IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

______________________

DOCKET NO.: 12-12385-F ______________________

KENNETH NOBLE

Appellant

v.

JOHN KIRK OWENS

Appellee ______________________________________________________

Appeal from the United States District Court Middle District of Georgia - Macon Division

Civil Action No. 5:09-cv-00399-WLS _______________________________________________________

______________________________________________________________

BRIEF OF THE APPELLEE JOHN KIRK OWENS ______________________________________________________________

WILLIAM J. ATKINS Georgia Bar No. 027060 DAVID B. FIFE Georgia Bar No. 259871

ATKINS & FIFE, LLC 6400 Powers Ferry Road, Suite 355 Atlanta, Georgia 30339 Telephone: (404) 969-4130 www.atkinsfife.com

i

CERTIFICATE OF INTERESTED PERSONS

In compliance with Fed R. of App. Pro. 26.1 and 28(a), and 11th Cir. R. 26,

the undersigned attorney certifies that the following persons and/or

organizations have an interest in the outcome of this appeal:

1. William J. Atkins (Attorney for Plaintiff / Appellee) 2. David B. Fife (Attorney for Plaintiff / Appellee)

3. Atkins & Fife, LLC (Attorneys for Plaintiff/Appellee) 4. The Honorable W. Louis Sands (District Court Judge)

5. Andrew J. Whalen, III (Attorney for Defendant/Appellant)

6. Jessica Whatley (Attorney for Defendant/Appellant) 7. John Kirk Owens (Plaintiff / Appellee)

9. Kenneth Noble (Defendant/Appellant) 10. City of McDonough, Georgia (Defendant) /s/ William J. Atkins William J. Atkins

State Bar No. 027060

ii

STATEMENT REGARDING ORAL ARGUMENT Appellee does not believe oral argument is necessary, as the Court should

decline to exercise interlocutory jurisdiction over this qualified immunity appeal.

In the event that the Court exercises jurisdiction, Appellee believes oral

argument is necessary to address the proper scope of the Court’s review from a

District Court decision denying qualified immunity based upon the existence of

disputed issues of material fact as to the presence or absence of probable cause,

particularly where there is no room for meaningful debate that the applicable

law controlling the core legal question was clearly established. Appellee

welcomes the opportunity to present oral argument if the Court exercises

interlocutory jurisdiction.

iii

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ................................................................ i

STATEMENT REGARDING ORAL ARGUMENT ..................................................... ii

TABLE OF CONTENTS ................................................................................................. iii

TABLE OF AUTHORITIES ........................................................................................... v

TABLE OF RECORD REFERENCES .......................................................................... vii

STATEMENT OF JURISDICTION ................................................................................. 1

STATEMENT OF THE CASE ......................................................................................... 2

STATEMENT OF FACTS ................................................................................................ 3

SUMMARY OF ARGUMENT ..................................................................................... 18

ARGUMENT AND CITATION OF AUTHORITIES ................................................. 19    

I. THE COURT SHOULD DECLINE TO EXERCISE

INTERLOCUTORY JURISDICTION AND DISMISS DEFENDANTS’ APPEAL      ...............................................................................................  19  

II. THE COURT SHOULD NOT ENTERTAIN NOBLE’S

CAUSATION ARGUMENT; ALTERNATIVELY, THE COURT SHOULD AFFIRM THE DISTRICT COURT’S DECISION FINDING CAUSATION ............................................................ 21

A. WHETHER THE EVIDENCE SUPPORTS CAUSATION AS TO THE FIRST ARREST AND INCARCERATION IS NOT PART OF THE QUALIFIED IMMUNITY ANALYSIS……………………….. 22 B. THE DISTRICT COURT CORRECTLY CONCLUDED THAT NOBLE MAY BE HELD LIABLE FOR THE FIRST ARREST AND

INCARCERATION………………………………………………………. 23

III. NOBLE IS NOT ENTITLED TO QUALIFIED IMMUNITY……………... 26 A. THE QUALIFIED IMMUNITY STANDARD……………………………… 27

iv

B. NOBLE VIOLATED THE FOURTH AMENDMENT BY RELYING ON AN UNCORROBORATED TIP, TURNING A BLIND EYE TO

EXCULPATORY EVIDENCE AND MISREPRESENTING FACTS…………... 28

i. NOBLE’S CONTINUED RELIANCE ON AND MISREPRESENTATIONS ABOUT HATCHER’S TIP VIOLATED THE FOURTH AMENDMENT………….... 28

ii. NOBLE TURNED A BLIND EYE TO EXCULPATORY

EVIDENCE, MISREPRESENTED AND OMITTED MATERIAL FACTS……………………………………..... 32

iii. NOBLE’S DECISION TO SEEK HIS OWN ARREST WARRANT FOR JOHN OWENS IN THE ABSENCE OF ANY EVIDENCE VIOLATED THE FOURTH AMENDMENT ………………………………………….. 34

C. PRE-EXISTING LAW GAVE NOBLE FAIR WARNING THAT HIS CONDUCT VIOLATED THE FOURTH AMENDMENT …………….. 39

CONCLUSION…………………………………………………………………….. 41 APPENDIX…………………………………………………………………………... 42

v

TABLE OF AUTHORITIES

SUPREME COURT DECISIONS

Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894 (1978) ................................................. 27 Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct 2727 (1982) ...................................... 27, 28 Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151 (1991) .................................. 1, 20, 21, 22 Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092 (1986) ............................................ 36, 39 Messerschmidt v. Millender, -- U.S. --, 132 S.Ct. 1235 (2012) ....................................... 36 Ortiz v. Jordan, -- U.S. --, 131 S.Ct. 884 (2011) .............................................................. 22 Mitchell v. Forsyth, 742 U.S. 511, 105 S.Ct. 2806 (1986) ........................................... 1, 23 Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961) .................................................. 18, 24 Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009) ............................................... 28 Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001) ..................................................... 28 Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974)................................................. 27 ELEVENTH CIRCUIT DECISIONS Case v. Eslinger, 555 F.3d 1317 (11th Cir. 2009) ............................................................ 32 Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996) ........................................................... 1 Davis v. Williams, 451 F.3d 759 (11th Cir. 2006) ........................................................... 29 Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) ....................................................... 41 Edwards v. Shanley, 666 F.3d 1289 (11th Circ. 2012) ..................................................... 40 Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir. 1994) ......................................................... 26 Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011) ................................................ 41

vi

Garmon v. Lumpkin County, 878 F.2d 1406 (11th Cir. 1989) ................ 19, 36, 37, 40, 42 Ham v. City of Atlanta, 386 Fed. Appx. 899 (11th Cir. 2010) ...................................... 21 Holmes v. Kucynda et al, 321 F.3d 1069 (11th Cir. 2003) ............................................... 35 Jones v. Cannon, 174 F.3d 1271 (11th Cir. 1999) ............................................................ 36 Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. 2004) .............................. 19, 33, 41 Madiwale v. Savaiko, 117 F.3d 1321 (11th Cir. 1997) .............................................. 37, 42 Moran v. Cameron, 362 Fed. Appx. 88 (11th Cir. 2010) ................................................ 41 Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996) ......................................................... 41 Riley v. City of Montgomery, 104 F.3d 1247 (11th Cir. 1997) ........................................ 42 Skop v. City of Atlanta, 485 F.3d 1130 (11th Cir. 2007) ................................................ 41 Tillman v. Coley, 886 F.2d 317 (11th Cir. 1989)............................................................ 39 Vinyard v. Wilson, 311 F.3rd 1340 (11th Cir. 2002) ....................................................... 41 Barts v. Joyner, 865 F.2d 1187 (11th Cir. 1989) .............................................................. 25 Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996) ............................................. 19, 31, 32 Riley v. city of Montgomery, 104 F.3d 1247 (11th Cir. 1997) ......................................... 19 United States v. Gonzalez, 969 F.2d 999 (11th Cir. 1992). ............................................ 31 Koch v. Rugg, 221 F.3d 1283 (11th Cir. 2000) .................................................................. 21 Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) ................................................................ 28 McCullough v. Antolini, 559 F.3d 1201(11th Cir. 2009) ................................................ 29

vii

OTHER CIRCUIT DECISIONS Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006) ............................................ 26 Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988) .......................................................... 33 United States v. Martin, 615 F.2d 318, 319 (5th Cir. 1980). ......................................... 37 Yattoni v. Oakbrook Terrace, 14 F.3d 605 (7th Cir. 1993) ............................................... 38 (unpublished) DISTRICT COURT DECISIONS Evans v. City of Plant City, 2007 WL 2916454 (M.D. Fla. 2007) .................................. 38 (unpublished) GEORGIA SUPREME COURT DECISIONS Gilstrap v. State, 261 Ga. 798 (1991). .............................................................................. 39

