## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 10 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD A. BREIDENBACH, MARY ELLEN BREIDENBACH, FRANK D. BREIDENBACH, GERALDINE E. BREIDENBACH, EDWARD JOHN BREIDENBACH, SCOTT A. HARMS, GINA L. BULLOCK, JASON BULLOCK, CHRISTOPHER HARMS, NICOLE HARMS, FRANCISCO SERRANO, STEVEN G. HARMS, JENNIFER HARMS, and CHAD HARMS, Plaintiffs-Appellees, v. DON BOLISH, Sheriff of Logan County, RAY NEVILLE, Deputy Sheriff with Logan County Sheriff’s Department, COUNTY OF LOGAN, a county of the State of Colorado, and JOHN DOES I THROUGH XL, officers and agents of various governmental entities including Colorado National Guard, Defendants, and NICOLA GESI, Drug Enforcement Administration Special Agent, in his official capacity, Defendant-Appellant. No. 96-12702 APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 95-K-2148)

Nathan D. Chambers, Chambers, Dansky & Hansen, P.C. , Denver, CO, for Plaintiffs-Appellees. Barbara L. Herwig and Edward Himmelfarb, United States Department of Justice, Washington, D.C., for Defendant-Appellant Nicola Ge si.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.

This appeal arises from the plaintiffs’ civil right s action against Nicola Gesi, a special agent of the Drug Enforcement Agenc y, alleging that Agent Gesi knowingly or recklessly submitted false informationin an affidavit used to obtain warrants to search the plaintiffs’ homes. Agent Ge si moved to dismiss the action on qualified immunity grounds, arguing that the pla intiffs failed to allege facts sufficient to demonstrate that Agent Gesi violated a clearly established constitutional right. The district court denied Ag ent Gesi’s motion to dismiss and allowed discovery to proceed to resolve the qualifi ed immunity question. We have jurisdiction over this interlocutory appeal pu rsuant to 28 U.S.C. § 1291. See Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). We reverse and remand.
I. BACKGROUND1 The full text of the plaintiffs’ factual allegation s against Agent Gesi

state as follows:

23. Sometime before August 21, 1993, defendant Nicola Gesi submitted affidavit(s) in connection wi th 3 The plaintiffs are residents of six homes in Logan County, Colorado. On August 21 and 22, 1993, in a series of pre-dawn rai ds, federal, state, and local law enforcement agents executed warrants to search the plaintiffs’ homes and other homes in Logan County. The searches of the plainti ffs’ homes failed to produce any evidence of marijuana or contraband, and none o f the plaintiffs were criminally charged. As a result of the events surrounding the searches, the plaintiffs filed this civil rights action against the law enforcement age nts, Logan County, and the City of Sterling, Colorado, alleging the searches violat ed their Fourth, Fifth, and Fourteenth Amendment rights under the United States Constitution. Among other things, the plaintiffs brought a federal action und er Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), against DEA agent Gesi who submitted the affidavit (or affidavi ts) to procure the warrants. The plaintiffs allege that Agent Gesi “knowingly in cluded false information in the affidavit(s) or recklessly disregarded the substant ial probability that certain information in the affidavit was false.” Aplts’ Ap p., doc. 1, at 3 (First Amended Complaint dated Feb. 2, 1996). 1 However, because the warrant affidavit wasa request for the issuance of approximately sixty-s ix (66) search warrants. Defendant Gesi knowingly included false information in the affidavit(s) or recklessly disregarded the substantial probability that certain information in the affidavit(s) was false. In reliance upon this affidavit(s), approximately sixtysix (66) search warrants were issued, including warrants authorizing the entry and search of certai n plaintiffs’ property, as set forth more fully below

. Aplts’ App., doc. 1, at 3 (First Amended Complaint dated Feb. 2, 1996). 4 sealed by the issuing judge as part of the defendan ts’ continuing criminal investigation in Logan County, the plaintiffs have never seen Agent Gesi’s warrant affidavit and did not offer specific facts related to the affidavit. Agent Gesi moved to dismiss the plaintiffs’ complai nt on qualified immunity grounds. He argued that he was entitled t o qualified immunity because the plaintiffs had failed to allege the violation o f a clearly established constitutional right in sufficient detail to meet t he “heightened pleading” standard required in qualified immunity cases. In response, the plaintiffs offered affidavits from Edward Breidenbach and Mary Ellen Breidenbach swearing that they had never been involved in the cultivation or distribut ion of any controlled substances, or had controlled substances in their r esidences or on their property. The district court denied Agent Gesi’s motion. The district court first determined under the qualified immunity doctrine th at the law was clearly established at the time of the alleged violation th at the submission of false5

