United States Court of Appeals

Fifth Circuit



## FILED

August 17, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-30780

_____________________

MICHAEL E. MICHALIK, JR., Individually and on behalf of the

minor child, Hannah E. Michalik; DEBORAH P. MICHALIK, his wife,

Plaintiffs - Appellees,

versus

MIKE HERMANN, Deputy Sheriff; ET AL.,

Defendants,

KEVIN GUILLOT; PAUL TOYE; MIKE HERMANN, Deputy Sheriff;

HARRELL CLARK; SHENNANDOAH JONES; ERIC LEVIS,

Defendants - Appellants.

_________________________________________________________________

Appeals from the United States District Court

for the Eastern District of Louisiana

_________________________________________________________________

Before REAVLEY, JOLLY, and PRADO, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This § 1983 and Bivens Fourth Amendment related case has its

origins in the search of the home of Michael and Deborah Michalik

(“the Michaliks”). The search was conducted under a warrant issued

as part of an investigation into a New Orleans drug operation,

involving several local, state, and federal officers. The search

failed to uncover any evidence of illegal activity, and the

M ichaliks brought suit against those involved in the procu rement

and execution of the warrant. The Michaliks contend that the2

officers relied on stale information to claim that Mr. Michalik’s

step-brother stashed drugs at their home.

In the over five years since the complaint was filed, the case

has provided an ever-shifting web of claims and defendants. At

issue in these consolidated appeals is the district court’s denial

of qualifi e d immunity to six defendants-appellants on various

claims relating to the procurement of the search warran t, the

search of the home, and/or the forcible entry of the home. S ee

Michalik v. Hermann , 2003 WL 21805037 (E.D. La. Aug. 4, 2003).

We hold that Levis and Toye are entitled to qualified immunity

for claims based on the procurement of the warrant because neither

prepare d, presented, nor signed the application for the search

warrant. Accordingly, we REVERSE the district court’s denial of

qualified immunity as to (1) Levis and Toye on claims relating to

the procurement of the warrant and (2) Toye on claims relating to

the search of the home. However, we hold that material issues of

fact exist as to the conduct of Guillot, Hermann, Clark and Jones

in the fo rcible entry of the home. Accordingly, we DISMISS this

interlocutory appeal as to those claims for want of jurisdiction.

I

A

In early 1998, Officer Paul Toye (“Toye”) of the New Orleans

Police Dep artment and Agent Eric Levis (“Levis”) of the federal1 Le vis was on detail to the DEA from the St. Bernard Parish

Sheriff’s Office Bureau of Narcotics.

3 Drug Enforcement Agency (“DEA”) 1 began separate invest igations of

a drug ring in New Orleans, Louisiana. Toye and Levis combined

their efforts, and the investigation broadened to include police

authorities in Jefferson, St. Bernard, and St. Tammany Parishes.

I n August 1998, the New Orleans Police Department requested

wiretaps through the Louisiana State Police. Trooper John

Fitzpatrick (“Fitzpatrick”) became the case agent for the Louisiana

State Police. The wiretaps were concluded in early November 1998.

Search warrants were then issued for seventeen houses, and arrest

warrants were issued for thirty-three individuals. Fitzpatrick was

the sole affiant on the Application for Search Warrant for 406 E.

St. Jean Baptiste in Chalmette, Louisiana, the Michaliks’ home. An

arrest warrant was al so issued for Mr. Michalik’s step-brother,

Gene J. Taglialavore (“Taglialavore”). Taglialavore had resided at

406 E. St. Jean Baptiste from 1989 to 1991, but h is permanent

address was in Nevada at the time the warrant was issued.

The search warrant was executed by eight to ten officers of

various jurisdictions on November 18 at approxi mately 5:30 a.m.

Only four of the executing officers have been explicitly identified

by name: Kevin Guillot (“Guillot”) of the New Orleans Police

Department; and Mike Hermann, Harrell Clark, and Shennandoah Jones,

all of the St. Bernard Parish Sheriff’s Department (collectively,

the “St. B ernard defendants”). The Michaliks were detained for2 The U nited States previously had been dismissed without

prejudice by the district court in October 2000 for failure to

serve. Thereafter, the district court granted the United States’

motion to dismiss all named and/or fictitious federal employees on

sovereign immunity grounds.