STATUTES

28 U.S.C. § 1291 ............................................................................................................... 23 42 U.S.C. § 1983 ......................................................................................................... 18, 24

RULES

11th Cir. R. 28-5 .................................................................................................................. 1

 

 

viii

TABLE OF RECORD REFERENCES Docket No. Document Page Number 1 Complaint 3 21 Motion To Dismiss-Abernathy 3 22 Brief Motion To Dismiss-Abernathy 3 38 Order Granting Motion To Dismiss 3 54 Motion For Summary Judgment - Noble 3 56 Statement of Material Facts-Noble 3 64 Motion For Summary Judgment-Stokes 3 65 Statement of Material Facts-Stokes 3 70 Amended Statement of Material Facts 9,13 70-1 Composite Exhibit - Photographs 9 70-8 Surveillance Photographs 6 70-11 Twiggs Co. Photographs of Getaway Truck 6 70-12 Twiggs Co. Incident Report 6 70-13 First Bank Incident Report 7,10,11,12,13,15,16,17 70-15 Colonial Bank Investigative Report 7 70-16 Capitol City Bank Investigative Report 8 70-17 Affidavit of Amanda Crile 6 70-19 Affidavit of Russell Downs 7 70-20 John Kirk Owens-Phone Rec. & Bank Rec. 7 70-21 Twiggs Co. Line-Up Identification Form 15 70-25 Jones Witness Identification Form 15 70-26 Bibb County Arrest Warrant 15 73 Deposition of John Kirk Owens 5,7,12 75 Deposition of Kenneth Noble 10,11,12,17 77 Deposition of Kyle Helgerson 10,11,12,17 80 Deposition of John Abernathy 7,8,13,14,16 81 Deposition of William Stokes 6,9,15,16 87 Summary Judgment Order 2,3,20,22,24 89 Notice of Appeal 4

1

STATEMENT OF JURISDICTION

This case presents a rare instance where the Court does not have

jurisdiction to review the denial of summary judgment on qualified immunity

grounds. See Johnson v. Jones, 515 U.S. 304, 314, 115 S. Ct. 2151 (1991). The district

court denied summary judgment because material issues of fact remain “as to

whether a reasonable officer could have concluded that probable cause existed

in order to seek a warrant against Owens.” (Doc. 87, p. 27). (emphasis added)1

The district court did not “conclusively determine the disputed question and that

question does not involve a claim of right separable from and collateral to, rights

asserted in the action.” Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806

(1985)(citations omitted); see also, Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir.

1996). The Court should decline to exercise interlocutory jurisdiction and

dismiss this appeal.

1 In accordance with 11th Cir. R. 28-5, references to the record will be to the document number found in the district court docket sheet abbreviated, as follows: “Doc. #, p.#. “ The page number will refer to the page number in the original document unless otherwise indicated. If the document filed in the district court included attachments, the record reference will be abbreviated, as follows: “Doc. # - #. The second number identifies the attachment.

2

STATEMENT OF THE CASE

John Kirk Owens filed this civil rights case on November 18, 2009. He

alleged claims of False Arrest and Malicious Prosecution. Owens sued Bibb

County Sheriff’s Department detective Keith Abernathy; Twiggs County Sheriff’s

Department investigator William Stokes; McDonough Police Department

investigator Kenneth Noble and the City of McDonough, Georgia. (Doc. 1).

Abernathy moved to dismiss Owens’ claims. (Doc. 21 & 22). The district

court granted Abernathy’s motion on September 29, 2010. (Doc. 38).2 After

discovery, McDonough, Noble and Stokes moved for summary judgment. (Doc.

54 & 56; Doc. 64 & 65). The district court entered an Order on March 30, 2012

denying summary judgment to Noble and McDonough, but granting summary

judgment to Stokes.3 (Doc. 87). Noble filed a Notice of Appeal on May 3, 2012

seeking interlocutory review of the district court’s order denying summary

judgment on qualified immunity grounds. (Doc. 89).

2The district court did not enter a separate judgment dismissing Abernathy as a party. Owens reserves the right to file a notice of appeal upon entry of a final judgment. See Fed. R. Civ. Pro. 58 and Fed.R.App.P. 4(a)(1)(A) (“[T]he notice of appeal ... must be filed ... after the judgment or order appealed from is entered.”) Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1286 (11th Cir. 2001). 3 The district court did not enter a separate judgment dismissing Stokes as a party. Owens reserves the right to file a notice of appeal upon entry of judgment in this matter. See infra, n. 1.

3

STATEMENT OF FACTS

A. INTRODUCTION

John Kirk Owens builds fences; he does not rob banks. He owns and

operates the McDonough Fence Company. He has lived and worked in

McDonough his entire adult life. John Owens spent a lifetime building a

reputation as an honest, hard-working, simple man.

Kenneth Noble, relying on nothing more than a causal observation by a jail

trustee, targeted Owens as the prime suspect in a series of robberies committed

by a man nicknamed by the press as “the Bubba Bandit.” Noble misrepresented

key facts and omitted others in his dealings with sister law enforcement agencies

and, ultimately, a magistrate judge, in his rush to crack his first big case. Thanks

to Noble’s reckless actions, Owens’ spent three weeks in jail facing multiple

counts of armed robbery in three jurisdictions. Worse, Noble destroyed Owens’

reputation in the only community he has ever known. As Owens testified, “I

guess I’ll always be known as a bank robber called Bubba Bandit. You know,

I get teased about it a lot.” (Doc. 73, p. 50)(emphasis supplied).

B. THE BUBBA BANDIT

Between September 27, 2007 and December 12, 2007, a burley, middle aged

white male robbed one convenience store and four banks in Twiggs, Bibb and

4

Henry County. (Doc. 70, ¶¶ 28-63).4 Surveillance cameras captured images of a

heavy-set, barrel-chested man, with a very fat, round face. His jowls obscured

any semblance of jaw line, chin or cheekbones. His world-class beer belly hung

out over his waistline. The media aptly named this unidentified criminal the

“Bubba Bandit.“

The Bubba Bandit committed his robberies in broad daylight, usually in

the early afternoon. He always wore a long sleeved denim shirt, jeans and white

tennis shoes. A floppy camouflage hat covered his hair and dark, wrap- around

sunglasses covered his eyes. He spoke in a calm voice and only once brandished

a weapon (although he always claimed to have one). He left the scene of each

robbery in a late-model Chevrolet Silverado pick-up truck, either champagne,

gold or taupe in color, with a cardboard tag. (Doc. 70-11).

• September 27, 2007, Twiggs County. The Bubba Bandit walked into a

Marathon Gas Station and robbed the store clerk at gunpoint. (Doc. 70-12).

The store clerk was the only witness but surveillance cameras captured the

incident and the get away truck. (Doc. 70-8). Twiggs County Sheriff's

4 Document 70 is Owens’ Amended Statement of Material Facts To Which There Remains A Genuine Issue To Be Tried (“Owens ASMF”). Record references for this document direct the Court to the numbered paragraphs therein, rather than page numbers, and are abbreviated, as follows: “Doc. 70, ¶ #.” If the record reference is to an exhibit attached to Owens’ ASMF, the record reference is abbreviated, as follows: “Doc. 70-#”. If the exhibit attached to Owens’ ASMF is a multi-page document, the record reference is abbreviated as “Doc. 70-#-#, with the last # being the relevant page number.

5

Office (“TCSO”) investigator William Stokes investigated the crime. (Doc.

81, p. 10). He interviewed the store clerk and watched the surveillance

footage. (Doc. 81, p. 11-12). Between September 27 and November 20th,

Stokes developed no leads. (Doc. 81, p. 12). It is undisputed that he did

not independently develop Owens as a suspect; Stokes learned about

Owens from Abernathy who, in turn, learned of him through Noble.5

• October 27, 2007, City of McDonough. The Bubba Bandit walked into the

First Bank shortly after midday. He walked up to Nichole Adcock's teller

window. In a deep, calm voice, he said, “this is a robbery, my two brothers

are in the truck and as long as everyone cooperates, no one will get hurt.”

Ms. Adcock complied. He turned around, walked out of the bank and left

the scene in a Chevrolet Silverado pickup. (Doc. 70-13-29). McDonough

Police Department investigator Kenneth Noble was assigned to lead the

investigation, his first robbery investigation. From November 2nd – 16th,

Noble made no progress with his investigation. (Doc. 73, p. 51-53).6

• November 2, 2007, Bibb County. The Bubba Bandit struck again at the

5 On September 27, 2007, while the Suspect was robbing Ms. Cho at gunpoint in the Marathon Store in Twiggs County, Georgia, Owens was making a deposit in his checking account at the McIntosh State Bank in McDonough, Georgia. (Doc. 70-17). 6 While the Bubba Bandit was robbing the First Bank, Owens was installing some gates at the residence of Charles Toll, 110 Emerald Drive, McDonough, Georgia. (Doc. 70-20; Doc. 73, p. 25-35).

