Brown v. Lyford

• Decision Date: 20 February 2001
• Docket Number: No. 99-41297,99-41297
• Parties: (5th Cir. 2001) JAMES YORK BROWN, Plaintiff-Appellant, v. ROLAND SCOTT LYFORD; ET AL., Defendants, ROLAND SCOTT LYFORD; ANN GOAR; DEBBIE MINSHEW; BROOKS FLEIG; STEVE BAGGS; UPSHUR COUNTY, TEXAS, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 185

243 F.3d 185 (5th Cir. 2001)

JAMES YORK BROWN, Plaintiff-Appellant, v. ROLAND SCOTT LYFORD; ET AL., Defendants, ROLAND SCOTT LYFORD; ANN GOAR; DEBBIE MINSHEW; BROOKS FLEIG; STEVE BAGGS; UPSHUR COUNTY, TEXAS, Defendants-Appellees.

No. 99-41297

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 20, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Eastern District of Texas

Before KING, Chief Judge, and HIGGINBOTHAM and DUHE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is an appeal from a judgment of the district court granting summary judgment to various defendants in a section 1983 lawsuit. This suit arose from an aborted criminal investigation of child abuse and murder, presenting claims against arresting officials including malicious prosecution and false arrest. We hold that the officer defendants were entitled to qualified immunity, and that none was a policymaking official for the county defendant. We AFFIRM the judgment of the district court.

I

In 1990, Ann Goar and Debbie Minshew as employees of the Texas Department of Protective and Regulatory Services were assigned to counsel the children of Loretta and Wendell Kerr. The Kerr children came into foster care upon allegations of sexual abuse leveled against Wendell Kerr. The counseling later expanded to include the children of Wanda Geer Hicks, whom Wendell Kerr had started dating. The Kerr and Hicks children began to tell of being tortured, molested, and sodomized by their parents, grandparents, and various strangers, abuse including satanic rituals involving masks and knives. Their stories related the murder, dismemberment, post-mortem rape, and cannibalism of babies and children by the abusing adults. Goar and Minshew recruited two private occult investigators, Brooks Fleig and Steve Baggs to assist in an investigation of these accounts by the children. Roland Scott Lyford was appointed prosecutor pro tem after Upshur County's regular district attorney recused himself from the case. Lyford participated closely in the investigation, and in 1993 at Lyford's recommendation the county hired Fleig and Baggs as criminal investigators.

Child Protective Services criticized the methods of the investigators in interviewing the Kerr and Hicks children. CPS particularly criticized the use of a "holding technique," in which investigators physically restrained children while they answered questions. CPS also objected to the suggestive nature of the questions asked by the investigators. Suggestive questions were asked of both the children and the adult witnesses. An adult, Wanda Hicks,¹ later recanted, explaining that she developed her story out of the questions investigators put to her. Despite a grand jury indictment, all charges were ultimately dropped. Wendell Kerr had a corroborated alibi for the times of the alleged crimes, and the mishandling of the child witnesses made their testimony unreliable.

Yet, evidence also pointed in the opposite direction. Medical examination of the children found genital and anal scarring consistent with sexual molestation. An adult, Lucas Geer, confessed to police that he participated in ritualistic child abuse and child murder, a confession corroborating the stories told by the Kerr and Hicks children. A search of the Kerr property found three shallow grave-like depressions in the soil, a shovel with blood residue on it, an area matching the children's description of where the abuses occurred, two devil masks, a blood-stained mattress cover, and four knives said by the children to have been used to murder and dismember children. Pursuant to a plea agreement, two of the charged adults identified items retrieved from the Kerr household as devices used to restrain and torture children. Finally, plastic bags were found buried on the Kerr property, containing bone fragments. Before Lyford took his evidence to the grand jury, the Texas Human Skeletal Identification Laboratory issued a report stating the remains were most probably human. Another report from a different laboratory, filed months after the indictment was issued, concluded that the remains were not human.

While the defendants were investigating the Kerr case, Sergeant James Brown was investigating the disappearance of Kelly Wilson. Wilson was 17 when she was reported missing in Gilmer, Texas. In 1993, one of the Kerr children, identified as "R.S.," claimed that Kelly Wilson had been abducted, raped, and murdered by the Kerrs. As a result, Brown's investigation began to overlap with the investigation being conducted by defendants.

