Case: 24-60314 Document: 54-1 Page: 1 Date Filed: 03/03/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
March 3, 2025
No. 24-60314
____________ Lyle W. Cayce
Clerk
Desmond D. Green,

Plaintiff—Appellee,

versus

Jacquelyn Thomas, Detective,

Defendant—Appellant.
______________________________

Appeal from the United States District Court

for the Southern District of Mississippi
USDC No. 3:23-CV-126
______________________________

Before Higginbotham, Willett, and Ho, Circuit Judges.

Don. R. Willett, Circuit Judge: *
This is a qualified immunity case about a man wrongfully accused of
murder. Detective Jacquelyn Thomas took a statement from a jailhouse
informant who was under the influence of illicit drugs. That statement
implicated Desmond Green in an ongoing murder case. Green alleges that
Detective Thomas then manipulated a photo lineup with the informant and
withheld crucial exonerating evidence from the grand jury. As a result,

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*
Judge Ho concurs in the judgment.
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No. 24-60314

Green—an innocent man—spent nearly two years in jail before the

informant recanted his statement and admitted he was “just high” and
“try[ing] to . . . get out of jail.” Green sued Detective Thomas for violating
his Fourth and Fourteenth Amendment rights, and the district court denied
Detective Thomas qualified immunity at the motion-to-dismiss stage. We
AFFIRM in part and REVERSE in part.
I
In February 2020, someone shot and killed Nicolas Robertson in
Jackson, Mississippi. Two months later, law enforcement arrested Samuel
Jennings for burglary and grand larceny. Once Jennings was jailed, he
provided a handwritten, signed statement about the Robertson murder to
Jackson Police Department Detective Jacquelyn Thomas. In that statement,
Jennings wrote that Green confessed in front of him that he shot Robertson
and, with assistance from others, moved Robertson’s body. Although Green
said he didn’t know Robertson and was not involved, a grand jury indicted
Green for capital murder in July 2020. Green was subsequently arrested and
detained in Raymond Detention Center, operated by Hinds County.
In March 2022—nearly two years after the indictment and arrest—
Jennings recanted his statement to Detective Thomas. Jennings admitted he
had consumed methamphetamine in the one to two hours prior to his April
2020 statement to Detective Thomas; he did “not know why he said [] Green
was involved in the capital murder”; he was in the hospital on the day
Robertson was killed; and he had “no knowledge of what happened to”
Robertson. He also swore he “made a false statement” about Green, he
picked a different photo in the lineup than the detective pointed to, and he
was “[j]ust high and try [sic] to help myself get out of jail.”

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On April 21, 2022, after the prosecutor moved to “remand,” the

presiding judge dismissed the case. Green was released from jail after 22
months of detention. 1
Green then sued Detective Thomas and the city 2 in February 2023.
He filed claims under 42 U.S.C. § 1983, arguing Detective Thomas violated
his Fourth and Fourteenth Amendment rights, as well as Mississippi law, and
alleging “malicious prosecution and malicious arrest without probable
cause.” Of note, Green alleged that Detective Thomas withheld exonerating
evidence from the grand jury, including: Robertson, after being shot in one
location, was conscious when he arrived at a different location where he was
later found dead; Robertson was with another man (not Green) “shortly
before” the shooting; and information pertaining to Jennings’s unreliability
(including drug use and criminal activity). Green also alleged that Jennings
selected a photo of a different suspect in Detective Thomas’s photo lineup.
Jennings’s recantation—attached to Green’s complaint—provides added
detail: Detective Thomas pointed to the photo of Green after Jennings had
identified a different suspect.
Detective Thomas filed a motion to dismiss based on qualified
immunity. The district court denied qualified immunity and commented that
qualified immunity is “an unconstitutional error.” 3 The district court then
stayed all other claims to permit Detective Thomas to seek interlocutory

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1
As the district court noted, Green’s complaint alleges he was incarcerated for two
years and three months. But July 2020 (when Green was indicted) to April 2022 (when
Green was released) is less than two years.
2
This appeal involves only Detective Thomas’s motion to dismiss based on
qualified immunity.
3
Green v. Thomas, 734 F. Supp. 3d 532, 540 (S.D. Miss. 2024).

