Murphy et al v. Anne Arundel County, Maryland et al
Filing
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MEMORANDUM AND ORDER denying 5 Motion of Anne Arundel County, Maryland andDetective Cornwell's to Dismiss for Failure to State a Claim. Signed by Judge Marvin J. Garbis on 11/7/12. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DONALD MURPHY, et al.
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Plaintiffs
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vs.
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ANNE ARUNDEL COUNTY, MD,
et al.
Defendants
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CIVIL ACTION NO. MJG-12-1533
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MEMORANDUM AND ORDER RE: MOTION TO DISMISS
The Court has before it the Motion to Dismiss filed by
Defendants Anne Arundel County, Maryland and Detective Clarence
Cornwell [Document 5], and the materials submitted relating
thereto.
I.
The Court finds a hearing unnecessary.
BACKGROUND1
The instant case grows out of the fact that an innocent man
named Christopher Gale ("GALE") was wrongly identified as having
committed a shooting actually perpetrated by a man named
Christopher Gayle ("GAYLE").
Consequently, the police obtained
a warrant to search GALE and a home with which GALE was
connected ("the Murphy home").
On March 29, 2011, GAYLE shot Ricky Ernest Johnson, Jr.
("Johnson") in the presence of Jerome Herbert ("Herbert") at
1
The "facts" stated herein are as alleged by Plaintiffs and
not necessarily agreed upon by Defendants.
Marley Station Mall in Anne Arundel County, Maryland.
Detective
Clarence Cornwell ("Detective Cornwell") investigated the
shooting.
At the onset of the investigation, police dispatch advised
that a gray Honda was seen leaving the scene of the shooting.
Also the affidavit at issue states that "A short time later
[after a lookout was given for the gray Honda] a silver colored
Honda was seen [by someone not specified] traveling at a high
rate of speed in excess of 100 mph on router (sic) 32 near the
Anne Arundel County – Howard County line."2
A map check reveals
that the closest location on Route 32 near the said County line
would be in excess of about 15 miles from Marley Station Mall.
On March 30, 2011, a detective from another unit informed
Detective Cornwell that a confidential informant had provided
information that "Christopher Gale [spelled as in Cornwell's
report]; a black male was the driver of the vehicle that was
involved in the shooting."
Compl. ¶ 9.
Further investigation
revealed that GALE (not GAYLE) had been stopped by police on
February 20, 2009, driving a silver Honda with the license plate
2DHZ97 (emphasis added).
Motor Vehicle records showed this
2
The warrant application and affidavit are attached to the
Complaint and, therefore, proper for consideration on a 12(b)(6)
motion. See Sec'y of State For Def. v. Trimble Navigation Ltd.,
484 F.3d 700, 705 (4th Cir. 2007) (explaining that in reviewing
a motion under Rule 12(b)(6), a court "may consider documents
attached to the complaint").
2
vehicle was registered to Erin Murphy of 18019 Shaffers Mill
Road, Mount Airy, Howard County, Maryland (the "Murphy home").
According to Detective Cornwell's report, on March 31,
2011, Sergeant Wells of the Northern District of the Anne
Arundel County Police Department ("Sgt. Wells") received a tip
from an anonymous caller stating that a car with tag number
2DGZ97 (emphasis added) was involved in the shooting at Marley
Station (the "Second Tip").
On April 4, 2011, police observed
Erin Murphy's silver Honda bearing the tag number 2DHZ97 in the
driveway of the Murphy home.
The police also verified that both
Erin Murphy and GALE used the Murphy home address when
registering for classes at Howard County Community College that
year.
On April 7, 2011, Detective Cornwell met with Johnson and
showed him a photographic line-up that included GALE's (not
GAYLE's) photograph.
Johnson did not identify GALE as the
shooter and stated "he didn't think the shooter was in the lineup."
Compl. ¶ 12.
On that same date, Detective Cornwell
interviewed Herbert who identified the shooter as "Chris Gale"
(meaning GAYLE) and confirmed the shooter left the scene of the
crime in a "little darker than the champagne colored Honda."
Id. at 15.
Herbert also stated he knew the shooter because they
attended high school together and were recently reacquainted.
