For this case Please Help me Go through the brief and mark each citation for the Table of Authorities. Hint: Citations to the case record do NOT belong on Table of Authorities, so ignore the record citations Go through the brief and mark each heading with an appropriate style. Insert a Table of Authorities on the page indicated in the brief. Insert a Table of Contents on the page indicated in the brief.

QUESTIONS PRESENTED

1. Whether a malicious prosecution claim under 42 U.S.C. 1983 based on the Fourth Amendment requires proof of malice.
2. Whether Hernandez suffered a deprivation of liberty because of legal process unsupported by probable cause, for purposes of a malicious prosecution claim under 42 U.S.C. 1983 based on the Fourth Amendment.

STATEMENT OF CASE

1. Statement Of Facts

Officer Giggs, (Petitioner) received a tip that a large drug exchange would take place at Liberty Park on June 10, 2008. (R. at 2).Officer Giggs then monitored the given location in Liberty Park on the given date. (R. at 3). While monitoring the park, Officer Giggs took prescription medication for an impending migraine headache. Id.Shortly after, Officer Giggs witnessed two people exchange a black duffle bag for cash. Id. Based on Officer Giggs' understanding of the local drug culture and his training as a police officer, he recognized the black duffle bag as being the usual way that large quantities of drugs are typically transported. Officer Giggs gave chase to the suspect that he believed he recognized as residing in the local area, but was unable to apprehend him at that time. Id.

Three days after the exchange and chase, Officer Giggs noticed and recognized the suspect he chased as Xavier Hernandez (Respondent). After confirming the suspect's identity, Officer Giggs presented an affidavit to the local judge. Id. No information about Officer Giggs feeling drowsy at the time of the stakeout was included as Officer Giggs reasonably considered it irrelevant to the witnessed criminal actions of the suspect. Based on the facts of the situation, a warrant was issued for the arrest of the respondent. Id. Respondent was prosecuted, tried, and eventually found not guilty of the charge of distributing a controlled substance. Id.

1. Procedural History

Respondent filed suit for alleged malicious prosecution against Petitioner. (R. at 4). Respondent's claim was dismissed by the New York Supreme Court (R at 11) for lack of subjective malice. (R. at 23).

Respondent then appealed to the United States Courts of Appeal for the 14th District. (R. at 18). The appellate Court reversed the trial Court's dismissal (R at 23) and ruled for the Respondent, finding that Officer Giggs lacked probable cause to arrest the Respondent, and malice is not an element of malicious prosecution in a 42 U.S.C. 1983 claim brought under the Fourth Amendment. (R. at 27).

STANDARD OF REVIEW

In reviewing the judgment entered by the United States Courts of Appeal for the 14th District, this court should REVERSE the Circuit Court's findings of fact because there is a misinterpretation of the Constitutional law, and review the application of law to fact de novo. A probable cause determination in a false arrest claim is reviewed de novo. See Picray v. Sealock 138 F.3d 767 (9th Cir 1998)."[A]s a general matterdeterminations of reasonable suspicion and probable cause should be reviewedde novoon appeal." Ornelas v. United States, 517 U.S. 690, 699 (1996). Any element of legal analysis and statutory interpretation that figure into the District Court's decisions are reviewed de novo. See La Associacion de Trabajadores de Lake v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2009); Richard S. v. Dep't of Developmental Services, 317 F.3d 1080, 1086 (9th Cir. 2009). Constitutional issues are reviewed de novo. See Berry v. Dep't of Soc. Servs., 447 F.3d 642 (9th Cir 2006).

SUMMARY OF ARGUMENT

In the United States, the first modern police department was created by the State of New York for the city of New York, in accordance with recommendations made by a committee that was earlier sent to London to study the English model. The main difference between the United States' system and the English model was that the police departments in the United States were kept separate from the judiciary pursuant to the requirements of the United States Constitution.

Here, in the United States, the police work off of reasonable suspicion in order to perform their jobs which may lead to probable cause for an arrest and possible prosecution for a crime. Since the inception of our country police officers have been afforded great leeway in determining when a crime has been committed and whether to arrest. Their decision to arrest then leads to further reviews by both prosecutors and the courts. Each step of the process is geared to provide the maximum protection to the accused and to obtain their release from custody if the amount of evidence is not sufficient for a conviction.

Officer Giggs, working under the auspices of the New York Police Department, and utilizing his years of training and his informant network was able to witness a drug for money exchange. Officer Giggs then attempted to make an arrest pursuant to that reasonable suspicion of witnessed illegal activity. "[A] Police officer may draw inferences based on his own experience in deciding whether probable cause exists." Ornelas v. United States, 517 U.S. 690, 700 (1996). After investigating, Officer Giggs provided to the supervising judge an affidavit specifying what he witnessed and his determination as to whom he believed was involved in the exchange.