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review. Detective Thomas appealed, seeking review of the denial of qualified

immunity and the application of the independent-intermediary doctrine. 4
II
“Jurisdiction is always first.” 5 Green contends that we lack
jurisdiction because “there has been no [] certification and approval” by the
district court and circuit court for an interlocutory appeal and because the
district court’s decision was not final. But the district court’s order
specifically stayed the case “so that Detective Thomas can exercise her right
to an immediate interlocutory appeal.” 6 And regardless, “certification and
approval” are not necessary for denials of qualified immunity when those
denials turn on questions of law. 7 When officers “contend that their conduct
did not violate the Fourth Amendment” or “clearly established law,” as
Detective Thomas does here, “they raise legal issues” that may be appealed. 8

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4
Detective Thomas does not appear to appeal the denied dismissal of Green’s
state-law claim, for which she did not assert qualified immunity as a defense, and has thus
waived any such argument. See Brown v. Miller, 519 F.3d 231, 239 (5th Cir. 2008) (finding
waiver because plaintiff “has not argued that he has qualified immunity against the state
law claims under the Louisiana law of qualified immunity” and “argues only the federal
law of qualified immunity in his motions to dismiss before the district court and in his
appellate briefs”). To the extent she appeals the application of the independent-
intermediary doctrine to Green’s state-law claims, the analysis is the same. See post, at 15–
18.
5
Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021) (quotation omitted).
6
Green, 734 F. Supp. 3d at 569.
7
See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[W]e hold that a district
court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law,
is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding
the absence of a final judgment.”); Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009).
8
Modacure v. Short, No. 22-60546, 2023 WL 5133429, at *1 (5th Cir. Aug. 10,
2023) (quoting Plumhoff v. Rickard, 572 U.S. 765, 773 (2014)).

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Accordingly, we have “jurisdiction to review orders denying qualified

immunity” under the collateral-order doctrine and 12 U.S.C. § 1291. 9
Green argues that the district court erred for two additional reasons,
which he suggests bear on jurisdiction. First, staying the case pending appeal
gives a “windfall” to the other city defendants: “[G]iving qualified immunity
to [Detective Thomas] gives the political subdivision Defendants the benefit
of qualified immunity, which is to delay the case for an undetermined time.”
And second, the federal constitutional torts are also actionable as state-law
torts, which Green has alleged but for which Detective Thomas did not assert
any immunity—and therefore, Detective Thomas “will be saved nothing,
regardless of the outcome of this appeal.” But as Green acknowledges, the
Supreme Court has held that the addition of state-law tort claims to the
suit—as here, Mississippi malicious prosecution—does not foreclose
appealability for federal claims. 10 Indeed, “[t]he Harlow right to immunity is
a right to immunity from certain claims, not from litigation in general,” so
when a court denies qualified immunity, “appeal must be available,”
regardless of what other claims and parties remain in litigation. 11 Though we
recognize Green’s concern for judicial resources, we follow the Supreme
Court’s grant of interlocutory appeals in denials of qualified immunity. 12

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9
Carswell v. Camp, 54 F.4th 307, 310 (5th Cir. 2022) (first citing Backe v. LeBlanc,
691 F.3d 645, 647–49 (5th Cir. 2012); then citing Mitchell, 472 U.S. at 526–27); see also
Trevino v. Iden, 79 F.4th 524, 530 (5th Cir. 2023) (citations omitted); Asante-Chioke v.
Dowdle, 103 F.4th 1126, 1128 (5th Cir. 2024), cert. denied sub nom. Asante-Chioke v. Dowdle,
No. 24-387, 2025 WL 76452 (U.S. Jan. 13, 2025).
10
See Behrens v. Pelletier, 516 U.S. 299, 311–12 (1996).
11
Id. at 312.
12
Green argues Mohawk Indus., Inc. v. Carpenter “undermine[s]” the Supreme
Court’s decision in Behrens; in Carpenter, discovery orders alleged to violate the attorney-
client privilege were not appealable under the collateral-order doctrine. See 558 U.S. 100,
104–08 (2009). But as the Supreme Court held in Behrens, “appealability determinations