However, when shown the same photographic line-up as that shown
3
to Johnson, Herbert stated "Chris Gale [GAYLE] is not in there."
Id. ¶ 13.
On April 8, 2011, Detective Cornwell swore out an affidavit
in support of his application for a search and seizure warrant
to search GALE and the Murphy home.3
Although the affidavit
recounted part of Detective Cornwell's interview with Herbert,
the affidavit omitted the failure of Herbert and Johnson to
identify GALE in the photographic line-up and that Herbert
stated he knew the shooter from high school.
Additionally,
Cornwell recounted in his affidavit the Second Tip regarding the
license plate and declared "[t]here is only a one character
difference between information received from this anonymous tip
and Murphy's silver Honda."
Police later determined that the
license plate on the Honda actually driven by GAYLE on the night
of the shooting was 7FSF44.
The tag number on Erin Murphy's
Honda, 2DHZ97, shares no characters in common with the tag
number on the Honda involved in the shooting.
On April 11, 2011, based on Cornwell's affidavit, a judge
issued a no-knock search warrant for the Murphy home. Later that
night, the Howard County SWAT team executed the search warrant.
At the time of execution, Plaintiffs Donald Murphy, Bonnie
Murphy, Erin Murphy, and Jill Murphy were asleep in the Murphy
3
GALE is not a Plaintiff in the present action.
4
home.
During the search, the Plaintiffs were handcuffed and
questioned in their home by the SWAT team.
Thereafter, the
police arrested GALE, but released him and dropped all charges
hours later.
Detective Cornwell then identified GAYLE as the proper
suspect and obtained a warrant for his arrest on April 12, 2011.
Plaintiffs, members of the Murphy family who were present
when the police executed the search warrant, filed the instant
suit against Anne Arundel County, Maryland (the "County"),
Detective Cornwell, and other unknown officers yet to be named
in the Circuit Court for Howard County.
The Defendants removed
the case to this court pursuant to Federal Rule of Civil
Procedure 81(c) and 28 U.S.C. § 1441, et seq. [Document 1].4
Complaint presents claims in two Counts:
Count 1- 42 U.S.C. Section 1983- Unreasonable Search
and Seizure and Due Process of Law
Count 2- Maryland Constitutional Violation (Articles
24 and 26 of the Maryland Constitution)
By the instant Motion, the County and Detective Cornwell
seek dismissal of all claims pending against them pursuant to
Rule 12(b)(6).
4
All "Rule" references herein are to the Federal Rules of
Civil Procedure.
5
The
II. DISMISSAL STANDARD
A motion to dismiss filed pursuant to Rule 12(b) (6) tests
the legal sufficiency of a complaint.
A complaint need only
contain "a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the ... claim is and the grounds
upon which it rests."
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (citations omitted).
When evaluating a 12(b)(6)
motion to dismiss, a plaintiff's well-pleaded allegations are
accepted as true and the complaint is viewed in the light most
favorable to the plaintiff.
However, conclusory statements or a
"formulaic recitation of the elements of a cause of action" will
not suffice.
Id.
A complaint must allege sufficient facts to
"cross 'the line between possibility and plausibility of
entitlement to relief.'"
Francis v. Giacomelli, 588 F.3d 186,
193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is "a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Id.
Thus,
if the well-pleaded facts contained within a complaint "do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown –
that the pleader is entitled to relief."
6
Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009)) (internal quotation marks
omitted).
III. DISCUSSION
Plaintiffs allege that Detective Cornwell knowingly or
recklessly submitted a warrant affidavit containing material
false information and omissions in support of the search warrant
executed upon Plaintiffs' property in violation of Plaintiffs'
rights under the Fourth and Fourteenth Amendments of the Federal
Constitution and Articles 24 and 26 of the Maryland Declaration
of Rights.
Defendants contend that the Complaint does not
allege facts sufficient to support a plausible claim that a
constitutional violation occurred and also contend that
Detective Cornwell is entitled to qualified immunity.
A.
Constitutional Violation
1.
Legal Principles
Title 42 U.S.C. § 1983 prohibits a person acting under the
color of law from depriving another of "any rights, privileges,
or immunities secured by the Constitution and laws."
