UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 01-30234

_______________________

STANLEY GORDY,

Plaintiff-Appellee,

versus

WILLIAM BURNS, Detective/Agent, Individually and 

in his official capacity as an officer of the 

Jefferson Parish Sheriff’s Department; ET AL.,

Defendants,

WILLIAM BURNS, Detective/Agent, Individually and 

in his official capacity as an officer of the 

Jefferson Parish Sheriff’s Department;

R. GERDES, Detective/Agent, Individually and 

in his official capacity as an officer of the 

Jefferson Parish Sheriff’s Department;

G. SIMONE, Lieutenant, Individually and 

in his official capacity as an officer of the 

Jefferson Parish Sheriff’s Department; and

HARRY LEE, Individually and 

in his official capacity as the sheriff of the 

Jefferson Parish Sheriff’s Department,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana, New Orleans Division

_________________________________________________________________

June 17, 2002
2

Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Stanley Gordy filed this § 1983 action against officers

of the Jefferson Parish Sheriff’s Department. Gordy’s sole viable

claim was for malicious prosecution arising from his arrest for

possession of marijuana with intent to distribute. Following a

non-jury trial, a magistrate judge entered judgment for Gordy and

awarded him $20,000 in damages. Having reviewed the record, we

conclude that the officers are entitled to judgment as a matter of

law because there was probable cause to support the drug charges.

I. BACKGROUND

In late August 1997, Lieutenant Glenn Davis of the

Jefferson Parish Sheriff’s Department received a telephone call

from an agent of the federal Drug Enforcement Administration. The

DEA agent informed Lieutenant Davis that United Parcel Service

employees in California had discovered a package containing

approximately 20 pounds of marijuana addressed to “C. Charles” at

an apartment in Metairie, Louisiana. Davis drove to the apartment

and observed that the name on the mailbox was “M. Gordy” (rather

than “C. Charles”), but he assumed that the addressee’s name was

fictitious. Later that evening, Lieutenant Davis submitted an

affidavit and application for a search warrant to a Jefferson

Parish district judge. The affidavit read in part, “[U]pon arrival

of the package containing the marijuana[,] a controlled delivery
3

will be attempted. . . . Officers request that a search warrant be

issued subsequent to this delivery.” The judge issued the search

warrant.

Lieutenant Gerard Simone and Officers William Burns and

Robert Gerdes delivered the package on September 2, 1997. There is

conflicting testimony as to whether a UPS agent went to the door or

whether Lieutenant Simone posed as a UPS agent. The key fact,

however, is that defendant Stanley Gordy accepted the package from

someone he believed was a UPS delivery-man. Gordy admits signing

the receipt using his nickname, “Chuck Gordy,” but he insists that

he did not look carefully at the package before signing for it. 

The officers waited a few minutes before approaching the

apartment to execute the search warrant. It is undisputed that

Gordy stepped out of the apartment, paused for a moment, and then

went back inside and locked the door. Gordy testified that he was

going to McDonald’s when he realized that he had no cash, so he

went to retrieve his wallet. The officers testified that Gordy

scampered inside after making eye contact with the officers, who

were wearing “raid jackets” identifying them as policemen. The

officers forced their way into the apartment, arrested Gordy, took

custody of the package, and searched the apartment before taking

Gordy to the sheriff’s office.

Officer Burns prepared the police report on behalf of the

officers. Officer Burns’s report omitted certain facts, most

notably that Gordy had not opened the package and that the package
4

contained approximately 15 pounds of marijuana instead of 20

pounds, as the officers had expected.

Gordy was charged with possession of marijuana with

intent to distribute, and a bill of information was filed.

However, the district attorney ultimately decided not to prosecute

the case and issued a nolle prosequi on March 2, 1998. The record

of these state court proceedings was expunged at Gordy’s request,

and neither party introduced evidence indicating why the district

attorney abandoned the prosecution.

On March 1, 1999, Gordy filed this action under 42 U.S.C.

§ 1983 against Jefferson Parish Sheriff Harry Lee, Lieutenant

Simone, and Officers Burns and Gerdes. Gordy’s complaint included

claims for false arrest, unlawful search and seizure, false

imprisonment, excessive force, and malicious prosecution -- all in

violation of the Fourth and Fourteenth Amendments. The parties

agreed to a non-jury trial before a magistrate judge. See 28

U.S.C. § 636(c).