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Accordingly, we have jurisdiction to review the district court’s denial

of qualified immunity to Detective Thomas.
III
We review denials of qualified immunity at the motion-to-dismiss
stage de novo. 13 “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” 14 “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 15 When ruling on a
Rule 12(b)(6) motion to dismiss, we may rely on the content of the pleadings
and “documents attached to either a motion to dismiss or an
opposition . . . when the documents are referred to in the pleadings and are
central to a plaintiff’s claims.” 16
The same standards apply when a motion to dismiss is based on
qualified immunity. 17 In such cases, “[t]he crucial question is ‘whether the
complaint pleads facts that, if true, would permit the inference that
Defendants are liable under § 1983 . . . and would overcome their qualified

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are made for classes of decisions, not individual orders in specific cases.” 516 U.S. at 312.
Denials of qualified immunity fall into one “class[]”; discovery orders which violate
attorney-client privilege are another (inapposite) “class[].”
13
See Cantrell v. City of Murphy, 666 F.3d 911, 918 (5th Cir. 2012).
14
Ashcroft, 556 U.S. at 678 (quotation marks and citation omitted).
15
Id.
16
Brand Coupon Network, LLC v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir.
2014).
17
See Dyer v. Houston, 964 F.3d 374, 379 (5th Cir. 2020).

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immunity defense.’” 18 The plaintiff carries the burden of demonstrating that

qualified immunity is inappropriate. 19
IV
We begin with the central issue: whether Detective Thomas is entitled
to qualified immunity. To defeat Detective Thomas’s assertion of qualified
immunity, Green must plead that Detective Thomas violated a statutory or
constitutional right that was clearly established at the time of his indictment
and arrest. 20 The district court found that Green made such a showing. We
mostly agree.
A
First, Detective Thomas contends the complaint “fails to identify the
clearly established constitutional right that was violated, which every
reasonable officer would know was a violation.” 21 Detective Thomas
misreads—or perhaps overlooks—parts of Green’s complaint. In his
complaint, Green alleges specific violations of the Fourth and Fourteenth
Amendments to the U.S. Constitution. 22 So Green has, in fact, identified
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18
Terwilliger v. Reyna, 4 F.4th 270, 280 (5th Cir. 2021) (citation omitted).
19
See id.
20
See Trevino, 79 F.4th at 530–31.
21
Detective Thomas generally argues she is “entitled to qualified immunity
because the complaint fails to allege facts to support a violation of a clearly established
right” without specific reference to any of Green’s claims under the Fourth and Fourteenth
Amendments. We understand her briefing to appeal the district order’s denial of qualified
immunity across all of Green’s federal claims.
22
Green asserts claims for state-law malicious prosecution; Fourth-Amendment
malicious prosecution; Fourth-Amendment false arrest; and, as the district court
construed the complaint, Fourteenth-Amendment due process. Green, 734 F. Supp. 3d at
554. Although the complaint (and the briefing) is unclear, we understand the complaint to
allege Detective Thomas manipulated a photo lineup and withheld evidence from the grand
jury, which are actionable under the Fourteenth Amendment. See Geter v. Fortenberry, 849

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constitutional rights which he alleges Detective Thomas violated. The

question, then, is whether these rights were clearly established at the time of
Green’s arrest in early 2020. Short answer: They were, for the most part.
Start with false arrest under the Fourth Amendment. Our precedents
make this one simple: “There can be no doubt that the right not to be arrested
absent probable cause was clearly established at the time of [Green’s]
arrest.” 23 And the requirement of probable cause prior to seizure is so
foundational it is in the Fourth Amendment itself:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized. 24
It is hard to imagine a right more clearly established.
Next, take due process under the Fourteenth Amendment. 25 We have
clearly established the right to be free from officers’ witness interference and

