IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-41553

_______________

EUGENE KERR and GENEVA KERR,

Plaintiffs-Appellants,

VERSUS

ROLAND SCOTT LYFORD; ET AL,

Defendants,

ROLAND SCOTT LYFORD, ANN GOAR, DEBBIE MINSHEW,

BROOKS FLEIG, and STEVE BAGGS,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________ April 14, 1999

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

JERRY E. SMITH, Circuit Judge:

P laintiffs appeal the dismissal, on grounds of immunity, of

their civil rights claim. We affirm.

I.

A.

Eugene and Geneva Kerr (the “Kerrs”) allege that they were

wrongfully investigated, arrested, and incarcerated for the1 The Texas Dep artment of Protective and Regulatory Services (“TDPRS”)

eventually assumed TDHS’s child protective services responsibilities. We use "TDHS"

to refer to both TDHS and its successor, TDPRS.

2 kidnaping, rape, and murder of Kelly Wilson. They sued, under

42 U.S.C. § 1983, those persons involved in the investigation and

prosecution that led to their arrest and inca rceration: Roland

L yford, Ann Goar, Debbie Minshew, Brooks Fleig, and Steve Bag gs.

Moving for summary judgment, Goar, Minshew, Fleig, and Baggs

claimed qualified immunity; Lyford asserted absolute and qualified

immunity.

B.

Defendants’ involvement in this disturbing and largely

unresolved saga of child abuse, child molestation, and occultrelated rape and murder can be traced to November 1990, when Goar,

an employee of the Texas Department of Human Services ( “TDHS”), 1

was assigned the case of Loretta and Wendell Kerr and their four

children. Wendell Kerr is the son of plaintiffs Eugene and Geneva

Kerr, so his and Loretta’s children are the grandchildren of the

instant plaintiffs. On account of sexual abuse allegations made

against Wendell Kerr, the Kerrs’ grandchildren (the “Kerr

children”) were living in foster homes, and it was Goar’s

responsibility to meet with them on a monthly basis.

In December 1990, Goar was shown a letter addressed to Wendell

Kerr written by Lucas Geer, the brother of Wanda Geer Hicks, a3

woman who, following her divorce from James Hicks, had begun dating

Wendell Kerr (who had recently divorced Loretta Kerr). In this

letter, Lucas Geer appears to apologize to Wendell Kerr for

sexually abusing one of Wanda Geer Hicks’s sons. As a result of

this letter, Goar began to counsel Wand a Geer Hicks and her five

children (hereinafter referre d to collectively as the “Hicks

children”) in addition to the Kerr children mentioned above.

In May 1991, Wendell Kerr was indicted on charges that he had

sexually abused one of his daughters. When TDHS discovered that

Wendell Kerr had married Wanda Geer Hicks (hereinafter referred to

as “Wanda Kerr”) and moved in with her and her five children, it

executed an emergency removal of these children, placing them into

three different foster homes. The most troubled of these children

was placed in Barbara Bass’s therapeutic foster home. Minshew was

the TDHS caseworker assigned to supervise the Bass home.

Once in their foster homes, the Kerr and Hicks children began

to tell elaborate tales of sexual abuse. They spoke of sexual

molestation and sodomi zation at the hands of their parents,

grandparen ts (Eugene and Geneva Kerr), and strangers. They

reported being coerced into having sex with each other as their

parents, grandparents, and strangers looked on and videotaped them.

They told of blood, the devil, masks, and knives, all in connection

with their sexual abuse. Lastly, they told graphically of the

murder and dismemberment of babies and children at the hands of

their parents and grandparents.2 A large number of these statements were made / elicited during videotaped

interviews, which have enabled the plaintiffs’ and defendants’ dueling experts

to critique the style of questioning employed by the defendants. See infra

.

3 Perry and CPS were particularly critical of Goar and Minshew for obtaining

information from the children via the “holding” technique, whereby a child would be

held against his will until he provided answers to questions. As best we can tell

from the record, this tech nique was applied by the foster parents to get the

children to repeat, for Goar and Minshew, statements made regarding sexual abuse.

4 The Kerr and Hicks chil dren made the above statements on

numerous occasions and in a variety of se ttings. 2 Some of these

statements were proffered spontaneously and voluntarily, while

others were e licited via vigorous and coercive questioning,

utilizing techniques that have been resoundingly criticized by the

plaintiffs ' expert and by Child Protective Services ("CPS"). 3

Indeed, one of the reasons why the state ultimately dropped its

p rosecution of the Kerrs on child abuse charges is that, i n its

opinion, Minshe w’s and Goar’s mishandling of the child witnesses

made the children’ s testimony untrustworthy. The Kerrs’ expert

witness, Dr. Perry, explained how child witness es are quite

impressionabl e, and inappropriate forms of questioning can taint

even their very recollection of events. Medical examination of the

children did reveal, however, genital and anal scarring consistent

with their allegations of sexual molestation, and defense experts

disputed the charge that Goar’s and Minshew’s interviewing

techniques were improper.