6

Colonial Bank. He approached Amy Gorham's teller window, slid a black

bag into her booth, and said, “this is a robbery and I am armed. As long as

you give me the money and be quiet and no one will get hurt.” (Doc. 70-

15). He also robbed Chiquita Harris'. (Doc. 70-15). He walked out of the

bank. No witnesses saw the get away car and the surveillance system

failed to record the incident. (Doc. 80, p. 18; Doc. 80, p. 19). Bibb County

Sheriff’s Office Investigator Abernathy was assigned to investigate the

Colonial Bank robbery. (Doc. 80, p. 13). Between November 2nd and

November 19th, Abernathy developed no leads and had no suspects.7

• November 19, 2007, Bibb County. The Bubba Bandit walked into the

Capitol City Bank. He approached teller Tiffany Coffer with a blue cloth

bag. He told her to put the money in the bag, not to use a dye pack, and

she would not be hurt. Ms. Coffer complied. He walked out and drove off

in a Chevrolet Silverado. (Doc. 70-16). Abernathy responded to the scene

and spoke with Detective Paul Osgood. They decided they were looking

for the same suspect. (Doc. 80, p. 22-23). Abernathy knew about the

Twiggs county robbery, but investigators there “didn’t really have any

more information that we did.” (Doc. 80, p. 27). Like Investigator Stokes

7 While the Bubba Bandit was robbing the Colonial Bank, Owens was repairing a fence for Southern Pipe and Supply located at 165 McDonough Parkway, McDonough, Georgia 30253. (Doc. 70-19).

7

in Twiggs County, Abernathy and Osgood did not independently identify

Owens as a “person of interest” or potential suspect for the Colonial Bank

(11/2) and Capitol City Bank (11/19) robberies. Noble was solely

responsible for presenting Owens as a suspect for the robberies in Bibb

County. (Doc. 80, p. 31-32; 36; 59).8

C. JOHN OWENS LOOKED NOTHING LIKE THE BUBBA BANDIT

There were stark differences between Owens' actual appearance in

November of 2007 and the images of the Bubba Bandit captured on surveillance

cameras.

• Owens does not have broad shoulders and he is not bulked up in his

upper body.

• Owens was 41 years old; witnesses all believed the Bubba Bandit was

in his late forties or mid-fifties.

• Owens weighed 200 pounds; the Bubba Bandit was obviously far, far

heavier. Several witnesses estimated his weight to be in excess of 250

pounds.

• Owens had a goatee, not a bushy mustache like the Bubba Bandit had

just two days prior to his arrest.

8 While the Bubba Bandit was robbing Capitol City Bank, Owens was at the home of Shannon Reyome in McDonough giving her an estimate on a fence job. (Doc. 70-18).

8

• Owens’  face  did  not  appear  round.  His  cheeks  were  not  puffed  out  and  

obviously  fat.    He  did  not  have  excessive  fat  under  his  chin  that  caused  his  

jaw/chin  line  to  disappear.  

• Owens’  stomach  area  did  not  protrude  significantly  over  his  waistline.

(Doc. 70-1, 3-5, 6, 7, 8, 9 & 10).9

These differences were obvious to the naked eye. When Stokes saw

Owens in person on November 21, he realized that Owens was not the Bubba

Bandit. Stokes saw that “his body mass, his weight” did not remotely resemble

that of the Bubba Bandit. (Doc. 81, p. 31). But Abernathy and Noble did not care

to notice and Stokes did nothing to stop them. (Doc. 81, p. 32).

None of the thirteen witnesses to any of the robberies were ever shown an

image of Owens as he actually appeared in November of 2007. The photographic

lineups used a seven year old drivers’ license photograph of Owens secured by

Noble, who turned it over to Abernathy and Stokes despite the fact that none of

the witnesses to the McDonough robbery picked Owens from the lineup. Noble

caused Owens’ misidentification by two witnesses in Bibb County and the only

witness in Twiggs County. Those misidentifications, in turn, meant that Owens

would spend three weeks in jail for crimes he did not commit.

9 The Record Excerpts submitted by Noble include only black and white copies of these images. To assist the Court in its review, Owens has included color copies of these critical exhibits in the Appendix to Appellee’s Brief.

9

C. NOBLE’S INVESTIGATION

Between October 27th and November 2nd, Noble had made little progress

on his first big case. He turned still photographs of the Bubba Bandit over to the

news media and posted a BOLO for him. He caught his “big break” on

November 16th, when Phillip Daniel Hatcher, an inmate in the Henry County Jail

assigned to clean up duty in the MPD squad room happened to notice the BOLO

on a bulletin board. (Doc. 75, p. 53-54). He told Noble, “I think I know this

person.” (Doc. 75, p. 53; Doc. 70-13, p. 24; see also, Doc. 77, p. 21-25). Hatcher

wrote a statement.

Working at Mc. Police station. Saw a picture (for robbing a bank) of a wanted man. Told detective I think I knew this person. His name is John Owens. Told him where he lives (corner of old Jackson and Coahn (sic)). I worked with him on the side a couple of years ago. He owns McDonough Fence Company. And he last time I saw him (about 4 to 5 months ago) e was going through a divorce. He was talking about bankruptcy and his business was not doing well. And that he wanted to keep his kids. I have know (sic) him since around 1997.

(Doc. 75, p. 55-57; Doc. 70-13-24).

When Hatcher offered his “tip,” Noble knew nothing about him. (Doc. 75,

p. 53-54). Hatcher had never provided information to law enforcement officers

that had been corroborated through further investigation or other sources. (Doc.

75, p. 54-55; Doc. 77, p. 21-22). Hatcher had never given information that had

been used in furtherance of any criminal investigation. (Doc. 75, p. 54-55; Doc. 77,

p. 22). Hatcher had never worn a wire as part of an undercover investigation

10

supervised by law enforcement officials. (Doc. 75, p. 55). Without any

corroboration or support, Noble deemed Hatcher a “reliable source.” (Doc. 75, p.

54). Noble did nothing to determine whether Hatcher’s “tip” was credible. He

did not investigate whether Hatcher had had worked for Owens, whether Owens

was going through a divorce, or whether Owens declared bankruptcy., all each

one of those pieces of information were readily available to Noble.10 (Doc. 75, p.

56).

On November 21st, one of the witnesses from the First Bank robbery,

Bonnie Bray, called Noble because she saw a news story about the Bubba

Bandit’s robbery at the Capitol City Bank. She thought the same person had

committed both robberies. (Doc. 70-13, p. 32). With no other leads, Noble

followed up on Hatcher’s “tip.” (Doc. 75, p. 57-58; Doc. 70-13, p. 75).

Noble pulled Owens' drivers license information; Owens' license was

valid. (Doc. 75, p. 58; Doc. 70-13-36). Noble ran a criminal history on

Owens; besides a twenty year-old DUI, Owens history was clean. (Doc. 75, p. 58-

59; Doc. 70-13-41). Noble pulled a report of vehicles registered to Owens; he did

not own a truck matching the description of the getaway vehicle. (Doc. 75, p. 58;

Doc 70-13-44). Noble secured Owens’ bank records; the records did not reveal

any unusual transactions. Noble put Owen’s property under surveillance but

10 Divorce and bankruptcy records are public records. Hatcher’s employment, or lack thereof, could have been verified through the Department of Labor.

11

saw nothing unusual. (Doc. 77, p. 32). Noble independent police work, such that

it was, revealed nothing that verified Hatcher’s idle speculation that Owens

looked like the Bubba Bandit. (Doc. 75, p. 59-61; 68).

Undeterred by the evidence, Noble ordered a copy of Owens' driver's

license picture. The picture was seven years old because Owens did not have a

new picture taken when he renewed his drivers' license in 2004. (Doc. 73, p. 102-

03; Doc. 75, p. 62). Noble knew that the picture was at least three years old, but

he took no steps to confirm that the photograph fairly and accurately depicted

Owens’ as he appeared in November of 2007. (Doc. 75, p. 62).

Noble did not even bother to show the picture to Hatcher. (Doc. 75, p. 64).

Noble testified that he put Owens' in a Photographic Line-Up because of

Hatcher’s statement that Owens looked like the Bubba Bandit and Owens’

outdated picture seemed to resemble the person in the surveillance images.

(Doc. 75, p. 66; Doc. 77, p. 21).

Noble ordered a Photographic Line-Up from the Henry County Sheriff’s

Department. The other photographs in the line up were “Book In” photographs.