The Fourth
Amendment, applicable to the States through the Fourteenth
Amendment, see Mapp v. Ohio, 367 U.S. 643, 654-55 (1961),
protects individuals from unreasonable searches and seizures
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conducted by law enforcement.5
U.S. Const. amend. IV.
A search
or seizure effected without probable cause or upon a warrant
unsupported by probable cause is unreasonable and actionable
under § 1983.
See Brooks v. City of Winston-Salem, 85 F.3d 178,
183-84 (4th Cir. 1996).
A facially sufficient warrant will be
considered unsupported by probable cause when a law enforcement
agent submits a dishonest warrant affidavit to the issuing
judicial officer and the party challenging the validity of the
warrant can satisfy the two-part test outlined in Franks v.
Delaware, 438 U.S. 154 (1978).
A warrant is considered unsupported by probable cause due
to a dishonest affidavit if (1) the affiant "deliberately or
with a reckless disregard for the truth" made a false statement
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" and (2) the false
5
Like the Fourth Amendment, Articles 24 and 26 of the
Maryland Declaration of Rights protect persons against
unreasonable searches and seizures effected by law enforcement.
Md. Const. Decl. of Rts. art. 24, 26. State constitutional
claims under Articles 24 and 26 of the Maryland Declaration of
Rights are construed in pari materia to Fourth Amendment claims.
See Pickett v. Sears, Roebuck & Co., 775 A.2d 1218, 1224 (Md.
2001). As a result, the analysis for the Maryland Declaration
of Rights claim is identical to that for the Fourth Amendment of
the Federal Constitution. Accordingly, the Court's Memorandum
will address the issue of constitutional violation without
distinction between the Maryland Declaration of Rights and the
Federal Constitution.
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statements or omissions were material or "necessary to the
neutral and disinterested magistrate's finding of probable
cause."
Miller v. Prince George's Cnty., 475 F.3d 621, 627-28
(4th Cir. 2007) (internal citations and quotations omitted).
With respect to false statements, reckless disregard can be
shown by evidence that the officer acted "with a high degree of
awareness of a statement's probable falsity" or by establishing
that "when viewing all the evidence, the affiant must have
entertained serious doubts as to the truth of his statements or
had obvious reasons to doubt the accuracy of the information he
reported."
Id.
Concerning omissions, a plaintiff can establish
the requisite intent by showing the affiant "failed to inform
the judicial officer of facts he knew would negate probable
cause."
Id.
Allegations of negligence or innocent mistake by a
law enforcement affiant do not provide the basis for a
constitutional violation.
Id.
Further, false statements or omissions made by the affiant
with the requisite intent will violate the Fourth Amendment only
if the false statements or omissions are material or necessary
to the finding of probable cause.
Franks, 438 U.S. at 155-56.
"To determine materiality, a court must 'excise the offending
inaccuracies and insert the facts recklessly omitted, and then
determine whether or not the 'corrected' warrant affidavit would
establish probable cause.'"
Miller 475 F.3d at 628 (quoting
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Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)).
If the
"corrected" warrant affidavit establishes probable cause, no
civil liability lies against the law enforcement affiant.
2.
Adequacy of the Complaint
The Plaintiffs' allege that Detective Cornwell deliberately
or with reckless disregard (1) falsely stated that police had
received the Second Tip regarding the tag number, (2) omitted
the fact that Johnson and Herbert, when shown a photographic
line-up including GALE, did not identify GALE as the shooter,
and (3) omitted the fact that Herbert represented he knew the
shooter from high school.
a.
Intent
i.
False Statements
Plaintiffs' assert that Detective Cornwell fabricated the
Second Tip and thus knowingly or deliberately included false
information in his affidavit.6
The tag number provided in the
6
In the Complaint, the Plaintiffs do not expressly state
Detective Cornwell, as opposed to another police officer, madeup the Second Tip, but allege "[t]here was no such tip, and
there could not possibly have been such a tip. It had to be
created or concocted so that Cornw[e]ll could link [GALE], and
thus the Murphy family, to the crime so that search warrants
could be issued from the Murphy home and Erin Murphy's car."