The magistrate judge dismissed all of Gordy’s claims

except malicious prosecution as time-barred. See Jacobsen v.

Osborne, 133 F.3d 315, 319 (5th Cir. 1998)(“[F]or a § 1983 action,

the court looks to the forum state’s personal-injury limitations

period. In Louisiana, that period is one year.”). The magistrate

judge also dismissed all claims against Sheriff Lee because there

was no evidence that Lee was personally involved or that the
5

officers were acting pursuant to a policy implemented by the

sheriff. See Sanders v. English, 950 F.2d 1152, 1159-60 (5th Cir.

1992). Gordy has not appealed these rulings.

The sole claim at trial, then, was malicious prosecution.

Gordy argued that he was prosecuted because the officers

maliciously provided false or misleading information to the

district attorney. The magistrate judge agreed. After ruling that

the officers were not entitled to qualified immunity, the

magistrate judge entered judgment for Gordy and awarded him $12,000

in compensatory damages and $8,000 in punitive damages. This

appeal followed.

II. DISCUSSION

A

It would be an understatement to say that this circuit’s

caselaw regarding so-called “Fourth Amendment malicious

prosecution” claims under § 1983 is both confused and confusing.

See, e.g., Kerr v. Lyford, 171 F.3d 330, 342-43 (5th Cir. 1999)

(Jones, J., concurring). Deciding the issue presented in this case

forces us to return to first principles.

Unquestionably, state-law tort claims -- such as the

common-law tort of malicious prosecution -- are not, by themselves,

actionable under § 1983. Price v. Roark, 256 F.3d 364, 370 (5th

Cir. 2001)(citing Nesmith v. Taylor, 715 F.2d 194, 196 (5th Cir.

1983)). Because § 1983 requires some showing that the plaintiff
6

has been deprived of a federal right, but no constitutional

provision specifically guarantees against the institution of

groundless criminal prosecutions, a “malicious prosecution” claim

under § 1983 is a misnomer. 

Nevertheless, the rule in this circuit is that the

elements of the state-law tort of malicious prosecution and the

elements of the constitutional tort of “Fourth Amendment malicious

prosecution” are coextensive. See Piazza v. Mayne, 217 F.3d 239,

245 (5th Cir. 2000). Although Piazza purported not to decide this

issue, the rule is rooted firmly in Fifth Circuit precedent.

See Evans v. Ball, 168 F.3d 856, 863 n.9 (5th Cir.

1999)(“[M]alicious prosecution may be a constitutional violation,

but only if all of its common law elements are established. . .

.”); Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999)(same).

Most other circuits emphasize, however, that a malicious

prosecution claim under § 1983 is more appropriately characterized

as “a Fourth Amendment claim for unreasonable seizure which

incorporates certain elements of the common law tort.” Lambert v.

Williams, 223 F.3d 257, 261 (4th Cir. 2001)(citing decisions from

the First, Second, Seventh, Tenth, and Eleventh Circuits). As the

Eleventh Circuit succinctly put it, the “federal ‘right’ to be free

from malicious prosecution is actually a description of the right

to be free from an unlawful seizure which is part of the

prosecution.” Whiting v. Traylor, 85 F.3d 581, 584 n.4 (11th Cir.

1996); see also Singer v. Fulton County Sheriff, 63 F.3d 110, 116
1 It remains unclear whether Albright will be extended to approve the

constitutionalizing of malicious prosecution claims, see Kerr, supra, (Jones, J.

concurring), but the federal courts have so applied Albright.

2 In Price, this court appeared to be moving in that direction when it

stated that a § 1983 plaintiff must prove “that he was exposed to an unreasonable

search or seizure in violation of the Fourth Amendment.” Price, 256 F.3d at 370.

However, this position is problematic for two reasons. First, it does not appear

to represent the law of this circuit, which is that the elements of the commonlaw tort and constitutional tort are “coextensive.” Second, regarding the facts

of this case, we have found no precedent to support the proposition that an

unreasonable search may serve as the foundation for a malicious prosecution claim

under § 1983. (Price involved an arrest and detention, not an unlawful search.)