Around June 1992, Goa r’s and Minshew’s supervisor, Loye

Bardwell, asked Baggs to help in investigating the Kerrs. Baggs

was an investigator for the C riminal Law Enforcement Division of4 On an earlier occasion Geer had told Minshew that Geneva Kerr had killed

(continued...)

5 the Texas Department of Public Safety who had developed expertise

in investigating ritualistic behavior and occult pra ctices. He

a ssented and called on Fleig, a Louisiana peace officer, a lso

e xperienced in ritually-based crime, to assist him. Baggs’s and

F leig’s discussions with the children convinced them of the

possibility that the Kerrs had engaged in some sort of ritualistic

abuse.

One of the adults identified by the children as a participant

in their victim ization was Lucas Geer, who was currently serving

time for violating the conditions of his parole. Baggs and Fleig

interviewed Geer and heard him confess to making a variety of

sexual assaults on the children and to participating in the

r itualistic murder of babies on the Kerrs’ property. Geer

corroborated many of the allegations made by the Kerr and Hicks

children im plicating the other Kerr adults, including Eugene and

Geneva Kerr, in their abuse and torture. Polygraph testing

suggested that Geer was truthful in making these statements.

Statements of the Kerr and Hicks children also led defendants

to "R.S.," a male juvenile who was another alleged victim of sexual

molesta tion at the hands of the Kerr adults. R.S. provided the

initial link between the child abuse investigation of the Kerrs and

the Kelly Wilson murder: He told investigators that he had witnessed Wilson's abduction, rape, and murder. 4 He provided details4 (...continued)

Wilson, but Minshew thought Geer was just being dramatic and did not follow up on

this statement; theretofore there had been nothing connecting the Kerrs to Wilson.

6 of these events and said that Wilson’s body was kept in a shed in

the Kerrs’ backyard.

Utilizing an infrared system designed to detect heat rays

emitted from human remains buried underground, Baggs flew over the

Kerrs’ property and located two potenti al sites of such remains.

A cadaver-sensing dog also alerted to three potential sites: (1) a

toolbox contain ing a blue bag, (2) a red shed, and (3) three

shallow grave-like depressions in the soil. The red shed exhibited

signs of recent heavy washing and repainting and contained a shovel

that had blood residue on it. Additionally, investigation revealed

a circular clearing in the woods behind the Kerrs’ house that

matched the description given by the children as the place where

much of their sexual abuse had occurred.

In May 1993, Upshur County District Attorney Tim Cone

obtained indictments against the Kerrs SS along wit h four other

members of the Kerr family SS alleging sexual c hild abuse.

D iscovering that he was disqualified from prosecuting t h e

indictments because of prior representation of the Kerr family,

Cone asked the state district court in Upshur County to appoint

Lyford as special prosecutor pursuant to T E X

. C ODE C RIM

. P ROC

. A NN

.

ART

. 2.07 (Vernon 1977). Cone also personally appointed Lyford as

an assistant district attorney ("ADA") pro tem for Upshur County,5 These it ems included a shell necklace, an electrical wire with yellow

insulation, a nylon strap tow rope with metal connectors, six rubber tie downs, and

brown macrame rope. Human hairs were found on some of these items. Connie Martin

and the children explained that the necklace was worn during episodes of sexual

abuse, that the electrical wire was attached to a battery and used to shock the

mouths and genitals of the children being abused, and that the robe and tie downs

were used to restrain the victims of abuse, including Wilson.

7 charged with prosecuting the sexual abuse cases and “any criminal

or civil lawsuits arising out of any and all incidents related or

connected” thereto.

Lyford had served two years as the Travis County District

Attorney’s Office Chief Litigator for TDHS. At the time he was

appointed special prosecutor in the instant case, he was practicing

law with a prominent firm in Galveston, Texas.

In December 1993, Lyford reached plea agreements with Wanda

Kerr and Connie Martin, who, pursuant to their agreements,

provided, among other things, further evide nce implicating the

Kerrs in Wilson's kidnaping, sexual assault, and murder. They

identified it ems removed from the blue bag found in a toolbox on

the Kerrs’ property as instrumentalities of restraint and torture. 5

Wanda Kerr and Connie Martin passed polygraph tests in connection

with their statements.

Wanda Kerr also described how Danny Kerr (son of Eugene and

Geneva Kerr) had abducted Wilson as an apparent “birthday present”

for Genev a Kerr. Danny Kerr purportedly had picked Wilson up in

his van and took her to the Kerrs’ property, where she was raped

and murdered. Her body was kept in the red shed in their backyard.

Wanda Kerr even retraced the route Danny Kerr had taken during the6 A subsequent attempt to get R.S. to retrace this route was a failure, as the

child appeared extremely anxious and began to offer a version of the abduction that

differed “wildly” from his and Wanda Kerr's previous versions.

7 Upon additional examination, it was concluded that the bone fragments were

probably animal, not human.

8 abduction. 6

Connie Martin provided further corroboration of the account of

Wilson’s abduction given by Wanda Kerr and R.S. She also

reiterated the children’s stories of ritualistic sex, torture, and

murder and stated that some of the victims were buried in Danny

Kerr’s backyard, in body bags of metal and plastic. A subsequent

search of Danny Kerr’s backyard, conducted by Baggs and Fleig,

revealed bone fragments wrapped in pieces of metal and plastic.