The Federal statue 42 U.S.C. 1983 was enacted in 1871 by the 42nd Congress in order to enforce the Fourteenth Amendment action for damages against every person, acting under color of state or local law, who deprives a person of his or her Constitutional rights and thereby causes damage to that person. Since its inception, Congress has created many immunities that can and do protect individual state and local government officials, including police officers, against any liabilities for damages. Section 1983 does not specify what crimes it encompasses nor how to determine the elements of those possible crimes. For over a hundred years the Circuit Courts have been split as to how they determine what falls under 42 U.S.C. 1983 and as to how the elements of that crime are to be handled.

In the case at bar, Officer Giggs had reasonable suspicion that a drug transaction would take place at a given location at a given time, based on a tip he received. While on a stakeout of that location, Officer Giggs observed what appeared to be a crime in progress, specifically a drug transaction. Officer Giggs then gave chase to one of the suspects, but failed to apprehend that person at that time. After investigation, and canvasing the area, Officer Giggs located the suspect that he had chased after. Officer Giggs then took that information to the local judge to request a warrant for the suspect's arrest, based on probable cause that a crime had been committed.It is not disputed that Officer Giggs took medication for an impending migraine headache while he was attending the stakeout. It was admitted in trial that Officer Giggs felt a little drowsy while on the stakeout.It should also be noted that the record changed drowsy to dizzy which is a significant difference in this case. Officer Giggs then went on to testify under oath that he was not impaired. (R. at 4).

There are two issues before this Court: 1) whether malice is an element of malicious prosecution under a 42 U.S.C. 1983 action, and 2) whether Officer Giggs had probable cause to make the arrest of respondent. As to issue number one, a majority of the Circuit Courts have held that in order to state a claim under 42 U.S.C. 1983, the respondent must prove all of the common-law elements of malicious prosecution in addition to a Constitutional violation. Even this court used the common-law elements of malicious prosecution in its analysis in Heck v. Humphrey, 512 U.S. 477 (1988) to show that there must be termination in the plaintiff's favor for the cause of action to proceed. The Second, Third, Ninth, Tenth, and Eleventh Circuit courts have held that all the elements of a common law malicious prosecution apply to Section 1983 claims for malicious prosecution. The Seventh Circuit court held that there is no malicious prosecution cause of action under Section 1983 because there was an adequate remedy under the state law available to the petitioner. A minority of the Circuit courts, including the First, Fourth, Fifth, and the Sixth courts, have held that there is no malicious prosecution cause of action under Section 1983, but allow for a separate cause of action under the Fourth Amendment that does not require malice as an element.

Officer Giggs is entitled to qualified immunity in this case as he acted in an objectively reasonable manner and did not violate the Constitutional rights of the respondent. An allegation of malice is not sufficient to defeat immunity if the defendant acted in a reasonable manner. Here, as shown above, the law is not clearly established, so Officer Giggs is entitled to qualified immunity. This Court should REVERSE the lower court's decision based on this alone, even without all the other compelling evidence.

As to the second question, Officer Giggs had probable cause to request a warrant from the judge and to arrest respondent. Officer Giggs was not impaired when he witnessed the incident described in the warrant. Officer Giggs was not impaired when he was able to positively identify the respondent as the person he chased after the drug deal was concluded. Officer Giggs did not mention his taking of a medication, nor his drowsiness because it was, in his determination, irrelevant to the issue.If it is determined to be relative, then he did not act in reckless disregard, but merely was negligent in his description of the events. Officer Giggs did not omit highly relevant information, and even with the information provided, he had a reasonable set of grounds for belief of guilt of the respondent, as there was a probability of criminal activity. Officer Giggs relied on his experiences and training to determine that probable cause existed.

Once it is determined that the information was relevant, if such determination is made, then it is incumbent upon the court to insert that information into the affidavit to see if there is any difference as to the eventual conclusion as to probable cause. If there is no difference as to the probable cause determination, then the omitted facts are not material, and the warrant that was issued is determined to remain valid. Here, the affidavit would have added in the phrase "although I was a little drowsy, this in no manner impaired my ability to perform my job functions."This information would have had no effect upon the probable cause determination and issuance of the warrant.Thus, there is no malicious prosecution.

Officer Giggs is entitled to qualified immunity in this question, as the law is not clearly established as to what is required to be added to an affidavit as to an officer's medical history or his feelings at the time of the alleged incident. We have disagreements about this in the Circuit Courts and if the judges can not agree on this issue, it is unfair to subject police to money damages for picking the losing side in the controversy. An officer is entitled to qualified immunity of officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context.