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F.2d 1550, 1559 (5th Cir. 1988) (Geter I) (recognizing claim as clearly established right
under Fourteenth Amendment); Geter v. Fortenberry, 882 F.2d 167, 170 (5th Cir. 1989)
(Geter II) (finding sufficient factual pleadings for claim to overcome qualified immunity).
23
Alexander v. City of Round Rock, 854 F.3d 298, 306–07 (5th Cir. 2017) (collecting
cases); see also Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (holding that the Fourth
Amendment requires a judicial determination of probable cause as a prerequisite to any
extended restraint on liberty following an arrest).
24
U.S. Const. amend. IV (emphasis added).
25
Green’s Fourteenth Amendment claim may be pursued alongside his Fourth
Amendment claims. See, e.g., Green, 734 F. Supp. 3d at 555; Castellano v. Fragozo, 352 F.3d
939, 960 (5th Cir. 2003) (en banc) (permitting Fourth and Fourteenth Amendment claims
to proceed simultaneously to trial); Cole v. Carson, 802 F.3d 752, 772 (5th Cir. 2015)
(“Though these wrongs may be addressed through a Fourth Amendment challenge in
many cases, they do not disappear where there is no violation of that amendment. Instead,

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concealment of exculpatory evidence which results in unlawful arrest,

detention, or conviction. 26 An officer “cannot avail himself of a qualified
immunity defense if he procures false identification by unlawful means or
deliberately conceals exculpatory evidence, for such activity violates clearly
established constitutional principles.” 27 And such “unlawful means”
include suggestive photo lineups, like “prodding the witness[] to select
another picture when they had chosen incorrectly.” 28
Finally, we look at malicious prosecution under the Fourth
Amendment. In finding clearly established law, the district court overlooked
Espinal v. City of Houston, in which a plaintiff sued officers under § 1983 for
malicious prosecution under the Fourth and Fourteenth Amendments. 29
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where there is no more specific constitutional protection available, the Fourteenth
Amendment may offer protection.”), cert. granted, judgment vacated sub nom. Hunter v. Cole,
580 U.S. 994 (2016), and opinion reinstated in part, 905 F.3d 334 (5th Cir. 2018); id. at 772
n.143 (“Certain wrongs affect more than a single right and, accordingly, can implicate more
than one of the Constitution’s commands.” (quoting Soldal v. Cook Cnty., 506 U.S. 56, 70
(1992))). Cole does not suggest that Fourth Amendment and Fourteenth Amendment
violations are only available as alternative claims; it merely asserts that in cases where a
plaintiff cannot meet the requirements for a Fourth Amendment claim, the Fourteenth
Amendment may provide a path to relief. 802 F.3d at 772. And the Supreme Court only
hesitated to expand claims available under the Fourteenth Amendment through substantive
due process when such claims were already available through other provisions of the
Constitution. See Albright v. Oliver, 510 U.S. 266, 271–73 (1994) (finding no Fourteenth
Amendment right to be free from malicious prosecution).
26
See, e.g., Geter I, 849 F.2d at 1559.
27
Id. (first citing Manson v. Brathwaite, 432 U.S. 98 (1977); then citing Brady v.
Maryland, 373 U.S. 83 (1963)); see also Good v. Curtis, 601 F.3d 393, 399 (5th Cir. 2010)
(finding an officer’s “knowing efforts to secure a false identification by fabricating evidence
or otherwise unlawfully influencing witnesses is not entitled to qualified immunity”).
28
Geter II, 882 F.2d at 170.
29
See 96 F.4th 741, 749 (5th Cir. 2024). Neither of the parties briefed this case,
either. Generally, our review is limited by the party-presentation principle. See Elmen
Holdings, LLC v. Martin Marietta Materials, Inc., 86 F.4th 667, 674 (5th Cir. 2023). “But it
is untrue that the party-presentation principle somehow limits federal judges to reading

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There, the plaintiff “was arrested and indicted in 2020,” like Green, “when
the constitutional prosecution tort did not exist in our circuit,” though such
a claim now exists. 30 Accordingly, we held, “the officers could not possibly
have violated clearly established law at the time.” 31
Our circuit previously suggested “[t]he initiation of criminal charges
without probable cause may set in force events that run afoul of explicit
constitutional protection—the Fourth Amendment if the accused is seized
and arrested, for example.” 32 Seeing no direct conflict between this holding
and that of Espinal, the rule of orderliness requires that we follow our
circuit’s precedent. 33 We do so here. For Green’s malicious prosecution

