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There is no false arrest if grand jury indicts person


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Maximo Espinal was a security guard at a Houston office building. While on duty one night in 2020, Espinal saw a vehicle pull onto the property. It parked in a “dead end area” in front of a “No Trespassing” sign. Armed with a shotgun and a flashlight, Espinal went to investigate. As Espinal approached, the driver rolled down his window. The driver identified himself as Houston police officer M.T. Long. Officer Long was dressed in plain clothes but showed Espinal his badge. He then asked Espinal why he had a rifle. Espinal explained that it was a shotgun, and that he carried it because the property was in a high crime area. After agreeing that the area was dangerous, Officer Long departed.

The following evening, while Espinal stood outside with his shotgun, a vehicle again drove onto the property. It stopped five yards from where Espinal stood beneath a lamppost. The driver then backed up and rolled down his window, revealing himself as Officer Long from the night before. Officer Long angrily shouted about Espinal’s rifle. Espinal explained that his weapon was a shotgun, and that, as a security officer, he could not carry a rifle. This seemed to anger Officer Long even more and he kept on shouting at Espinal. Gripping his weapon at the low ready, Espinal then told Officer Long in no uncertain terms that he was on private property and ordered him to leave and not come back. Officer Long protested that he was a police officer. Nonetheless, heeding Espinal’s command, he departed.

An hour later, Officer Long returned with five Houston Police Department vehicles and arrested Espinal for aggravated assault. Among the arresting officers were Officer M.K. Lam and Officer John Doe. Espinal complied with the officers’ orders, while informing them that there was video surveillance evidence to prove his innocence. The officers, however, made no effort to view or collect the video Espinal referenced. Instead, Officer Lam and Officer Doe drove Espinal to the Harris County jail.

A Texas grand jury subsequently indicted Espinal for aggravated assault of a police officer, but the State later moved to dismiss the charges. It explained that, while probable cause existed, Espinal’s guilt could not be proven beyond a reasonable doubt at this time. The court granted the motion and dismissed the charges.

Espinal then sued Officers Long, Lam, and Doe, and the City of Houston under 42 U.S.C. § 1983 for false arrest and malicious prosecution in violation of the Fourth and Fourteenth Amendments. The court concluded that the officers were entitled to qualified immunity on Espinal’s § 1983 claims. The 5th affirmed.


A. False Arrest

Probable cause for a warrantless arrest exists when all of the facts known by a police officer are sufficient for a reasonable person to conclude that the suspect had committed, or was in the process of committing, an offense. See Loftin. Probable cause is not a high bar. See SCOTUS Kaley v. United States, 571 U.S. 320 (2014). A fair probability that the suspect has committed a crime is enough to establish probable cause. The likelihood that he has done so need not reach even the fifty percent mark. See Garcia. And even when an officer arrests a suspect without probable cause, the independent intermediary doctrine shields him from liability if a grand jury subsequently indicts the suspect.

Because a grand jury indicted Espinal, we can start (and end) our analysis with the independent intermediary doctrine. So, we assume arguendo that the officers lacked probable cause to arrest Espinal. Espinal argues that the independent intermediary doctrine does not shield the officers for two reasons.

First, Espinal contends that the “taint” exception to the independent intermediary doctrine applies. Under this exception, the arresting officer may still be liable for false arrest if the grand jury’s deliberations were “tainted” -i.e., if the grand jury was given a purposely false or incomplete rendition of the facts. In such circumstances, an indictment affords the officer no shelter. Merely invoking the taint exception is not enough. Rather, a plaintiff must show that the official’s malicious motive led him to withhold relevant information or otherwise misdirect the independent intermediary by omission or commission. Such allegations are missing here. Indeed, Espinal’s complaint lacks even unadorned allegations of taint, much less specific facts showing that the officers misdirected the grand jury. Espinal conceded as much at oral argument. So, the taint exception cannot save Espinal’s false arrest claim.