information in a warrant affidavit violated an indi vidual’s Fourth Amendment rights. Aplts’ App. doc. 4, at 3 (Dist. Ct. Order dated May 6, 1996). The court then held that because the plaintiffs have been ref used all discovery and have not seen the sealed affidavit, their allegations were “ sufficient to withstand a motion to dismiss.” Id . at 4. The court ruled that the plaintiffs could proceed with discovery limited to resolving the qualified immuni ty question. The court added that if the plaintiffs failed “to adduce evidence t o support their allegations of Gesi’s falsity or reckless disregard for the truth in preparing the affidavit at issue, summary judgment [would] enter forthwith.” Id

.

II. DISCUSSION

We review the denial or grant of a motion to dismis s de novo, applying the same standard used by the district court. See Liebson v. New Mexico Corrections Dep’t , 73 F.3d 274, 275 (10th Cir. 1996). In the context of a qualified immunity defense, however, the standard is somewhat different than in the typical Fed. R. Civ. P. 12(b)(6) context. Once the defendant raise s a qualified immunity defense, the plaintiff assumes the burden of showing that th e defendant has violated clearly established law. See Pueblo Neighborhood Health Ctrs., Inc. v. Losavio , 847 F.2d 642, 645 (1988). To overcome the qualifie d immunity defense, the plaintiff must identify a clearly established statu tory or constitutional right of6

which a reasonable person would have known, and the n allege facts to show that the defendant’s conduct violated that right. See Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982); Pueblo Neighborhood Health Ctrs., Inc. , 847 F.2d at 645. The qualified immunity defense extends to government officials performing discretionary functions. See Harlow , 457 U.S. at 818. As explained by the Supreme Court in Mitchell , qualified immunity represents an entitlement not to stand trial or face the otherburdens of litigation, conditioned on the resolution of the es sentially legal question whether the conduct which the plaintiff co mplains violated clearly established law. The entitlement is an imm unity from suit rather than a mere defense to liability; and like a n absolute immunity, it is effectively lost if a case is erroneously per mitted to go to trial.
472 U.S. at 526. The qualified immunity analysis is the same whetherthe claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Act s. See Butz v.
Economou , 438 U.S. 478, 504 (1978) (“[W]e deem it untenable to draw a distinction for purposes of immunity law between su its brought against state officials under § 1983 and suits brought directly u nder the Constitution against federal officials.”). Thus, in assessing whether t he qualified immunity defense should apply, we must make two inquiries: First, w e must ask what was the clearly established law with regard to the plaintif fs’ constitutional rights at the time those rights were allegedly violated by Agent Gesi. If the law was not clearly established at the time, then Agent Gesi is entitled to dismissal of the7

action because he could not have known that he was violating that right. Second, if the law was clearly established, we must ask whe ther Agent Gesi’s conduct was “objectively reasonable” in light of this clearly e stablished law.

A. Clearly Established Law

The first question under Harlowis whether the law regarding the submission of false information in a warrant affidavit was clearly established at the time of the alleged violation in August 1993. Neither party disputes that the law was clearly established. As pointed out by the district court, the appropriate standard for determining whether a constitutional v iolation occurred in this instance is set out in Franks v. Delaware , 438 U.S. 154 (1978). This court has previously held that “the law [is] clearly establis hed that an officer would violate a plaintiff’s Fourth and Fourteenth Amendment right s by knowingly or recklessly making a false statement in an affidavit in supportof [a] . . . warrant, if the false statement were material to the finding of probable cause.” Bruning v. Pixler , 949 F.2d 352, 357 (10th Cir. 1991) (citing Franks , 438 U.S. at 155-56). Accordingly, we hold that the law concerning the plaintiffs’ cla im against Agent Gesi was clearly established at the time of the alleged viol ation.