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only those cases cited in a Table of Authorities.” L. Off. of Rogelio Solis PLLC v. Curtis, 93
F.4th 276, 277–78 (5th Cir. 2024) (Oldham, J., dissenting from denial of reh’g en banc);
see also Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99 (1991) (“When an issue or
claim is properly before the court, the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent power to identify and apply the
proper construction of governing law.”); Elder v. Holloway, 510 U.S. 510, 512, 515–16
(1994) (holding that “appellate review of qualified immunity dispositions is to be
conducted in light of all relevant precedents,” not just those cited by the district court or
briefed by the parties).
30
Espinal, 96 F.4th at 749.
31
Id.
32
Winfrey v. Rogers, 901 F.3d 483, 491 (5th Cir. 2018) (quoting Castellano, 352 F.3d
at 953) (recognizing Fourth Amendment claims analogous to malicious-prosecution tort
claims).
33
See In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021) (“It is a
well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn
another panel's decision, absent an intervening change in the law, such as by a statutory
amendment, or the Supreme Court, or our en banc court. This rule is strict and rigidly
applied.” (internal quotation marks and citation omitted)); Arnold v. U.S. Dep’t of Interior,
213 F.3d 193, 196 n.4 (5th Cir. 2000) (“[U]nder the rule of orderliness, to the extent that a
more recent case contradicts an older case, the newer language has no effect.”).

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claim only, Detective Thomas did not violate clearly established law, and she
is thus entitled to qualified immunity. 34
Though Detective Thomas contests factual distinctions in the caselaw
used by Green, we are not beholden to the cases cited by a plaintiff, 35 and
“[t]he law can be clearly established ‘despite notable factual distinctions
between the precedents relied on and the cases then before the Court, so long
as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.’” 36 Our precedents—regardless of whether
they were cited by Green—gave Detective Thomas “fair warning” of
Green’s right to be free from false arrest under the Fourth Amendment and
his due process rights under the Fourteenth Amendment. 37
B
We now must determine whether Green sufficiently pleaded that
Detective Thomas violated his clearly established rights under the Fourth

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34
Because failure to meet either prong of the qualified-immunity test is fatal to a
claim, we need not consider whether Green sufficiently pleaded malicious prosecution
prior to granting Detective Thomas qualified immunity on this claim. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (permitting courts “to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at hand” and granting qualified
immunity because “the unlawfulness of the officers’ conduct in this case was not clearly
established”).
35
See Bailey v. Ramos, 125 F.4th 667, 682 n.60 (5th Cir. 2025) (collecting cases and
explaining that the Supreme Court and this circuit recognize courts reviewing qualified
immunity are not restricted to only the cases cited by plaintiffs).
36
Bailey v. Iles, 87 F.4th 275, 289 (5th Cir. 2023) (quoting Kinney v. Weaver, 367
F.3d 337, 350 (5th Cir. 2004) (en banc)).
37
Id.

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and Fourteenth Amendments. The district court found Green’s complaint

was sufficient, 38 and we agree.
1
We start with Green’s Fourth Amendment claim for false arrest. “To
prevail in a § 1983 claim for false arrest, a plaintiff must show that . . . the
officers could not have reasonably believed that they had probable cause to
arrest the plaintiff for any crime.” 39 Green was arrested and jailed—for
nearly two years—for Robertson’s murder. So the only element at issue is
probable cause.
Detective Thomas argues that she “is immunized against reasonable
mistakes concerning the presence of probable cause.” It is true that “[e]ven
law enforcement officials who reasonably but mistakenly conclude that
probable cause is present are entitled to” qualified immunity. 40 But there is
no such “reasonabl[e] but mistaken[] conclu[sion]” in this case.
“Probable cause is established by facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of
reasonable caution, in believing . . . that the suspect has committed . . . an
offense.” 41 Here, accepting Green’s allegations as true, Detective Thomas