These fragments initially were identified by forensic analysis to

be suba dult human. 7 Baggs and Fleig also uncovered two devil

masks, two knives, a bayonet, a blood-stained mattress cover, and

a long machete belonging to Danny Kerr. Connie Martin stated that

the machete was used by Danny Kerr to dismember his vic tims, and

several of the children included masks and kn ives in their

descriptions of torture and abuse. One of the masks SS that of a

devil SS precisely fi t the description given by the children as one

worn during their sexual abuse.

Wendell Kerr, a key figure in R.S.’s, Wanda Kerr’s, and Connie

Martin’s accounts of the Wilson murder, provided an alibi that

appeared legitimate. Wendell Kerr worked for a trucking company

and had bills of lading and other receipts that appeared to show8 That is, they too alleged that they were sodomized by their parents and

were forced to have sexual relations with their brothers and sisters in front of

their parents. They did not, however, witness the Kerrs commit murder.

9 that he w as not in Texas at the time of the events in question.

Lyford surmised that someone had substituted for Wendell Kerr and

had gathered the aforementioned documentation to enable Wendell

Kerr to establish an alibi.

Additional statements were obtained from three adult witnesses

not personally involved in the alleged child abuse. Two of these

witnesses were adult children of the Kerrs. They revealed to

Lyford that they too had been sexuall y abused by Gene and Geneva

Kerr while growing up. Their accounts of sexual abuse in many ways

mirrored those of the Kerr grandchildren, and they signed

statements to that effect. 8 A third adult SS a neighbor of Martin's

SS told defendants that Martin had revealed to her that Danny Kerr,

her husband, was sex ually abusing their children. On several

occasions, one of Martin’s sons gave the neighbor detailed accounts

of the revealed sexual abuse.

In January 1994, the Kerrs were indicted for t he kidnaping,

rape, and murder of Kelly Wilson; later they were arrested and

imprisoned. The lurid details surrounding these charges led to

much media attention, and the Kerrs were widely portrayed as Satanworshiping murderers.

In March 1994, the Texas Attorney General’s office took over

the prosecution of the Kerrs. By 1995, all the charges against10

them had been dropped, and the Attorney General declared that the

investigators’ botched handling of this matter made it impossible

to proceed with the prosecution.

II.

The sole issue is whether the defendants are immune from suit,

by virtue of either qualified or absolute immunity. We review

de novo the summary judgment determination of immunity. W allace v.

Texas Tech Univ.

, 80 F.3d 1042, 1046 (5th Cir. 1996). In so doing,

we follow F ED

. R. C IV

. P. 56(c) in the same manner as did the

district court. Id.

Rule 56(c) provides for the granting of summary judgm ent if

“the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to a ny material fact and that the

movin g party is entitled to a judgment as a matter of law.”

Rule 56(c). Therefore, we affirm unless the Kerrs can demonstrate

either a genuine issue of material fact, or legal error. S ee

Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994). In our search

for a genuine, material factual dispute, we review the evidence and

all reasonable inferences therefrom in the light most favorable to

the Kerrs. See id.

III.9 I.e., Peña v. Mattox

, 84 F.3d 894, 896 (7th Cir. 1996); Doe v. Phillips

,

81 F.3d 1204, 1209 (2d Cir. 1996), cert. denied

, 520 U.S. 1115 (1997); Kulwicki

v. Dawson

, 969 F.2d 1454, 1467 (3d Cir. 1992); Jennings v. Shuman

, 567 F.2d 1213,

1222 (3d Cir. 1977); Bauers v. Heisel , 361 F.2d 581, 590-91 (3d Cir. 1966).

11 Prosecutors enjoy absolute immunity for those activities

“ intimately associated with the judicial phase of the criminal

process.” I mbler v. Pachtman

, 424 U.S. 409, 430 (1976). For this

reason, the district court held that Lyford was absolutely immune

for his efforts in initiating criminal prosecution against the

Kerrs for Wilson's kidnaping, sexual assault, and murder.

The Kerrs challenge Lyford’s claim to absolute imm unity,

asserting that he did not have authority to act as a prosecutor in

Texas with regard to the aforementioned crimes. The Kerrs note

that Lyford was appointed an “attorney pro tem ” for the limited

purpose of “prosecuting any criminal or civil lawsuits

. . .

related to or connected w ith certain indictments returned by the

Grand Jury of Upshur County on May 24, 1993 [regarding child

abuse].” S ee T EX

. C ODE C RIM

. P ROC

. A NN

. art. 2. 07 (Vernon 1977)

(authorizing appointment). Because the prosecution of the Kerrs

for the kidnaping, sexual assault, and murder of Wilson was

unrelated to the child abuse indictments returned against the Kerrs

on May 24, 1993, the Kerrs maintain that this prosecution was

outside of Lyford’s authority. They provide us with examples of

prosecutors who acted outside their authority. 9

Lyfo rd claims prosecutorial immunity for all actions except

those performed in “a clear absence of all jurisdiction.” S tump v.10 Although Stump addressed judicial immunity, “immunity of a prosecutor is

based upon the same considerati ons that underlie the common-law immunities of judges

. . . .” Butz v. Economou , 438 U.S. 478, 510 (1978).