Every circuit that has addressed the issue has held that a plaintiff must prove

an unlawful seizure. In addition to the Second and Eleventh Circuit decisions

cited in the text, see Britton v. Maloney, 196 F.3d 24, 28 (1st Cir. 1999);

Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998); Reed v. City of

Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996); and Taylor v. Meacham, 82 F.3d 1556,

1561 (10th Cir. 1996). Cf. Evans v. Ball, 168 F.3d 856, 861 (5th Cir.

1999)(expansively defining “seizure” for the purposes of § 1983 malicious

prosecution claims).

7

(2d Cir. 1995)(“The Fourth Amendment right implicated in a

malicious prosecution action is . . . the right to be free of

unreasonable or unwarranted restraints on personal

liberty.”); Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807,

813 (1994)(plurality opinion) (emphasizing the Fourth Amendment’s

concern about “pretrial deprivations of liberty”).1 In most other

circuits, a § 1983 plaintiff who alleges malicious prosecution must

prove a violation of his Fourth Amendment right to be free from

unreasonable seizures in addition to certain elements of the

common-law tort of malicious prosecution.2

But in the Fifth Circuit, a plaintiff in a § 1983

malicious prosecution action need establish only the elements of

common-law malicious prosecution. This circuit repeatedly has

indicated -- without explanation -- that courts must look to the

elements of a malicious prosecution claim under the law of the
3 Brown was a Federal Tort Claims Act case in which the plaintiff

alleged that he was subject to malicious prosecution after an FBI agent gave

false testimony to a grand jury. The FTCA provides that the United States may

be held liable “under circumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law of the place where the

act or omission occurred.” 28 U.S.C. § 1346(b). Consequently, the court had to

interpret and apply the tort law of the state of Texas because all the alleged

wrongful acts occurred there. Brown, 653 F.2d at 198. Because the

“constitutional tort” of malicious prosecution is rooted in the Fourth Amendment,

the proper role of state tort law is much less clear.

4 Other panels of this circuit, however, have given some weight to

state court decisions interpreting the elements of malicious prosecution. See,

e.g., Izen v. Catalina, 256 F.3d 324, 328 (5th Cir. 2001) (Bivens action)

(relying in part on Texas decisions as to when a prosecution terminates in favor

of the accused). 

8

state where the offense was committed. The confusion that arises

is illustrated nicely by the post-Albright decision in Taylor v.

Gregg, 36 F.3d 453 (5th Cir. 1994). Taylor declared that a § 1983

plaintiff had to prove seven elements in order “[t]o prevail on a

[Fourth Amendment] malicious prosecution claim in Texas,” and those

seven elements were taken directly from Texas common law. Taylor,

36 F.3d at 455 (emphasis added)(citing Brown v. United States, 653

F.2d 196, 198-99 (5th Cir. 1981)).3 But in determining the meaning

of one of those elements -- termination in favor of the accused --

the court looked not to Texas decisions but to decisions from the

Second Circuit, the Fourth Circuit, and federal district courts

from around the country. Taylor, 36 F.3d at 455-56. Taylor

suggests that the elements of a federal constitutional claim are

determined by state common law but that the scope and meaning of

those common-law-derived elements are determined without regard to

state decisions. See also Brummett v. Camble, 946 F.2d 1178, 1183-

84 (5th Cir. 1991).4
9

Given this circuit’s precedent, the plaintiff in this

case had to prove the six elements of malicious prosecution under

Louisiana tort law: (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. Piazza v. Mayne, 217 F.3d

239, 245 (5th Cir. 2000); Miller v. East Baton Rouge Parish

Sheriff’s Dep’t, 511 So.2d 446, 452 (La. 1987). Parenthetically,

if these events had taken place in Texas instead of Louisiana, the

plaintiff also would have had to prove that he was actually

innocent of the charges. See Taylor, 36 F.3d at 455. If malicious

prosecution is in some sense a federal constitutional tort, the

outcome of the case should not hinge on how a state defines and

shapes the elements of a tort claim. See also Frantz v. Village of

Bradford, 245 F.3d 869, 874-75 (6th Cir. 2001)(“We hold that

establishing a § 1983 cause of action requires a constitutional

violation and cannot differ depending on the tort law of a

particular state.”).