4 approximately two hours while the house was searched. No drugs or

other evidence of illegal activity was found in either the initial

search or in a second search conducted with the use of a drug dog.

The Michaliks filed their original complaint in November 1999,

alleging that their home was searched unlaw fully because the

officers relied on stale information to determine that Taglialavore

had stashed drugs at 406 E. St. Jean Baptiste. In their original

complaint, they sought damages and ot her relief based on alleged

violations of the U.S. Constitution and Louisiana state law against

the federal, state, and local law enforcement officers an d their

respective agencies and governmental entities, including the United

States.

Because of the number of parties and claims involved, the

procedural posture of this case is exceptionally complicated. We

will relate only what is necessary to understand the issues on

appeal.

On November 20, 2001, the Michaliks filed their first amended

and supplemental complaint, adding a claim under the Federal Tort

Claims Act (“FTCA”) against the United States, alleging violations

of 42 U.S.C. §§ 1985 and 1986. 2 The United States, along with

other named fe deral defendants, filed a motion to dismiss the5

Michaliks ’ amended complaint. The district court dismissed the

claim with prejudice because the Michaliks failed to exhaust their

administrative remedies before filing, and more than six months had

e lapsed from the date on which the plaintiffs actually exhaus ted

their administrative remedies. S ee 28 U.S. C. §§ 2675(a) and

2401(b).

The Michaliks submitted two additional amended complaints,

naming federal defendants in their personal capacities and alleging

the dual status of Levi s as a DEA agent and member of the St.

Bernard Parish Sheriff’s Department.

B

We now turn to recount the procedural history of this

litigation with respect to each defendant-appellant, beginning with

Levis. Levis filed no answer to the Michaliks’ third amended

complaint, but instead filed a motion to dismiss, asserting

qualified immunity and the judgment bar provision of the FTCA, 28

U.S.C. § 2676. The district court denied Levis’s motion to dismiss

and similarly denied Levis’s motion to reconsider. On May 27,

2003, Levis filed a motion for summary judgment, again raising

qualified immunity and the FTCA judgment bar. The district court

denied the motion for summary j udgment on August 4. Levis now

appeals the district court’s order denying him bo th dismissal on

FTCA grounds and qualified immunity on federal law claims relating

to the procurement of the warrant.6

We next consider Toye and Guillot of the New Orleans Police

Department. On January 8, 2003, the district court granted summary

judgment on the basis of qualified immunity, dismissing all federal

claims again st all defendants, including Toye and Guillot. The

Michaliks filed a Federal Rule of Civil Pro cedure 59 motion,

arguing that the court’s grant of summary judgment was premature in

view of ongoing discovery. The district court granted the

Michaliks’ motion in part, reinstating federal claims against Toye

as to the procu rement of the search warrant. On May 19, the New

Orleans Police defendants filed for summary judgment on the

remaining claims. In its August 4 order, the district court

dismissed all claims against every named New Orleans Police

defendant, except Toye and Guillot. The district court reinstated

the federal claims against Guillot, noting that material issues of

fact exist as to Guillo t’s role in the forcible entry of the

Michaliks’ home. The district court also reinstated claims against

Toye regarding the search and forcible entry of the home, as well

as the procurement of the search warrant as noted above. Toye and

Guillot now appeal the district court’s order.

Finally, we turn to the St. Bernard defendants. On December

3, 2003, the St. Bernard defendants filed a motion for summary

judgment on the basis of qualified immunity. The district court

granted qu alified immunity to the St. Bernard defendants on all

feder al excessive force claims arising out of the search itself,

ordering the federal claims dismissed with prejudice. The district3 The Michaliks have moved to dismiss e ach of the defendants’

appeals. These motions were carried with the case, but we do not

separately address these motions in this opinion. We consider the

arguments advanced in the motions briefing in conjunction with the

arguments raised in the merits briefing in arriving at our

conclusions.

