Farr v. Hall County, Georgia et al
Filing
63
ORDER granting Defendant's 51 Motion for Summary Judgment. Signed by Judge Richard W. Story on 03/18/13. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
BLAKE EUGENE FARR,
Plaintiff,
v.
STEVE BLACKWELL,
Defendant.
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CIVIL ACTION NO.
2:11-CV-0074-RWS
ORDER
This case comes before the Court on Defendant’s Motion for Summary
Judgment [51]. After reviewing the record, the Court enters the following
Order.
Background
Defendant Steve Blackwell (“Defendant”) is a Special Agent with the
Georgia Bureau of Investigation (“GBI”).1 Defendant is currently assigned to
the human trafficking unit of the GBI. Previously, he was assigned to the Child
Exploitation and Computer Crimes Unit, which focuses on individuals who are
trading child pornography via the internet or the Gnutella network.
1
Unless otherwise noted, the facts are taken from Defendant’s Statement of
Undisputed Facts (“Def.’s SUF”) [51-20].
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During his time with the child exploitation unit, Defendant received
training on the use of peer-to-peer networks, including BearShare, eMule,
eDonkey, and others. BearShare is software that can be utilized to gain access
to the Gnutella network. Using BearShare and a database that houses IP
addresses offering to trade child pornography, Defendant tracked an IP address
to Plaintiff’s residence. Defendant contacted Investigator Roe with the Forsyth
County Sheriff’s Office and learned that the computer belonged to Harold Farr,
Plaintiff’s father. After receiving the information from Roe, Defendant went to
the Hall County Sheriff’s Office to inquire about Harold Farr. Defendant was
informed that Farr Sr. was a former employee of the Sheriff’s Office and
Plaintiff was a current employee.
On April 1, 2008, Defendant again identified an IP address registered to
Harold Farr when he was searching the database for IP addresses offering child
pornography. However, the staff at the Hall County Sheriff’s Office told
Defendant that they did not believe Harold Farr had the skills to use a computer.
After identifying the IP address, Defendant made a live connection to the Farr
computer and retrieved files that contained titles consistent with those for child
pornography. Defendant then obtained a search warrant for the Farr residence,
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which was executed on May 15, 2008. Upon service of the search warrant, a
preview was performed on the computer at the residence. It appeared that there
was child pornography on the computer (videos that appeared to be child
pornography were found on the computer, but the ages of the children were not
confirmed).
On the day the search warrant was executed, Defendant interviewed
Plaintiff and Plaintiff’s wife, Tracy Farr. Tracy Farr denied downloading any
pornography to the computer. She stated that she had viewed pornography with
her husband, but she had not seen any child pornography. She advised
Defendant that her husband had downloaded pornography to the computer, but
it was all legal. Tracy Farr also stated that she and Plaintiff had been separated
since February 15, 2008, and that she came to the residence almost every day
but did not use the computer.
During his interview with Defendant, Plaintiff confirmed that he lived
alone at the residence that was the subject of the search warrant. Plaintiff
admitted viewing the pornography that was found on the computer, and said he
knew that pornographic movies with “teen” in the title were on the computer.
In fact, Plaintiff said he used the word “teen” when searching for pornography.
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Plaintiff told Defendant that Harold Farr could not operate a computer, and
gave only one other name (Craig Smith) of someone who may have been on the
computer, other than Plaintiff and his wife. Based on his interview with
Plaintiff, Defendant sought an arrest warrant for Plaintiff’s possession of child
pornography. Plaintiff was arrested, but his case was never brought before a
grand jury for indictment because the District Attorney did not think there was
sufficient evidence.
Plaintiff filed suit against several defendants, alleging various state and
federal law claims. This Court dismissed all claims and all defendants, except
the claim for malicious prosecution against Defendant Blackwell. (See Order,
Dkt. [30].) Defendant Blackwell has filed a motion for summary judgment on
the remaining claim against him.
Discussion
I.
Legal Standard - Summary Judgment
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “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.” “The moving
party bears ‘the initial responsibility of informing the . . . court of the basis for
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its motion, and identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.’”
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the
moving party makes such a showing, the burden shifts to the non-movant, who
must go beyond the pleadings and present affirmative evidence to show that a
genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
(11th Cir. 2002). But, the court is bound only to draw those inferences which
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are reasonable. “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
II.
Analysis
A.