Noble met separately with the six witnesses to the First Bank Robbery and

showed them the McDonough Photographic Line-Up. (Doc. 75, p. 74; Doc. 70-13-

22). None of the witnesses from the First Bank robbery picked Owens out of

the line up.

12

Before Noble provided any information about Owens to Abernathy in Bibb

County, Noble knew definitively that: (a) none of his witnesses had identified

Owens; (b) Owens did not own a Chevrolet Silverado; he owned several Ford

trucks; (c) Owens had a clean driving history and no significant criminal history;

(d) surveillance at his house uncovered no evidence at all; (e) Owens’ bank

records showed no suspect transactions; and (f) Noble had been unable (or

simply did not bother) to corroborate any aspect of Hatcher’s tip. All Noble had

was a uncorroborated “tip” from an unreliable jail trustee. (Doc. 70, ¶¶ 90-114).

With no basis in fact to believe Owens was the Bubba Bandit, Noble forged

ahead, willfully turning a blind eye to the obvious: Owens had nothing to do

with robbing anyone. He called Abernathy at the Bibb County Sheriff’s Office

on November 21 and informed him that MPD had a “potential suspect.” (Doc.

80, p. 30). Noble told him that “he had a reliable informant that had seen the

pictures from the [First Bank] robbery . . . and he gave me a physical description.

Said the guy had seen a picture, gave him a name, and gave him a little more

information. And he thought he could have a possible suspect up there.”

(emphasis added) (Doc. 80, p. 31). Noble said Owens “had been falling – kind of

fallen on some hard times, his business-wise and his personal life . . .” but failed

to mention that Noble had no independent evidence to confirm this part of

Hatcher’s tale. (Doc. 80, p. 31).

13

When Noble described Hatcher to Abernathy as a “reliable informant,” the

term meant something specific to Abernathy based upon his prior experience in

law enforcement. (Doc. 80, p. 36-38). Based upon that material

misrepresentation of fact, Abernathy assumed that Noble had been able to

corroborate Hatcher’s story through independent police work or, at a bare

minimum, had reason to believe Hatcher could be counted upon to provide good

information. As a matter of undisputed fact, neither supposition was true.

Abernathy testified, “[w]e didn’t know John Owens. I had never seen John

Owens and nobody went and looked.” (Doc. 80, p. 42-43). Abernathy knew that

the age of a particular photograph is important in considering how to construct a

Photographic Line Up but, once again, he was relying on Noble, who gave

Abernathy Owens’ picture. (Doc. 80, p. 43). Abernathy compiled a

Photographic Line-Up in Bibb County. (Doc. 80 p. 44-48). Two of the six

witnesses to the Bibb County robberies misidentified Owens as the Bubba

Bandit. ( Doc. 70-25; 26). Abernathy called Stokes and gave him the Bibb County

Photographic Line Up. (Doc. 81, p. 21). Stokes showed it to his victim, who also

misidentified Owens as the Bubba Bandit. (Doc. 81, p. 19-21; Doc. 70-21).

Abernathy and Stokes immediately secured arrest warrant for Owens from

their respective jurisdictions. (Doc. 81, p. 22-23; Doc. 70-26). Abernathy alerted

Noble, who applied for a search warrant for Owens’ home. In the search

warrant application, Noble described the Twiggs County robbery and the

14

Capitol Bank robbery in Bibb County. As to the First Bank robbery in

McDonough, Noble testified under oath that, “on November 16, 2007, a reliable

source while n the City of McDonough Police Department observed a BOLO

with a photograph of the male seen in the video surveillance from the Robbery.

The source identified the male picture as John Kirk Owens of Locust Grove,

Georgia.” (Doc. 70-13-15).11,12

Abernathy and Stokes drove to McDonough to meet Noble and serve their

arrest warrants. (Doc. 80, p. 50-51) (Doc. 81, p. 24-25). Noble went along with

them to execute the search warrant. (Doc. 70-13-14). Owens was home

preparing Thanksgiving dinner for his family. His kids were playing in the yard

when SWAT team officer appeared all around them and approached the front

door. Owens came to the door; he found himself staring down the barrel of an

assault rifle. Abernathy explained the Bibb County charges, handcuffed him,

and placed him in the back of his squad car. (Doc. 80, p. 62-63). Owen saying

something to the effect, “bank robbery? I ain’t robbed any bank.“ (Doc. 80, p. 63).

Noble executed the search warrant. He went rummaging through Owens’

home looking for evidence linking him to the robberies. Noble found nothing.

Yet that still was not enough to stop Noble from putting the finishing touches on

his first big case. On November 29th, Noble filed out a warrant application for

11 This document is reproduced in the Appendix. 12 Owens raised no claim against Noble related to the search warrant.

15

Robbery By Intimidation. In his application, Noble alleged,

John Kirk Owens did enter the First Bank on 10/27/08 and demanded currency from Hannah Jones. Owens Advised Jones to coropate (sic) and no one would be hurt. Kirk left the location with $1983.92

(Doc. 70-13-13). Noble prepared a bare-bones arrest warrant stating,

John Kirk Owens entered the First Bank . . . with the intent to commit theft, advised teller Hannah Jones to cooperate and no one would be hurt. Teller Hannah turned over $1,983.92 to Defendant who then fled from the scene.”

(Doc. 70-13-13).

Noble’s affidavit contains material errors. The Bubba Bandit did not rob

Hannah Jones, she was just a witness to the First Bank robbery. The victim was

Nichole Adcock. (Doc. 75, p. 95). Noble's warrant application and testimony to

the magistrate omitted material exculpatory facts that plainly established the

absence of probable cause, to support an arrest warrant, including, but not

limited to: (a) six out of six witnesses at First Bank had rejected Owens as the

perpetrator; (b) Owens did not own or drive a Chevrolet Silverado; (c) a search

warrant of Owens' home uncovered no evidence at all; and (d) Noble's “reliable

informant” was nothing more than a jail trustee who happened to see a likeness

between the Bubba Bandit and Owens (e) he engaged in no unusual banking

activity and, (f) Owens obviously looked nothing like the Bubba Bandit. (Doc. 75,

pp. 57-59, 68, 74, 97-98 and Doc. 77, pp. 47-48).

16

Owens appeared before a Bibb county magistrate on December 7, 2007.

The magistrate judge set a $3,000.00 bond, however, Owens had a hold from

Twiggs County. (Doc. 70-24). Had Owens made bond, he would have been

transported to Twiggs County and remained in jail. (Doc. 70-24; Doc. 81, p. 46-

48). Twiggs County finally dismissed the warrant and Owens made bond on

December 10th, 2007. (Doc. 73, p. 32). But when he got home, he learned that

Noble’s warrant was waiting for him. Owens turned himself into the Henry

County Jail the next day. (Doc. 73, p. 32-35).

We will never know, but the Bubba Bandit may have felt sorry for John

Owens. The day Owens turned himself in, the Bubba Bandit robbed the

Enterprise Banking Company in. (Doc. 70-13-10). Owens was in custody when

the robbery occurred. Captain Kyle Helgerson showed up at Owens’ committal

hearing, took one look at him, and immediately recognized that Owens should

never have been mistaken for the Bubba Bandit. (Doc. 77, pp. 47-48).

17

SUMMARY OF ARGUMENT

The Court should dismiss this appeal. There is on meaningful debate that

clearly established law gave Noble fair warning that his constitutionally deficient

investigation, reliance on an uncorroborated tip, and material misrepresentations

and omissions to fellow officers violated the Fourth Amendment. There is no

discrete legal issue presented here and, accordingly, no basis for exercising

interlocutory jurisdiction. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806

(1985).

The Court should not accept Noble’s implicit invitation to review the

district court’s determination that material issues of fact remain as to whether

Owens may recover damages measured from his November 21, 2007 arrest on

Abernathy’s Bibb County warrants. That issue is not inextricably intertwined

with Noble’s qualified immunity defense. But even if the Court addresses

causation, Noble may be held liable for “the natural consequences of his actions”

under 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473 (1961).

Noble is not entitled to qualified immunity. No reasonable officer could

have concluded that probable cause existed in order to seek a warrant against

Owens. Pre-existing law gave Noble fair warning that (a) an uncorroborated tip

from an unreliable informant does not support probable cause; (b) that he could

not turn a blind eye to readily available, exculpatory evidence; (c) that he could

not omit material facts or make material misrepresentations to fellow officers and

18

magistrate judges; and (d) could not rely upon a conclusory, bare-bones

allegations to establish probable cause. See Ortega v. Christian, 85 F.3d 1521 (11th

Cir. 1996)(informant’s tip, uncorroborated by independent police work or other

evidence of reliability, insufficient to establish probable cause); Kingsland v. City of

Miami, 382 F.3d 1220, 1231, (11th Cir. 2004) (officers should not be permitted to turn a

blind eye to exculpatory information that is available to them, and instead

support their actions on selected facts they chose to focus upon); Riley v. city of

Montgomery, 104 F.3d 1247, 1253 (11th Cir. 1997)(“It is well established in 1989

that fabricating incriminating evidence violated constitutional rights.”); Garmon

v. Lumpkin County, 878 F.2d 1406, 1408 (11th Cir. 1989)(“conclusory assertions in

warrant affidavit clearly insufficient to establish probable cause”).