12 Sparkman , 435 U.S. 349, 357 (1978). He contends that, behind the

shield of absolute immunity, there is even room for “good faith”

mistakes. See McCarthy v. Mayo , 827 F.2d 1310, 1314-15 (9th Cir.

1987). He rightly distinguishes the cases cited by the Kerrs as

largely involving actions in no way similar to those of the present

matter. Lastly, he observes that the Kerrs seemingly have

overlooked his second ground of prosecutorial authority:

appointment as ADA pursuant to T EX

. L OC

. G OV

. C OD E A NN . § 41.102

(Vernon 1988). Lyford argues that this second appointment can only

be read as an expansion of his initial authority as special

prosecutor as per § 2.07.

We need not consider the effect of the subsequent appointment,

because under the applicable standard, Lyford was entitled to

prosecutorial immunity. A prosecutor’s absolute immunity will not

be stripped because of action that “was in error, was done

maliciously, or was in excess of his authority; rather, he will be

subject to liability only when he has acted in the 'clear absence

of all jurisdiction.'” S tump v. Sparkman

, 435 U.S. 349, 356-57

(1978) (citations omitted). 10

The multiple links be tween the initial child abuse

investigation and the Wilson murder belie the notion that there was

a “clear absence of all jurisdiction” to pursue the latter in light11 Peña v. Mattox

, 84 F.3d 894 (7th Cir. 1996), concerned a prosecutor whose

questionable actions were not even prosecutorial in nature. S ee Peña

, 84 F.3d at

896. While Lyford’s actions may have been beyond the scope of his prosecutorial

authority, th ey were plainly prosecutorial in nature. Similarly, in D oe v.

Phillips

, 81 F.3d 1204 (2d Cir. 1996), an ADA required the plaintiff to swear her

innocence on a Bible in church as a condi tion of dropping felony rape charges

against her. S ee Doe

, 81 F.3d at 1209. This case is distinguishable in that the

ADA’s actions would have been beyond the scope of his authority, regardless of the

matters he was charged with prosecutin g. Kulwicki v. Dawson , 969 F.2d 1454 (3d Cir.

1992), concerned a prosecutor w ho allegedly fabricated evidence months after he had

been recused from the case. See Kulwicki , 969 F.2d at 1467.

Lastly, the Kerrs note that Jennings v. Shuman

, 567 F.2d 1213 (3d Cir. 1977),

concerned a p erson who, like Lyford, was appointed as special prosecutor in a murder

case. But the similarity ends there, for in J ennings

, the special prosecutor used

his appointment as leverage in an extortion scheme by prosecuting the coroner for

solicitation to commit bribery. See Jennings , 567 F.2d at 1222. That bribery

prosecution was held to be outside the prosecutor’s authority, because his

statutorily-derived authority extended only to “prepara tion and trial of any

indictment for homicide or murder on behalf of the commonwealth.” S ee id. (emphasis

added).

13 of explicit authorization to pursue the former. Those links are as

follows:

1. The child abuse investigation led investigators to

Geer as someone who was both a participant and a witness

in said abuse;

2. Geer disclosed information regarding the ritualistic

murder of children, including Wilson, in the presence of,

and on the property of, the Kerrs;

3. at least one of the victimized children described the

Kerrs’ involvement in Wilson's abduction, rape, torture,

and murder; and

4. two of the Kerrs’ co-defendants, Wanda Kerr and

Connie Martin, implicated the Kerrs in the crimes against

Wilson.

The spate of cases cited by the Kerrs do not demonstrate that

Lyford crossed the limits of his authority, for they all concern

the impropriet y of a prosecutor’s actions p er se ; 11 the instant

matter, by contrast, concerns otherwise appropriate actions14

rendered inappropriate because they allegedly exceeded Lyford’s

jurisdictional charge.

The only appellate decisio n the Kerrs cite that is even

remotely on point is Bauers v. Heisel

, 361 F.2d 581 (3d Cir. 1966),

which simply states the rule that “[t]he immunity of a prosecutor

. . . is not without li mitation . . . . [It] does not extend to

acts which are clearly o utside their jurisdiction.” B auers

,

361 F.2d at 591. This merely reiterates the “clearly absent”

standard set forth in Stump , 435 U.S. at 356-57.

Moreover, the facts o f Bauers affirmatively hurt the Kerrs’

case, as they demonstrate how difficult it is to find that a

prosecutor has acted “clearly outside” of his authority. In

Bauers

, a prosecutor was sued in connection with his prosecution of

an individual who was under the age of eighteen when he committed

his offense. B auers, 361 F.2d at 591. By statute, the prosecutor

did not have authority to prosecute such persons. Id. The court

held:

The mere fact that the New Jersey Legislature had

excised from his responsibility the prosecution of

individuals who were under the age of eighteen when

they committed acts which would otherwise be

punishable offenses does not indicate that [the

prosecutor] was acting clearly outside his

jurisdiction. On the contrary, it would be

difficult to envision a case which was as close to

his jurisdiction, but, yet, in excess of it.