Compl. ¶ 15. In the Opposition, Plaintiffs contend explicitly
that Detective Cornwell concocted the Second Tip. Pls.' Opp'n
[Document 13], at 3-4. While limiting the analysis to the
Complaint above, the Court finds the factual allegations
sufficient to present a plausible claim that Detective Cornwell
participated in the chain of events leading to the false
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Second Tip has no characters in common with the tag number on
the Honda actually driven by GAYLE on the night of the shooting,
but is coincidently similar to the tag number on the car (Erin
Murphy's Honda) in which GALE had received a ticket.
It is at
least plausible that a police officer investigating GALE would
find the traffic offense, note the similarity of the GALE
vehicle with the type of car reportedly driven by the shooter,
and then "supplement" the tipster's information with a tag
number almost identical to the GALE vehicle.
The Defendants do not assert that the Complaint fails to
allege a plausible claim that the Second Tip was fabricated.
Rather, Defendants contend Plaintiffs failed to plead facts
sufficient to show Detective Cornwell knew or had reason to know
the Second Tip, relayed to him by Sgt. Wells, was fake.
Court does not agree.
The
The allegations are sufficient to present
a plausible claim that Cornwell participated in, or knew of, the
falsity of the Second Tip.
It may well be that the evidence
will fail to establish this.
Indeed, Defendants have presented
an email that they contend supports this position.
However, on
a Rule 12(b)(6) motion, the Court may not consider documents
attached to a dismissal motion without converting the motion
into one for summary judgment unless such extrinsic evidence was
statement in the affidavit. Put plainly, the tag number
"coincidence" fails "the smell test."
11
"integral to and explicitly relied on in the complaint" and the
plaintiff does not challenge its authenticity.
Am. Chiropractic
Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004) (internal quotations and citations omitted) (emphasis
added).
The Court will not convert the instant motion to one
for summary judgment, and notes that Plaintiffs have had no
opportunity for discovery that may well present the existence of
genuine issues of material fact.
ii.
Omissions
The Defendants' contend the Complaint fails to allege facts
sufficient to state a plausible claim that Detective Cornwell
acted with the requisite intent when he omitted information
regarding the photographic line-ups from his affidavit because
police officers are not required to include every piece of
potentially exculpatory evidence in a warrant affidavit.
As recognized by the Supreme Court, affidavits are
"normally drafted by nonlawyers in the midst and haste of a
criminal investigation" and affiants "cannot be expected to
include in an affidavit every piece of information gathered in
the course of an investigation."
United States v. Ventresca,
380 U.S. 102, 108 (1965); United States v. Colkley, 899 F.2d
297, 300 (4th Cir. 1990).
In accordance with this principle,
the Fourth Circuit has confirmed that the Fourth Amendment does
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not require an affiant to include all potentially exculpatory
evidence in an affidavit because such a mandate would in essence
import the due process requirements of Brady into the Fourth
Amendment and impose undue burdens on law enforcement officers
seeking warrants.
See Colkley, 899 F.2d at 301-02 (noting "the
affirmative inclusion of false information in an affidavit is
more likely to present a question of impermissible official
conduct than a failure to include a matter that might be
construed as exculpatory").
Although a law enforcement officer need not include all
exculpatory information in a warrant affidavit, he or she cannot
purposefully exclude information in order to mislead the party
responsible for evaluating whether the warrant affidavit
establishes probable cause.
See Miller, 475 F.3d at 632
(finding jury could conclude officer made misrepresentations and
omissions in arrest warrant affidavit with requisite intent
where evidence existed to support that warrant falsely stated
suspect was African American and witness provided plaintiff's
tag number to police); Bearnarth v. Montgomery Cnty., DKC-090501, 2011 WL 665325, at *8 (D. Md. Feb. 14, 2011).
Here,
Detective Cornwell omitted from his affidavit the fact that the
only two eyewitnesses to the shooting known at the time, Herbert
(who said he knew the shooter from high school) and Johnson,
failed to identify GALE as the shooter in the photographic line13
up.
The omission is particularly significant because Detective
Cornwell included in his affidavit the fact that Herbert, who
witnessed the shooting at close range, identified the shooter as
a "Chris Gale" (spelling in affidavit).