ARGUMENT

I. IN ORDER TO STATE A CLAIM UNDER 42 U.S.C. 1983 THE RESPONDENT MUST PROVE ALL OF THE COMMON LAW ELEMENTS OF MALICIOUS PROSECUTION IN ADDITIONAL TO A CONSTITUTIONAL VIOLATION.

1. A Majority Of Circuit Courts Have Held A Malicious Prosecution Claim Under 42 U.S.C. 1983 Based On The Fourth Amendment Requires Proof Of Subjective Malice.

There is more than one federal statute dedicated to the vindication of the injured when it comes to civil rights. When one does not speak to an issue, then it is reasonable to look to other similar statutes for redress. Here, 42 U.S.C. 1983 does not have any language as to how to determine what elements to use when an injured seeks redress under a malicious prosecution claim based on the Fourth Amendment. Fortunately, this issue has already been dealt with by this Court in Newport v. Fact Concerts, and in Heck v. Humphrey, as detailed below.

In Newport v. Fact Concerts,453 U.S. 247 (1981), Respondent brought suit against petitioner under 42 U.S.C. 1983 alleging that its Constitutional rights to free expression and due process had been violated under color of state law.This Court looked to the Section 1983 claim and stated "One important assumption underlying the court's decisions in this area is that members of the 42nd Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort litigation and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary." Id.at 258. Even though this case dealt with immunities, the principles that the Court set down apply. The Congress did not put into the statute any specific provisions to the contrary of known common-law principles already in place at the time that the statute was written and then codified into law.

In Heck v. Humphrey, 512 U.S. 477, 483 (1988), the plaintiff sued for a malicious prosecution action under 42 U.S.C. 1983 as in our case. Heck, questioned whether an element of the common law malicious prosecution statute, termination in a plaintiff's favor, was also a requirement in a federal 42 U.S.C. 1983 claim. The Court determined that "the common law of torts provides the appropriate starting point for the Section 1983 inquiry." Id. at 477; see also Carey v. Piphyus, 435 U.S. 247 (1978).

The Court is compelled to apply all the common law elements of the tort of malicious prosecution as directed by a similar civil rights statute, 42 U.S.C. 1988. According to 42 U.S.C. 1988, when a civil rights statute, such as is in our case, is "deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law, the common law ... shall be extend to and govern the said courts in the trial and disposition of the cause."Here we find that our 1983 claim is deficient in the provisions necessary and as such the court should look to the common law in the trial and disposition of our cause as directed by 42 U.S.C. 1988.

1. The Second Circuit held in Manganiello v. City of New York that all elements of a common law malicious prosecution claim apply to a Section 1983 claim for malicious prosecution.

The second circuit held that all elements of a common law malicious prosecution claim apply to a Section 1983 claim for malicious prosecution. In Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010) a police officer was arrested, tried, and found not guilty of the murder of another police officer. It was determined that the detective engaged in misconduct by failing to look into other suspects, hid exculpatory evidence, and conveniently lost the case file prior to trial. This was sufficient to show that the detective initiated prosecution and acted with malice against the police officer. The court looked to the elements of malicious prosecution in New York to determine whether all elements of a malicious prosecution claim had been met."In order to prevail on a Section 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment and must establish the elements of a malicious prosecution claim under state law." Id. at 160 - 161. The fourth element of a malicious prosecution claim is "actual Malice as a motivation for defendant's actions." That is, malice is a requirement for a malicious prosecution claim under the Fourth Amendment for malicious prosecution.

In the case at bar the petitioner, Officer Giggs, did not act with malice, and did not hide exculpatory evidence. Officer Giggs worked within his job description and acted with good faith when he presented his affidavit to the judge in request for a warrant. Even the respondent has already conceded that there was no malice on the part of the petitioner.

1. The Third Circuit held in McKenna v. City of Philadelphia that a malicious prosecution claim brought under 42 U.S.C. 1983 required the plaintiff to prove all of the common-law elements of malicious prosecution.

In McKenna v. City of Philadelphia, 542 F.3d 447 (3rd Cir. 2009) the Third Circuit determined that a malicious prosecution claim brought under 42 U.S.C. 1983 required the plaintiff to prove all of the common-law elements of malicious prosecution. In this case, the plaintiff had been arrested for disorderly conduct. The charges were eventually dropped by the court for lack of prosecution when the police failed to attend multiple pre-trial hearings.The plaintiff then sued the city, the police officers involved in the arrest, a police captain, and a police sergeant under a 42 U.S.C. 1983 civil rights action. The court ruled that in order to "prevail on a malicious prosecution claim under 42 U.S.C. 1983, a plaintiff must show that . . . 4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice. . . ." Id. at 461.

