CIVIL LIABILITY FOR FALSE 

AFFIDAVITS 

Bryan R. Lemons 

Acting Division Chief 

“Reasonable minds frequently may 

differ on the question whether a particular 

affidavit establishes probable cause,”1

 and 

“great deference” is to be given to 

magistrate’s determination of the matter.2 

Generally, a law enforcement officer is not 

expected to question a probable cause 

determination made by a magistrate 

judge.3 Instead, 

 

a magistrate’s 

determination of probable 

cause is to be given 

considerable weight and 

should be overruled only 

when the supporting 

affidavit, read as a whole in 

a realistic and common 

sense manner, does not 

allege specific facts and 

circumstances from which 

the magistrate could 

reasonably conclude that 

the items sought to be 

seized are associated with 

the crime and located in the 

place indicated.4

 

However, a plaintiff may challenge 

the presumption of validity afforded a 

warrant where the magistrate was misled 

by information contained in the affidavit 

that the affiant either (1) knew was false or 

(2) would have known was false had he 

 

 

1 United States v. Leon, 468 U.S. 897, 914 (1984) 2 Id. 3 United States v. Krull, 480 U.S. 340, 349 (1987) 4 United States v. Spry, 1909 F.3d 829, 835 (7th 

Cir. 1999)(internal quotation marks omitted), cert. 

denied, 528 U.S. 1130 (2000) 

not recklessly disregarded the truth. The 

purpose of this article is to discuss the 

liability that a law enforcement officer 

may incur in such a situation. Part I of the 

article discusses the mechanisms through 

which civil rights lawsuits are generally 

brought against state and federal law 

enforcement officers. Part II generally 

discusses the concept of “qualified 

immunity.” And Part III discusses the 

requirements for holding a law 

enforcement officer liable for submitting 

an affidavit with false or misleading 

information in it. 

BACKGROUND

The primary federal statute under 

which lawsuits are filed against state and 

local law enforcement officers for 

violating a person’s constitutional rights is 

Title 42 U.S.C. Section 1983.5

 This 

statute was directed at state officials who 

used the authority granted them to deprive 

newly freed slaves of constitutional rights. 

The purpose of the statute “is to deter state 

actors from using their authority to deprive 

individuals of their federally guaranteed 

rights and to provide relief to victims if 

such deterrence fails.”6 While section 

1983 may be used to sue state actors 

acting under color of state law, it may not 

be used against the federal government or 

5

 Title 42 U.S.C. Section 1983 provides as follows: 

“Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

state or territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, 

privileges, immunities secured by the Constitution 

and laws, shall be liable to the party injured in an 

action at law, suit in equity or other proper 

proceeding for redress. For the purposes of this 

section, any act of Congress applicable exclusively 

to the District of Columbia shall be considered to 

be a statute of the District of Columbia.” 

6 Wyatt v. Cole, 504 U.S. 158, 161 (1992) 
federal employees acting under federal 

law.7

 However, “a victim of a 

constitutional violation by federal officers 

may (in certain circumstances) bring a suit 

for money damages against the officers in 

federal court,” even though no statute 

exists granting such a right.8 This type of 

lawsuit is referred to as a Bivens action, 

after the 1971 Supreme Court case of 

Bivens v. Six Unknown Named Agents of 

the Federal Bureau of Narcotics.

9

 Similar 

in purpose to section 1983, the purpose of 

a Bivens action is to “deter federal officers 

... from committing constitutional 

violations.”10 While the Bivens decision 

addressed a violation of the Fourth 

Amendment, the Supreme Court has also 

“recognized an implied damages remedy 

under the Due Process Clause of the Fifth 

Amendment, ... and the Cruel and 

Unusual Punishment Clause of the Eighth 

Amendment.”11 However, the Supreme 

Court has responded cautiously to 

suggestions that Bivens be extended to 

cover constitutional violations other than 

those noted.12 While section 1983 and 

Bivens apply to different actors, the 

analysis in either type of suit is the same, 

with appellate courts generally 

“incorporat[ing] section 1983 law into 

Bivens suits.”13

QUALIFIED IMMUNITY 

When a law enforcement officer is 

sued under either section 1983 or Bivens, 

the officer is entitled to claim qualified 

 