The affidavit's
treatment of this information is sufficient to create a
plausible claim that the omission was designed to mislead the
judge.
The Defendants contend that Detective Cornwell omitted the
photographic line-up information because he "did not place much
stock in Johnson's and Herbert's failure to identify" GALE
"because he suspected that Johnson and Herbert simply did not
want to get involved in the criminal proceedings."
contention is hardly irrefutable.
This
Indeed, Herbert's conduct was
hardly indicative of a person who did not want to get involved
with a criminal proceeding.
Herbert made himself a key
prosecution witness by identifying the shooter as a person he
knew from high school and with whom he had recently become
reacquainted.
Of course, the defense can choose to present
this contention for the evaluation of the trier of fact.
However, the issue now presented is not whether the Defendants
can present a plausible innocent excuse for the omission.
At the dismissal stage, the Court must assume all of the
factual allegations in the Complaint to be true, must resolve
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all doubts and inferences in favor of the Plaintiffs, and must
view the allegations in a light most favorable to the
Plaintiffs.
See Edwards v. City of Goldsboro, 178 F.3d 231,
243-44 (4th Cir. 1999).
The Court is cognizant that "imposition of broad liability
for omissions in warrant applications would paralyze law
enforcement by requiring that a warrant application contain a
complete, voluminous recitation of every fact known to the
police which would be exculpatory, rather than a simple
statement of facts establishing probable clause."
Smith v.
Reddy, 882 F. Supp. 497, 501 (D. Md. 1995) aff'd, 101 F.3d 351
(4th Cir. 1996) (granting summary judgment to police officer on
qualified immunity grounds where officer omitted from arrest
warrant affidavit information as to witness's intoxication and
plaintiff's age and criminal history).
However, the Court finds
the Complaint contains allegation and facts sufficient to state
a plausible claim that Detective Cornwell omitted information
regarding the photographic line-ups from his affidavit with the
intent to make, or with reckless disregard of whether such
omissions thereby made, his affidavit misleading.
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b.
Materiality
The Court has determined that the Complaint contains facts
sufficient to state a plausible claim that the alleged
misstatements and omissions in the affidavit were made by
Detective Cornwell with the requisite intent.
Of course, no
viable constitutional violation will lie unless these
misstatements and omissions were material, or necessary, for a
finding of probable cause to search the Murphy home.7
Miller,
475 F.3d at 628.
7
There is authority in the Fourth Circuit supporting the
proposition that the ultimate question of materiality in a
Section 1983 dishonest warrant affidavit context is a question
of law to be determined by the court, though questions of fact
may exist as to the nature of the omitted information to be
included in a "cleansed" affidavit. See Smith v. Reddy, 882 F.
Supp. 497, 500 (D. Md. 1995) aff'd, 101 F.3d 351 (4th Cir. 1996)
(explaining materiality "is ultimately a question of law ");
Bearnarth v. Montgomery Cnty., DKC-09-0501, 2011 WL 665325, at
*7 (D. Md. Feb. 14, 2011) (explaining the court does not rely on
the testimony of the judicial officer who issued a warrant as
proof of probable cause, but makes its own determination by
examining the corrected affidavit). Some circuits consider the
existence of probable cause in the context of a Section 1983
claim to generally be a question of fact. See Sherwood v.
Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997) (explaining in
dishonest affidavit case that "[t]ypically, the existence of
probable cause in a section 1983 action is a question of fact .
. . The district court may conclude in the appropriate case,
however, that probable cause did exist as a matter of law if the
evidence, viewed most favorably to Plaintiff, reasonably would
not support a contrary factual finding")(internal citations
omitted); see also Gregory v. City of Louisville, 444 F.3d 725,
743 (6th Cir. 2006) ("In a § 1983 action, the existence of
probable cause is a question of fact.").
16
If the affidavit had been "cleansed", it would have
provided, in brief, that on March 29, 2011, Johnson was shot
during a drug transaction.
A Honda, said by a dispatcher to be
gray, was seen leaving the scene of the shooting.