The facts of this case present a novel problem arising

from our willy-nilly incorporation of state tort law into

constitutional litigation. In Louisiana malicious prosecution

actions, the state courts have held that if criminal charges are

dismissed prior to trial, a presumption arises that there was no
5 Only a handful of states follow Louisiana’s approach. See H. D.

Warren, Annotation, Acquittal, Discharge, or Discontinuance or Criminal Charge

as Evidence of Want of Probable Cause in Malicious Prosecution Action, 59

A.L.R.2d 1413 at § 4(1958 & Supp.)(“The weight of authority supports the rule

that . . . discontinuance at the instance of the prosecuting attorney . . . and

other similar terminations of prosecutions whereon actions of malicious

prosecution have been based, constitute no evidence of want of probable cause,

raise no presumption thereof, and establish no prima facie case of want of

probable cause.”). See also Wheeler v. Nesbitt, 65 U.S. (24 How.) 544, 551

(1860)(applying the traditional common-law rule that “the onus probandi . . . is

upon the plaintiff to prove affirmatively . . . that the defendant had no

reasonable ground for commencing the prosecution”).

10

probable cause for the proceedings, and the burden shifts to the

defendant to prove the presence of probable cause and the absence

of malice. See Williams v. DiVittoria, 777 F.Supp. 1332, 1338

(E.D. La. 1991)(applying Louisiana tort law).5 This burdenshifting approach cannot be warranted in § 1983 claims, but neither

party addressed the issue and it does not dictate the outcome of

this appeal. 

To sum up thus far: The plaintiff in this case had to

prove all the elements of malicious prosecution under Louisiana

tort law. Nevertheless, a Fourth Amendment malicious prosecution

claim is essentially a federal constitutional claim, and federal

courts are bound neither by the state courts’ interpretation of

those elements nor (we think) by procedural requirements like the

burden-shifting framework imposed by Louisiana courts.

The crux of this case is whether there was probable cause

for the criminal proceedings against Gordy. With respect to

probable cause, this court has held that

For purposes of malicious prosecution, probable cause

means “the existence of such facts and circumstances as
6 Hand and Wheeler assumed that the “constitutional tort” of malicious

prosecution was rooted in Fourteenth Amendment principles of substantive due

process -- a position rejected by the Supreme Court in Albright v. Oliver, 510

U.S. 266, 114 S.Ct. 807 (1994). Nevertheless, these decisions are still good law

to the limited extent to which we rely upon them.

11

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.”

Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999)(citation

omitted); see also Wheeler v. Nesbitt, 65 U.S. (24 How.) 544, 551-

52 (1860)(applying the identical common-law definition). Wheeler

makes clear that “prosecutor” is not used narrowly in the modern

sense of “prosecuting attorney” but in the sense of any person (or,

in a § 1983 action, any state actor) who initiates or procures a

criminal proceeding. Id. Consequently, an officer may be liable

for malicious prosecution if his “malice results in an improperly

motivated prosecution without probable cause” and even if the

officer had no direct influence over the prosecuting attorney.

Hand v. Gary, 838 F.2d 1420, 1426 (5th Cir. 1988); see also Wheeler

v. Cosden Oil & Chem. Co., 734 F.2d 254, 260 (5th Cir. 1984),

modified, 744 F.2d 1131 (5th Cir. 1984).6 In the typical case, an

officer maliciously causes a criminal proceeding to be brought by

providing false or misleading information to a prosecuting attorney

or grand jury. See, e.g., Sanders v. English, 950 F.2d 1152, 1163

(5th Cir. 1992). Nevertheless, the obtaining of an indictment will

not insulate state actors from a malicious prosecution claim if a

grand jury’s decision has been “tainted by the malicious actions of
12

the government officials.” Hand, 838 F.2d at 1426. Another way of

stating the probable cause inquiry for purposes of malicious

prosecution, then, is to ask whether a reasonable officer -- at the

time when criminal proceedings were instituted and based solely on

the facts as the officers honestly and reasonably believed them to

be -- would believe to a “fair probability” that a crime had been

committed. Piazza, 217 F.3d at 246 (citations omitted).