19

ARGUMENT AND CITATION OF AUTHORITIES I. THE COURT SHOULD DECLINE TO EXERCISE INTERLOCUTORY

JURISDICTION AND DISMISS DEFENDANTS’ APPEAL

The collateral order doctrine limits interlocutory jurisdiction in qualified

immunity cases to instances where the order on appeal, “concerned, not which

facts the parties might be able to prove, but rather whether or not certain given

facts showed a violation of clearly established law.” Mitchell v. Forsyth, 472 U.S.

511, 528, 105 S. Ct. 2806 (1985).13 “A defendant entitled to invoke a qualified

immunity defense may not appeal a district court’s summary judgment order

insofar as that order determines whether or not the pretrial record sets forth a

‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20, 115 S. Ct.

2151 (1995) (emphasis added).

The district court found that,

“there exists questions of fact as to whether a reasonable officer could have concluded that probable cause existed in order to seek the arrest warrant against [Owens] The court notes several significant facts that form the basis of its finding that probable cause, and arguable probable cause, did not exist. These facts include, but are not limited to, Defendant’s reliance on the jail trustee’s identification of Plaintiff, and Defendant’s transmission of Plaintiff’s photograph and representation of reliability in the absence of eyewitness identifications or other corroborating evidence.”

(Doc. 87, p. 27). Addressing qualified immunity, the district court explained that,

13 Mitchell involved the application of “clearly established” law to an undisputed set of facts. The opinion was limited to that holding. Id. at 528-30; Jones, 515 U.S. at 313.

20

“if the Plaintiff’s version of the facts is true, a question of fact exists as to whether

Defendant conducted a reasonable investigation that gave rise to probable

cause.” (Doc. 87, p. 32).

Based on the foregoing, the Court simply cannot conclude that as a matter of law probable cause, or arguable probable cause existed. A Genuine material dispute of fact exists as to whether an objective police officer would have perceived there to be probable cause for arrest.

(Doc. 87, p. 33).14

Noble disagrees with the district court’s assessment of the evidence, but

that is not enough to justify burdening scarce appellate resources with an appeal

over hotly contested evidence; that is what trial courts and juries do. Jones, 515

U.S. at 316 (“the existence or nonexistence of a triable issue of fact is the kind of

issue that trial judges, not appellate judges, confront almost daily”); see also, Koch

v. Rugg, 221 F.3d 1283 (11th Cir. 2000). This interlocutory appeal asks the Court to

ignore “the inconvenience and costs of piecemeal review” and concern itself only

with the “danger of denying justice by delay.” Jones, 515 U.S. at 315. That

“danger” is nonexistent here as Noble should be held liable for violating Owens’

clearly established Fourth Amendment rights.

14 See also, Doc. 87, p. 33-34 (Denying summary judgment on qualified immunity grounds as to Owens’ malicious prosecution claims because “[t]here are genuine material facts in the record in dispute from which a reasonable fact finder could deduce that Plaintiff’s constitutional right to be free from malicious prosecution was infringed by [Noble]. As discussed above, the absence of arguable probable cause supports a finding that Plaintiff has shown that a genuine issue of fact for trial exists regarding Plaintiff’s malicious prosecution claim.”

21

Noble suffers no harm from dismissal as he will have every opportunity to

raise qualified immunity as a defense at trial and, in the event of a verdict in

Owens’ favor, on appeal to this Court. See Jones, 515 U.S. at 316.15 It is Owens,

not Noble, who should be concerned about “justice delayed.” This interlocutory

appeal has already delayed trial by four months and, if accepted by the Court,

will likely keep this matter from getting tried this year. The Court should

dismiss this appeal without further delay.

II. THE COURT SHOULD NOT ENTERTAIN NOBLE’S CAUSATION ARGUMENT; ALTERNATIVELY, THE COURT SHOULD AFFIRM THE DISTRICT COURT’S DECISION FINDING CAUSATION

At summary judgment, Noble argued that since Owens was arrested and

jailed on a Bibb County warrant, he should escape responsibility for presenting

Owens to Abernathy as a “potential suspect” identified by a “reliable

informant.”16 The trial court rejected Noble’s argument.

[T]he Court does give weight to Defendant’s arguments relating to the fact that Plaintiff was not incarcerated due to the Henry County charges – only booked and released. However, the Court finds Plaintiff’s response persuasive where Plaintiff asks the Court to consider the interconnectedness of the three counties’ investigations, outstanding arrest warrants and holds and their effect on Plaintiff’s

15 To preserve the issue for final appeal, Noble must raise qualified immunity at the conclusion of Owens’ evidence and, in the event of a judgment, in post-trial briefings. See Ortiz v. Jordan, -- U.S. --, 131 S. Ct.884 (2011)(failure to raise qualified immunity on Rule 50(a) and (b) stages waives appeal of trial court’s denial of qualified immunity at summary judgment stage). 16 There is no dispute that Owens turned himself in to the Henry County Jail on December 12th on Noble’s warrant. Noble’s warrant was executed; the issue thus goes to damages only. (Doc. 77, p. 48).

22

incarceration, bond amount and release. Defendant Noble cannot reasonably argue that the arrests were unrelated to his knowing conduct.

(Doc. 87, p. 31). Noble now implicitly tries to raise this issue on appeal as part of

his challenge to the district court’s denial of qualified immunity. The Court

should reject that effort and concern itself only with discrete issues of fact that

are inextricably intertwined with the qualified immunity.

A. WHETHER THE EVIDENCE SUPPORTS CAUSATION AS TO THE FIRST ARREST AND INCARCERATION IS NOT PART OF THE QUALIFIED IMMUNITY ANALYSIS

The district court found that Noble cannot reasonably argue that the

[November 21st arrest was] unrelated to his knowing conduct.” (Doc. 87, p. 31).

Stated differently, a rational fact finder could find that Abernathy and Stokes

would not have independently identified Owens as a suspect, much less arrested

him, in the absence of Noble’s knowing misrepresentations and omissions. The

court’s decision does not prevent Noble from arguing causation, or lack thereof,

at trial. For present purposes, it should be obvious that the issue has nothing at

all to do with whether clearly established law gave Noble fair warning that his

conduct violated the Fourth Amendment.

The collateral order doctrine is a limited exception to the “final decisions”

predicate for appellate jurisdiction. 28 U.S.C. § 1291; Mitchell v. Forsyth, 742 U.S.

511, 524, 105 S.Ct. 2806 (1986). A decision is reviewable only if review will

23

finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Id. at 525-26. The district court’s determination that Owens’ first arrest was a

reasonably foreseeable consequence of Noble’s knowing acts is not separable,

collateral or independent of Owens’ claims. Review of that portion of the district

court’s order plainly violates the collateral order doctrine.

B. THE DISTRICT COURT CORRECTLY CONCLUDED THAT NOBLE MAY BE HELD LIABLE FOR THE FIRST ARREST AND INCARCERATION

When it first breathed life into 42 U.S.C. § 1983, the Supreme Court held

that it constitutional-tort cases, “a man [is] responsible for the natural

consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473 (1961).

Noble is no exception.

The record demonstrates that Noble was solely responsible for

orchestrating a constitutionally deficient investigation that virtually guaranteed a

misidentification by one of the thirteen witnesses to the Bubba Bandit’s crimes.

Noble knew he was relying on the uncorroborated tip of a unreliable jail trustee,

but chose to misrepresent Hatcher to Abernathy as a “reliable informant” who

“identified” Owens as the Bubba Bandit. Noble had access to readily available

exculpatory evidence uncovered in his own investigation, but did not disclose

that evidence to Abernathy or, later, the magistrate judge who signed Noble’s

24

arrest warrant for Owens. Noble knew Owens’ drivers’ license picture was at

least three years old, but he made no effort to confirm that it accurate depicted

Owens’ appearance. Before he turned Owens over to Abernathy as a “possible

suspect,” Noble had ample evidence of Owens’ actual innocence.

Noble knew full well that there was a substantial risk that one or more

witnesses would pick Owens out of a photographic line up in Bibb or Twiggs

County. That is why he gave Abernathy his outdated picture. Noble was hoping

Owens would get picked out because he thought – wrongly – that such an

identification would give him probable cause. He admitted as much in his

deposition when he testified that he relied on Hatcher’s tip and the

identifications in other robberies to support his warrant application. The district

court rightly dismissed Noble’s effort to reverse-engineer probable cause by

relying on Abernathy and Stokes’ identifications (Doc. 87, p. 31, n. 5).

In Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir. 1989), the Eleventh Circuit

explained that intervening acts of other parties to a criminal prosecution –

prosecutor, grand jury, judge and jury – do not break the chain of causation

where a plaintiff “can show that these intervening acts were the result of

deception or undue pressure by a defendant policemen.” Owens has

demonstrated that Noble misrepresented and omitted key facts to Abernathy

when he told Owens was a possible suspect and asked him to put Owens in a

photo lineup.

25

This case bears no resemblance to Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir.

1994) and the contrast further demonstrates that Noble should be held liable for

the totality of Owens’ injuries. In Eubanks, an officer relied on a tip from an

individual who had previously served as a reliable informant for his agency. He

was also able to corroborate elements of the informant’s story through

independent police work. The officer arrested the plaintiff on a drug possession

charge, but the plaintiff claimed the informant framed him. The informant took

two polygraphs and appeared deceptive in one of them. In the civil case, the

district court denied summary judgment on plaintiff’s malicious prosecution

claim. The Eleventh Circuit reversed. The evidence revealed that the

defendant/officers “fully apprise[d] the State Attorney of all relevant

information known to them, including that which weighed for and against

[plaintiff’s] guilt.” Id. at 1165-66. See also, Gregory v. City of Louisville, 444 F.3d

725 (6th Cir. 2006)(officer who created an impermissibly suggestive identification

procedure could be held liable even though prosecutor subsequently relied upon

the identification at trial).

Noble did not apprise Abernathy, Stokes or the magistrate judge of all the

information known to him weighing for and against Owens’ guilt. He

intentionally omitted ever shred of evidence demonstrating Owens’ actual

innocence and misrepresented the credibility of his only evidence – Hatcher’s

uncorroborated tip. Noble is liable for the foreseeable consequences of his

26

actions including Owens’ November 21st arrest and three week incarceration in

Bibb County.

III. NOBLE IS NOT ENTITLED TO QUALIFIED IMMUNITY

The Supreme Court fashioned qualified immunity through a series of

decisions addressing whether certain members of the Executive branch should be

absolutely immune from civil liability for their official acts. See e.g., Scheuer v.

Rhodes, 416 U.S. 232, 94 S. Ct. 1683 (1974)(state governor and his aides not

entitled to absolute immunity); Butz v. Economou, 438 U.S. 478, 508-512, 98 S. Ct.

2894 (1978)(Secretary of Agriculture not entitled to absolute immunity); Harlow v.

Fitzgerald, 457 U.S. 800, 102 S. Ct 2727 (1982)(presidential aides not entitled to

absolute immunity). The Court universally rejected these demands.

The greater power of high officials affords a greater potential for a regime of lawless conduct. Damages actions against high officials were therefore an important means of vindicating constitutional guaranties.

Harlow, 457 U.S. at 809.

42 U.S.C. § 1983 says nothing at all about immunity, so the Supreme Court

looked to the common law. At common law, public officials were entitled to

good-faith immunity; a subjective standard that was not readily amenable to

summary adjudication. The Supreme Court rejected that approach and

fashioned a new “objective” standard - qualified immunity. Qualified immunity

is “an attempt to balance competing values, not only the importance of a

27

damages remedy to protect the rights of citizens, but also the need to protect

officials who are required to exercise their discretion and the related public

interest in encouraging the vigorous exercise of official authority.” Id., see also,

Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009).

All too frequently, members of our increasingly conservative federal

judiciary give due deference to the latter value, and entirely ignore the former.

This imbalance has turned a qualified defense into an absolute one, particularly

in matters involving law enforcement. If civil actions for damages are still meant

to be “the only realistic avenue[s] for vindication of constitutional guarantees,”

then this Court should affirm the district court’s decision denying qualified

immunity to Noble.. Harlow, 457 U.S. at 813-14.

A. THE QUALIFIED IMMUNITY STANDARD

A public official asserting qualified immunity must initially prove that “he

was acting within his discretionary authority when the allegedly wrongful acts

occurred.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002).17 If the public

official succeeds, the burden shifts to the plaintiff, who must prevail on both

prongs of the Supreme Court’s sequential qualified immunity analysis. See

Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151 (2001); but see, Pearson, supra

(overruling Saucier to the extent that it required that courts always reach both

17 There is no dispute that Noble was acting within the scope of his discretionary authority as an employees of McDonough at all times relevant to this action.

28

prongs on the inquiry in sequential order). The “threshold inquiry” is whether

the plaintiff’s allegations, if true, state a constitutional violation. If the plaintiff

succeeds, the court next considers whether that right was “clearly established.”

See Davis v. Williams, 451 F.3d 759 (11th Cir. 2006).

B. NOBLE VIOLATED THE FOURTH AMENDMENT BY RELYING ON AN UNCORROBORATED TIP, TURNING A BLIND EYE TO EXCULPATORY EVIDENCE AND MISREPRESENTING FACTS

The district court denied qualified immunity to Noble because issues of

material fact remained as to whether a reasonable officer could have concluded

that probable cause existed in order to seek the arrest warrant against Owens.

“These facts include, but are not limited to, Defendant’s reliance on the jail

trustee’s identification of Plaintiff, and Defendant’s transmission of Plaintiff’s

photograph and representation of reliability in the absences of eyewitness

identifications or other corroborating evidence.” (Doc. 87, p. 27). The district

court’s sound analysis should be affirmed and this matter should be remanded

for trial.

i. NOBLE’S CONTINUED RELIANCE ON AND MISREPRESENTATIONS ABOUT HATCHER’S TIP VIOLATED THE FOURTH AMENDMENT

Phillip Hatcher was a jail trustee when he mentioned to Noble that “he

thought he knew” the person depicted in the Bubba Bandit’s BOLO. Hatcher

“was not completely certain regarding the suspect’s identity.” (Doc. 87, p. 27-28).

The district court found that the jail trustee’s statement “was not a positive

29

identification.” The court found “that the statement [was] vague and

ambiguous. Taken alone, the statement cannot be considered a reliable positive

identification.” (Doc. 87, p. 28, n. 3).

Noble did not know Hatcher and he had never been used as a reliable

source by law enforcement. Noble took no steps to corroborate any aspect of his

story about Owens. He did not look for divorce records, bankruptcy records or

Hatcher’s employment records. He investigated Owens anyway, but

surveillance of Owens’ property, and a review of his driving history, vehicle

records, criminal history and bank records, uncovered nothing that remotely

suggested Owens had robbed several banks.

But Noble turned a blind eye to his inability to corroborate Hatcher’s tip,

and pulled an outdated license picture of Owens for a photographic line up. He

knew the picture was at least three years old, but did nothing to see if the picture

actually depicted Owens’ appearance at the time. He did not show the picture to

Hatcher before putting it in the line up.

Noble’s failure to confirm that the picture accurately depicted Owens’

appearance was critical to the ultimate misidentifications outside McDonough.

In the photograph, Owens has a mustache and a very fat face - two prominent,

consistent features in the descriptions of the Bubba Bandit. But in November of

2007, Owens did not have a mustache and his face was no longer fat.

30

Despite his incompetence, the witnesses at First Bank did not pick Owens

out of the line-up. Any reasonable law enforcement official would have stopped

pursuing Owens right then and there, if not long before. Noble had no evidence

supporting Hatcher’s tip. He had no evidence that Owens robbed the First Bank

in McDonough.

In Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996), Metro-Dade Police

Department was investigating a robbery and confidential informant informed

them that he knew the person who committed the robbery. Id. at 1523. At the

plaintiff's residence, the informant identified the plaintiff as the perpetrator. Id.

The victim of the robbery, however, never identified the plaintiff as the

perpetrator and was never shown a photo lineup. Id.

The Eleventh Circuit considered whether an informant's tip rises to the

level of probable cause. The Court cited several factors to consider including the

informant's veracity, reliability and basis of knowledge. Id. at 1525. See United

States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992). "In addition, the

corroboration of the details of an informant's tip through independent police

work adds significant value to the probable cause analysis." Ortega, 85 F.3d at

1525; Gonzalez, 969 F.2d at 1003 (emphasis added). The Court applied these

factors and concluded that the informant’s tip lacked essential elements to

support probable cause. Id.

31

Noble knew Hatcher had “no past history [with MPD] which could lend

support to the informant’s veracity and reliability.” Ortega, 85 F.3d at 1525.

Noble took “no independent steps to investigate the informant’s tip” and he had

no evidence “corroberat[ing] the informant’s identification of [Owens].” Id.