Malicious Prosecution
To state a claim for malicious prosecution under 42 U.S.C. § 1983, a
plaintiff must show: (1) the elements of the common law tort of malicious
prosecution, and (2) a violation of his Fourth Amendment right to be free from
unreasonable seizures. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th
Cir. 2004) (citing Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003), cert.
denied, 540 U.S. 879 (2003)). In Georgia, the elements of common law
malicious prosecution are: (1) prosecution of Plaintiff for a criminal offense; (2)
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the prosecution was instigated under a valid warrant, accusation, or summons;
(3) the prosecution terminated in Plaintiff’s favor; (4) Defendant acted with
malice in instigating the prosecution; (5) Defendant lacked probable cause to
accuse Plaintiff of the crime; and (6) Plaintiff suffered damage as a result of the
prosecution. Gooch v. Tudor, 674 S.E.2d 331, 334 (Ga. Ct. App. 2009). At
issue here is: whether Plaintiff was prosecuted for a criminal offense, whether
Defendant had probable cause to accuse Plaintiff, and whether Defendant is
entitled to qualified immunity.
Defendant contends that no prosecution occurred because the case against
Plaintiff was never presented to a grand jury for indictment and other than an
initial bond hearing, no judge was involved in the matter. (Special Agent
Blackwell’s Brief in Support of His Motion for Summary Judgment (“Def.’s
MSJ Br.”), Dkt. [51-19] at 10-11; see also Defendant’s Statement of Undisputed
Facts (“Def.’s SUF”), Dkt. [51-20] ¶ 68.) Plaintiff responds that his arrest, the
hours he spent in jail, his appearance before Hall County Superior Court Judge
Deal for a bond hearing, and the assignment of a case number to the matter
constitute a “prosecution.” (Plaintiff’s Brief in Response and Memorandum of
Law in Opposition to Defendant Steve Blackwell’s Motion for Summary
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Judgment (“Pl.’s Resp. Br.”), Dkt. [56] at 4-7). The Court agrees with
Defendant.
Under Georgia law, “evidence of an inquiry before a committing court”
is “required to sustain a malicious prosecution claim.” McNeely v. Home
Depot, Inc., 621 S.E.2d 473, 474 (Ga. Ct. App. 2005). “For purposes of such a
claim, the prosecution must be ‘carried on’ . . . . If a person is merely arrested
pursuant to a warrant, a claim for malicious prosecution will not lie.” Id. at
475; see also Brown v. Lewis, 2009 WL 1457139, at *10 (M.D. Ga. May 22,
2009) (quoting Ferrell v. Mikula, 672 S.E.2d 7, 10 (Ga. Ct. App. 2008)
(distinguishing between false imprisonment, which is “unlawful detention
without judicial process, or without the involvement of a judge at any point;”
false or malicious arrest, which is “detention under process of law;” and
malicious prosecution, “which is detention with judicial process followed by
prosecution”).
In Branson v. Donaldson, 426 S.E.2d 218, 221 (Ga. Ct. App. 1992), the
Court found “sufficient ‘prosecution’ to provide the basis for a malicious
prosecution action” where the appellee “was brought before a magistrate who
asked questions and then bound his case over for the grand jury and set bond . .
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., even though appellee himself did not answer any questions.” In Branson, the
appellant swore out an arrest warrant charging appellee with criminal damage to
property and the magistrate made the determination about whether there was
sufficient evidence to turn the case over to a grand jury. Id. at 220. Appellee
was called to appear before the grand jury three times. Id. Eventually, the
district attorney dismissed the charge for insufficient evidence to prosecute. Id.
The Court finds that Branson is distinct from the case at bar in significant
respects. The facts here do not support a finding that a “prosecution” occurred.
An initial bond hearing is not equivalent to a hearing before a magistrate to
determine if there is sufficient evidence for a grand jury. A bond hearing
requires no evaluation of evidence or inquiry into the merits of a case.2 There is
no evidence in the record that Judge Deal questioned Plaintiff or did anything
other than set the bond amount. Furthermore, there is no evidence that Plaintiff
ever appeared before a grand jury.
2
Under O.C.G.A. § 17-6-1(e), “[a] court shall be authorized to release a person
on bail if the court finds that the person: (1) Poses no significant risk of fleeing from
the jurisdiction of the court or failing to appear in court when required; (2) Poses no
significant threat or danger to any person, to the community, or to any property in the
community; (3) Poses no significant risk of committing any felony pending trial; and
(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the
administration of justice.”