7 court denied the Michaliks’ motion for reconsideration,

specifically holding that the police action during the search was

objectively reasonable. On May 5, 2004, the St. Bernard defendants

filed a separate motion for summary judgment to dismiss all

remaining state law claims. In its August 4 order, the district

court granted summary judgment to the St. Bernard defendants for

state law claims arising out of the procurement of the warrant, and

also held as a matter of law that the officers’ conduct inside the

house was not unreasonable under state tort law principles. The

district court, however, denied the motion for summary judgment as

to Hermann, Clark, and Jones on the federal and state law claims in

conjunction with the forcible entry of the Michaliks’ home. The

St. Bernard defendants now appeal.

To sum up, the six defendants-appellants appeal the denial of

qualified immunity for the following claims: (1) federal claims

only against Levis for procurement of the warrant; (2) federal and

state claims against Toye for procurement of the warrant, search of

the home, and forcible entry of the home; (3) f ederal and state

claims against Guillot for forcible entry of the home; (4) federal

and state claims against the St. Bernard defendants for forcible

entry of the home. 38 II

The denial of a motion for summary judgment is generally not

a final, appealable order over which we have jurisdiction. Under

the collateral order doctrine, however, “a small class of

interlocutory orders that (1) conclusively determine, (2) important

issues, which are separate from the merits of the action, and (3)

which would be effectively unreviewable on appeal from a final

judgment, are deemed ‘final’ for the purposes of appeal.” R eyes v.

City of Richmond, Texas

, 287 F.3d 346, 350 (5th Cir. 2002)

(internal quotation and citation omitted). A district court’s

denial of qualified immunity, to the extent that it turns on an

issue of law, is an appealable decision under the collateral order

doctrine. Mitchell v. Forsyth , 472 U.S. 511, 530 (1985); Johnson

v. Jones

, 515 U.S. 304, 313-18 (1995). We have no jurisdiction to

hear an interlo cutory appeal, however, when a district court’s

denial of qualified immunity rests on the basis that genuine issues

of material fact exist. See Reyes , 287 F.3d at 350-51.

We re view a district court’s denial of summary judgment d e

novo

, applying the same standard as the district court. S ee

Gowesky v. Singing River Hosp . Sys. , 321 F.3d 503, 507 (5th Cir.

2003). Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admi ssions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law. ” F E D

. R. C IV

. P. 56(c). Any4 The claims at issue are a federal B ivens action, Bivens v.

Six Unknown Named Agents of the Federal Bureau of Narcotics

, 403

U.S. 388 (1971), and a 42 U.S.C. § 1983 action against Toye for

Fourth Amendment violations based upon their roles in procuring the

9 reasonable inferences are to be drawn in favor of the non-moving

party. Gowesky , 321 F.3d at 507 (citations omitted).

Evaluating qualified immunity is a two-step process. First,

we determine whether the plaintiff has alleged a violation of a

clearly established constitutional or statutory right. S ee Siegert

v. Gilley

, 500 U.S. 226 (1991). A right is clearly established if

its contours ar e “sufficiently clear that a reasonable official

w ould understand that what he is doing violates that right.”

Wooley v. City of Baton Rouge , 211 F.3d 913, 919 (5th Cir. 2000)

(intern al citations omitted). If the plaintiff has alleged a

violation of a clearly established right, the next step for us is

to determine whether the official’s conduct was objectively

reasonable under the law at the time of the incident. S ee Sanchez

v. Swyden , 139 F.3d 464, 467 (5th Cir. 1998) (citations omitted).

The plaintiff bears the burden of proving that a government

official is not entitled to qualified immunity. S ee

, e.g.

, Bennett

v. City of Grand Prairie , 883 F.2d 400, 408 (5th Cir. 1989).

A

(1)

We begin by examining the district court’s denial of qualified

immunity to Levis and Toye for claims related to procurement of the

searc h warrant. 4 The district court concluded that neither Leviswarrant.

5 The Supreme Court held in Franks v. Delaware that an officer

may be liable when he “makes a false statement knowingly and

intentionally, or with reckless disregard for the truth” that

results in a warrant being issued without probable cause regardless

of whether he signed the application or was present when the

affiant appeared before the judge. 438 U.S. 154, 155-56 (1978).

The Fifth Circuit has interpreted Franks liability to also include

liabilit y for an officer who makes knowing and intentional

omiss ions that result in a warrant being issued without probable

cause. S ee Hart v. O’Brien

, 127 F.3d 424, 448 (5th Cir. 1997),

abrogated in part by Kalina v. Fletcher , 522 U.S. 118 (1997).

