for a finding of indicated
sexual abuse.”

Md. Code Regs. § 07.02.07.12(A)(2)(b); see also

Md. Code, Fam. Law § 5-701(b)(2) (defining “abuse” to include
“sexual
sustained

abuse
or

of

a

not.”).

child,

whether

Moreover,

physical

under

injuries

Maryland

law,

are
any

penetration, “however slight,” is sufficient to establish rape.
28

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Kackley v. State, 493 A.2d 364, 366 (Md. Ct. Spec. App. 1985).
White

later

testified

without

contradiction

that

“[i]n

my

experience there’s seldom trauma. . . . [W]hen a doctor, Dr.
Lomonico would look at a child, there is seldom evidence or an
observation

o[f]

physical

trauma.”

S.J.A.

34.

White’s

experience consisted of her investigation of an average of 100
cases a year, since 2004, amounting to over one thousand cases,
the majority of which were sexual abuse cases.
On

December

15,

2010,

six

weeks

after

the

initial

statements by JMLO, Corporal Georgiades met with the prosecutor,
Deputy State’s Attorney Diane Tobin, to have his case assessed.
After viewing the entire video of White’s interview of JMLO and
discussing

the

merits

of

the

case

with

Georgiades,

Tobin

accepted the case for prosecution.
Despite

the

go-ahead

from

the

prosecutor,

Corporal

Georgiades still persisted in his efforts to contact Osborne.
Even after leaving his card several more times, Georgiades was
not able to get Osborne to contact him.
Georgiades
believing
incidents.

contacted
her

to

be

Osborne’s
a

On January 14, 2011,

girlfriend

possible

witness

by
to

the

telephone,
reported

The girlfriend told Georgiades that Osborne did not

trust the police and would not contact them, but she agreed she
would encourage Osborne to call.

Finally, on January 24, 2011,

Osborne called Georgiades but explained that he wanted to talk
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with his attorney before saying anything else.

Osborne then

ended the call.
On January 24, 2011, Corporal Georgiades applied for an
arrest warrant.

After recounting the allegations from JMLO’s

mother in his warrant application, Georgiades expressly referred
to the recorded interview:

“[JMLO] was brought to the [child

advocacy center] on Monday 11/1/2010 and a forensic interview
was

conducted.

recorded.”

The

Interview

J.A. 160.

was

both

visually

and

audibly

Georgiades then briefly summarized the

portions of JMLO’s interview that supported probable cause to
believe that Osborne had sexually abused his daughter.
The arrest warrant was issued and Osborne was charged with
8 sexual-assault counts.
with

the

evidence

assault offenses.

issued

Subsequently, a grand jury presented
a

16-count

indictment

for

sexual-

Osborne was held in jail for more than 8

months pending trial.

Ultimately, the State’s Attorney’s Office

placed Osborne’s case on the “stet docket” rather than moving
forward to trial and released Osborne.
B.
Osborne

sued

the

police

officer.

He

asserted

under

42

U.S.C. § 1983 that his arrest by Corporal Georgiades constituted
an unreasonable seizure in contravention of the Fourth Amendment
because Corporal Georgiades (1) included “fabricated” evidence
in

the

warrant

application

in
30

that

he

knowingly

and

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intentionally induced JMLO to invent facts supporting the sexual
abuse allegations, see J.A. 330-31, and (2) omitted from his
application

for

an

arrest

warrant

JMLO’s

initial

denials

of

sexual abuse as well as the fact that a medical examination did
not reveal any physical trauma, see J.A. 332-33.
Corporal Georgiades moved for summary judgment on the basis
of

qualified

immunity.

The

district

court

denied

summary

judgment, ruling that (1) a reasonable jury could conclude that
Corporal

Georgiades

manufactured

the

case

against

Osborne

by

directing White to pose questions designed to mislead or confuse
JMLO

and

material
court

(2)
to

the

the

omissions

probable

reasoned

that

from

cause

“the

Georgiades’

affidavit

determination.

presence

of

this

The

were

district

contradictory

evidence” such as the initial denials from JMLO and the lack of
trauma findings by the examining doctor “could certainly negate
a

finding

of

probable

cause,”

meaning

that

“a

neutral,

reasonable judicial officer could choose to credit this evidence
over

the

evidence

(emphasis added).
show,

the

district

of

JMLO’s

account

of

abuse.”

J.A.

333

As to its first decision, for reasons I will
court

was

clearly

incorrect.

As

to

the

second ruling, the district court was wrong on the law, a point
acknowledged by the majority.
II.

31

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We review de novo a district court’s decision to deny a
summary judgment motion based on qualified immunity.
v.

