Spivey v. Robertson

Decision Date07 December 1999
Docket NumberNo. 98-30595,98-30595
Citation197 F.3d 772
Parties(5th Cir. 1999) Clarence Willard Spivey, Jr., doing business as Thrifty Instant Print; Karon K. Spivey, doing business as Thrifty Instant Print,Plaintiffs-Appellees, v. Rickey Robertson, individually and in his official capacity as a police officer for the State of Louisiana; et al, Defendants, Charles F. Wagner; Thomas Yeager; Jerry Henderson, Defendants-Appellants
CourtU.S. Court of Appeals — Fifth Circuit

Appeal from the United States District Court for the Western District of Louisiana

Before REYNALDO G. GARZA, JOLLY, and, DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

I. Factual and Procedural Background

Mr. Spivey owns and operates Thrifty Instant Print, a photocopy business in Alexandria, Louisiana. In his capacity as the operator of the print shop, he photocopied hundreds of driver's licenses belonging to minors who subsequently altered their original licenses with the Spivey photocopy so as to allow them to appear of legal age to purchase and consume alcohol or secure admission to night clubs that served alcoholic beverages.

As part of a crackdown on underage drinking and the use of fake IDs, the police visited the Spivey shop after concluding that he was the exclusive source of the photocopies. Spivey freely cooperated with police, even demonstrating his photocopier on a license. At this point in time, Spivey was not a criminal target.

After this visit, upon urging of their superiors, Officers Cook and Robertson visited the District Attorney's office to obtain advice on whether a person could be held liable for making copies of drivers' licenses that are then altered to make a minor appear to be of the legal drinking age. Following a review of the law, the Assistant District Attorneys told the officers with what crimes Spivey could be charged and instructed the officers to prepare for submission an affidavit of probable cause for an arrest warrant for Spivey using the term "counterfeited." Deposition testimony of Officer Robertson demonstrates that the Assistant District Attorneys suggested pursuing the source of the fake IDs, and that it was their suggestion to obtain an arrest warrant for Spivey, including supplying the legal basis for such an arrest. Officer Robertson typed up the warrant as suggested, the judge issued the arrest warrant, and charges were brought against Spivey.

State Police arrested Mr. Spivey, escorting him in handcuffs through the front door of his business into the arms of an alerted media. He was charged with five counts of injuring public records and one count of unlawful use of a license. Shortly thereafter, however, the District Attorney's office dropped all charges against him, the prosecuting district attorney stating that there was "not a shred" of evidence to support the charges. The Spiveys then filed suit in the Ninth Judicial District Court, Parish of Rapides, against the officers. The suit was removed to the United States District Court for the Western District of Louisiana. Based on deposition testimony in that case, Spivey amended his complaint to include the Assistant District Attorneys on the ground that they "prepared an embellished and false affidavit for [the police officers] to type and prepare and to submit to the District Judge to obtain a warrant of arrest."

Subsequently, the defendants brought a 12(b)(6) motion, or in the alternative, a motion for summary judgment pursuant to Fed.R.Civ.P. 56, asserting their entitlement to absolute, or in the alternative, qualified immunity. The district court denied the motions. This appeal followed.

II. Standard of Review

We accept a plaintiff's factual allegations as true when considering motions to dismiss under Fed.R.Civ.P. 12(b)(6). Buckley v. Fitzsimmons, 509 U.S. 259, 261, 113 S.Ct. 2606, 2609 (1993); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Unless such allegations show that the plaintiff has failed to state a claim upon which relief can be granted, this court will not grant a motion to dismiss under 12(b)(6). Id. This court will not look beyond the face of the pleadings to determine whether relief should be granted based on the alleged facts, St. Paul Ins. Co. of Bellaire, Texas v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991), cert. denied, 502 U.S. 1030 (1992), and will construe all factual allegations in the light most favorable to the plaintiffs, Rubinstein v. Collins, 20 F.3d 160, 166 (5th Cir. 1994).

We review de novo the denial of motions for summary judgment on the grounds of qualified or absolute immunity. Hart v. O'Brian, 127 F.3d 424, 437 (5th Cir. 1997). We will grant a motion for summary judgment under Fed.R.Civ.P. 56 only if the pleadings, answers to interrogatories, admissions and affidavits on file indicate no genuine issues as to any material fact. Fed.R.Civ.P. 56. When the burden at trial rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Courts of Appeals consider the evidence in the light most favorable to the nonmovant, yet the nonmovant may not rely on mere allegations in the pleadings; rather, the nonmovant must respond to the motion for summary judgment by setting forth particular facts indicating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted. Celotex Corp., 477 U.S. at 322; Fed.R.Civ.P. 56(c).

III. Analysis

We are presented in the instant case with an opportunity to clarify the effect of the Supreme Court's opinion in Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502 (1997), on the Fifth Circuit's decision in Hart v. O'Brien 127 F.3d 424. Both courts apply a functional approach to absolute immunity. See Hart, 127 F.3d at 439 (holding that a prosecutor enjoys absolute immunity when he acts as an advocate for the state, but does not enjoy such immunity for acts of investigation or administration); see also Kalina 118 S.Ct. at 509 (emphasizing the functional approach to determining absolute immunity, and explaining that absolute immunity protects the prosecutor's role as an advocate1). The courts differ, however, as to their analysis of the threshold timing of prosecutorial absolute immunity.

In Hart, this court held that the earliest time that absolute immunity may attach to a prosecutor's activities is when charges are filed.2 Shortly after this court's opinion in Hart, the Supreme Court decided Kalina. In Kalina, the Supreme Court found that a prosecutor has absolute immunity when acting as an advocate in supplying legal advice to support an affidavit for an arrest warrant,3 unless that prosecutor personally attests to the truth of the evidence presented to a judicial officer, or exercises judgment going to the truth or falsity of evidence.4 Hart is in conflict with Kalina, because a prosecutor may select the facts to include in the certification prior to when charges are filed. The starting point must be earlier than the formal onset of judicial proceedings at least encompassing preparatory moments.

Kalina now governs when absolute immunity may apply, thus the district court...

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