 

7 See, e.g., Robinson v. Overseas Military Sales 

Corp., 21 F.3d 502, 510 (2d Cir. 1994) 8 Correctional Services Corporation v. Malesko, 

534 U.S. 61, 66 (2001) 

9

 403 U.S. 388 (1971) 

10 Malesko, 534 U.S. at 70 (emphasis added) 11 Id. at 67 [citing Davis v. Passman, 442 U.S. 228 

(1979) and Carlson v. Green, 446 U.S. 14 (1980)] 12 Schweiker v. Chilicky, 487 U.S. 412, 421 (1988) 13 Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981) 

immunity. Qualified immunity “is an 

immunity from suit rather than a mere 

defense to liability,”14 and entitles an 

officer “not to stand trial or face the other 

burdens of litigation.”15 The doctrine is 

designed to protect “all but the plainly 

incompetent or those who knowingly 

violate the law.”16 “The rationale behind 

qualified immunity for police officers is 

two-fold - to permit officers to perform 

their duties without fear of constantly 

defending themselves against insubstantial 

claims for damages and to allow the public 

to recover damages where officers 

unreasonably invade or violate” a person’s 

constitutional or federal legal rights.17 

Law enforcement officers are entitled to 

qualified immunity where their actions do 

not “violate clearly established statutory or 

constitutional rights of which a reasonable 

person would have known.”18 Stated 

differently, where law enforcement 

officers reasonably, albeit mistakenly, 

violate a person’s constitutional rights, 

those “officials - like other officials who 

act in ways they reasonably believe to be 

lawful - should not be held personally 

liable.”19

In deciding whether to grant an 

officer qualified immunity, courts use a 

two-part analysis. This analysis “is 

identical under either section 1983 or 

Bivens.”20 First, the court must determine 

14 Mitchell v. Forsyth, 472 U.S. 511, 526 

(1985)(emphasis in original) 

15 Saucier v. Katz, 533 U.S. 194, 200 (2001) 16 Malley v. Briggs, 475 U.S. 335, 341 (1986) 17 Green v. City of Paterson, 971 F. Supp. 891, 901 

(D.N.J. 1997)(citation and internal quotation marks 

omitted); see also Lennon v. Miller, 66 F.3d 416, 

424 (2d Cir. 1995)(Qualified immunity “serves to 

protect police from liability and suit when they are 

required to make on-the-spot judgments in tense 

circumstances”)(citation omitted) 

18 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) 

19 Anderson v. Creighton, 483 U.S. 635, 641 (1987) 20 Wilson v. Layne, 526 U.S. 603, 609 (1999) 
whether a constitutional violation 

occurred; if no violation has occurred, that 

ends the inquiry.21 If a constitutional 

violation can be established, the court 

must then decide whether the right was 

“clearly established” at the time of the 

violation.22 “Deciding the constitutional 

question before addressing the qualified 

immunity question ... promotes clarity in 

the legal standards for official conduct, to 

the benefit of both the officers and the 

general public.”23 In addressing what is 

meant by the term “clearly established,” 

the Supreme Court has stated: 

“Clearly established” for 

purposes of qualified 

immunity means that “the 

contours of the right must 

be sufficiently clear that a 

reasonable official would 

understand that what he is 

doing violates that right. 