Stansberry,

772

F.3d

340,

345

(4th

Cir.

See Danser

2014).

Summary

judgment is proper “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).

In § 1983 actions, government officials are entitled to
qualified immunity so long as they have not violated “clearly
established

statutory

or

constitutional

reasonable person would have known.”
U.S. 800, 818 (1982).

rights

of

which

a

Harlow v. Fitzgerald, 457

“Officials are not liable for bad guesses

in gray areas; they are liable for transgressing bright lines.”
S.P. v. City of Takoma Park, Md., 134 F.3d 260, 266 (4th Cir.
1998)

(internal

quotation

marks

omitted).

The

doctrine

of

qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law.”
U.S. 335, 341 (1986).
interests—the
they

exercise

need

to

power

Malley v. Briggs, 475

This doctrine “balances two important
hold

public

irresponsibly

officials
and

the

accountable
need

to

when

shield

officials from harassment, distraction, and liability when they
perform their duties reasonably.”
223, 231 (2009).

Pearson v. Callahan, 555 U.S.

It “gives government officials breathing room

to make reasonable but mistaken judgments.”

Stanton v. Sims,

134 S. Ct. 3, 5 (2013) (per curiam) (internal quotation marks
32

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omitted).
serves

The

two

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application

purposes:

unnecessary

trial

of

first,

where

the

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the
to

qualified
protect

doctrine

immunity

an

doctrine

officer

plainly

from

applies

an

at

the

pretrial stage, see Johnson v. Jones, 515 U.S. 304, 312 (1995),
and

second

to

prevent

liability

when

a

trial

resolves

facts

establishing that qualified immunity is applicable, see Merchant
v. Bauer, 677 F.3d 656, 665 n.6 (4th Cir. 2012).
In determining whether an officer is entitled to summary
judgment on the basis of qualified immunity, we employ a twopart inquiry.

See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014)

(per curiam).

Courts are “permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified
immunity

analysis

should

be

addressed

first

in

circumstances in the particular case at hand.”
U.S. at 236.

light

of

the

Pearson, 555

The first question is “whether the facts, viewed

in the light most favorable to the plaintiff, show that the
officer’s conduct violated a federal right.”

Smith v. Ray, 781

F.3d 95, 100 (4th Cir. 2015); see Saucier v. Katz, 533 U.S. 194,
201 (2001).

“The second [question] of the qualified-immunity

inquiry asks whether the right was clearly established at the
time the violation occurred such that a reasonable person would
have known that his conduct was unconstitutional.”

Ray, 781

F.3d at 100; see Ridpath v. Bd. of Governors Marshall Univ., 447
F.3d 292, 306 (4th Cir. 2006).
33

“The answer to both . . .

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questions must be in the affirmative in order for a plaintiff to
defeat a defendant police officer’s motion for summary judgment
on qualified immunity grounds.”

Miller v. Prince George’s Cty.,

Md., 475 F.3d 621, 627 (4th Cir. 2007) (internal alteration and
quotation marks omitted).

As neither question can be answered

in the affirmative in this case, Corporal Georgiades is entitled
to summary judgment based on qualified immunity.
A.

No Constitutional Violation

Osborne claims that he was arrested without probable cause
in

violation

unreasonable

of

the

seizures.

enforcement

officers

seizure

an

of

Fourth

unreasonable.”

Amendment’s

“The
from

individual

Fourth

making
effected

guarantee

against

Amendment

prohibits

law

unreasonable

seizures,

and

without

probable

cause

is

Brooks v. City of Winston–Salem, N.C., 85 F.3d

178, 183 (4th Cir. 1996).

Osborne was arrested pursuant to a

warrant, and the Fourth Amendment does not permit the issuance
of a warrant “but upon probable cause.”

U.S. Const. amend. IV.

An

valid

arrest

presumed

made
to

pursuant

rest

upon

to

a

facially

probable

cause,

and

warrant

Osborne

may

does

be
not

contend that the arrest warrant was invalid on its face.
Rather, Osborne claims that Corporal Georgiades misled the
magistrate
omitting

by

including

material

facts

facts
from

he
the

knew

to

warrant

be

false

and

application.

by
Our

analysis, therefore, is guided by Franks v. Delaware, 438 U.S.
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154 (1978), “as to whether asserted material false statements
and omissions in the . . . supporting affidavit[] . . . state a
constitutional claim.”
(4th Cir. 2012).
that

Corporal

Evans v. Chalmers, 703 F.3d 636, 649-50

To succeed on his claim, Osborne must prove

Georgiades

deliberately

or

with

a

“reckless

disregard for the truth” made false statements of material fact
in his affidavit, Franks, 438 U.S. at 171, or omitted from that
affidavit

“material

facts

with

the

intent

to

make,

or

in

reckless disregard of whether they thereby made, the affidavit
misleading,” United States v. Colkley, 899 F.2d 297, 300 (4th
Cir. 1990) (internal quotation marks omitted).

