On February 9, 2016, William & Mary Law School’s Appellate and Supreme Court Clinic filed a Petition for Writ of Certiorari in the Supreme Court of the United States on behalf of Thomas Bowden. Mr. Bowden’s petition presents two issues to the Supreme Court: (1) whether a police officer who intentionally misstates or omits material facts in a warrant affidavit can claim qualified immunity and (2) if so, when the qualified immunity determination hinges on evaluating the affidavit to determine whether probable cause existed, whether that evaluation is a question for the judge or the jury.
The civil rights case stems from events in 2009, when county officials in Missouri pressured a deputy sheriff to apply for a warrant to arrest Mr. Bowden based solely on a witness’ statement that the investigating deputy later admitted he did not believe. After a jury acquitted Mr. Bowden, he brought a federal suit against the officials who conspired to deprive him of his Fourth Amendment rights by causing his arrest without cause. The United States District Court denied the defendants’ asserted defense of qualified immunity. A panel for the U.S. Court of Appeals for the Eighth Circuit reversed, however, concluding that a magistrate still could have found the arrest appropriate, even after correcting the deputy’s affidavit accompanying the warrant application and denying Mr. Bowden a jury trial.
The Eighth Circuit’s surprising holding highlights a deep division among the circuit courts on how to resolve this type of Fourth Amendment claim. The circuits generally apply the Supreme Court’s Franks test to such cases, but Franks created a criminal, evidentiary test, and courts lack guidance on how to apply it to the merits in a civil action like Mr. Bowden’s. Consequently, some circuits treat probable cause in a “corrected” affidavit as a jury question; at the other end of the spectrum, some courts treat this as a purely legal question. Taking Mr. Bowden’s case would allow the Supreme Court to resolve this confusion in deciding civil rights claims of this nature.
Third-year law students Eric Fleming and W. Ryan Schuster drafted Mr. Bowden’s petition under the supervision of Tillman J. Breckenridge, the clinic’s managing attorney. Mr. Bowden’s case is No. 15-1067 on the Supreme Court’s docket.
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