Qualified immunity denied for police chief who pushed subordinates to file false affidavits against sergeant


(If you are new to 1983 actions, click here for help)

Rodney Guerra was promoted to sergeant in the patrol department of the City’s police department in the first half of 2018. In July of 2018, a subordinate patrol officer arrested a suspect for driving while intoxicated and the suspect spat on the officer’s face. But the suspect was a strong political supporter of the City’s mayor who called then-police chief Baudelio Castillo, Guerra’s direct superior, and urged that the charges be dropped. Castillo proceeded to call Guerra and urged Guerra to tell the officer to drop the charges. But Guerra, in support of his officer, refused and, in Guerra’s words, unwittingly stoked the maliciousness, vengefulness, and ire of Defendant Castillo who was furious at Guerra for making him appear worthless in the eyes of the Mayor.

During the same period, a probationary patrol officer was released for failure to meet her probationary goals and accidentally forgot a pair of prescription rayban (reading) glasses in her patrol unit. The glasses were found by an officer who turned them over to Sergeant Xavier Martinez. Martinez did not place the glasses in the lost and found or the evidence room, but rather on his own desk, in the same area where Guerra’s desk was located.

After Martinez placed the reading eyeglasses on his own desk, Guerra saw the reading glasses on Martinez’s desk, tried them on, and placed them on his own desk. For about the next month, with the knowledge of the other supervisory officer and Sergeants, Srgt. Martinez and Srgt. Guerra played “tug of war” with the reading eyeglasses, as each would playfully take the reading eyeglasses from the other’s desk and place them on his own desk for use.

Soon after, Castillo enlisted an investigator and directed him to find a way to get rid of Guerra. The investigator homed in on the glasses, but at least one officer told the investigator, we really don’t have anything on Guerra for merely using the glasses. The investigator informed Castillo that the investigation conclusively established that no crime had been committed by Guerra, but Castillo allegedly responded, “I don’t care. He can beat the charge, but he can’t beat the ride. Get me enough to file a warrant!”

Castillo then enlisted an “Internal Affairs Officer” to conduct “an administrative investigation” regarding the glasses, and the Internal Affairs Officer attempted to enlist the assistance of the Probationary Officer, the former owner of the glasses, in filing criminal charges. The Probationary Officer initially expressed no interest, saying, “Throw the glasses away.” However, after a significant amount of cajoling and pressuring, the Officer agreed to provide a statement that she had not authorized anyone to use her glasses.

Subsequently, on October 19, 2018, the Internal Affairs Officer notified Guerra that he was being investigated for property that was checked out from the evidence room and allegedly appropriated by Guerra without cause or justification, months earlier. Castillo immediately placed Guerra on administrative leave and informed him he was required to appear for an interview with the Internal Affairs Officer several days later. Guerra claims he voluntarily appeared, denied the charges, and explained the situation, but his explanation was falling on deaf ears, so he requested a full and open evidentiary hearing to get to the truth of the allegations. That hearing would never be provided.

Soon after, on October 24, Castillo resorted to blackmail against Guerra by expressly informing him that if he did not resign by 5:00 p.m. on that day, he was going to terminate him and file a criminal prosecution. This was despite the fact Castillo actually knew that no probable cause existed. Guerra refused to resign. On October 25, Castillo officially suspended Guerra, recommended his termination, and ordered him to surrender his weapon and badge, and an arrest warrant was issued against Guerra for Class B misdemeanor theft.

Guerra’s counsel arranged to voluntarily present Guerra for arraignment at an agreed time and hour on October 26, but when Castillo learned of the timing, he contacted all of the local television and print media to be present at the arraignment, parading Guerra before the local media and effectively destroying Guerra’s future credibility and career as a law enforcement officer. Guerra immediately posted his bond.

On November 2, 2018, Guerra was officially terminated in a letter. A few months later, Castillo was completely incensed and enraged when he learned the district attorney was about to dismiss the theft charge against Guerra because the district attorney had found no evidence of a theft having been committed. Castillo, therefore, instructed his investigator to change and draw up some new statements and affidavits to obtain a new arrest warrant, this time pushing a tampering with evidence charge. Guerra alleges that Castillo intentionally instructed and directed his subordinates to file perjured Probable Cause Affidavits with the Alamo Municipal Court for presentment to the district attorney’s office despite his actual knowledge that critical sworn facts were false and would lead to Plaintiff’s wrongful arrest.

Guerra’s counsel again arranged for Guerra to appear at a specific time when a judge was ready and able to set his bond. Guerra appeared on January 8, 2019. The media was again present because Castillo had advised them that he would be having a press conference. Castillo then stopped his staff from taking Guerra to the courthouse because Castillo decided he was going to make Guerra sit in a jail cell overnight. The complaint alleges Guerra’s cell was cold, he was denied a blanket, and Guerra’s counsel was not allowed to see him. All charges against Guerra were dismissed on May 2, 2019, based on insufficient evidence.

Guerra filed suit under 42 U.S.C. § 1983 against Castillo for false arrest and against the City. The district court dismissed both matters. The 5th affirmed the dismissal against the City but reversed as to Castillo.


A. False Arrest

Guerra’s argument that Castillo violated his Fourth Amendment right against false arrest is based on the Supreme Court’s decision in Franks v. Delaware, 438 U.S. 154 (1978). Franks liability addresses the distinct issue of false information in a warrant application. Clearly established law at the time of Castillo’s actions laid out that under Franks, § 1983 allows claims against an officer who deliberately or recklessly provides false, material information for use in an affidavit in support of a warrant. An officer is liable under Franks only if the officer assisted in the preparation of, or otherwise presented or signed a warrant application. If an officer does not present or sign the affidavit, liability attaches only if he helped prepare the complaint by providing information for use in it.