Furthermore, to

establish his claim, Osborne must prove that the fabricated or
omitted facts were material.

“It is well-established that a

false or misleading statement in a warrant affidavit does not
constitute a Fourth Amendment violation unless the statement is
necessary to the finding of probable cause.”

Wilkes v. Young,

28 F.3d 1362, 1365 (4th Cir. 1994) (emphasis added) (internal
quotation marks omitted).
1.

The Alleged False Statements in the Warrant Affidavit

Osborne contends that JMLO’s account of sexual abuse was
false, resulting from coercive interview techniques and pressure
applied by Corporal Georgiades.

And, according to Osborne, the

inclusion of this manufactured account in Georgiades’ warrant
affidavit

resulted

in

the

issuance
35

of

the

warrant

and

his

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unreasonable

seizure.

reasonable

jury

The

could

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district

certainly

court

found

conclude

that

that

“a

Corporal

Georgiades exerted pressure that resulted in the fabrication of
evidence against [Osborne]” based solely on the following:

that

Corporal Georgiades spoke by phone with White three times during
the interview and that Corporal Georgiades ended the interview
after JMLO indicated
J.A. 331.
The

district

absolutely

no

speculation.

court’s

support

in

conclusion,
the

in

record

and

my

view,

amounts

finds

to

rank

To survive summary judgment here, Osborne must

adduce

evidence

showing

caused

fabricated

or

that

Corporal

falsified

Georgiades

evidence.

See

deliberately
Devereaux

v.

Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc); Myers v.
Morris,

810

F.2d

1437,

1458

(8th

Cir.

1987)

(requiring

“a

specific affirmative showing of dishonesty”), abrogated on other
grounds, Burns v. Reed, 500 U.S. 478 (1991).

It is Osborne’s

burden

not

to

produce

evidence

of

fabrication,

Georgiades’

burden to negate it.
Georgiades asserted a general right to qualified immunity
in his opening brief to this court, but the majority is correct
that

he

did

not

specifically

challenge

the

district

court’s

ruling on the fabrication allegation. I think nevertheless we
should reach this issue for several reasons. First, Georgiades
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in his brief did claim the defense of qualified immunity. When
this defense is presented, a court may determine whether there
is

proof

that

constitutional

the

official

rights.

Second,

violated
the

record

there was no fabrication of evidence.

the

plaintiff’s

irrefutably

shows

There is not a shred of

evidence of any coercion or any fabrication of any type.
Georgiades’s

lawyer

used

a

substantial

portion

of

Third,

her

oral

argument to challenge the allegations of fabrication and she was
thoroughly

questioned

by

judges

on

the

panel

about

it,

all

without anyone objecting to its relevance or suggesting that
waiver precluded counsel from adressing the fabrication issue.
Fourth, given the importance of the interest the court has in
eliminating

baseless

claims

early

on,

I

would

take

this

opportunity to address and get rid of this allegation.
Osborne

presented

Georgiades

somehow

Osborne

sexual

of

absolutely

abuse,

and

evidence

JMLO

manipulated

no

into

the

district

falsely
court

sheer speculation in concluding otherwise.
basis

for

the

district

court’s

suggesting

that

accusing

relied

upon

The sole factual

opinion

was

that

Corporal

Georgiades and White spoke by telephone during the interview.
From

that

conjectured

fact

and

that

that

Georgiades

fact

alone,

directed

the

White

district

to

ask

court

questions

designed to manipulate JMLO into falsely accusing Osborne of
abuse.

The

majority

apparently
37

believes

we

are

bound

by

the

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opinion of the district court. If there were any facts in the
record to support his conclusion, I might agree. But this record
is completely devoid of any evidence that Officer Georgiades
exerted any pressure or fabricated any evidence.
First and foremost, the child had already told White about
Osborne’s
Osborne

molestation

had

done

to

of
her

her

and

before

described
there

was

in

detail

what

the

first

phone

conversation between Corporal Georgiades and White.
alone renders the fabrication claim frivolous.

This fact

Second, there is

absolutely no evidence in the record at all as to what was said
during

those

phone

conversations.