Id. Because Lyford’s prosecution of the Wilson murder was not done

“in the clear absence of all jurisdiction,” the district court15

properly afforded him prosecutorial immunity for his prosecutorial

activities.

IV.

E ach of the defendants, including Lyford, asserts qualified

immunity, the standard for which was explained in Harlow v.

Fitzgerald

, 457 U.S. 800, 818 (1981): “[G]overnment officials

performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Thus, to proceed

against a defendant claiming qualified immunity, a plaintiff must

dem onstrate the existence and violation of a clearly established

constitutional r ight; the defendant may then show that he was

performing a discretionary function and that his actions would not

have been deemed unconstitutional by a reasonable official in his

position at the time of the event. Id.

A.

Absolute, prosecutorial immunity extends only to those

activities “intimately associated with the judicia l phase of the

criminal process.” B urns v. Reed

, 500 U.S. 478, 492 (1991)

(emphasis added ). Therefore, Lyford does not enjoy absolute

immunity for his investigatory activities, but only qualified

immunity, if any. See Harlow , 457 U.S. at 818.16

T he Kerrs identify the following of Lyford’s activities as

investigatory actions beyond the purview of absolute, prosecutorial

immunity:

1. the arrest and imprisonment of the Kerrs

through Lyford’s unauthorized procurement of

indictments for sexual assault, kidnaping and

murder;

2. the presentment of false, coerced and

fabricated testimony to the grand jury;

3. the seizure and destruction of the Kerrs'

property; and

4. the disclosure to the media of bizarre theories

of the Kerrs’ satanic cult.

The first two of these implicate absolute prosecutorial immunity,

not qualified immunity; they are “advocatory” and “central to the

prosecutor’s task of initiating a prosecution.” Moore v. Valder

,

65 F.3d 189, 194 (D.C. Cir. 1995) (citing Imbler v. Pachtman,

424 U.S. 409, 431 (1976)). Thus, Lyford enjoys absolute protection

for these activities. The third of these allegations was not

presented to the district court as a federal claim and therefore

cannot be raised for the first time as such on appeal. S ee Stults

v. Conoco, Inc. , 76 F.3d 651, 657 (5th Cir. 1996).

The fourth allegation makes out a claim for defamation, which

is not a constitutional tort. S ee Paul v. Davis

, 424 U.S. 693, 712

(1976). Because the threshold immunity question is whether the

Kerrs have alleged a clear constitutional harm, see Ha rlow

,

457 U.S. at 818, failure to do so results in dismissal of the17

claim. In sum, none of the Kerrs’ claims against Lyford may

proceed.

B.

As we have said, Goar and Minshew were TDHS case workers

involved in the initial investigation of the Kerr children. As the

Lyford tea m expanded its probe of the Kerrs to Wilson's

disappearance, Goar and Minshew continued to assist in evi dence

gathering, via the interviewing of child and adult witnesses. The

Kerrs complain that Goar and Minshew violated their civil rights by

engaging in malicious prosecution, civil conspiracy, false arrest,

seizure, and imprisonment. The Kerrs levy these same charges

against Baggs and Fle ig, criminal investigators employed by the

TDHS because of their experience in investigating occult-related

crimes. Baggs’s and Fleig’s responsibilities entailed primarily

searching the Kerr properties and interviewing the adult witnesses.

As a threshold matter, we must determine whether (1) the Kerrs

allege a constitutional violation; (2) th e law regarding the

alleged violation was clear ly established at the time of the

operative events; and (3) the record shows that the violation

occurre d, or at least gives rise to “a genuine issue of material

fact as to whether the defendant actually engaged in conduct that

violated the clearly-est ablished law.” S ee Rich v. Dollar

,

841 F.2d 1558, 1563 (11th Cir. 1988). Only thereafter must we18

visit the questions of whether Goar and Minshew acted within the

scope of their authority and with the degree of reasonableness

expected of a government official in their situation. We proceed,

on all counts, de novo

. Id.

The district court was co rrect in noting, as a preliminary

matter, that the Kerrs have two viable causes of action against

Goar and Minshew: malicious prosecution and civil conspiracy. As

a matter of law, Lyford’s intervening, inde pendent actions sever

Goar’ s, Minshew’s, Baggs’s, and Fleig’s responsibility for the

Kerrs’ alleged unreasonable seizure, fa lse arrest, and false

imprisonment. S ee Hand v. Gary

, 8 38 F.2d 1420, 1427 (5th Cir.

1988).

The district court also was correct in holding that the Kerrs’

malicious prosecution claim implicated a clearly established right

at the time of the events in question. S ee Eugene v. Alief Indep.

Sch. Dist.