This case is similar and relevant to our case in that the respondent was arrested by police and brought a 42 U.S.C. 1983 claim for malicious prosecution.Here also, the plaintiff did enter the judicial system, though the outcomes were slightly different. The Third Circuit determined that malice is a requisite element of a malicious prosecution claim brought under 42 U.S.C. 1983 and properly dismissed the action due to a failure of the plaintiff to show malice. Here, as in our case, malice is not proven and the case should be dismissed for lack of a required element to malicious prosecution.

1. The Seventh Circuit held in Lovet v. City of Chicago that a malicious prosecution claim can only be brought under federal law if there is no adequate remedy under state law.

In Lovet v. City of Chicago, 761 F.3d 759 (7th Cir. 2014) the Seventh Circuit looked at a case wherein a federal suit was brought for malicious prosecution under 42 U.S.C. 1983 of two Chicago police officers by an acquitted defendant in an aggravated battery trial. The federal claim was dismissed by the court stating that "a federal suit for malicious prosecution by state officers is permissible only if the state in which the plaintiff has been prosecuted does not provide an adequate remedy." Id. at 760. The court went on to state that the "malicious prosecution under state law was adequate to give him all the due process to which he was entitled." Id. at 762. The Seventh Circuit did look to the Sixth Circuit's rulings in regards to this, and stated that "the continued validity of Sykes . . . are in some doubt." Id. at 762.

1. The Ninth Circuit held in Lassiter v. City of Bremerton that malice was an essential element in a 42 U.S.C. 1983 action with a state malicious prosecution claim.

The Ninth Circuit Court determined that Malice was an essential element in a 42 U.S.C. 1983 action with a state malicious prosecution claim. In Lassiter v. City of Bremerton, 556 F.3d 1049 (9th Cir. ****), police officers arrested the defendant based on a 911 phone call alleging a possible domestic assault. The arresting police officer signed an affidavit of probable cause and subsequently the case was dismissed for lack of evidence. The defendant then brought the 42 U.S.C. 1983 claim along with the state claim for malicious prosecution. The court stated "[i]n order to prevail on a Section 1983 claim of malicious prosecution, a plaintiff 'must show that the defendants prosecuted him with malice and without probable cause, and that they did so for the purpose of denying him equal protection or another specific Constitutional right." Id. at 1054. It was found that the officers had probable cause, so the factual question as to malice was never addressed since "probable cause is an absolute defense to malicious prosecution." Id. at 1054-1055.

This case is similar to the case at bar in that both police officers signed affidavits of probable cause for a judicial determination, and both cases did not have enough evidence for a conviction on the charges. In both cases the police officer had probable cause for the arrest. Our case should be dismissed as the above case, since "probable cause is an absolute defense to malicious prosecution." Id.

1. The Tenth Circuit held in Wilkins v. DeReyes that all elements of a state malicious prosecution claim are required elements in a federal 42 U.S.C. 1983 claim.

In Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008) police officers twice brought defendants to trial on charges of murder based upon false statements wrongly coerced from fellow gang members. The defendants then brought a malicious prosecution claim against the officers under 42 U.S.C. 1983 alleging that the officers violated their substantive due process rights under the Fourth Amendment. The court looked to the elements of malicious prosecution in the state and required those elements to be sustained in the Section 1983 claim for malicious prosecution as brought by the plaintiffs. In this case, it was shown that the officers acted without probable cause and with malice. The courts decided that the officers did not have any immunities available, and allowed the plaintiff's action to proceed.

Here, as in our case, the question is whether the officer acted with malice in performing their job functions. In the above case, it was clearly established that the officers coerced false testimony and prosecuted the defendant based on that testimony, thus showing intent and malice. In our case, the officer did not coerce any testimony, and he acted in a reasonable belief as to his own experiences and training in order to establish probable cause for the arrest of respondent. Here, malice is a required element, and is not proven, thus the case should have been dismissed, and this Court should REVERSE the lower court's decision.

1. The Eleventh Circuit held in Grider v. City of Auburn that in order to establish a 1983 malicious prosecution claim, the plaintiff must prove the elements of the common law tort of malicious prosecution.

In Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010), the court definitively stated that in order "[t]o establish a 1983 malicious prosecution claim, the plaintiff must prove two things: 1) the elements of the common law tort of malicious prosecution and 2) a violation of his Fourth Amendment right to be free from unreasonable seizures." Id. at 1256. The court went on to specify that the second element of malicious prosecution is "with malice and without probable cause" further clarifying the issue. A complaint for malicious prosecution under 42 U.S.C. 1983 requires the plaintiff to prove that the proceedings were brought against the plaintiff with malice and without probable cause in order to have a claim. In Grider the plaintiff sued four police officers, and others, for violations of 42 U.S.C. 1983 with alleged violations of both the Fourth Amendment and the Fourteenth Amendment including a claim for malicious prosecution. The facts of the case showed that all of the required elements of malicious prosecution were present.