A short time
later, a "silver colored" Honda was seen by someone traveling at
100 miles per hour near the county line.8
On March 30, 2011,
another police officer got a confidential tip that a black male
named "Christopher Gale" (spelling in affidavit) was the
shooter.
Further investigation revealed that some two years
before the shooting a person named Christopher Gale had been
driving a silver Honda, with tag number 2DHZ97, registered to
Erin Murphy and was subject to a traffic stop.
This silver
Honda has been observed in the driveway of a home owned by Erin
Murphy (presumably recently).
On April 7, 2011, a detective
spoke with Jerome Herbert, an eyewitness who identified the
shooter as a person named "Chris Gale" (affidavit spelling) whom
he knew from high school and whom he had been recently
reacquainted.
Herbert said he saw the shooter leave the scene
in a Honda a little darker than champagne colored.
8
Both
Although not explicitly stated in Cornwell's affidavit, a
map check reveals that the "silver colored" Honda was sighted
approximately 15 or more miles from the scene of the shooting.
Presumably, the reviewing judicial officer, a judge of the
District Court for Anne Arundel County, would have appreciated
the distance between the scene of the shooting (a mall) and the
"silver colored" Honda sighting later that evening (referenced
as Route 32 near the Anne Arundel County-Howard County line).
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Herbert and the victim Johnson were shown a photographic line-up
that included a photograph of the Christopher Gale who was in
the 2009 traffic stop.
Both Herbert and Johnson stated that the
shooter was not in the photographic line-up; hence that GALE's
photo was not that of the shooter.
To determine whether an affidavit would be supported by
probable cause, the "totality of the circumstances" test
outlined in Illinois v. Gates, 462 U.S. 213 (1983), is applied.
The test requires "a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit . . .
there is a fair probability that contraband or evidence of a
crime will be found in a particular place."
462 U.S. at 238.
"[P]robable cause is a fluid concept-turning on the assessment
of probabilities in the particular factual contexts - not
readily, or even usefully, reduced to a neat set of legal
rules."
Id. at 232.
In connection with a search warrant, "the
nexus between the place to be searched and the items to be
seized may be established by the nature of the item and the
normal inferences of where one would likely keep such evidence."
United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988).
The Court finds that a judge, presented with the affidavit
"cleansed" of the false statement and omissions as sufficiently
alleged in the Complaint, would not have found probable cause to
have issued a warrant, much less a no knock warrant, to search
18
the Murphy home and GALE.
Indeed, a reviewing judge would
certainly find it relevant to inquire of the affiant whether he
had asked the witnesses to provide any physical description of
the person identified by the witnesses as the shooter other than
a black male so that there could be a comparison with the
physical description of the Christopher Gale whose photo was
included in the line-up.
Also, in view of the express exclusion
of the Christopher Gale whose photo was shown to the witnesses,
a judge would likely have asked whether the affiant had
investigated the possible existence of more than one person with
the same name (or a name that sounded the same and was spelled
differently) through records, including drivers licenses.
Accordingly, assuming the factual allegations in the
Complaint to be true, the Complaint states a plausible claim
that the subject misstatements and omissions were material.
B.
Qualified Immunity
Defendants assert the Complaint is subject to dismissal
because Detective Cornwell is entitled to qualified immunity.
"[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
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known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
For a
constitutional right to be clearly established, "its contours
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right."
Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks
omitted).
As discussed above, the Court finds the Complaint states a
plausible claim that Detective Cornwell's conduct violated
Plaintiffs' Fourth Amendment rights.
The Fourth Circuit has
held it is clearly established that the Federal 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."
Miller, 475 F.3d at 632.
Accordingly,
Defendants' affirmative defense of qualified immunity does not
provide a basis to dismiss the Complaint pursuant to Rule
12(b)(6).
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IV.
CONCLUSION
For the foregoing reasons:
1.
Defendants Anne Arundel County, Maryland's and
Detective Cornwell's Motion to Dismiss [Document
5] is DENIED.
2.
Plaintiffs shall arrange a telephone conference
call to be held by November 20, 2012, to discuss
the scheduling of further proceedings herein.
SO ORDERED, on Wednesday, November 7, 2012.
/s/___
__ _
Marvin J. Garbis
United States District Judge
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