, 65 F.3d 1299, 1303, 1305 (5th Cir. 1995). Although in

Albright v. Oliver , 510 U.S. 266, 275 (1994), the Court held that

no such right exists under the Fourteenth Amendment, it did not

reach the question of whether it exists under the Fourth Amendment.

See Alb right , 510 U.S. at 275. A lbright, therefore, left

undis turbed our circuit’s longstanding recognition of a Fourth

Amendment right to be free from malicious prosecution. S ee Eugene

,

65 F.3d at 1303.

Moreover, Albright was decided in 1994, whereas the events19

relevant to the Kerrs’ malicious prosecution claim occurred from

1990 to 1993. Thus, at the time of the events in question, the

Albright decision coul d not have undermined the certainty of our

circuit’s clearly established right to be free from malicious

prosecution. This gives the Kerrs the basis they need to pursue

their civil conspiracy claim, in that a § 1983 civil conspiracy

claim must be based on the breach of a constitutional right.

This brings us to the third and final threshold question:

“whether the showings made by the parties create a genuine issue of

material fact as to whether the defendant actually engaged in

conduct that violated the clearly-established law.” R ich, 841 F.2d

at 1563 (citing Mitchell v. Forsyth , 472 U.S. 511 (1985)). That

is, have the Kerrs satisfied the prima facie elements of their

claims? S ee Sorenson v. Ferrie

, 134 F.3d 325, 328 (5th Cir. 1998).

Because this case is before us on appeal from summary judgment, the

Kerrs need only demonstrate the existence of a genuine dispute of

material fact regarding defendants’ conduct.

The elements of a claim for malicious prosecution are:

1. criminal action commenced against the

plaintiffs;

2. that the prosecution was caused by the

defendants or with their aid;

3. that the action terminated in the plaintiffs' favor;

4. that the plaintiff was innocent;

5. that the defendants acted without probable cause;20 6. that the defendant acted with malice; and

7. that the criminal proceeding damaged the plaintiff.

See Hayter v. City of Mount Vernon

, 154 F.3d 269, 275 (5th Cir.

1998). The elements of civil conspiracy are (1) an actual

violation of a right protected under § 1983 and (2) actions taken

in concert by the defendants with the specific intent to violate

the aforementioned right. C inel v. Connick

, 15 F.3d 1338, 1343

(5th Cir. 1994). The Kerrs’ civil conspiracy claim is contingent

on the success of their malicious prosecution claim, which is the

only tenable § 1983 violation here.

The district court found that the Kerrs had made out their

prima facie cases of malicio us prosecution and civil conspiracy.

The court erred, however, by failing to examine whether the record

supported the Kerrs’ allegations. See Sorenson , 134 F.3d at 328.

Although most of the elements of th e malicious prosecution claim

are undisputably satisfied, at least on e of them lacks

substantiation: The record does not establish that the prosecution

was wanting in probable cause, nor does it establish a genuine,

material factual dispute regarding this element.

For purposes of malici ous prosecution, probable cause means

"the existence of such facts and circumstances as would excite the

belief, in a reasonable mind, acting on the facts within the

knowledge of the prosecutor, that the person charged was guilty of12 Moore v. McDonald

, 30 F.3d 616, 620 n.2 (5th Cir. 1994) (quoting Pendleton

v. Burkhalter

, 432 S.W.2d 724, 727 (Tex. Civ. App. SS Houston [1st Dist.] 1968, writ

ref’d n.r.e.)).

13 To sustain a summary judgment, we must find that the undisputed facts

support a finding of probable cause, a mixed question of fact and law. B lackwell

, 34 F.3d at 305. A genuine, material factual dispute as to some of the elements of

the probable cause calculus does not preclude an affirmance, however, for probable

cause still could be found based upon the totality of the undisputed elements.

21 the crime for which he was prosecuted." 12 To the extent that the

facts undergirding the probable cause determination are undisputed,

we may resolve the issue as a matter of law. B lackwell v. Barton

,

34 F.3d 298, 305 (5th Cir. 1994). To prevail, the Kerrs must

demonstrate that either (1) the record affirm atively establishes

that probable cause was lacking or (2) en ough genuine, material

factual disputes exis t regarding the elements of probable cause

t hat the ultimate finding of probable cause is the subject of a

genuine, material factual dispute. 13 They have demonstrated

neither.

Defendants put forth the following evidence in suppor t of a

finding of probable cause: statements of the child witnesses

implicating the Kerrs in their own sexual abuse and in Wilson's

abduction, rape and murder; medical exa minations of the children

that revealed scarring consis tent with their tales of sexual

molestation; confessions and statements supplied by adult witnesses

Geer, Mart in, and Wanda Kerr, verified by polygraph, consistent

with those of the children in implicating the Kerrs in the

kidnaping, rape, and murder of Wilson; corroborative physical22

evidence such as ma sks, knives, and other instrumentalities of

restraint and torture tha t were referred to by the children.

Additionally, an infrared scanning device and a cadaver-sensing dog

suggested the presence of human remains on the Kerr’s property, and

bones (albeit not conclusively human) were unearthed. Lastly, the

s hed in the Kerrs’ backyard SS which had been identified by some o f

the children and the adults as the place where Wilson’s body had

been kept SS

was also alerted to by the dog and, suspiciously, showed

signs of recent washing and repainting.