Noble did nothing to determine the jailhouse informant's "veracity," "reliability,"

or "basis of knowledge." Hatcher’s tip did not support probable cause or even

continued investigation of Owens.

In contrast to the circumstances here, the Eleventh Circuit granted

qualified immunity to the officer in Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir.

2009) because the officer was “entitled to rely on allegations of an informant and

corroborating evidence” for probable cause. The officer’s investigation began

with specific, verifiable information provided by an informant. The record

established that the officer was “able to corroborate several of the [informant’s”

statements through his own investigation.” Id. at 1328. The officer’s

independent investigation uncovered physical evidence and several other

witnesses provided evidence supporting probable cause. Id.

Noble, unlike the officer in Eslinger, had no evidence to corroborate

Hatcher’s tip and located no independent evidence suggesting that Owens might

be the Bubba Bandit. Noble’s continued reliance on Hatcher’s tip in the absence

of corroboration or other evidence violated the Fourth Amendment.

32

ii. NOBLE TURNED A BLIND EYE TO EXCULPATORY EVIDENCE, MISREPRESENTED AND OMITTED MATERIAL FACTS.

A qualified immunity analysis "must charge [the officer] with possession

of all the information reasonably discoverable by an officer acting reasonably

under the circumstances . . . '[A] police officer may not close his or her eyes to

facts that would help clarify the circumstances of an arrest.'" Kingsland v. City of

Miami, 382 F.3d 1220, 1228 (11th Cir. 2004) quoting Sevigny v. Dicksey, 846 F.2d 953

(4th Cir. 1988). Applying these principles in Kingsland, the Eleventh Circuit held

that "officers should not be permitted to turn a blind eye to exculpatory

information that is available to them, and instead support their actions on

selected facts they chose to focus upon." Id. at 1228.

The plaintiff in Kingsland was involved in an accident with an off-duty City

of Miami police officer. Officers from the Miami Police Department responded

to the scene, conducted an investigation and arrested the plaintiff for driving

under the influence of marijuana. Kingsland, 382 F.3d at 1223-25. The officers

ignored several witnesses at the scene and failed to take typical steps to collect

physical evidence that – if it existed – would have supported their claim that the

plaintiff was under the influence of marijuana. Id. at 1225-1230. The Eleventh

Circuit faulted the district court for focusing on the “reasonableness of

Kingsland’s arrest given what the officer did investigate, ignoring the fact that

they may have subjectively failed to investigate both sides of the story.” Id.

33

An officer cannot “ignore information that has been offered to him . . . nor

may the officer conduct an investigation in a biased fashion or elect not to obtain

easily discoverable facts.” The Eleventh Circuit noted the absence of “exigencies”

that might justify a less thorough investigation. Ultimately, “[t]he lack of

corroboration through independent police work” proved noteworthy to “the

probable cause analysis.” Id.

When his investigation into Hatcher’s tip turned up nothing, a reasonably

competent officer might well have continued surveillance or made an effort to

interview Owens. But after six witnesses failed to pick Owens from a

Photographic Line-Up, an objectively reasonable officer would have stopped

pursuing Owens as a suspect. Instead, Noble ignored evidence of Owens’ actual

innocence and continued his mindless pursuit of his first big arrest.18

At a bare minimum, no reasonably competent officer would contact a

sister law enforcement agency and lie – telling them that Hatcher was a reliable

source who had identified Owens – just to induce that agency to consider Owens

as a legitimate suspect. Abernathy testified that “reliable source” meant

18 Noble literally “turned a blind eye” to exculpatory evidence when he saw Owens on November and ignored the obvious: Owens looked nothing like the Bubba Bandit. Owens was lighter – by all appearances, at least fifty pounds lighter – than the perpetrator. Owens had a goatee; just two days earlier, the suspect had a mustache at Capitol City bank. Noble’s fellow officer - Stokes – knew right away that John Owens was not the guy; he just decided not to do anything about it.

34

something to him and he relied on that representation when he decided to put

Owens in his Photographic Line Up. Abernathy also relied on Noble’s

representation that Hatcher identified Owens. Hatcher’s statement was not a

reliable identification; it was at best a vague and ambiguous statement. (Doc. 87,

p. 28). Noble made these same material misrepresentations in his affidavit in

support of the search warrant executed at Owens’ home at the time of his arrest.

(Doc. 70-13-15).

Noble violated the Fourth Amendment when he misrepresented material facts to

fellow officers and a magistrate judge to secure Owens’ arrest. See e.g. Holmes v.

Kucynda et al, 321 F.3d 1069, 1084 (11th Cir. 2003)(“the law was clearly established

in 1998 that the Constitution prohibits a police officer from knowingly making

false statements in an arrest affidavit about the probable cause for an arrest”).

iii. NOBLE’S DECISION TO SEEK HIS OWN ARREST WARRANT FOR JOHN OWENS IN THE ABSENCE OF ANY EVIDENCE VIOLATED THE FOURTH AMENDMENT

On November 29th, Noble finished up his paperwork. He appeared before

a magistrate judge and swore out an arrest warrant charging Owens with

Robbery by Intimidation at the First Street Bank. Noble had no reliable evidence

of probable cause and he knew it; but he went and got an arrest warrant anyway.

Noble secured an arrest warrant, so the relevant line of authority flows

from the Supreme Court’s decision in Malley v. Briggs, 475 U.S. 335, 344 106 S. Ct.

1092 (1986). See, e.g., Garmon v. Lumpkin County, 878 F.2d 1406 (11th Cir. 1989);

35

Jones v. Cannon et al, 174 F.3d 1271 (11th Cir. 1999). In Malley, the Supreme Court

held that officers who apply for arrest warrants with a magistrate judge would

be protected by qualified immunity, unless “on an objective basis, it is obvious that

no reasonably competent officer would have concluded that a warrant should issue.” Id.

at 341. The Court explained the pertinent inquiry to be: “whether a reasonably

well-trained officer in petitioner’s position would have known that his affidavit

failed to establish probable cause and that he should not have applied for the

warrant.” Id. at 345. The Court also concluded that a magistrate’s subsequent

decision to issue the warrant affords no protection to the officer. Instead, the

Court held that, “[w]e find it reasonable to require the officer applying for the

warrant to minimize this danger19 by exercising reasonable professional

judgment.” Id.; but see Messerschmidt v. Millender, -- U.S. --, 132 S.Ct. 1235 (2012)(a

magistrate’s decision to issue a warrant may be considered as part of the court’s

inquiry as to whether the officer acted in an objectively reasonable fashion in

securing a warrant).

An officer who makes “knowingly or recklessly false, or materially

misleading statements to support a warrant” violates the Fourth Amendment.

See, e.g., Garmon, 878 F.2d at 1410-11; Kelley v. Curtis, 21 F.3d at 1554; Jones v.

19“[T]his danger” refers to the subject of the previous sentence. “But ours

is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should.” Id.

36

Cannon, 174 F.3d at 1285 (11th Cir. 1999). Noble knew the witnessed did not pick

Owens from a photographic line-up; but he did not share that information with

the magistrate. Owens knew his investigation and search of Owens’ home had

uncovered no evidence; but he did not share that information with the

magistrate. He knew that he had been unable to corroborate Hatcher’s tip; but

he told the magistrate that Hatcher was a reliable source. He knew Hatcher’s

statement about Owens was equivocal; but he told the magistrate that Hatcher

had identified Owens as the Bubba Bandit. He knew first hand that Owens’ no

longer looked like he appeared in his drivers’ license picture; but he still told the

magistrate that witnesses to other crimes had identified Owens.

An officer "who intentionally or with reckless disregard omits facts

material to an affidavit's probable cause violates the Fourth Amendment."

Madiwale v. Savaiko, 117 F.3d 1321, 1326-27 (11th Cir. 1997). The Court can infer

recklessness from the omission itself if the fact is "'clearly critical to a finding of

probable cause.'" Id. at 1327 quoting United States v. Martin, 615 F.2d 318, 319 (5th

Cir. 1980). The omitted fact is material if, when added to the application,

probable cause no longer exists. Madiwale, 117 F.3d at 1327.

Noble did not tell the magistrate that none of the witnesses to the First

Bank robbery identified him from a photographic line-up. He also omitted every

other material fact pointing to Owens’ actual innocence. Instead, he told the

magistrate judge that Owens robbed Hannah Jones and implied that she had

37

identified Owens as the Bubba Bandit. Noble admitted as much in his

deposition. Only a jury can determine if Noble omissions were intentional or

demonstrated a reckless disregard for the truth. Noble violated the Fourth

Amendment and is not entitled to summary judgment. See e.g. Evans v. City of

Plant City, 2007 WL 2916454 (M.D. Fla. 2007)(finding that “officer misled the

reviewing judge by suggesting, if not directly stating that [fellow gang members]

had identified the plaintiff.")