In a conversation between Brown and defendants, Brown said he had separately investigated the Kerr and Hicks children's allegations, and observed that Wendell Kerr, a key suspect, was not in Texas when Kelly Wilson disappeared. Brown asserts that defendants viewed his comments as interfering with their investigation. Lyford told Brown that Lyford was now investigating the disappearance of Kelly Wilson, that he did not want Brown interfering, and that if Brown interfered, "we're going to have a problem."

Shortly thereafter, R.S. implicated Brown in the charges of child abuse and the disappearance of Kelly Wilson. He stated that the police would not help, that they were also "bad," and described in general terms a person resembling Brown as having participated in the abuse. Later, Connie Martin - one of the adults involved - also implicated Brown by name. At the same time, the case against Brown had problems. Wanda Kerr was unable to identify Brown in a photo lineup. The narratives told by witnesses other than R.S. never mentioned Brown.

Lyford took this evidence to the Upshur County Grand Jury, which indicted the alleged abusers, including Brown. Brown was arrested and spent six days in jail. As we explained, charges were later dropped. Considerable media coverage surrounded these events. The Kerrs sued under section 1983. The district court dismissed on immunity grounds. We affirmed in Kerr v. Lyford.² This case concerns largely the same events, but is Brown's lawsuit rather than the Kerrs's. In his original complaint, Brown asserted a broad range of constitutional violations,³ as well as a variety of state law claims.⁴ In rendering judgment, the district court read Brown's complaint to invoke federal constitutional rights to be free from unreasonable seizure, false arrest, false imprisonment, and malicious prosecution, a reading Brown does not challenge. The district court held that Goar, Minshew, Fleig, and Baggs were entitled to qualified immunity, Lyford to absolute immunity, and all were entitled to summary judgment. It granted summary judgment to Upshur County. Brown appeals.

II

To overcome the qualified immunity of government officials, Brown must show 1) a constitutional violation; 2) of a right clearly established at the time the violation occurred; and 3) that the defendant actually engaged in conduct that violated the clearly established right.⁵

To date, the Fifth Circuit accepts that malicious prosecution can deprive a person of constitutional rights. This "constitutional tort" has seven elements:

1. criminal action commenced against the plaintiffs;

2. that the prosecution was caused by the defendants or with their aid;

3. that the action terminated in the plaintiffs' favor;

4. that the plaintiffs were innocent;

5. that the defendants acted without probable cause;

6. that the defendants acted with malice; and

7. that the criminal proceeding damaged the plaintiffs.⁶

The "constitutional torts" of false arrest, unreasonable seizure, and false imprisonment also require a showing of no probable cause.⁷

These defendants have qualified immunity if they had probable cause to believe that Brown committed a crime. "For purposes of malicious prosecution, probable cause means 'the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.'"⁸

Brown points to the statements of three witnesses in the summary judgment record as establishing the absence of probable cause. First, Shane Phelps, the assistant Attorney General who took over from Lyford, stated in an affidavit that "the evidence supporting the indictment of Sgt. Brown was fatally deficient and did not even rise to the level of probable cause." Second, Dr. Richard Ault, an expert retained by Brown, expressed in an affidavit his opinion that the methods used in interviewing the various witnesses were excessively coercive, such that the statements of those witness could not "produce objective information that a reasonable law enforcement officer could use in the course of" an investigation. Third, Dr. Bruce Perry, an expert testifying as part of a later grand jury investigation reviewing Lyford's investigation, said that both the adult and child witnesses came from abusive homes and were therefore prone to reading a questioner's face and saying what they thought the questioner wanted to hear, in order to protect themselves from abuse. Perry also expressed his opinion that the interviewing techniques used were highly coercive and suggestive.

A plaintiff must clear a significant hurdle to defeat qualified immunity. "[T]here must not even 'arguably' be probable cause for the search and arrest for immunity to be lost."⁹ That is, if a reasonable officer could have concluded that there was probable cause upon the facts then available to him, qualified immunity will apply. Defendants point to the following evidence that, at least arguably, established probable cause to arrest Brown. First, R.S. implicated Brown in the disappearance of Kelly Wilson. Second, Paulette Kerr stated she was afraid of Brown and that Brown had been dating Kelly Wilson. Third, Connie Martin implicated Brown in the disappearance of Kelly Wilson and the...