1. A Minority Of The Circuits Have Held That A Malicious Prosecution Claim Under 42 U.S.C. 1983 Based On The Fourth Amendment Does Not Require Proof Of Subjective Malice.
2. The First Circuit held in Hernandez-Cruz v. Taylor that 42 U.S.C. 1983 is a purely Constitutional claim utilizing an objective standard.

In Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013) the agents conspired with a confidential informant to manufacture evidence indicating that an unidentified suspect in a drug investigation was the defendant. The defendant was prosecuted for drug violations based on false statements in a warrant affidavit. Evidence in court showed that the defendant did not match the physical description of the drug suspect and was not associated with any of the vehicles that the agents had observed during the surveillance. The defendant then sued the agents on a malicious prosecution claim. The court decided the case on a purely Constitutional basis using an objective approach.

1. The Fourth Circuit held in Brooks v. Winston-Salem that the fourth amendment provides all of the pretrial process that is constitutionally due to a criminal defendant in order to detain him prior to trial

The Brooks v. Winston-Salem, 85 F.3d 1278 (4th Cir. 1996), the criminal defendant was arrested for rape, kidnapping, and various sexual offenses. Over a year and a half later the charges were dismissed by a state prosecuting attorney. Three years later a lawsuit was filed by the defendant; for violations of the Fourth and the Fourteenth Amendments by the arresting officer. The court ruled that the Fourteenth Amendment claim was time barred, but allowed the Fourth Amendment claim to go forward.

In evaluating the Fourth Amendment claim, the Court followed Heck v. Humphrey, 512 U.S. 477 (1994) when it stated "We look to the common-law cause of action most closely analogous to the Constitutional right at stake as an 'appropriate starting point.'" The court continued following Heck in stating "allegations that an arrest made pursuant to a warrant was not supported by probable cause, or claims seeking damages for the period after legal process issued, are analogous to the common-law tort of malicious prosecution. Id. at 2371. The court then used Heck to rule that the 'allegations that [the officer] seized [the defendant] pursuant to legal process that was not supported by probable cause that that the criminal proceedings terminated in his favor are sufficient to state a Section 1983 malicious prosecution claim alleging a seizure that was violative of the Fourth Amendment." The court did not discuss the element of malice as required by other circuits.

1. The Fifth Circuit held in Castellano v. Fragozo that a claim under 42 U.S.C. 1983 must rest on a denial of Constitutional rights and malicious prosecution was no violation under the constitution.

In Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) an arson suspect whose conviction was vacated filed suit against a former employee and a police officer (who was working for the suspect as a security guard) for fabricating evidence against the accused. The suit alleged due process violations under the Fourth Amendment and under the Fourteenth Amendment and also alleged malicious prosecution. The court held that the malicious prosecution claim, standing alone, is no violation of the United States Constitution and if it is to proceed under 42 U.S.C. 1983, it must rest upon a denial of rights as secured under federal law. The court disallowed the state claim to be heard in federal court. The court further held that "a state's manufacturing of evidence and knowing use of that evidence along with perjured testimony to obtain a wrongful conviction deprives a defendant of his long recognized right to a fair trial secured by the Due Process Clause." Id. at 942.

The case was dismissed after the accused's third habeas attempt and the Texas Court of Criminal Appeals found that the police officer aided "in altering the tape recordings offered into evidence. The tapes were altered to appear that the applicant was admitting to the arson when in fact he had no knowledge of its commission." Id. at 943; see also Ex Parte Castellano, 863 S.W.2d 476, 479 (Tex. Crim. App. 1993).In discussing the above, the court held that "the elements of the state law tort of malicious prosecution, when proved, inevitably entail Constitutional deprivation." Id. at 945. The court further specified that "no such freestanding Constitutional right to be free from malicious prosecution exists." Id. In the end, this case was remanded for a new trial with malicious prosecution being only a state tort, and not a part of the 42 U.S.C. 1983 claim.

1. The Sixth Circuit held in Sykes v. Anderson that former case law precludes reliance on state law to define a 42 U.S.C. 1983 federal cause of action.

In Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010) the accused were employees at a store that were robbed by two armed men. The responding officers believed that the robbery was an inside job. The officers submitted evidence and testimony that contained several flagrant misrepresentations, exaggerations, and omissions, resulting in the arrest, trial, and conviction of the accused.The accused then sued for malicious prosecution and succeeded on their claim at the trial court level. The Sixth Circuit affirmed the trial court's ruling stating "[t]he Sixth Circuit recognizes a separate Constitutionally cognizable claim of malicious prosecution under the Fourth Amendment."