10 nor Toye were subject to F ranks liability 5 because the Michalik s

identified no false statement attributabl e to Levis or Toye that

appeared anywhere i n the warrant application. Nevertheless, the

district court denied qualified immunity to Levis and Toye, finding

that there were material factual disputes as to whether they were

liable under Malley v. Briggs , 475 U.S. 335 (1986). The district

court concluded that if the officers are ultimately found to have

played a significant enough role in p rocuring the warrant, their

conduct may expose them to liability under the principles of

Malley

. 2003 WL 21805037, at *11-12. So, let us examine Malley

and the district court’s application of it to this case.

In Malley , the officer in charge of the investigation

presented criminal complaints to the state judge charging the

defendants with felony marijuana possession. The complaints were

accompanied by supporting affidavits signed by the officer and by

unsigned arrest warrants for the judge’s signature. 475 U.S. at

337-39. On the basis of the complaints and affidavits, the judge11

signed and issued the warrants

. I d

. T he defendants were arrested,

tried, and acquitted. I d . They then brought a § 1983 claim

against the affiant officer, charging that he violated their Fourth

Amendment rights by applying for warrants without a showing of

probable cause. I d

. The officer contended that he was entitled to

absolute i mmunity from suit because the state court judge had

approved, execu ted, and issued the warrants, exonerating the

officer from further liability. I d

. at 339-45. T he Supreme Court

described the issue thusly: “. . . the degree of the immunity

accorded a defendant police officer in a damages action under 42

U.S.C. § 1983 when it is alleged that the officer caused the

plaintiffs to be unconstitutionally arrested by presenting a judge

with a complaint and a supporting affidavit which failed to

establish probable cause.” I d

. at 337 (emphasis added). The Court

concluded that such an officer is n ot entitled to absolute

immunity. The Court further held, however, that the officer who

applies for a search warrant may be entitled to qualified immunity

if his actions are objectionably reasonab le. Throughout its

opinion, the Court made clear that the specific and narrow question

before it was “whether a reasonably well-trained officer in

petitioner’s position would have known that his affidavit failed to

establish probable cause and that he should not have applied for

the warrant.” Id . at 345 (emphasis added). Thus, our reading of

the case makes clear to us that Malley specifically decided only6 Under such circumsta nces, we were prompted to chide police

departments to “seek to provide magistrates with warrant

applications from the law enforcement official most directly

involved in the investigation and most directly involved with the

facts stated in the affidavit.” Id . at 407.

12 whether the officer who actually presen ts or applies for the

warrant is liable.

The district court here, however, stated that “[t]he

p rinciples enunciated in Malley apply not only to those offic ers

who sign and present the warrant to the issuing judge but also to

those offi cers who prepare the warrant application.” 2003 WL

21805037, at *10. The district court cited B ennett v. City of

Grand Prairie , 883 F.2d 400, as support for this understanding of

Malley

. We agree with the district court that B ennett seems to

move the Malley holding a step forward.

In Bennett

, several officers were engaged in the

investi gation, preparation, and presentation of the facts that

ultimately were presented to the magistrate judge who i ssued the

arrest warrant. 883 F.3d at 401-03. The detective in charge of

the investigation prepared, but did not pres ent, the supporting

affidavit. I d

. Under the procedures of that police department,

the affiant

-- the officer who actually signed and presented the

affidavit to the judge -- acted only in a perfunctory role; that

is, he had no knowledge of the facts, but depended solely upon the

supplied affidavit. 6 I d

. The investigators, the detective in13

charge, a nd the affiant were sued under § 1983 for effecting an

arrest without probable cause. Id

.

Our opinion in Bennett fo cused primarily on the question of

whether probable cause supported the arrest of the two plaintiffs

-- not on the nuances of liability under Malley

. We were concerned

largely wi th the detective who prepared the affidavit, and we

addressed in particular the reliability of the facts that he used

to make allegations in the affidavit. With respect to the narrow

Malley issue, we must say that the opinion is not absolutely clear

that the detective’s liability rested explicitly on Malley

. We did

assume, for purposes of assessing the detective’s Fourth Amendment

liability and his entitlement to qualified immunity, that the facts

known to the detective would be insufficient to give him probable

cause to arrest the defendant and that the facts in the affidavit

that he prepared were insufficient to establish probable cause for

the arrests. I d

. at 408. In assuming the detective’s Fourth

Amendment liability as the preparer of the affidavit, we made only

a short reference to Malley : “A police officer may be held liable

in his individual capacity for filing an application for an arrest

warrant without probable cause, the Supreme Court held in Malley v.