And,

third,

neither

the

district court in its order nor Osborne on appeal identified a
single improper question posed to JMLO during the interview,
which was recorded from start to finish and followed the widelyaccepted RATAC forensic interview model.
no

evidence

that

Georgiades

violated

Thus, there is simply

Osborne’s

constitutional

rights by causing fabricated evidence to be elicited during that
interview and this claim should be eliminated.
2.

Information Omitted from the Warrant Application

Osborne also claims that Corporal Georgiades deliberately
or with a reckless disregard for the truth omitted important
“contradictory

evidence”

from

the

warrant

application--namely

JMLO’s initial denials of abuse and the “dearth of any physical
evidence of abuse,” J.A. 333—in order to mislead the magistrate
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into

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issuing

judgment,
decide

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a

warrant.

concluding

that

(1)

Corporal

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The

district

that

a

Georgiades

court

reasonable
had

the

denied

summary

factfinder

requisite

could

intent

to

mislead the magistrate, and (2) that the omitted “contradictory
evidence”

was

material

because

finding of probable cause.”

it

“could

Id.

certainly

negate

a

In my view, and with due

respect for the district court, these decisions were clearly in
error.
a.
“To

satisfy

the

Intent

Franks’

intentional

or

reckless

falsity

requirement for an omission, the defendant must show that facts
were omitted with the intent to make, or in reckless disregard
of whether they thereby made, the affidavit misleading.”

United

States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008) (internal
quotation

marks

omitted).

That

is,

“the

omission

must

be

designed to mislead or must be made in reckless disregard of
whether it would mislead.”
alteration
defendant

omitted).
must

show

To
that

Id. (internal quotation marks and
establish
the

“reckless

“officer

failed

disregard,”
to

inform

the
the

judicial officer of facts he knew would negate probable cause.”
Miller, 475 F.3d at 627 (internal question marks and alteration
omitted).
Officers

applying

for

a

warrant

“cannot

be

expected

to

include in an affidavit every piece of information gathered in
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the course of an investigation,” Colkley, 899 F.2d at 300, and
they are “not required to include every piece of exculpatory
information in [such] affidavits,” Evans, 703 F.3d at 651.

Not

every omission amounts to a constitutional violation:
[B]ecause
every
piece
of
information
cannot
be
expected to be included, the very process of selecting
facts to include for the demonstration of probable
cause must also be a deliberate process of omitting
pieces of information. Certainly, such intentional
omissions do not satisfy the requirement of Franks. .
. .
[If] this type of intentional omission is all
that Franks requires, the Franks intent prerequisite
would be satisfied in almost every case. Accordingly,
merely showing an intentional omission of a fact from
a
warrant
affidavit
does
not
fulfill
Franks’
requirements.
Tate, 524 F.3d at 455 (internal quotation marks and citations
omitted).
Other than the mere fact that Corporal Georgiades omitted
JMLO’s initial denials and the inconclusive medical report, the
record

is

bereft

of

evidence

suggesting

that

he

misled

the

issuing magistrate intentionally or recklessly. In fact, all of
the evidence is to the contrary. Neither the district court nor
Osborne point to any evidence of the required intent other than
the fact that allegedly contradictory evidence was omitted.

The

district court concluded that a jury could infer the requisite
intent or recklessness from the mere fact of omission itself.
This court, however, has refused to embrace “the validity of
inferring bad motive under Franks from the fact of omission [of

40

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contradictory
collapses

Filed: 02/08/2017

information]

into

a

‘intentionality’
independently

alone,

single

and

Pg: 41 of 55

for

inquiry

such
the

‘materiality’—which

necessary.”

Colkley,

an
two

elements—

Franks

899

inference

F.2d

states

are

301.

In

at

Colkley, we concluded that the defendant failed to show that the
officer

applying

for

the

warrant

intended

to

mislead

the

magistrate even though he omitted from his affidavit the fact
that

none

of

the

six

eyewitnesses

were

able

to

identify

defendant out of a photo lineup and that he used only the height
description provided by one eyewitness but did not mention that
other witnesses indicated the bank robber was shorter than the
defendant.

See id. at 300-01.

Likewise, in Simmons v. Poe, we

held that an officer had not acted with a reckless disregard for
the truth where he included in his affidavit only the profile
factors

that

were

consistent

with

the

suspect

and

omitted

several inconsistent profile factors as well as the victim’s
initial belief that her attacker was of a different race.

See

47 F.3d 1370, 1383-84 (4th Cir. 1995).
The

record

does

not

create

any

question

of

fact

as

to

whether Georgiades omitted JMLO’s initial denials or the results
of

the

medical

examination

with

the

intent

to

mislead

magistrate or with a reckless disregard for the truth.

the

In fact,

I am unable to find any evidence in the record showing that
Georgiades

even

knew

about

the
41

existence

of

Dr.