B. The Objective Reasonableness of the Defendant’s Actions8

The dispute in this case focuses on the second pron g of the Harlowtest — that is, whether the plaintiffs have alleged facts sufficient to demonstrate that defendants’ conduct was “objectively unreasonable” in light of clearly established law. On appeal, Agent Gesi argues that the distric t court erred in denying his motion to dismiss because the plaintiffs failed to allege any facts to support their allegation that he knowingly or recklessly submitte d false information in his warrant affidavit. Because this appeal arises on amotion to dismiss, we construe the facts, and reasonable inferences that might be drawn from them, in favor of the plaintiff. See Beard v. City Northglenn, Colo. , 24 F.3d 110, 115 (10th Cir. 1994). Agent Gesi correctly notes that in the context of aqualified immunity defense, this court has traditionally required plai ntiffs to meet a heightened pleading standard. See Sawyer v. County of Creek , 908 F.2d 663, 667 (10th Cir. 1990) (“Once a qualified immunity defense has been raised . . . , the plaintiff is held to a heightened standard of pleading.”). The purpose of the heightened pleading requirement is rooted in the purpose of th e qualified immunity doctrine itself. When the Supreme Court reformulated its qu alified immunity test in Harlowto focus on the “objective reasonableness” of an o fficer’s actions as opposed to his or her subjective intent, the Court sought to shield government officials not only from the “substantial costs” of subjecting officials to the risks2 We disagree with the plaintiffs’ argument that the Supreme Court

altered this heightened pleading requirement with r egard to civil rights actions against individual officers in its decision in Leat herman v. Tarrant County Narcotics Intelligence and Coordination Unit , 507 U.S. 163 (1993). In Leatherman , the Court rejected the Fifth Circuit’s heightened pleading standard in a section 1983 action alleging municipal liability because it held such a standard was inconsistent with the liberal standard of “noti ce pleading” required under the Federal Rules of Civil Procedure. In doing so, how ever, the Court expressly stated that “[w]e . . . have no occasion to conside r whether our qualified immunity jurisprudence would require a heightened pleading s tandard in cases involving individual government officials.” Id . at 166-67. In declining to extend its holding to suits against individual officers, the C ourt emphasized that, “unlike various government officials, municipalities do notenjoy immunity from suit — either absolute or qualified — under § 1983.” Id . at 166. Because the Court declined to rule that its holding applied to indivi dual government officers and we find no reason to do so here, we are compelled unde r the doctrine of stare decisis to continue to apply our heightened pleading standa rd in cases concerning individual government officers. 9 of trial, but also from “[j]udicial inquiry into su bjective motivation,” including “broad-ranging discovery and the deposing of numero us persons.” 457 U.S. at 816. The Court held that such inquiries “can be pe culiarly disruptive of effective government.” Id . In keeping with this important concern for shiel ding government officers from burdensome discovery in ca ses where subjective intent is at issue, this court and several other circuits have imposed a more stringent pleading requirement where a qualified immunity def ense is asserted. 2 See Pueblo Neighborhood Health Ctrs., Inc. , 847 F.2d at 646. See also Crawford-El v. Britton , 93 F.3d 813, 816-17 (D.C. Cir. 1996) (en banc), p etition for cert. granted , No. 96-827 (June 16, 1997); Branch v. Tunnell , 14 F.3d 449, 452 (9th10

Cir. 1994); Gooden v. Howard County, Md. , 954 F.2d 960, 969-70 (4th Cir. 1992) (en banc); Elliott v. Thomas , 937 F.2d 338, 344-45 (7th Cir. 1991);Dominque v. Telb , 831 F.2d 673, 677 (6th Cir. 1987). The heightened pleading standard requires that a pl aintiff do more than assert bare allegations of a constitutional violati on. As we explained in Sawyer , “[t]he complaint must include ‘all the factual alle gations necessary to sustain a conclusion that defendant violated clearly establis hed law.’” 908 F.2d at 667 (quoting Dominque , 831 F.2d at 676). If the original complaint is d eficient, the plaintiff must amend his or her complaint to includ e specific, non-conclusory allegations of fact sufficient to allow the distric t court to determine that those facts, if proved, demonstrate that the actions take n were not objectively reasonable in light of the clearly established law. In the context of a Franks claim alleging the knowing or reckless submission of fals e information in a warrant affidavit, this court has previously held that if t he plaintiff “is able to prove the necessary deliberate falsehood or reckless disregar d to impeach a facially valid warrant, the reasonableness inquiry has to be resol ved against the defendant since no reasonably competent officer could believe [a se arch] legal where it was his deliberate reckless deception that led the magistrate to issue the warrant.” Beard , 24 F.3d at 115. On the other hand, if the plaintif f fails to allege facts sufficient to demonstrate a Fourth Amendment violation, “there is no need to proceed any11