Briggs .” I d

. at 409 (emphasis added). Citing M al ley , we noted

that with respect to the detective the question was “‘whether a

reasonable well-trained officer in [the defendant’s] position would

have known that his affidavit failed to establish probable cause

and that he should not have applied for the warrant.” I d

. Without14

addressing that the detective had not, in fact, applied for the

warrant, we went on to find that the detective’s actions were

objectively reasonable and he was entitled to qualified immunity.

We will return later to the district court’s application of Malley

to deny qualified immunity to Levis and Toye on the warrant claims.

(2)

Turning now to the Michaliks’ arguments concerning the warrant

claims, they primarily urge that we lack appellate jurisdi ction

because the denial of qualified immunity here is based on issues of

fact relating to Levis’s and Toye’s role in procuring the warrant.

Johnson

, 515 U.S. at 313; Reyes

, 287 F.3d at 350-51. This

argument, however, assumes that there is no issue of law regarding

the applicability of Malley and that Malley applies to the alleged

facts.

In contending that Malley establishes liability for nonaffiant officers, the Michaliks argue that the Suprem e Court has

caut ioned against reading references to “officer” narrowly when

considering reasonableness under the Fourth Amendment -- that the

term “officer” should encompass more persons that a single officer.

They acknowledge that Malley addressed specifically the liability

of the affiant officer, but givin g an inclusive meaning to

“officer,” they assert that the requirements of M alley are

applicable to any officer, however involved in the procur ement

process, who had no reasonable ground for believing that the7 The Michaliks further assert that the collective knowledge

doctrine/fellow officer rule is applicable to Levis. Citing a

district court opinion from Massachusetts, the Michaliks argue that

a non-affiant participant cannot use another officer as a shield.

United States v. Bater

, 830 F.Supp. 28, 36-37 (D. Mass. 1993)

(considering facts analogous to Leon ). We find this reasoning

unpersuasive here for the reasons articulated by the district

court. 2003 WL 21805037, at *4.

Nor are we pe rsuaded by the Michaliks’ arguments regarding

supervisory capacity. The district court correctly noted “that the

foundation upon which personal civil liability for constitutional

torts and the doctrine of qualified immunity are based is

individual conduct not imputed acts.” 2003 WL 21805037, at *4.

15 warrant was properly issued. 7 In support, they cite United States

v. Leon as holding that the Fourth Amendment’s exclusionary rule is

appropriate where officers have no reasonable ground for believing

that the warrant was properly issued. 468 U.S. 897, 923 n.24

(1984). The Michaliks point out that the Supreme Court in Malley

said that the “same standard of objective reasonableness applied in

the context of a suppression hearing in Leon defines the qualified

immunity accorded an officer whose request for a warrant allegedly

caused an unconstitutional arrest.” 475 U.S. at 345.

On the other hand, Levis and Toye assert that Malley only

applies to affiant officers and that an extension of liability to

non-aff iant officers is inconsistent with the M alley rationale

because such officers do not have the opportunity to consider the

application as a whole and thus cannot make reasonable judgment as

to whether the warrant is truly supported by probable cause.

Furthermore, Levis and Toye contend that such an exte nsion would

have adverse effects on legitimate law enforcement functions by8 Neither Levis nor Toye provide us any helpful guidance in

interpreting Bennett

. Toye does not cite B ennett in his briefs,

and Levis simply notes that “ B ennett did not . . . hold that an

officer could be subject to liability under Malley for preparing a

warrant, or discuss the issues that would pertain to establish such

a new rule of law.”

9 We do not read Bennett to extend Malley liability to the two

other officers involved in the investigation and sued by the

plaintiffs. Such fleeting reference to the conduct and liability

of these officers is insufficient for us to draw any conclusion in

relation to M alley

. I d

. at 408. To be sure, however, it would

extend Malley ’s holding beyond its underlying rationale to hold any

officer liable for the arrest warrant who neither prepared nor

presented the application.