This is not to say that an 

official action is protected 

by qualified immunity 

unless the very action in 

question has previously 

been held unlawful, but it is 

to say that in the light of 

pre-existing law the 

unlawfulness must be 

apparent.”24

Although courts differ, typically, a 

right is “clearly established” for qualified 

immunity purposes where the law “has 

been authoritatively decided by the 

Supreme Court, the appropriate United 

States Court of Appeals, or the highest 

court of the state in which the action 

 

 

21 Saucier, 533 U.S. at 201 22 Id. 23 Wilson, 526 U.S. at 609 24 Id. at 614-15 

arose.”25 In these circumstances, the 

decisions “must both point unmistakably 

to the unconstitutionality of the conduct 

complained of and be so clearly 

foreshadowed by applicable direct 

authority as to leave no doubt in the mind 

of a reasonable officer that his conduct, if 

challenged on constitutional grounds, 

would be found wanting.”26 “This is not 

to say that an official action is protected 

by qualified immunity unless the very 

action in question has previously been 

held unlawful, ... but it is to say that in the 

light of pre-existing law the unlawfulness 

must be apparent.”27 “The determination 

whether a right was clearly established at 

the time the defendant acted requires an 

assessment of whether the official’s 

conduct would have been objectively 

reasonable at the time of the incident.”28

LIABILITY FOR FALSE 

AFFIDAVITS

Before an arrest warrant is issued, 

the Fourth Amendment requires a truthful 

factual showing in the affidavit used to 

establish probable cause.29 Because “the 

Constitution prohibits an officer from 

making perjurious or recklessly false 

statements in support of a warrant,”30 a 

25 Norwood v. Bain, 166 F.3d 243, 252 (4th Cir.), 

cert. denied, 527 U.S. 1005 (1999); see also Wilson 

v. Strong, 156 F.3d 1131, 1135 (11th Cir. 

1998)(citation omitted);Durham v. Nu’Man, 97 

F.3d 862, 866 (6th Cir. 1996)(citation omitted) 

26 Durham, 97 F.3d at 866 (citation omitted) 27 Anderson, 483 U.S. at 640 (citations and internal 

citation omitted) 

28 Kinney v. Weaver, 301 F.3d 253, 263 (5th Cir. 

2002)(citation and internal quotation marks 

omitted) 

29 Franks v. Delaware, 438 U.S. 154, 165-66 

(1978)(“When the Fourth Amendment demands a 

factual showing sufficient to compromise ‘probable 

cause,’ the obvious assumption is that there will be 

a truthful showing”) 

30 Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 
complaint that an officer knowingly filed a 

false affidavit to secure an arrest warrant 

states a claim under section 1983 or 

Bivens.

31 And, “where an officer knows, 

or has reason to know, that he has 

materially misled a magistrate on the basis 

for a finding of probable cause, ... the 

shield of qualified immunity is lost.”32

A plaintiff in a section 1983 or 

Bivens action who alleges 

misrepresentations or omissions in the 

affidavit of probable cause “must satisfy 

the two-part test developed in Franks v. 

Delaware.”33 The first part of the test 

requires a plaintiff to show “that the 

affiant knowingly and deliberately, or with 

a reckless disregard for the truth, made 

false statements or omissions that create a 

falsehood in applying for a warrant.”34 

The second part of the test requires the 

plaintiff to show that the false statements 

or omissions were “material, or necessary, 

to the finding of probable cause.”35 A 

closer examination of this two-part test 

makes it clear that, in order to obtain a 

hearing under Franks, a plaintiff must 

make a “substantial preliminary showing” 

of three separate facts.36

First, the plaintiff must make a 

showing that the warrant affidavit includes 

 

 

1994)(citation omitted) 

31 See Wilson v. Russo, 212 F.3d 781, 786-87 (3d 

Cir. 2000)(citation omitted) 

32 Golino v. City of New Haven, 950 F.2d 864, 871 

(2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992) 33 Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d 

Cir. 1997); see also Velardi v. Walsh, 40 F.3d 569, 

573 (2d Cir. 1994)(“A section 1983 plaintiff 

challenging a warrant on this basis must make the 

same showing that is required at a suppression 

hearing under Franks v. Delaware”) 34 Id. 35 Id. 36 See United States v. Whitley, 249 F.3d 614, 620 

(7th Cir. 2001) 

false information.37 In addition to a false 

statement in the affidavit, “a material 

omission of information may also trigger a 

Franks hearing,”38 because “by reporting 

less than the total story, an affiant can 

manipulate the inferences a magistrate will 

draw.”39

After showing that a false 

statement or material omission was made, 

the defendant must next show that the 

false statement or omission was made 

either (1) knowingly and intentionally, or 

(2) with reckless disregard for the truth. 