The Kerrs counter with evidence suggesting a lack of probable

cause. They are persuasive in averring that the statements of the

children are unreliable in light of the manner in which they were

obtained. The testimony of their expert, Dr. Perry, and evidence

of the criticisms leveled against Goar and Minshew by TDHS create

a genuine issue of material fact as to whether the children’s

statements could give rise to, or even contribute to, a finding of

probable cause.

The record does reveal several instances in which the children

made such statements spontaneously and voluntarily SS not in response

to the “holding technique” or any other form of coercive

questioning. Furthermore, the defense’s expert witness, Dr. Heger,

found the defendants’ handling of the children “sensitive,”

“appropriate,” and “reasonable.” Nonetheless, construing all

reasonable inferences in favor of the nonmovant, we are compelled

to conclude that the mishandling of the children by the14 Lyford’s personal notes of the investigation reveal reservations he had

about the truthfulness of some of the statements given to him by his witnesses,

especially with regard to some of the details. The notes also evince, however,

a strong and reasonable belief in the overall truth of these statements and in

the Kerrs' ultimate guilt in connection with the Wilson abduction and murder.

15 See Wallace v. Texas Tech Univ.

, 80 F.3d 1042, 104 7 (5th Cir. 1996) (noting

that pleadings do not constitute s u bstantive evidence for summary judgment

purposes).

23 investiga tors so tainted their recollections as to render their

statements nugatory, thereby removing this factor from the probable

cause calculation.

The Kerrs also point to Wendell Kerr’s alibi. R.S., Wanda

Kerr, and Martin identified Wendell Kerr as a participant in the

Wilson murder, and thus his substantiated alibi casts doubt on

their credibility. This evidence raises a genuine material

dispute, however, only with regard to Wendell Kerr’s participation

in Wilson's disappearance, no t in regard to Eugene and Geneva

Kerr's involvement. At best, this alibi evidence can be viewed as

negating the positive inference we otherwise would have read from

the successful polygraph testing of these witne sses, for it has

raised a genuine issue of material fact as to their credibility.

Finally, the Kerrs’ claim that Martin and Wanda Kerr recanted

their original statements and that those statements were elicited

via coercion and manipulation. We find no support for such claims

in the record, however. 14 Indeed, the Kerrs cite largely to their

third amended complaint, but not to any affidavit or other piece of

substantive eviden ce, in support of these most serious claims. 1 5

In s ummary, the totality of the medical examinations of the16 The caselaw confirms our conclusion. The best case of which we are aware

in support of the Kerrs’ position that qualified immunity should not attach had

facts significantly more compelling than those before us today. In Sanders v.

English

, 950 F.2d 1152, 1154 (5th Cir. 1992), the malicious prosecution plaintiff

not only was initia lly arrested under suspicious circumstances but also had an alibi

that was corroborated by three credible witnesses. Additionally, a fourth

witness SS

who had seen t he robbery for which plaintiff was arrested SS told police that

someone else had committed it. Conversely, U nited States v. Wadley

, 59 F.3d 510,

512-13 (5th Cir. 1995), exemplifies how low the threshold for a finding of probable

cause is: There, we held that probable cause existed to arrest a suspect who merely

had fled from police in a high crime area and “reached into his pocket” while doing

so.

24 children, the physical evidence recovered from the Kerr properties,

and the statements of the adult witnesses provided defendants with

probable ca use to proceed with the prosecution of the Kerrs,

Wendell Kerr’s alibi notwithstanding. 16 For this reason, we reject

the malicious prosecut ion claim and, a fortiori, the civil

conspiracy claim as well. We need not, and therefore do not, reach

the issues of whether Goar, Minshew, Baggs and Fleig acted within

the scope of their authority, and whether a reasonable official in

their position would have viewed their actions as unconstitutional.

AFFIRMED.17 Brummett v. Camble

, 946 F.2d 1178, 1180 n.2 (5th Cir. 1991).

18 See Albright v. Oliver

, 510 U.S. 266, 114 S. Ct. 807 (1994).

19 See id. at 275, 114 S. Ct. at 812.

20 See id. at 281, 114 S. Ct. at 816.

21 See id. at 279, 114 S. Ct. at 814. EDITH H. JONES, Circuit Judge, with whom EMILIO M. GARZA, Circuit

Judge, joins, specially concurring:

I concur in the good opinion in this case, bu t I write to

express my continuing dissatisfaction with this circuit’s handling

of a constitutional tort for malicious prosecution. In 1991, I

questioned whether such a constitutional tort was authorized under

the rubric of “substantive due process. ” 17 In 1994, the U.S.