Guerra’s complaint presents Castillo as the sole moving force behind a deliberate, long-term conspiracy to create and file affidavits Castillo knew to be false, with the purpose of exploiting the criminal justice system to arrest, detain, and torment Guerra for crimes Castillo knew he did not commit. Castillo, moreover, ordered the sham investigations that served as the bases for the false affidavits and pushed the investigations forward despite knowing Guerra was innocent.

In Terwilliger, 177 people were arrested using a form affidavit after a shooting had left 9 dead and at least 20 injured at a May 2015 gathering of motorcycle clubs. After the state failed to convict anyone, 31 of the arrestees filed § 1983 lawsuits alleging Franks liability against multiple defendants, including District Attorney Reyna who had been central to the 2015 arrests. Reyna pled both absolute prosecutorial immunity and qualified immunity, but the district court denied the motion. On appeal, this court agreed with the district court. Our court rejected Reyna’s absolute immunity claims because Reyna had been personally investigating the scene of the fracas and taking photographs, and therefore acting as an investigator. We noted that plaintiffs allege that Reyna was the driving force behind the mass arrests and told Asst. Chief of Police Lanning that all bikers wearing colors should be arrested. And our court also emphasized that plaintiffs allege that Reyna was continuously updated as to the status of the investigation and he had access to video footage that revealed many of the attendees, including many of those arrested, had no connection to the violence or parties involved in the violence.

Reyna neither signed nor swore to the affidavit. Thus, Franks liability can only attach if he provided material information for use in the affidavit. Reyna was provided with evidence both from the scene and interviews of attendees. But, acting contrary to the information provided to him, he stated that all bikers wearing colors should be arrested. Accordingly, and treating his function as that of an investigator [subject to qualified immunity, rather than a prosecutor who would be entitled to absolute immunity], Reyna generated the basic facts set out in the probable cause affidavit. Thus, Reyna knew the exact wording of the affidavit and knew or recklessly disregarded the fact that, based on the exculpatory evidence he had learned, probable cause did not exist to arrest some individuals potentially fitting the warrant’s criteria. These allegations are sufficient to tie him to potential Franks liability.

Notably, our analysis made no mention of any particular false information Reyna provided for use in the affidavits. Instead, we emphasized Reyna’s causal role as the driving force behind the false affidavits and arrests, alongside the fact he was presented with evidence that at least some bikers wearing colors should not be arrested, but, acting contrary to the information provided to him, told his subordinates and colleagues that all bikers wearing colors should be arrested. Accordingly, we said, Reyna generated the basic facts set out in the probable cause affidavit. We also found that Reyna’s alleged actions violated the clearly established right to be free from arrest without a good faith showing of probable cause. Importantly, this holding addresses the state of the law when Reyna acted in 2015.

Turning back to our case, we hold that Castillo’s alleged actions are relevantly like Reyna’s for purposes of evaluating his potential Franks liability. Castillo was the driving force behind the conspiracy, and he was continuously updated as to the status of the investigations he had ordered, including the fact the investigations revealed no criminality or impropriety. Castillo knew probable cause did not exist to arrest Guerra, but, acting contrary to that information, pushed subordinates to file false affidavits with the purpose of having Guerra fired, humiliated, and arrested without probable cause. And importantly, because Reyna’s actions violated clearly established law in 2015, Castillo’s actions violated clearly established law in 2018 and 2019.

Castillo acted on a personal vendetta, and he exploited the criminal justice system to exact revenge. In sum,  Castillo, like Reyna “generated” the basic facts in the probable cause affidavits and the district court erred by granting Castillo’s motion to dismiss.

B. City

Municipal liability under Section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose moving force is the policy or custom. See Piotrowski.

Guerra’s alleges that both Castillo and the City Manager, Ozuna, were policymakers. We begin with Castillo. Guerra’s complaint states that the City permitted its Chief of Police unrestricted control of the police Department. The City produced parts of the city charter to argue that all powers of the City of Alamo are vested in its Board of Commissioners and that neither the Chief of Police nor the City Manager has policymaking authority. Guerra then reproduced the same parts of the city charter, bolding the phrase “The Board may pass any ordinances they may desire delegating any part of their authority and duties to any other person, offices or employee, not inconsistent with the Constitution or laws of the State of Texas.”

But he mentioned no ordinance that delegated that authority. Instead, he reproduced a section of the city charter stating, the chief of police shall be the chief administrative officer of the department of police, and the chief of police shall be responsible for the administration of the police department.

The above does not allow this court to plausibly infer that Castillo had more than either complete discretionary authority or the unreviewability of such authority, as Zarnow requires.

Next, Guerra argues that Ozuna, the City Manager, had policymaking authority. Guerra’s complaint noted that he was terminated in a letter from Ozuna. The complaint also claims that Guerra’s counsel had requested an administrative hearing from Ozuna to discuss the false allegations against Plaintiff that had wrongfully resulted in his dismissal, but the hearing was never provided.

Once again, Guerra’s complaint does not identify facts that allow this court to plausibly infer that Ozuna had both complete or unreviewable discretionary authority and also more. Therefore, we AFFIRM the district court’s dismissal of the City.