16 discouraging officers from providing information to be used in a

warrant application. 8

(3)

Our understan ding of M alley liability differs somewhat from

the district court and from the parties. Our analysis of Bennett

convinces us that, according to thi s precedent, liability under

Malley may lie not only against the affiant, but also again st an

officer who is in the position of the detective in B ennett

, that

is, an officer who actually prepares the warrant application with

knowledge that a warrant would be based solely on the document

prepared. 9 Such an officer i s in a position to see the whole

picture, to understand his responsibility, and thus fully to assess

probable cause questions. A ccordingly, such an officer, who is not

the affiant, may be held liable, along with the affiant, under the

principles of Malley

. W e are unwilling, however, to extend such

liability on the basis of Bennett

, under the Malley rationale,10 Levis also appeals the district court’s denial of summary

judgment asserting that he is entitled to have the Bivens claims

dismissed on account of the FTCA’s judgment bar provision, 28

U.S.C. § 2676. Because our finding that Levis is entitled to

qualified immunity on the Bivens action ends the litigation against

him on this claim, we need not address claims with respect to §

2676.

17 beyond the affiant and person who actually prepared, or was fully

responsible for the preparation of, the warrant application. Here,

i t is undis puted that no officer other than Fitzpatrick, the

affiant officer, was r esponsible for the preparation or

presentation of the warrant application to the judge. Although

issues of fact may exist as to the roles that Levis and Toye played

in the investigation, and in providing some of the information to

Fitzpatrick, these issues of fact are not material to the warrant

claim because none of the evidence suggests that Levis and/or Toye

prepared or presented the warrant or were fully responsible for its

preparation or pres entation. Accordingly, we hold that the

district court erred in denying qualified immunity to Levis and

Toye on claims related to the procurement of the search warrant. 10

B

We next consider the denial of qualified immunity to Toye for

claims relating to the actual search of the house itself.

Concluding that material issues of fact exist as to whether Toye

was present during the search, the district court noted that if

Toye were present at the search,

then Toye would be additionally liable for

executing the warrant. The Court has already18 determined that the executing officers were

entitled to qualified immunity based upon

their lack of knowledge upon which to question

the seemingly valid warrant. However, the

same re asoning would not apply to an officer

in Toye’s position who because of his

participation in procuring the warrant perhaps

should have known that probable cause was

lacking.

2003 WL 21805037, at *12 (citing Mendenhall v. Riser

, 213 F.3d 226,

231-32 (5th Cir. 2000)).

To the point, the basis of denying qualified immunity to Toye

o n claims relating to the search was based on his liability i n

procuring the warrant. We have exonerated him from that liability

under Malley

. Toye can no more be charged with knowledge of

probable cause than can the other executing officers. It follows

that the district court erred in denying Toye qualified immunity

for the search of the house. The factual dispute as to whether

Toye was present at the time of the search is obviously irrelevant

to this determination.

Accordingly, we reverse the district court’s denial of

qualified immunity to Toye on claims related to the search of the

Michaliks’ home.

C

We finally consider the claims against Toye, Guillot, and the

St. Bernard defendants relating to the forcib le entry of the

Michaliks’ home. These claims are referred to by the parties and

the district court as the knock and announce claims. The district

court denied qualified immunity to these defendants because issues11 Guillot and the S t. Bernard defendants argue that the

district court erred in considering the knock and a nnounce claim

because the Michaliks never alleged the claim at any time before

oral argument on the summary judgment motion. The Michaliks assert

that the knock and announce claim was first briefed in the January

2004 Motion for Reconsideration, and furthermore, common law knock

and announce principles are part of any Fourth Amendment

reasonableness inquiry. S ee Wilson v. Arkansas

, 514 U.S. 9 2 7

(1995). The district court noted that even though the knock and

announce claim was raised for the first time “at this late stage,”

it consi d ered the issue because it is a part of the Fourth

Amendment reasonableness inquiry. We defer to the district court

in its management of this case and its ruling on this matter.