further; [and] the case ends in defendant’s favor.” Id . at 115. In the present case, the plaintiffs’ complaint fail s to allege any facts to support their claim that Agent Gesi knowing or reck lessly submitted false information in his warrant affidavit. The only statement supporting the plaintiffs’ Franks claim reads as follows: “Sometime before August 21 , 1993, defendant Nicola Gesi submitted affidavit(s) in connection wi th a request for the issuance of approximately sixty-six (66) search warrants. Defe ndant Gesi knowingly included false information in the affidavit(s) or recklesslydisregarded the substantial probability that certain information in the affidav it(s) was false.” Aplts’ App., doc. 1, at 3 (First Amended Complaint dated Feb. 2, 1996). This allegation is a conclusory statement with no foundation in any spec ific facts arising from the warrant affidavit on which the claim is predicated. While we recognize that the plaintiffs have not had access to the warrant affid avit — which the issuing judge sealed in an unrelated criminal proceeding — we can not subject a government official to discovery based on a complaint which is supported only by conclusory allegations and speculation of a constitutional vio lation. Furthermore, the mere fact that no contraband was d iscovered during the searches of the plaintiffs’ residences has nothing to do with whether or not Agent Gesi knowingly or recklessly submitted false inform ation in submitting his warrant affidavit. The plaintiffs are incorrect th at, because nothing was found,12

there could not have been probable cause to search the houses unless that probable cause was based on false information. Pro bable cause need not be based on actual guilt. Rather, probable cause to obtain a search warrant is based on a showing of a reasonable degree of suspicion that th e suspected items will be found — not an actual showing that such items will be found. See Illinois v.
Gates , 462 U.S. 213, 238 (1983) (“The task of the issuin g magistrate is simply to make a practical, common-sense decision whether, gi ven all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular p lace.”). Therefore, we decline to consider the plaintiffs’ actual innocence as rel ated to the question of whether or not Agent Gesi knowingly or recklessly submittedfalse information in his warrant affidavit. In sum, the plaintiffs’ complaint fails to offer sp ecific, non-conclusory factual allegations sufficient to allow the distric t court to determine that those facts, if proved, demonstrate that Agent Gesi violated the plaintiffs’ Fourth Amendment rights. Accordingly, we conclude that Ag ent Gesi’s motion to dismiss on qualified immunity grounds must be grant ed. Our conclusion, however, does not leave the plainti ffs without recourse. We are sympathetic to the plaintiffs’ “Catch-22” si tuation in which they seek to allege a constitutional violation based on a warran t affidavit but cannot offer any13

facts related to that affidavit because it has been sealed as a result of the defendants’ on-going criminal investigation in Logan County. Not only does this situation make it difficult for the plaintiffs to s urvive a motion to dismiss — such as that presented in this instance — but it also exposes the plaintiffs’ counsel to possible sanctions under Fed. R. Civ. P. 11 for pre senting a pleading containing allegations lacking evidentiary support. See Fed. R. Civ. P. 11(b)(3). In a case such as this, the plaintiffs should pursu e every possible avenue to obtain the necessary facts to support their legal c laims prior to filing a complaint in federal court. The plaintiffs have not done thi s. While the plaintiffs assert in their answer brief that they “have been denied every opportunity to review or see [the warrant affidavit],” Aples’ Br. at 8, the plai ntiffs have never sought an order from the judge who sealed the affidavit to allow an unsealing or limited unsealing of the affidavit for use in preparing their civil c omplaint. The plaintiffs should have sought to obtain the facts in this manner rath er than filing a civil complaint and asking another court to oversee the discovery o f documents sealed in a separate criminal matter. In the event that the pl aintiffs’ efforts to unseal the affidavit were to prove fruitless, the plaintiffs w ould have recourse by seeking appellate review of that decision in this court. S ee generallyLawmaster v. United
States (In re Search of 1638 E. 2nd Street, Tulsa, Okla. ), 993 F.2d 773 (10th Cir. 1993) (involving civil plaintiff’s appeal of denial of petition to unseal affidavit3 We noted in Lawmasterthat a district court has various options

available to it in unsealing all or portions of aff idavits or other documents. These include: in camera hearings, findings under seal, a nd redacted versions of the document. See 993 F.2d at 775-76 & n.3. 14 used to obtain search warrant). 3

III. CONCLUSION

For the foregoing reasons, we reverse the decision of the district court denying Agent Gesi’s motion to dismiss. We remand this matter to the district court with instructions to dismiss the plaintiffs’ complaint without prejudice and with leave to amend. Such disposition should provi de the plaintiffs a reasonable amount of time to obtain the necessary factual alle gations, if such exist, to support their Franks claim against Agent Gesi.