The element of malice was not required by the trial court, and this was affirmed by the Sixth Circuit when it stated "[t]his circuit has never required that a plaintiff demonstrate 'malice' in order to prevail on a Fourth Amendment claim for malicious prosecution." Id. at 309. Going further, the court stated "[t]he reasonableness of a seizure under the Fourth Amendment should be analyzed from an objective perspective . . . which renders irrelevant the subjective state of mind of the defendant." Id. at 309-310. In Sykes, the officers acted with intent and actively worked to wrongly convict the accused. Their actions showed and proved malice towards their former employer, the accused.In our case, not only has the lack of malice already been stipulated by both parties, even if the omission of Officer Giggs being drowsy was significant, it was merely negligent on the officer's part, not intentional as was in Sykes. "Negligent omissions will not undermine the affidavit." United States v. McCarty, 36 F.3d 1349, 1356 (5th Cir. 1994)

Sykeshas been put into question by the holding in Lovet v. City of Chicago, 761 F.3d 759 (7th Cir. 2014) which stated that a suit for malicious prosecution can only be brought under federal law if there is no adequate state law remedy, as noted above.

1. Officer Giggs Acted In An Objectively Reasonable Manner, And Did Not Violate The Constitutional Rights Of Respondent, And As Such, Is Entitled To Qualified Immunity.

Qualified immunity of a police officer can only be defeated if that officer "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the Constitutional rights of the plaintiff, or if he took the action with malicious intention to cause a deprivation of Constitutional rights or other injury." Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). "[A]n allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner." Malley v. Briggs, 475 U.S. 335, 341 (1986).

In the case at bar, it has been stipulated by both parties that there was no malice upon the part of Officer Giggs. This stipulation means that the only way that Officer Giggs could be found culpable under 42 U.S.C. 1983 is if he knew that being drowsy during a night stakeout, and not mentioning that fact on the warrant affidavit, would violate the Constitutional rights of the respondent. If a Constitutional violation can be established, the court must then decide whether the right was "clearly established" at the time of the violation. Given that the courts, as listed above, are in disagreement about whether Officer Gigg's actions constituted a Constitutional violation, the law is not clearly established.If the law is not clearly established, then Officer Giggs is entitled to qualified immunity. Here, the law is not clearly established, so Officer Giggs is entitled to qualified immunity and this Court should REVERSE the lower court's decision.

II. RESPONDENT DID NOT SUFFER A DEPRIVATION OF LIBERTY FOR THE PURPOSES OF A MALICIOUS PROSECUTION CLAIM UNDER 42 U.S.C. 1983 BASED ON THE FOURTH AMENDMENT BECAUSE THE LEGAL PROCESS WAS SUPPORTED BY PROBABLE CAUSE.

In order to prove a claim that an officer either asserted and/or omitted facts with reckless disregard for the truth the plaintiff must prove the following two elements. That 1) the omissions made by the police officer were made with reckless disregard for the truth where any reasonable person would know that a judge would want to know the omitted facts, and 2) any assertions are made with reckless disregard for the truth when an officer has obvious reasons to doubt the truth of what he or she is asserting. See Wilson v. Russo, 212 F.3d 781, 783 (3rd Cir. 2000).

1. Officer Giggs Did Not Act With Reckless Disregard For The Truth By Omitting The Fact From The Warrant Affidavit That He Took Medication While On Duty.

"Omissions are made with reckless disregard if an officer withholds a fact in his ken that 'any reasonable person would have known that this was the kind of thing the judge would wish to know.'" Wilson v. Russo, 212 F.3d 781, 788 (3rd Cir. 2000) quoting United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993). In the case at bar, Officer Giggs was at a stakeout of a location where he had been informed that a large drug transaction would take place. During the stakeout, Officer Giggs felt the telltale signs of an impending migraine headache. He has dealt with these headaches for many years and has medication he takes when they are starting. (R. at 3).Officer Giggs noticed a transaction of cash for a large black duffle bag at the given location. Id.Officer Giggs then gave chase to one of the suspects, but was unable to catch and detain that suspect. Id.After subsequent investigation and pursuant to a warrant, Officer Giggs arrested the respondent for the above noted drug transaction.

During the trial of the respondent, Officer Giggs admitted to being "a little drowsy" during the stakeout. (R. at 4). Two issues immediately come to mind when looking at the record regarding this drowsiness. 1) The record changes the drowsiness to dizziness in the appellate brief. (A significant distinction.) 2) Nowhere is the drowsiness attributed to the medication that Officer Giggs took. The fact that Officer Giggs was not dizzy is shown by the fact that he was able to give chase when the need arose.