19 of fact remain as to whether the entry was reasonable under state

law and the Fourth Amendment. See 2003 WL 21805037, at *14. The

district court specifical ly noted that “[a]ssuming that the

officers did in fact knock, a point which in and of itself is not

clear, the Court questions whether the officers waited long enough

for the Plaintiffs to respond

. . . .” I d

. Taking the evidence in

the light most favorable to the Michaliks, the district court

stated that it “would have no choice bu t to conclude that the

officers announced their presence simultaneously with breaching the

door.” Id . Because the officers had not pointed to any evidence

to justify such an entry, the district court concluded that

qualified immunity was inappropriate. 11 Id

.

Gui llot and the St. Bernard defendants argue that the

Michaliks have offered no evidence that the o fficers acted

unreasonably. They further and correctly note that the usual

summary j udgment burden of proof is altered in the case of a

qualified immunity defense. B azan v. Hidalgo County

, 246 F.3d 481,20

489 (5th Cir. 2001). An officer need only plead his good faith,

which then shifts the burden to the plaintiff, who must rebut the

defense by establishing that the officer’s allegedly wrong f ul

conduct violated clearly established law. I d

. The plaintiff bears

the burden of negating the defense and cannot rest on conclusory

allegations and assertions but must demonstrate genuine issues of

material fact regarding the reasonab leness of the officer’s

conduct. Id . Guillot and the St. Bernard defendants assert that

the Michaliks have not demonstrated that there was a failure to

knock and announce in this case. They assert that the Michaliks

never alleged that there was a failure to knock and announce their

presence or a failure to wait a reasonable time before entering the

plaintiffs’ home. Even if there were a failure, they assert that

uncontroverted facts demonstrate that their actions were

objectively reasonable in the light of the circumstances.

Toye additionally argues that no evidentiary basis exists for

determining that he may have been present during the forcible entry

or se a rch of the Michaliks’ home. He contends that he has

presented documentary evidence proving that, during the execution

of the warrant at the Michali ks’ home, he was executing a search

warrant at another location in connection with the same “bust”.

The Michaliks argue material issues of fact preclude our

jurisdiction over the interlocutory appeal of this claim; there is

conflicting testimony as to who used the battering ram, who entered

the residence first, how long the officers waited, and whether21

there was a knock and announcement at all. Furthermore, the

Michaliks assert that Toye’s presence at the Michaliks’ home when

the entry was made is disputed, pointing to testimony of Guillot as

well as evid ence questioning the veracity of Toye’s documentary

evidence. In the light of the conflicting testimony, the Michaliks

further assert that the officers’ f ailure to present sufficient

evidence of exigent circumstances makes summary judgment

inappropriate.

Based on our review of the record, we cannot dispute that

material issues of fact remain as to the knock and announce claims.

Although Guillot and the St. Bernar d defendants properly explain

the burdens of the respective parties, th e district court found

that more than conclusory allegations and bare assertions underlie

the Michaliks’ contentions regarding the facts. It seems to us

that the arguments of Toye, Guillot, and the St. Bernard defendants

do not focus on the existence of evidence, but instead on the

weight that should be given to it. We thus conclude that these

m aterial issues of fact deprive this court of jurisdiction to

entertain this interlocutory appeal asserting qualified immunity to

Toye, Guillot, and the St. Bernard defendants.

III

For the foregoing reaso ns, we hold that the district court

erred by denying qualified immunity to (1) Levis and Toye on claims

relating to the procurement of the search warrant and (2) Toye on12 It follows that qualified immunity i s also granted to Toye

with respect to the concomitant state law claims relating to the

procurement of the search warrant and search of the Michaliks’

home. The appeals of state law claims remaining against Guillot,

and the St. Bernard defendants are dismissed in accordance with our

dismissal of the appeal of federal claims for want to jurisdiction.

22 claims relating to the search of the Michaliks’ home. 12 Because the

district court found that material issues of fact exist, we dismiss

for lack of jurisdiction the appeal of claims related to the

f orcible entry of the Michaliks’ home by Toye, Guillot, Herma nn,

Clark, and Jones. Stated differently, the only claims that remain

to be tried are those claims against Toye, Guillot, Hermann, Clark,

and Jones for the forcible entry of the home. Accordingly, we

remand the case for further action and proceedings not inconsistent

with this opinion.

REVERSED and RENDERED, in part;

DISMISSED, in part; and REMANDED.