Lomonico’s

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report before he applied for the warrant.
the

record

contains

facts

relating

Actually, insofar as

to

Corporal

Georgiades’

intent with regard to the arrest warrant, they suggest that he
harbored no deceit and wanted to make sure he covered all his
bases before arresting Osborne.
the little girl.

He had seen the interview of

The opinion of Dion White, the experienced

social worker who interviewed JMLO, was that sexual abuse of
JMLO had indeed occurred.

He knew the child’s father had told

her not to tell anybody about what he had done.

In addition,

prior to applying for the arrest warrant, Georgiades took the
recording of the interview to Tobin, the prosecutor, for her
assessment of the case.

After watching the interview, which

included JMLO’s initial denials, and discussing the merits of
the case with Georgiades, Tobin wanted to move forward with the
prosecution.
prosecutor

Only
did

application,

after

Georgiades

which

receiving
prepare

specifically

recording of JMLO’s interview.

the
and

stated

go-ahead
submit
that

from

his

the

warrant

there

was

a

Thus, he disclosed the video to

the magistrate who could have watched and seen for himself what
JMLO said if he so desired.
The

consultation

with

Tobin

shows,

at

the

least,

that

Georgiades fully disclosed his evidence to the legal expert who
was

assigned

by

the

State

of

Maryland

to

handle

the

case.

Georgiades also extended to Osborne numerous invitations to tell
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his side of the story.
to

“railroad”

Pg: 43 of 55

None of the evidence points to an intent

Osborne.

Accordingly,

Osborne

has

failed

to

establish the requisite intent required to sustain his claim
that Georgiades violated his constitutional rights.
b.
“It

is

Materiality

well-established

that

a

false

or

misleading

statement in a warrant affidavit does not constitute a Fourth
Amendment violation unless the statement is necessary to the
finding of probable cause.”

Wilkes, 28 F.3d at 1365 (emphasis

added) (internal quotation marks omitted).
alleges

that

an

officer

has

omitted

Where a plaintiff

material

facts,

he

must

establish that without such omissions there would have been no
probable

cause.

See

Miller,

475

F.3d

at

632

(“[T]he

Constitution [does] not permit a police officer deliberately, or
with

reckless

disregard

for

the

truth,

to

make

material

misrepresentations or omissions to seek a warrant that would
otherwise be without probable cause.”).
In

concluding

that

the

facts

omitted

from

Georgiades’

affidavit were material, the district court did not apply the
correct standard of materiality.

The district court stated that

the omitted facts had the “potential to negate probable cause”
and that a “reasonable judicial officer could choose to credit
this evidence over the evidence of JMLO’s account of abuse.”
J.A. 333.
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This

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court

rejected

Pg: 44 of 55

virtually

this

same

formulation

of

materiality in Colkley, where the district court “believed that
the

affiant’s

omission

was

material

because

it

‘may

have

affected the outcome’ of the probable cause determination.”
F.2d at 301.

899

We explained that the court had “misstated” the

Franks materiality standard, under which “an omission must do
more than potentially affect the probable cause determination:
it must be necessary to the finding of probable cause.”
(emphasis

added)

possibility

that

(internal
the

quotation

omitted

facts

marks
could

Id.

omitted). *
be

credited

The
by

a

magistrate over the facts included in the warrant affidavit does
not

make

such

facts

material

under

this

standard.

For

the

omitted facts to be material, their inclusion in the warrant
affidavit must necessarily defeat probable cause.

See id.

In order to assess the materiality of an omission, we must
insert the omitted information “and then determine whether or
*We

further noted that the idea that a warrant affidavit
must include “potentially exculpatory evidence” was akin “to
import[ing] the rule of Brady v. Maryland into the warrant
application process.”
United States v. Colkley, 899 F.2d 297,
302 (4th Cir. 1990) (internal citation omitted).
Brady is
concerned with the fairness of criminal trials and “with the
justice of the finding of guilt that is appropriate at trial,”
while Franks “recognizes that the information an affiant reports
. . . may not ultimately be accurate . . . so long as the
affiant did not deliberately mislead the magistrate.”
Id. at
303 (internal quotation marks omitted).
Thus, “a requirement
that all potentially exculpatory evidence be included in an
affidavit would severely disrupt the warrant process.” Id.

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not the ‘corrected’ warrant affidavit would establish probable
cause.”

Miller,

omitted).

475

F.3d

at

628

(internal

quotation

marks

Even if JMLO’s initial denials and the result of Dr.

