CA6: Mere negligent inclusion of information in SW affidavit doesn’t overcome QI for civil Franks claim

Mere negligence in an alleged false statement in a search warrant affidavit isn’t enough to overcome qualified immunity for a civil Franks claim. Butler v. City of Detroit, 2019 U.S. App. LEXIS 25062 (6th Cir. Aug. 22, 2019):

Other circuits agree that there must be evidence of more than mere factual inaccuracy to overcome Franks in both criminal and § 1983 cases. Specifically, as we conclude now, our sister circuits have said that there must be evidence going to the officer’s knowledge or state of mind at the time the officer wrote the allegedly false affidavit. See, e.g., Morris v. Lanpher, 563 F.3d 399, 403 (8th Cir. 2009) (“The Morrises bore ‘the burden of proving the intentional or reckless inclusion of false statements in a warrant affidavit.’ … They offered no specific, nonconclusory evidence that Lanpher believed his affidavit was false, or recklessly misconstrued [the witness’] identification. … While we construe disputed facts in the non-moving parties’ favor, we may not infer bad motive absent even a scintilla of material fact supporting that inference.”); Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000) (“In applying the reckless disregard test to assertions, we have borrowed from the free speech arena and equated reckless disregard for the truth with a ‘high degree of awareness of the statements’ probable falsity.'” (alteration omitted)); Kelly v. Curtis, 21 F.3d 1544, 1554-55 (11th Cir. 1994) (denying qualified immunity for false statement that a substance was cocaine, where plaintiff produced evidence that the officer had received a lab report stating that it was not); see also United States v. Finley, 612 F.3d 998, 1002 (8th Cir. 2010) (“[T]he applicable test is … whether, viewing all of the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.”).

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