Supreme Court agreed that if a constit utional tort of malicious

prosecution exists at all, it would have to be based on the Fourth

Amendment rather than Fourteenth Amendment substantive due

process. 18 But the A lbright plurality, r ather than endorsing a

Fourth Amendment tort of malicious prosecution, declined to address

th e issue. 1 9 Two of the justices, Kennedy and Thomas, refused to

recognize any constitutional tort for malicious prosecution,

inasmuch as such a claim would merely duplicate adequate state law

remedies. 20 Only Justice Ginsburg, in an individual concurrence,

attempted to articulate a Fourth Amendment theory of malicious

prosecution. 2122 S ee, for example, the thoughtful discussions in Taylo r v.

Meacham , 82 F.3d 1556, 1560-61 (10th Cir. 1996), and Reed v. City

of Chicago , 77 F.3d 1049, 1052-54 (7th Cir. 1996). See generally

1A Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation §

3.20, at 315-30 (3d ed. 1997) (discussing Albright and postAlbrigh t conflicting circuit court rulings); P inaud v. County of

Suffolk

, 52 F.3d 1139, 1154 (2d Cir. 1995) (“the Supreme Court’s

splintered decision in [ Albright ]

. . . make[s] the status and

validity of § 1983 malicious prosecution claims

. . . uncertain to

say the least.”) (Calabresi, J.).

23 S ee Johnson v. Louisiana Dept. of Agric.

, 18 F.3d 318, 3 2 0

(5th Cir. 1994).

24 Eugene v. Alief Indep. Sch. Dist

. , 65 F.3d 1299, 1305 (5th

Cir. 1995).

25 S ee

, e.g.

, Evans v. Ball

, 168 F.3d 856, 862-63 (5th Ci r

. 1999).

26

Albright has spawned controversy and confusion in the lower

courts 22

-- b ut not in this court. After initially appearing

tentative on the subject, 23 this court unblushingly cited one of our

earlier Fourteenth Amendment malicious prosecution cases and held

that the right under the Fourth Amendment to be free from malicious

prosecution was “clearly established” in this circuit. 24 Subsequent

cases have elaborated on Eugene

, sp ecifying that the circuit’s

malicious prosecution tort has the sa me elements as the relevant

state law torts. 25

The problem with the Fifth Circuit jurisprudence, as I see

it, is two-fold. First, this court fails to recognize that

Albright did not endorse a constitutional malicious prosecution

tort at all. Second, even if Albright left room for such a claim

under the Fourth Amendment, there is a significant difference26 Compare Gallo v. City of Philadelphia , 161 F.3d 217, 222-25

(3d Cir. 1998) (indictment, bond, and travel restrictions

constitute continuing seizure), and Murphy v. Lynn , 118 F.3d 938,

945 (2d Cir. 1997) (same, over a dissent by Judge Jacobs); w ith

Riley v. Dorton , 115 F.3d 1159, 1162-63 (4th Cir. 1997) ( en banc )

(rejecting continuing seizure theory for claim alleging post-arrest

excessive force), and Reed , 77 F.3d at 1052-54 (questioning

continuing seizure rationale). This court has held that the Fourth

Amendment does not apply for purposes of excessive fo rce claims

after arre st and during pretrial detention. S ee Brothers v.

Klevenhagen , 28 F.3d 452, 456 (5th Cir. 1994).

27 between predicating the cause of action on the Fourth Amendment and

the Fourteenth. On the most superficial level, if the grounds for

the claim under the Fourth and Fourteenth Amendments were

e quivalent, there would have been no need to distinguish betw een

those amendments in Albright

.

Moreover, the tort of malicio u s prosecution fits uneasily

within the Fourth Amendment. That amendment proscribes

unreasonable searches and seizures an d has been held to prohibit

arbitrary law-enforcement actions up until the time of arraignment.

To justify a Fourth Amendment malicious prosecution claim , then,

one has to extend the period of “seizure” past arraignment. Only

Justice Ginsburg was willing to make this leap in Albright

, and the

circuit courts are divided both on the application of the Fourth

Amendment post-arraignment and on whether mere requirements of the

posting of bond and appearance at pretrial hearings, without more,

constitute a “seizure.” 26 This court recently lined up on the side

of Justice Ginsburg’s concurrence without acknowledging the basis27 See Evans , 168 F.3d at 861.

28 A malicious prosecution claim against police officers is

“anomalous,” as Justice Ginsburg noted. A lbright

, 510 U.S. at 279

n.5, 114 S. Ct. at 816 n.5. For one thing, prosecutors will enjoy

absolute immunity. S ee id. The Justice added that “Albright’s

theor y raises serious questions about whether the police officer

would be entitled to share in the prosecutor’s immunity.” S ee id. ;

see also Taylor , 82 F.3d at 1563; Reed , 77 F.3d at 1053.

28 for debate. 27 The identity of the proper defendant in a malicious

prosecution claim founded on the Fourth Amendment is also a

difficult question, as Justice Ginsburg and other courts have

realized. 28

As constitutional issues go, the status of a constitutional

tort of malicious prosecution may seem like small potatoes. But I

wish that our court had paid more attention to the ramifications of

Albright

. It is far from clear to me that, if Albright is

harmonized with other applicable precedents concerning the Fourth

Amendment, the constitutional “tort” of malicious prosecution will

survive in the form we have created.

With this admonition, I concur.