Officer Giggs did not detail his medical history in the affidavit that he provided in request for the warrant, as it was not relevant to the facts of the case. The information that Officer Giggs was "a little drowsy" at night while on a stakeout was not relevant to the drug transaction, nor to Officer Giggs' ability to perform his job. Any reasonable person would know that a stakeout at night could induce drowsiness on the part of the officer sitting alone in a car. Drowsiness is just part of the job.

The main question is whether a judge would want to know that type of information when making a determination as to probable cause. In United States v. Jacobs, 986 F.2d 1231, a drug sniffing dog "Turbo" showed interest in a package, but did not go into alert mode as trained to do when drugs are found. The officer signed an affidavit for a warrant stating that the dog had exhibited an interest in the package. The officer underlined the word interest in the affidavit. This Court ruled that the inclusion of the underlined word "interest" showed that the officer's statement was reckless in that it made the statement in the affidavit misleading. The court stated, "'Turbo's' failure to alert was omitted from the affidavit. Because of the highly relevant nature of the omitted information, we hold the omission occurred at least with reckless disregard of its effect upon the affidavit." Id. at 1234. In Jacobs the officer omitted highly relevant information that the dog did not alert to the package, but only showed interest.This omission gave the judge the wrong impression of what had happened at the original scene.

In the case at bar, the only information that was not provided in the affidavit was that the officer was drowsy, a condition many officers experience at night. This information was not relevant to the investigation and eventual arrest of the respondent. Officer Giggs did not hide information in order to make his affidavit appear stronger than it truly was.

Respondent sued Officer Giggs under the Fourth Amendment for malicious prosecution.This Court has already looked at this issue in Franks v. Delaware, 438 U.S. 154, 171 (1978) when it stated, "[a]llegations of negligence or innocent mistake are insufficient." Here, Officer Giggs had enough information and knowledge, based on his informant and his observations, to be sufficient to cause a reasonably prudent person to believe that a crime had been committed. This is the standard set forth in Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009), where the court stated "[p]robable cause exists when the facts and circumstances within the officer's knowledge are sufficient to cause a reasonably prudent person to believe that a crime had been committed."

Probable cause is a "nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Maryland v. Pringle, 540 U.S. 366, 370 (2003).What is required is "a reasonable ground for belief of guilt." Id. at 371. It is well settled that what is required for a showing of probable cause is only a "probability, and not a prima facie showing, of criminal activity." Illinois v. Gates, 462 U.S. 213, 235 (1983). This Court, in Ornelas v. United States, 517 U.S. 690, 700 (1996) stated that "a police officer may draw inferences based on his own experience in deciding whether probable cause exists." Including inferences "that might well elude an untrained person." United States v. Cortez, 449 U.S. 411, 418 (1981).

Officer Giggs had probable cause based on his information and knowledge sufficient to make an arrest of the respondent. This was then bolstered by respondent's flight from the scene when approached by Officer Giggs. "It is rather well established that whenever police officers reasonably suspect that an individual may be engaged in criminal activity, and the individual deliberately takes flight when the officers attempt to stop and question him, the officers generally no longer have mere suspicion, but probable cause to arrest." United States v. Sharpe, 470 U.S. 675, 706 (1985) (Brennan J., dissenting). The Court goes on to state that "flight at the approach of strangers or law enforcement are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest." Sibron v. New York,392 U.S. 40, 66-67 (1968). The court did limit this inicia by stating "flight alone cannot give rise to probable cause; it must be coupled with pre-existing reasonable and articulable suspicion." Sharpe at 706. "[T]he act of flight must reasonably appear to be in response to the presence of authorities." Id.

Officer Giggs had external information that a drug transaction would occur at the specific location that he was staking out. Officer Giggs then observed an exchange between the respondent and an individual which appeared to be a drug transaction. Upon Officer Giggs' exiting his vehicle, the respondent and the other suspect fled the scene. Pursuant to Sharpe and Sibron, the information and flight gives Officer Giggs probable cause to arrest these individuals. That Officer Giggs was unable to effect an arrest of respondent at the time of the incident is immaterial. The information and knowledge that Officer Giggs had along with his extensive training gave him enough for probable cause to arrest respondent even without the additional aspect of the respondent fleeing from the scene upon seeing Officer Giggs get out of his vehicle. Given the totality of the circumstances, Officer Giggs had ample probable cause to request a warrant and arrest respondent, and he did so pursuant to law.