Lomonico’s

examination

had

been

inserted

into

Corporal

Georgiades’ affidavit, there was still a sufficient basis for a
reasonable

jurist

to

find

described

the

statements

interview

and

included

activity

that

would

probable

made

by

details

have

been

cause.

JMLO

did

not

necessarily

negate

during

from

JMLO

beyond

the

experience of a typical five-year old.
JMLO’s

The

affidavit

her

regarding

forensic
sexual

understanding

and

And the medical report

claims,

as

Dr.

Lomonico

himself seemed to recognize, expressly stating that his exam did
not

rule

out

abuse.

The

conflicting

evidence

presented

a

question for the jury as to JMLO’s credibility and the ultimate
guilt of Osborne, but it did not necessarily defeat probable
cause for an arrest.
B.

No Clearly Established Constitutional Right

Because “[q]ualified immunity shields an officer from suit
when

[]he

deficient,

makes

a

decision

reasonably

that,

misapprehends

even
the

if

constitutionally

law

governing

the

circumstances,” we focus our inquiry on the body of law at the
time of the police conduct to determine “whether the officer had
fair

notice

that

[the]

conduct

was

unlawful.”

Haugen, 543 U.S. 194, 198 (2004) (per curiam).
45

Brosseau

v.

The clearly-

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established inquiry “must be undertaken in light of the specific
context

of

the

case,

not

as

Saucier, 533 U.S. at 201.

a

broad

general

proposition.”

But “[w]e do not require a case

directly on point” to find the requirement satisfied so long as
“existing precedent [has] placed the statutory or constitutional
question beyond debate.”

Ashcroft v. al–Kidd, 131 S. Ct. 2074,

2083 (2011) (internal quotation marks omitted).
In deciding whether an officer’s conduct violated clearly
established law, “we have long held that it is case law from
this

Circuit

and

the

Supreme

Court

that

whether a right is clearly established.”
312,

322

(4th

Cir.

2013)

provide

notice

of

Hill v. Crum, 727 F.3d

(internal

quotation

marks

and

alteration omitted).
In determining whether a right was clearly established
at the time of the claimed violation, courts in this
circuit ordinarily need not look beyond the decisions
of the Supreme Court, this court of appeals, and the
highest court of the state in which the cases arose. .
. . If a right is recognized in some other circuit,
but not in this one, an official will ordinarily
retain the immunity defense.
Id. (internal quotation marks omitted).
The

district

court

determined,

and

my

friends

in

the

majority agree, that Corporal Georgiades should have understood
that his conduct was unlawful because it was clearly established
in 2010 under Franks v. Delaware that an officer violates the
constitution by deliberately, or with a “reckless disregard for

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the

Doc: 50

truth,”

affidavit.

Filed: 02/08/2017

omitting

material

Pg: 47 of 55

facts

from

an

arrest

warrant

438 U.S. at 155-56.

Although

the

general

Franks

principle

well-established, we do not stop there.

is

unquestionably

The law requires that

we go farther and assess the right in a more particularized
sense in the context of the specific facts of this case.

As the

Supreme Court has admonished, courts must not “define clearly
established law at a high level of generality,” al-Kidd, 131 S.
Ct. at 2084, but rather must identify a constitutional right
that was “‘clearly established’ in a more particularized, and
hence more relevant, sense,” Anderson v. Creighton, 483 U.S.
635, 640 (1987).
Thus, even though it was clearly established on a general
level

that

an

officer

could

not

omit

material

facts

from

a

warrant application with a reckless disregard for the truth, the
contours of this right were not clearly established by Supreme
Court or Fourth Circuit precedent in the particularized context
of this case.

In light of cases such as Colkley and Simmons, it

was not clear that Officer Georgiades’ omissions, which would
not have defeated probable cause, were unconstitutional.

The

majority cannot cite a single case to show that the right they
claim was clearly established.

The general rule established by

Franks did not afford Corporal Georgiades fair notice that his
specific conduct was unlawful, and my friends in the majority
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cannot

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show

that

such

Pg: 48 of 55

conduct

was

contrary

to

clearly

established law.
III.
A.
Georgiades

argued

that

the

issuance

of

the

indictment

settled the question of whether there was probable cause for the
prior arrest of Osborne.

The indictment is regular on its face

and there are absolutely no allegations in Osborne’s complaint
asserting

any

wrongdoing

before the Grand Jury.

or

improprieties

in

the

proceedings

Likewise there is no evidence in the

Joint Appendix regarding what evidence the Grand Jury had before
it.

There being nothing out of the ordinary regarding the Grand

Jury proceedings or the indictment, I would not speculate about
what might have happened or what could have happened in the
Grand

Jury

room.