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In fact, in his Complaint, Plaintiff states repeatedly that he was never
indicted in connection with the allegations against him and he describes the
whole incident as a “false arrest.” (Complaint, Dkt. [1] ¶¶ 47, 64-67.) The
Complaint does not even mention bond, a judge, or any courtroom proceeding.
(Id.) Furthermore, Plaintiff’s Statement of Material Facts as to Which There is
a Genuine Issue [56-2] does not address the facts surrounding his alleged
“prosecution.” The first mention of a judge’s involvement or any court
proceeding is in Plaintiff’s response brief on summary judgment, and the brief
contains no citations to the record regarding this issue. (See Pl.’s Resp. Br.,
Dkt. [56] at 4-5.)
The cases cited by Plaintiff do not contradict this Court’s finding that
there was no prosecution here. In Gooch v. Tudor, 674 S.E.2d 331, 334 (Ga.
Ct. App. 2009), the issues were whether a party acted with malice in swearing
out a warrant and whether there was probable cause underlying the warrant.
Similarly, in Smith v. Embry, 119 S.E.2d 45 (Ga. Ct. App. 1961), overruled on
other grounds by Ferrell v. Mikula, 672 S.E.2d 7 (Ga. Ct. App. 2008), the Court
did not decide the issue of whether a prosecution had occurred. In fact, the
Court concluded that the plaintiff had not sufficiently identified his cause of
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action in his petition and was entitled to amend. Smith, 119 S.E.2d at 49. The
Court in Smith references Page v. Citizens’ Banking Co., 36 S.E. 418 (Ga.
1900), as a guide to determining “what constitutes the ‘carrying on’ of a
prosecution.” Id. at 49. Page says:
Where a search warrant is issued, and under authority
of the same the premises of the person named therein
are searched, and goods seized which are not
described in the affidavit, and the person named
therein is arrested and carried before a justice of the
peace, and, after the prosecutor is allowed a
reasonable time to secure evidence, he fails to do so,
and in open court announces that the prosecution
cannot make out a case . . . against the person
arrested, and asks that an order be entered discharging
the accused from custody, and restoring to him the
property which had been wrongfully seized, a
prosecution has been ‘carried on’ . . . . Especially
would this be true where the hearing was continued
from day to day, and pending the same the accused
was compelled, in order to obtain his liberty, to give a
bond for his appearance before the magistrate to
answer the charge . . . .
Again, this case is distinguishable. Following his arrest, the plaintiff in
Page went before a judge and the defendants “appeared to prosecute plaintiff,
with an attorney who was employed by [defendants]” and “such attorney did
represent the prosecution against plaintiff from its inception to its termination.”
36 S.E. at 419. When plaintiff asked to be released from custody on the
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grounds that the warrant was defective and void, the magistrate refused to order
his discharge “and the hearing was continued to the next day.” Id. Plaintiff
then posted a bond “to appear for a preliminary hearing on the next day for the
offense of larceny.” Id. The following day, the defendants requested a
continuance and “on their motion the case was again continued until the
following day, over the objection of petitioner, who was present and demanding
a hearing.” Id. “At the time fixed in this last order of postponement, petitioner
appeared with his counsel before the magistrate, and thereupon the prosecution,
by their attorney, asked leave of the court to withdraw the warrant.” Id. In all,
the plaintiff in Page was in constructive custody for 43 hours, appeared multiple
times for substantive hearings before a magistrate judge, and was confronted
with the defendants’ case in court.
Plaintiff presents no equivalent evidence of a prosecution. Based on the
foregoing, the Court finds that no “prosecution” took place here. Therefore,
Defendant’s motion for summary judgment should be GRANTED.
B.
Qualified Immunity
Defendant also argues that he is entitled to qualified immunity from
Plaintiff’s malicious prosecution claim. (Def.’s MSJ Br., Dkt. [51-19] at 18-
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23.) Defendants sued in their individual capacities for discretionary acts are
protected from suit by the doctrine of qualified immunity, unless those acts
violate “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). “To receive qualified immunity, a government official must first
prove that he was acting within his discretionary authority.” McDaniel v.
Yearwood, No: 2:11-CV-0165-RWS, 2012 WL 526078, at *13 (N.D. Ga. Feb.