“Knowingly and intentionally” requires a 

separate analysis for false statements as 

opposed to omissions. With regards to 

false statements, it should be remembered 

that the Supreme Court does not require 

that all statements in an affidavit be 

completely accurate. Instead, the Court 

simply requires that the statements be 

“believed or appropriately accepted by the 

affiant as true.”40 “The fact that a third 

party lied to the affiant, who in turn 

included the lies in a warrant affidavit 

does not constitute a Franks violation. A 

Franks violation occurs only if the affiant 

knew the third party was lying, or if the 

affiant proceeded in reckless disregard of 

the truth.”41 Accordingly, “misstatements 

resulting from negligence or good faith 

mistakes will not invalidate an affidavit 

which on its face establishes probable 

cause.”42 With regard to omissions, “the 

defendant must show that the facts were 

omitted with the intent ... to make the 

37 Franks, 438 U.S. at 155 38 United States v. Castillo, 287 F.3d 21, 25 (1st 

Cir. 2002) 

39 United States v. Stanert, 762 F.2d 775, 781 (9th 

Cir. 1985) 

40 Franks, 438 U.S. at 165 41 United States v. Jones, 208 F.3d 603, 607 (7th 

Cir. 2000) 

42 United States v. Hammett, 236 F.3d 1054, 1058 

(9th Cir.), cert. denied, 534 U.S. 866 (2001) 
affidavit misleading.”43 As with false 

statements, “negligent omissions will not 

undermine the affidavit.”44

Like “knowingly and 

intentionally,” the phrase “’reckless 

disregard for the truth’ means different 

things when dealing with omissions and 

assertions.”45 Assertions are made with 

“reckless disregard for the truth” when, 

“viewing all the evidence, the affiant must 

have entertained serious doubts as to the 

truth of his statements or had obvious 

reasons to doubt the accuracy of the 

information he reported.”46 Omissions, on 

the other hand, are made with “reckless 

disregard for the truth” when a law 

enforcement officer omits facts that “any 

reasonable person would have known the 

judge would wish to have brought to his 

attention.”47

Finally, the plaintiff must show 

that the false statements or omissions were 

“material” to a finding of probable cause. 

“Disputed issues are not material if, after 

crossing out any allegedly false 

information and supplying any omitted 

facts, the ‘corrected affidavit’ would have 

supported a finding of probable cause.”48 

Thus, “even if the defendant makes a 

showing of deliberate falsity or reckless 

disregard for the truth by law enforcement 

officers, he is not entitled to a hearing if, 

when material that is the subject of the 

alleged falsity or reckless disregard is set 

to one side, there remains sufficient 

 

 

43 United States v. Clapp, 46 F.3d 795, 799 (8th 

Cir. 1995) 

44 United States v. McCarty, 36 F.3d 1349, 1356 

(5th Cir. 1994) 

45 Wilson, 212 F.3d at 787 46 Clapp, 46 F.3d at 801 n.6 47 United States v. Jacobs, 986 F.2d 1231, 1235 

(8th Cir. 1993) 

48 Velardi, 40 F.3d at 574 (citation omitted) 

content in the warrant affidavit to support 

a finding of probable cause.”49

CONCLUSION

State and federal law enforcement officers 

may be sued for violating a person’s 

Fourth Amendment rights under either 

section 1983 or Bivens, accordingly. 

When such suits are brought, the officer 

may be entitled to qualified immunity in 

situations where the arrest was based on a 

valid warrant. However, qualified 

immunity will not be granted in those 

cases where the magistrate or judge 

issuing the warrant was misled by 

information contained in the affidavit that 

the affiant either (1) knew was false or (2) 

would have known was false had he not 

recklessly disregarded the truth. 

49 United States v. Dickey, 102 F.3d 157, 161-162 

(5th Cir. 1996)(citation omitted)