I

would

hold

at

the

very

least

that

the

indictment broke any chain of causation that might have existed.
See Durham v. Horner, 690 F.3d 183, 189-90 (4th Cir. 2012).
Besides,

there

was

an

independent

decision

made

by

the

prosecutor that the evidence was strong enough to go forward
with the case before Officer Georgiades ever sought a warrant.
It

is

merits

uncontradicted

that

Officer

of

with

Diane

his

case

Attorney, before making an arrest.

Georgiades
Tobin,

the

went
Deputy

over

the

State’s

Tobin watched the entire

video of the child’s statements, including the “denials” at the
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beginning of the interview and nevertheless accepted the case
for prosecution. We should remember here that in a malicious
prosecution context, similar in principle to the issues before
us, we quoted with approval the following statement:
A law enforcement officer who presents all relevant
probable cause evidence to a prosecutor . . . is
insulated from a malicious prosecution claim where
such intermediary makes an independent decision . . .
unless the officer (1) concealed or misrepresented
facts or (2) brought such undue pressure to bear on
the intermediary that the intermediary's independent
judgment was overborne.
Evans v. Chalmers, 703 F.3d 636, 648 (4th Cir. 2012) (internal
quotation marks omitted).
Here, there is no evidence either exception applies, and
the approval of the case for prosecution by the Deputy State’s
Attorney and her subsequent submission of the case to the Grand
Jury

should

because

he

insulate
sought

and

Officer

Georgiades

obtained

this

from

any

prosecutor's

liability
independent

evaluation before he ever applied for an arrest warrant.

She

saw the “denials” and still advised Officer Georgiades she would
go forward with the case.

Under these circumstances, no fault

can be attributed to the officer, and he should receive the
benefits

of

immunity

as

well

as

our

commendation

for

the

appropriate steps he took.
The majority would not reach this issue because it was not
argued to the district court. Although it does appear to be

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raised for the first time on appeal, I would reach it for two
reasons: First, Osborne did not object to this question being
before us and in fact briefed the issue for our consideration.
Second, there is no evidence, or even any allegations, of any
wrongdoing

with

regard

to

the

grand

jury

indictment

or

the

submission of the case to the prosecutor for a legal evaluation.
B.
My friends in the majority and I agree that the district
court used the wrong standard to evaluate the effect of the
omissions on the question of probable cause. The correct test is
whether

the

friends

do

reliable
view,

omissions
not

to

what

necessarily

believe

establish

the
even

five-year-old

negated

child’s
probable

JMLO

probable

responses
cause

relates

cause.

are

reasonably

because,

about

the

My

in

two

their
nights

cannot be squared with her initial denials and lack of physical
injury.

I must be watching a different interview video because

I see nothing that negates probable cause or warrants such a
dismissal of a five-year-old victim’s account of her abuse.
The events the child described happened on two separate
nights

that

necessary
exactly
nights.

her

for

what
What

experienced

father

the

her

interviewer

action
I

had

do

or

is

to

what

see

forensic

in

his

try

to

statements
a

bed,

make
were

five-year-old

interviewer—both
50

and

it

JMLO
made

girl

was

not

pinpoint
on

which

telling

verbally

an
and

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demonstratively with dolls—about sex acts committed on her.
it

strains

reason

manipulated

by

to

anyone

conclude
into

that

making

statements during the interview.

she

was

these

coached

graphic

And
or

sexual

As I pointed out earlier, the

“denials” that my friends make so much of do not bother me in
the least.
initial

I frankly do not see how a five year old child’s

refusal

to

talk

to

a

stranger

about

being

sexually

abused by her father, who has told her not to tell anyone about
what he did, can have anything more than a fleeting effect on an
evaluation

of

the

happened to her.

truthfulness

of

her

description

of

what

And the doctor’s report does not count for

much, as it is equivocal and expressly does not exclude the
prior

occurrence

of

some

type

of

sexual

abuse.

Given

that

sexual abuse does not necessarily result in trauma, I would not
hesitate

in

probable

cause

happened.

saying

the

doctor’s

established

by

report
JMLO’s

does

not

negate

descriptions

of

the
what

In short, the so-called omissions were not material

and do not come close to preventing the arrest of Osborne.
IV.
The majority relies on the prudential doctrine of waiver to
dispose of virtually every issue in this appeal, including the
question of whether the law was clearly established at the time
of Corporal Georgiades’s alleged constitutional violations.

An

appellate court, of course, always possesses discretion to reach
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an otherwise waived issue.

Pg: 52 of 55

See United States v. Vinson, 805

F.3d 120, 122 n.1 (4th Cir. 2015).