16, 2012) (quoting Cottone v. Jenne, II, 326 F.3d 1352, 1357 (11th Cir. 2003)).
“Once the government official has satisfied this initial burden, the burden shifts
to the plaintiff to show that the official is not entitled to qualified immunity.”
Id. The latter part of the analysis is two-pronged. “First, the court addresses
the ‘threshold question’ of whether the facts as alleged, viewed in the light most
favorable to the plaintiff, establish a constitutional violation.” Id. (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)). “Only if there is a constitutional
violation does the court proceed to the second step to determine whether that
constitutional right was clearly established.” Id.
To show that a constitutional right was clearly established, a plaintiff
must show that “when the defendant acted, the law established the contours of a
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right so clearly that a reasonable official would have understood his acts were
unlawful.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)
(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To determine
whether an official would have understood his conduct to be lawful or unlawful,
parties and courts must look to case law at the time of the alleged violation.
“[T]he salient question is whether the law at the time of the alleged violation
gave officials ‘fair warning’ that their acts were unconstitutional.” McDaniel,
2012 WL 526078, at *13 (quoting Holmes v. Kucynda, 321 F.3d 1069, 1078
(11th Cir. 2003)). “If case law, in factual terms, has not staked out a bright line,
qualified immunity almost always protects the defendant.” Post, 7 F.3d at 1557.
Here, the parties do not dispute that Defendant was acting within his
discretionary authority as an agent of the GBI. (Pl.’s Resp. Br., Dkt. [56] at 19.)
Therefore, the burden is on Plaintiff to show that Defendant is not entitled to
immunity. As to the threshold question of whether a constitutional violation
occurred, the Court has already held that Plaintiff was not prosecuted and
therefore, Plaintiff’s action for malicious prosecution should fail. (See
discussion in Part II.A., supra.) However, in an abundance of caution, the Court
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will address the second prong of the qualified immunity analysis – whether a
clearly established constitutional right was violated.
“To receive qualified immunity, an officer need not have actual probable
cause, but only ‘arguable’ probable cause.” Brown v. City of Huntsville, Ala.,
608 F.3d 724, 734, (11th Cir. 2010) (citing Holmes v. Kucynda, 321 F.3d 1069,
1079 (11th Cir. 2003); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)).
“Arguable probable cause exists where ‘reasonable officers in the same
circumstances and possessing the same knowledge as the Defendants could
have believed that probable cause existed to arrest Plaintiff.’” Id. (quoting
Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)). “Indeed, it
is inevitable that law enforcement officials will in some cases reasonably but
mistakenly conclude that probable cause is present, and in such cases those
officials should not be held personally liable.” Id. at 734-35 (internal
quotations omitted). “The standard is an objective one and does not include an
inquiry in to the officer’s subjective intent or beliefs.” Id. at 735.
Defendant argues that based on the totality of the circumstances, he had
probable cause – and certainly arguable probable cause – to believe that
O.C.G.A. § 16-12-100(b)(8), which prohibits exploitation of children, had been
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violated by Plaintiff. (Def.’s MSJ Br., Dkt. [51-19] at 20-21.) Specifically, in
swearing out the arrest warrant, Defendant relied on the presence of known
child pornography on the computer located at the residence where Plaintiff
lived alone, an admission by Plaintiff that he had viewed the known child
pornography, and an admission by Plaintiff that he used the software that held
the child pornography and used search terms likely to retrieve child
pornography. (Id.)
Plaintiff responds that Defendant omitted critical facts to the Magistrate
when swearing out the warrant for Plaintiff’s arrest. (Pl.’s Resp. Br., Dkt. [56]
at 21.) Specifically, Defendant did not disclose to the magistrate that: (1) the
internet account was not registered to Plaintiff; (2) the BearShare account was
not registered to Plaintiff; (3) many people had access to the internet account
and the computer located in the Plaintiff’s home; (4) Defendant failed to
interview Harold Farr or Craig Smith; (5) Mrs. Farr admitted to viewing
pornography on the computer; (6) the GBI did not know when the file was
downloaded or by whom; and (7) Plaintiff did not have knowledge that the
people in the file were underage. (Id. at 22.) Plaintiff contends that these
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omitted facts would lead a reasonable person to request further investigation
before issuing a warrant.
“Whether an officer possesses probable cause or arguable probable cause
depends on the elements of the alleged crime and the operative fact pattern.”