With the misstatements and omissions stripped away, Noble admits that

his arrest affidavit was based on (1) Hatcher’s statement; and (2) the

Bibb/Twiggs county identifications. But as the district court explained, Noble

cannot “boot strap” his way to probable cause by relying on evidence from the

Bibb and Twiggs county investigations. (Doc. 87, p. 31, n. 5). "[P]robable cause

for the first warrant, cannot of itself supply probable cause for the second

warrant. Instead, the latter warrant must rest on its own bottom--its own factual

predicate." Yattoni v. Oakbrook Terrace, 14 F.3d 605 (7th Cir. 1993)(unpublished).20

Under Malley, officers may be found liable in the absence of a “knowingly

or recklessly false statement” if the warrant application “is so lacking in indicia

20 This premise is consistent with Georgia law on the use of similar transactions. In a prosecution for the First Bank robbery, the Bibb and Twiggs county robberies could only be introduced for a limited purpose as “similar transaction” evidence. The State could only use evidence from these offenses subsequent to putting up evidence that the defendant committed the offense charged in the indictment. See e. g., Gilstrap v. State, 261 Ga. 798, 799 (1991).

38

of probable cause as to render official belief in its existence unreasonable.”

Malley, 475 U.S. at 345. (emphasis supplied).21

For example, in Tillman v. Coley, 886 F.2d 317 (11th Cir. 1989), an

undercover officer purchased a quantity of marijuana from a person giving the

name "Mary Tillman" and looked to be about 24 years old. Id. at 318. The

defendant, Sheriff Coley, knew a Mary Tillman in the community; knew she

lived 200-300 feet from the drug transaction, but knew that she was about forty-

one years old rather than closer to the age the undercover officer had reported.

Id. Despite this knowledge, the defendant did no investigation to clear up or

dispel the age discrepancy. Furthermore, the defendant did not inform the

magistrate judge of the age discrepancy or the defendant's concerns about it. Id.

The Eleventh Circuit considered whether a reasonably well-trained officer

with the information in the undercover police officer's report and the knowledge

that the defendant had in regard to the age of the plaintiff would have known

that probable cause did not exist. Id. at 320. The court found the defendant's

application for the arrest warrant to be unreasonable and denied qualified

immunity. Id. at 320-21; see also, Garmon v. Lumpkin Co., 878 F.2d 1406, 1408 (11th

Cir. 1989)(conclusory assertions insufficient to establish probable cause).

21The Supreme Court’s decision in Malley actually turned on this second inquiry,

thereby confirming that veracity in the warrant application is not the sole consideration in evaluating liability.

39

Noble averred that Owens entered the bank and robbed Hannah Jones. He

did not even get the victim right; the Bubba Bandit robbed Nichole Adcock.

Besides that rather glaring mistake, Noble bare bones affidavit is precisely what

this Court disapproved in Garmon, 878 F.2d at 1408. Just like Noble’s affidavit,

the affidavit in Garmon “contained nothing but the investigator's conclusion that

[the plaintiff] had committed the crime;” accordingly, “the magistrate could not

possibly have conducted the independent assessment required by the Fourth

Amendment . . ." Id. at 1409.

Noble testimony does little to fill in the blanks in his affidavit. Noble

admitted that he did not give the magistrate any evidence of probable cause

related to the First Street bank robbery; instead, he told him that Owens had been

identified for robberies that occurred in other counties. (Noble Dep., p. 97-98).

C. PRE-EXISTING LAW GAVE NOBLE FAIR WARNING THAT HIS CONDUCT VIOLATED OWEN’S FOURTH AMENDMENT RIGHTS.

This Circuit traditionally recognized three distinct forms of clearly

established law; however, recent decisions suggest that there are now only two

forms. Edwards v. Shanley, 666 F.3d 1289 (11th Circ. 2012)(“our circuit uses two

methods to determine whether a reasonable officer would know that his conduct

is unconstitutional.”); see also, Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir.

2011). In false arrest cases, this Circuit has defined the clearly established prong

40

as an arguable probable cause inquiry.” Draper v. Reynolds, 369 F.3d 1270, 1276 n.

7 (11th Cir. 2004); Moran v. Cameron, 362 Fed. Appx. 88 (11th Cir. 2010). Arguable

probable cause exists when “reasonable officers in the same circumstances and

possession the same knowledge as the Defendant could have believed that

probable cause existed to arrest.” Skop v. City of Atlanta, 485 F.3d 1130, 1144 (11th

Cir. 2007).

Noble had no arguable probable cause to pursue Owens as a suspect after

the First Bank witnesses failed to identify him and he was otherwise unable to

corroborate Hatcher’s tip. Noble certainly had no arguable probable cause to

pursue an arrest warrant for Owens days after a search warrant revealed no

evidence tying Owens to the crimes.

Owens points to pre-existing law that is not at all “distinguishable in a fair

way” giving Noble fair warning that his conduct violated the Fourth

Amendment. Vinyard v. Wilson, 311 F.3rd 1340, 1351. Ortega v. Christian, 85 F.3d

1521 (11th Cir. 1996) confirmed years of pre-existing law that an informant’s tip,

uncorroborated by independent police work or other evidence of reliability, is

not sufficient to establish probable cause. Kingsland v. City of Miami, 382 F.3d

1220, 1231, (11th Cir. 2004) establishes that officers cannot turn a blind eye to

exculpatory information that is available to them, and instead support their

actions on selected facts they chose to focus upon. Riley v. City of Montgomery,

104 F.3d 1247, 1253 (11th Cir. 1997) restated the obvious: fabricating incriminating

41

evidence violated constitutional rights. Madiwale v. Savaiko, 117 F.3d 1321 (11th

Cir. 1997) established that material omissions of fact from a warrant application

violate the Fourth Amendment. Garmon v. Lumpkin County, 878 F.2d 1406 (11th

Cir. 1989) established that conclusory assertions in warrant affidavit are clearly

insufficient to establish probable cause.

Noble had fair warning that his conduct violated the Fourth Amendment.

The district court properly denied qualified immunity. This Court should affirm

that decision and remand this case for jury trial.

CONCLUSION

For the within and foregoing reasons, Owens respectfully requests that the

Court dismiss this appeal or, alternatively, affirm the decision of the District

Court and remand this case for jury trial.

This 23rd day of August, 2012.

/S/William J. Atkins William J. Atkins Georgia Bar No. 027060 ATKINS & FIFE, LLC 6400 Powers Ferry Road, Suite 355 Atlanta, GA 30339 404-969-4130 bill@atkinsfife.com

42

APPENDIX

Pursuant to FRAP 30(d) and (e) and Eleventh Circuit Rule 30-1(f) and (k),

Owens’ includes documents from the Record whose interpretation is central to

the issues on appeal in the Appendix to Appellee’s Brief.

Composite Exhibit – Photographs of Bubba Bandit and John Owens Doc. 70-1

John Kirk Owens – Drivers’ License Photograph Doc. 70-2

John Kirk Owens-Bibb County Jail-Book In Photograph Doc. 70-3

John Kirk Owens Photograph –November 10, 2007 Doc. 70-4 Bubba Bandit Photograph -McDonough Bank, December 12, 2007 Doc. 70-6 Bubba Bandit Photograph -Capitol City Bank, November 19, 2007 Doc. 70-7

Henry County Police Department – BOLO Doc. 70-10

Henry County Application Criminal Arrest Warrant Doc. 70-13-13

Henry County Application Search Warrant Doc. 70-13-15

McDonough Police Department Photographic Line Up Doc. 70-13-21

Statement of Phillip Hatcher Doc. 70-13-24

43

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains no more than 9,593 words.

This 23rd day of August, 2012. s/William J. Atkins William J. Atkins Georgia Bar No. 027060 bill@atkins-law.com ATKINS & FIFE, LLC 6400 Powers Ferry Road, Suite 355 Atlanta, Georgia 30339 Tel. 404-969-4130

www.atkinsfife.com

44

CERTIFICATE OF SERVICE

I certify that Brief of the Appellee John Kirk Owens was electronically filed using the CM/ECF system which will automatically send email notification of such filing to all attorneys of record. I further certify that a true and correct copy of Brief of the Appellee John Kirk Owens was served via United States mail upon:

Andrew J. Whalen, III Leigh Crouch Hancher

Jessica Whatley The Whalen Firm, LLP

101 S. Hill Street, P.O. Box 133 Griffin, Georgia 30224-0004

This 23rd day of August, 2012.

/s/William J. Atkins William J. Atkins Georgia Bar No. 027060 bill@atkins-law.com ATKINS & FIFE, LLC 6400 Powers Ferry Road, Suite 355 Atlanta, Georgia 30339 Tel. 404-969-4130 www.atkinsfife.com