B

We now apply these principles to the facts of this case.

As noted above, the magistrate judge concluded that the defendants

had no probable cause to believe that an offense had been

committed, that the officers misstated or omitted facts in their

police report provided to the district attorney, that they did so

maliciously, and that the officers’ actions were a legal cause of

Gordy’s prosecution on drug charges. The existence of probable

cause is a mixed question of law and fact: Although factual

findings are reviewed for clear error, we review the legal

conclusion reached by the district court de novo. Cf. Ornelas v.

United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663 (1996)(“[A]s

a general matter determinations of . . . probable cause should be

reviewed de novo on appeal. Having said this, we hasten to point

out that a reviewing court should take care both to review findings

of historical fact only for clear error. . . .”).

The magistrate judge’s determination that the officers

lacked probable cause is based entirely on technical deficiencies
7 It is undisputed that the officers’ involvement with this case ended

when charges were filed. 

13

in the search warrant issued by the Jefferson Parish district

judge. Although the officer’s affidavit requested that a search

warrant be issued “subsequent to this [controlled] delivery,” the

warrant itself -- which was issued just two hours after the officer

received the tip from the DEA agent in California -- authorized the

officers to search the apartment “forthwith”. The magistrate judge

ruled that, first, the search warrant went “beyond the scope

justified by probable cause because there was no justification for

searching ‘forthwith,’”; and, second, the defect in the search

warrant could not be cured by the affidavit or by the fact that the

officers did not execute the search warrant until after the package

was delivered. 

We need not address the substance of the magistrate

judge’s analysis. The validity of the search warrant is irrelevant

to whether an officer reasonably could have believed that Gordy had

committed the crime of possessing marijuana with intent to

distribute. The most obvious reason is that probable cause to

institute criminal proceedings must be determined as of the time

that charges were filed.7 The magistrate judge erred by focusing

on probable cause to search the apartment, even though she had

already dismissed Gordy’s § 1983 claim for an unreasonable search

in violation of the Fourth Amendment. 
14

The correct question, then, is whether the officers, at

the time Gordy was charged, had probable cause to believe that he

was guilty of possessing marijuana with intent to distribute. We

focus on what the officers reasonably and honestly believed: First,

the package sitting on the floor of the apartment contained a

significant amount of marijuana. Second, the package was addressed

to the apartment where Gordy lived with his mother. Third,

although the addressee was “C. Charles,” Lieutenant Davis testified

that he had worked on at least ten cases where drug traffickers had

used false names on packages. Fourth, Gordy accepted the package

and placed it inside the apartment. Fifth, he signed for the

package using his nickname, “Chuck,” a variation of “Charles.”

And, sixth, as the police were approaching the apartment, Gordy

(for whatever reason) walked outside the apartment but quickly went

back inside and locked the door. These basic facts are beyond

dispute and are sufficient to establish probable cause to believe

that Gordy had committed a criminal offense.

To be sure, there was evidence suggesting that Gordy may

not have been guilty of the offense. Gordy insisted that the

package was misaddressed and that he did not know what was in the

box. There was also the undisputed fact that Gordy had not opened

the box when the officers entered his apartment. Nor did the

police find any evidence of drug use or trafficking during their

search of the apartment. However, the probable cause inquiry does

not require a showing that the officer’s belief was correct or that
15

it was more likely true than false; rather, “the probable cause

analysis only requires that we find a basis for an officer to

believe to a ‘fair probability’ that a violation occurred.”

Piazza, 217 F.3d at 246. In light of the undisputed facts set

forth above, it is clear that the officers in this case satisfied

the probable cause standard and were therefore entitled to judgment

as a matter of law.

As there was probable cause to charge Gordy with

possession of marijuana, we need not reach the related issues

whether the officers caused Gordy’s prosecution by omitting

relevant information from the police report, whether they acted out

of malice, or whether they were entitled to qualified immunity.

III. CONCLUSION

For the foregoing reasons, the judgment of the magistrate

judge is REVERSED, and the case is REMANDED for entry of judgment

in favor of the defendants.

REVERSED and REMANDED.