City of Huntsville, Ala., 608 F.3d at 735. “Showing arguable probable cause
does not, however, require proving every element of a crime.” Id. O.C.G.A. §
16-12-100(b)(8) makes it “unlawful for any person knowingly to possess or
control any material which depicts a minor or a portion of a minor’s body
engaged in any sexually explicit conduct.” One element of the crime, therefore,
is knowledge that the subjects in the pornography are underage. Plaintiff
emphasizes throughout his brief that he did not know the people in the video
were underage, and that neither Defendant nor the District Attorney could say
that the people in the videos were readily identifiable by a layperson as
underage. (See, e.g., Pl.’s Resp. Br., Dkt. [56] at 9, 12.) According to Plaintiff,
Defendant’s failure to disclose this fact (and the other facts listed above) to the
Magistrate rendered the arrest illegal. (Pl.’s Resp. Br., Dkt. [56] at 22-23.)
Plaintiff must meet the burden of showing, “in light of pre-existing law,
the facts omitted in this case were clearly material (that is, that the facts omitted
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clearly would have negated probable cause if those facts had been included).”
Haygood v. Johnson, 70 F.3d 92, 95 (11th Cir. 1995). Put another way,
Plaintiff must show that the facts omitted here were so clearly material that
every reasonable law officer would have known that their omission would lead
to an arrest in violation of federal law. Id. Defendant argues that Plaintiff has
not met this burden. The Court agrees.
In Haygood, the court concluded that the combination of omitted facts
“might for some reasonable police officers be insufficient to negate probable
cause.” 70 F.3d at 95. In that case, the officer failed to disclose in his warrant
application that the suspect had used an alias, that the tape recorder used during
a sting operation had turned off, and that the quantity of drugs allegedly
purchased exceeded the expected quantity by about fifty percent. Id. The
officer had, however, “been physically present at what looked by all
appearances to be a typical drug deal: he had witnessed a meeting in a
convenience store, a brief drive with no destination, a conversation in a
darkened automobile in a darkened corner of a parking lot, and the presentation
of what looked to be drugs promised by the informant.” Id. The court reasoned
that, “[h]aving seen those occurrences firsthand, a reasonable officer . . . could
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have concluded that [the omitted facts] would not negate probable cause and,
thus, were not material.” Id.
Here, Defendant had information obtained through the computer
programs that child pornography was on the computer in Plaintiff’s home.
More importantly, however, Defendant personally interviewed Plaintiff and
Plaintiff admitted that he had viewed and downloaded pornography on the
computer, and that he used “teen” in his searches for pornography.
Furthermore, Plaintiff admitted to Defendant that he lived alone, that his father,
Harold Farr, could not operate a computer, and that Craig Smith hardly ever
used the computer. Given the information Defendant obtained directly from
Plaintiff, a reasonable officer could have concluded that the omitted facts would
not negate probable cause.
Defendant also relies on Scarbrough v. Myles, 245 F.3d 1299 (11th Cir.
2001). In that case, plaintiffs were arrested for knowingly selling products with
unauthorized trademarks. Scarbrough, 245 F.3d at 1302 n.7. The plaintiffs
argued that their arrests lacked probable cause because the officer had no
evidence at the time of arrest that the plaintiffs knew that the products infringed
a trademark. Id. at 1302. The district court agreed with plaintiffs and denied
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the officer qualified immunity. Id. The Eleventh Circuit disagreed with the
district court’s conclusion, stating: “Arguable probable cause does not require
any arresting officer to prove every element of a crime or to obtain a confession
before making an arrest, which would negate the concept of probable cause and
transform arresting officers into prosecutors.” Id. at 1302-03. The Court finds
Scarbrough persuasive here. Notably, Plaintiff has not identified any
competing authority showing that Defendant violated a “clearly established”
constitutional right.
Even though Defendant did not have evidence that Plaintiff knew the
people in the videos were underage at the time of arrest, he still had arguable
probable cause. The Court cannot say, based on existing case law, that every
reasonable officer would have known that the omitted facts would negate
probable cause. Therefore, Defendant did not violate a clearly established
constitutional right and he is entitled to qualified immunity.
Conclusion
Based on the foregoing, Defendant’s Motion for Summary Judgment [51]
is GRANTED.
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SO ORDERED, this 18th day of March, 2013.
________________________________
RICHARD W. STORY
United States District Judge
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