But the circumstances in the

case before us make it particularly appropriate that we exercise
our

discretion

to

decide

whether

the

law

was

clearly

established.
First,
reach

an

it

is

especially

otherwise

waived

proper

issue

that
that

if

an

appellate

issue

is

court

logically

antecedent to, and ultimately dispositive of, the dispute before
it.

For example, in United States National Bank of Oregon v.

Independent
concluded

Insurance
that

the

Agents

of

Eleventh

America,

Circuit

the

Court

Supreme

of

Court

Appeals

had

properly decided an issue first raised in supplemental postargument

briefing,

even

though

the

appellants

had

raise it in either their opening or reply brief.
439, 447 (1993).
issue

which

had

failed

to

See 508 U.S.

The Court reached this conclusion because the
not

been

raised

was

“antecedent

to”

and

“dispositive of” the question addressed in the opening brief.
Id.
The same reasoning applies here. The question of whether
the

law

was

clearly

established

is

“antecedent

to”

and,

if

decided in the appellants’ favor, “dispositive of” the issue
that

is

before

us

on

appeal—whether

Corporal

shielded from trial by qualified immunity.

Georgiades

is

If the law was not

clearly established, then it is irrelevant whether or Corporal
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Georgiades

Filed: 02/08/2017

actually

violated

Pg: 53 of 55

the

law

because

he

would

be

shielded by qualified immunity and, as a result, entitled to
judgment as a matter of law.

See Behrens v. Pelletier, 516 U.S.

299, 306 (1996) (“Unless the plaintiff's allegations state a
claim

of

violation

of

clearly

established

law,

a

defendant

pleading qualified immunity is entitled to dismissal before the
commencement of discovery.” (internal quotation marks omitted)).
Second, the standard policy bases for applying the waiver
doctrine

do

not

apply

immunity context.

with

the

same

force

in

the

qualified

Much like the final judgment rule, see 19

James Wm. Moore, Moore’s Federal Practice § 201.10[1] (3d ed.
2011) (“The purposes of the final judgment rule are to avoid
piecemeal litigation, [and] to promote judicial efficiency . . .
.”),

the

waiver

doctrine

aims

to

“preserve[]

judicial

resources,” United States v. Benton, 523 F.3d 424, 428 (4th Cir.
2008).

Qualified immunity is an “immunity from suit rather than

a mere defense to liability; and like an absolute immunity, it
is effectively lost if a case is erroneously permitted to go to
trial.”

Mitchell

Accordingly,

even

v.

Forsyth,

though

472

U.S.

interlocutory

511,

appeals

526
are

(1985).
generally

disfavored, immediate review of a district court’s denial of a
claim of qualified immunity is permitted “to the extent that it
turns on an issue of law.”

Id. at 530.

Likewise, in light of

the strong policy favoring an official’s “entitlement not to
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stand trial or face the other burdens of litigation,” id. at
526, we should exercise our discretion here and decide whether
the

law

was

clearly

established

at

the

time

of

the

alleged

violation—all the more so where, as here, the question is not
even close on the merits.
Finally,

the

majority’s

produces an ironic result.
qualified

immunity

in

dogged

application

of

waiver

Even if Georgiades did not raise

this

appeal,

he

raised

it

as

an

affirmative defense in his answer to the complaint and will thus
be permitted to press the defense when the case goes to trial.
In my view, the majority’s insistence on avoiding the merits and
applying the waiver rule in this case does nothing except kick
the can down the road.
V.
The

initial

experience

in

denials

child

by

sexual

JMLO

are

abuse

consistent

cases

where

with

common

threats,

or

innocent promises by children to keep a secret, are the norm and
easily account for the denials that are so familiar to those who
work

in

this

area.

physical trauma.

Likewise,

the

fact

that

there

was

no

The absence of this information in a warrant

application does not undermine the probable cause established by
this

five-year-old

girl’s

detailed

abuse by her father.

54

description

of

the

sexual

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Finally, the majority has elected not to publish this case.
The redeeming feature of this choice is that under our law this
case

cannot

qualified

be

used

immunity

in

the

purposes.

will be irrelevant.

future
In

that

as

legal

context,

authority

for

thankfully,

it

See Hogan v. Carter, 85 F.3d 1113, 1118

(4th Cir. 1996) (en banc) (“Since unpublished opinions are not
even regarded as binding precedent in our circuit, such opinions
cannot

be

violated

considered
clearly

in

deciding

established

law

whether
for

entitlement to qualified immunity.”).

particular

purposes

of

conduct

adjudging

Nevertheless, I dissent

because, in my view, the lower court decision must be reversed.

55