Second, Espinal argues that, even if Long did accurately portray the events to the grand jury, the facts so lacked the indicia of probable cause that the independent intermediary doctrine should not save him here. In Malley v. Briggs, SCOTUS held that an officer may be held liable for false arrest if he submits an obviously deficient arrest warrant application— even if a magistrate approves it. 475 U.S. 335 (1986). The exception does not apply here. The facts Espinal alleges do not obviously fail to establish probable cause for aggravated assault under Texas law. As relevant here, a person commits an assault by intentionally or knowingly threatening another with imminent bodily injury. Tex. Penal Code § 22.01(a)(2). The assault is aggravated if the person uses or exhibits a deadly weapon during the commission of the assault, § 22.02(a)(2), and becomes a first-degree felony if committed against a police officer. § 22.02(b)(2)(B). Moreover, a threat need not always be verbalized. It can be implied. Accordingly, Texas courts have held that the display of a weapon, without an express threat to use it, can sometimes be sufficient to support a conviction for aggravated assault.

Espinal argues there are no facts whatsoever suggesting he threatened Officer Long with imminent bodily injury. We disagree. According to Espinal, he told Long in no uncertain terms to leave and not come back. All the while, he held his shotgun at the ready. Under these circumstances, it was not obviously unreasonable to infer that Espinal was threatening to use his weapon if Long did not leave.

Alternatively, Espinal argues that, even if he did threaten Officer Long, he did so to defend himself and his employer’s property. Espinal’s purported affirmative defense—defense of himself and his employer’s property—is far from conclusive. Officer Long was not, as Espinal argues, an unknown actor. He was a police officer whom Espinal quickly recognized. From that point, Espinal does not allege Long did anything to suggest he was there to “murder” Espinal or engage in other criminal activity. All Espinal claims Long did was shout at Espinal about his gun. In response, Espinal told Long “in no uncertain terms” to leave— arguably using his weapon to threaten Long into compliance. Under those circumstances, a reasonable officer would not have known “conclusively” that Espinal was acting in justified defense.

Accordingly, the independent intermediary doctrine defeats Espinal’s false arrest claim against the officers.

B. Malicious prosecution

Next, Espinal claims the officers violated his Fourth and Fourteenth Amendment rights by maliciously subjecting him to prosecution. To overcome the officers’ qualified immunity, Espinal must (1) allege facts that make out a violation of a constitutional right, and (2) show that the right at issue was clearly established at the time of the defendants’ alleged misconduct. Espinal fails on both prongs.

First, some background. From 2003 to 2021, our court explicitly denied the possibility of a constitutional malicious prosecution claim. Times have changed. In 2022, SCOTUS held that litigants may bring a Fourth Amendment malicious prosecution claim under § 1983. See Thompson v. Clark, 596 U.S. 36 (2022). We have since acknowledged that the Court’s clear recognition of the constitutional tort of malicious prosecution overruled our precedent to the contrary. Accordingly, we reinstated our pre-2003 malicious prosecution standard.

Under that framework, a plaintiff must allege the following elements: (1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) malice; and (6) damages.

With all this in mind, we consider Espinal’s claim. Espinal fails under the first prong of qualified immunity, which requires him to allege facts supporting the elements of malicious prosecution. He falters on at least the second element. As explained above, Espinal has failed to allege that the officers misled the grand jury in any way. Accordingly, because Espinal has not plausibly alleged that the defendants suppressed, fabricated, or destroyed evidence before the grand jury, he has not plausibly alleged that the defendants were the cause of his prosecution.

Alternatively, Espinal fails on the second prong of qualified immunity. At that step, we ask whether the defendants violated law that was clearly established at the time of their actions. Subsequent legal developments are immaterial. Espinal was arrested and indicted in 2020, when the constitutional malicious prosecution tort did not exist in our circuit. So, the officers could not possibly have violated clearly established law at the time.