1. The Omitted Facts Were Not Material To The Probable Cause Determination.

The second step in the probable cause analysis is to determine if the Judge would have wanted to know the missing information.It must be determined "that such statements of omission are material or necessary to the finding of probable cause."Wilson v. Russo, 212 F.3d 781, 787 (3rd Cir. 2000). In order to make such a determination "we excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the 'corrected' warrant affidavit would establish probable cause." Id. at 789. Once the false evidence has been removed, and missing information is placed into the affidavit "if what is left is sufficient to sustain probable cause, the inaccuracies are irrelevant." Hernandez-Cuevas v. Taylor, 723 F.3d 91, 104 (1st Cir. 2013).

Here, Officer Giggs failed to inform the judge that he felt tired the evening that he was performing a narcotics stakeout. Officer Giggs did not believe that his feeling tired interfered in any way with his ability to perform his duties. If Officer Giggs had inserted that he felt tired, the information would have had no effect upon the information provided in the affidavit, and the warrant would still have been issued. This is true, even had Officer Giggs stated that he had taken a medication that he has taken for at least a year and of which he knows the side effects that he experiences, and given such, did not believe that it interfered with his ability to perform his job functions.

To succeed in a challenge to the validity of a warrant, "a defendant must establish by a preponderance of the evidence that the affiant, either knowingly and intentionally, or with reckless disregard for the truth, included a false statement within the warrant affidavit.The same analysis applies to omissions of fact. The defendant must show that the facts were omitted with the intent to make, or in reckless disregard of whether they thereby make, the affidavit misleading. United States v. Clapp, 46 F.3d 795, 799 (8th Cir. 1995). Here, the respondent has been unable to show such intent or reckless disregard. "Negligent omissions will not undermine the affidavit." United States v. McCarty, 36 F.3d 1349, 1356 (5th Cir. 1994).

1. Officer Giggs Is Entitled To Qualified Immunity As The Issue Before This Court Is Not Clearly Established Law.

In deciding whether to grant an officer qualified immunity, courts use a two-part analysis. First, the court must determine whether a Constitutional violation occurred; if no violation occurred, that ends the inquiry. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If a Constitutional violation can be established, the court must then decide whether the right was "clearly established" at the time of the violation."This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable." Id.

Officer Giggs is entitled to qualified immunity in respect to this case as he reasonably believed that the affidavit that he signed and presented to the judge contained all of the elements necessary to show probable cause. Even judge who signed the warrant believed the affidavit showed probable cause. A police officer is entitled to qualified immunity unless "it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986).

Here, there is a split in the circuit courts regarding the above issues the law is, at best, undeveloped. "If judges thus disagree on a Constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy." Wilson v. Layne, 526 U.S. 603, 617 (1999). If the lawfulness of an officer's conduct is not "beyond debate" then the officer is entitled to qualified immunity. Carroll v. Carman, 135 S.CT 348 (2014). "Existing precedent must have placed the statutory or Constitutional question beyond debate." Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011).The second circuit states that "an officer is still entitled to qualified immunity if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Manganiello v. City of New York, 612 F.3d 149 (2010)

There is a distinct difference of opinion as to how to show malicious prosecution, or whether probable cause can be shown in light of the circumstances of the case before the court. Officer Giggs used his best judgment and his training to do what he believed was correct and lawful. Given that the circuits are divided, and the Supreme Court has not yet ruled on this issue, Officer Giggs is entitled to qualified immunity, and the lower appellate court must be reversed.

CONCLUSION

Officer Giggs performed his job duties in compliance with local laws, department policies, and to the best of his abilities. Officer Giggs is not a Constitutional scholar and had no reason to believe that what he did was incorrect. He followed the protocols set in place and requested judicial review of his findings prior to arresting the respondent in this case. Officer Giggs did what any reasonable competent officer would have done.

A majority of the Circuit Courts have held that in order to prevail on a malicious prosecution claim under 42 U.S.C. 1983, the plaintiff must prove malice as an element of the cause of action as well as prove a Constitutional violation. A minority of the Circuit Courts remove the malicious prosecution elements in favor of an objective Constitutional review of the officer's actions. At least one Circuit Court has thrown out the malicious prosecution cause of action under 42 U.S.C. 1983 altogether as there are adequate remedies under state law available to the plaintiff.

Officer Giggs is entitled to qualified immunity in this case as these questions of law are not clearly established. If the lawfulness of an officer's conduct is not "beyond debate" then the officer is entitled to qualified immunity. If judges in the Circuit Courts are unable to decide on a set of rules, it is unfair to force the police officers to follow the rules that are not decided upon. If judges thus disagree on a Constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy. Officer Giggs should be provided qualified immunity as he has complied with local laws, department policies, and done his job to the best of his abilities within the known laws of the United States and of the State of New York.

For all of the reasons listed above, this Court should REVERSE the ruling of the lower court.

Respectfully submitted,

Dated: December 10, 2018 ________________________________

Scrooge McDuck