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38
See Green, 734 F. Supp. 3d at 552–56.
39
O’Dwyer v. Nelson, 310 F. App’x 741, 745 (5th Cir. 2009) (quotation marks and
citation omitted); see also Davidson v. City of Stafford, 848 F.3d 384, 391 (5th Cir. 2017), as
revised (Mar. 2017).
40
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009) (alteration in
original) (quotation marks and citation omitted).
41
Arizmendi v. Gabbert, 919 F.3d 891, 897 (5th Cir. 2019) (quotation marks and
citation omitted); see also Hernandez v. Terrones, 397 F. App’x 954, 966 (5th Cir. 2010) (“In
the context of evaluating the existence of probable cause and whether an officer is entitled
qualified immunity, ‘we embark on a practical, common-sense [determination] whether
given all of the circumstances’ a reasonable officer could have believed ‘there is a fair

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had information which would have undercut any reasonable belief that Green
murdered Robertson.
First, Jennings alleged that Green confessed to killing Robertson and
moving his body. But a police report showed that Robertson, after having
been shot, was alive and went to Avery Forbes’s home, where he knocked on
the door and spoke with Forbes before he died at that location. Such evidence
directly contradicts Jennings’s statement that Green moved Robertson’s
body.
Second, officers had evidence that another individual—Brandon
Summerall—had been with the deceased shortly before his death. Such
evidence would offer another person of interest that could have been
involved in the crime and undermine probable cause for both Detective
Thomas and the grand jury to indict and arrest Green.
Third, Detective Thomas took Jennings’s initial statement and could
have provided the grand jury with information about the informant’s
status—jailed for burglary and grand larceny—and mental state at the time
of giving the statement—high or withdrawing from illicit drugs. Such
information would have diminished Detective Thomas’s ability to rely on
Jennings’s statement and at least provided the grand jury with the
opportunity to determine whether to rely on the informant’s statement.
As a result, Green has alleged sufficient facts to show a lack of
probable cause at this stage.

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probability’ [Plaintiff] committed the crime charged.” (alterations in original) (quotation
marks and citations omitted)).

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2
We next turn to Green’s Fourteenth Amendment due process claim.
To succeed, Green must plead “specific facts” regarding “what exculpatory
evidence [Detective Thomas] suppressed and concealed” and “what
‘unlawful means’” she “used to procure the identification[].” 42
Green’s complaint sufficiently alleges a violation of his Fourteenth
Amendment right to due process. As to exculpatory evidence, the same
evidence that should have cast doubt in Detective Thomas’s mind regarding
Green’s culpability and Jennings’s reliability is the same evidence that Green
alleges was suppressed from the grand jury. 43 And as to Jennings’s
identification, Green alleges—based on Jennings’s recantation, attached to
the complaint—that Jennings identified a different suspect in the photo
lineup with Detective Thomas. After Jennings identified someone else,
Detective Thomas “prodd[ed]” Jennings by pointing to another suspect:
Green. 44 This method of identification, if true, is the very type of “unlawful”
and “suggestive” identification procedure for which we have previously
denied qualified immunity at the motion-to-dismiss stage. 45
Accepting his allegations as true, Green’s complaint is clear.
Detective Thomas manipulated a photo lineup. She relied on uncorroborated
testimony from a high—or withdrawing—jailhouse informant who was
contradicted by police reports to obtain an indictment against Green. And
she withheld critical information in Green’s favor from the grand jury—
information which should have given Detective Thomas pause to even indict
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42
Geter I, 849 F.2d at 1559.
43
See ante, at 13.
44
Geter II, 882 F.2d at 170–71.
45
See id. at 171.

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him in the first place. Green has sufficiently alleged violations of his clearly
established Fourth and Fourteenth Amendment rights. Subject to the
independent-intermediary doctrine, discussed below, Detective Thomas is
not entitled to qualified immunity on Green’s Fourth Amendment false
arrest and Fourteenth Amendment due process claims.
V
We next assess whether the independent-intermediary doctrine
applies to this case. Detective Thomas asserts that she is entitled to qualified
immunity because a grand jury indicted Green, and thus, the independent-
intermediary doctrine protects her against all of Green’s claims. The district
court, taking Green’s allegations as true and making reasonable factual
references in his favor, found the doctrine did not protect Detective
Thomas. 46 We agree.
The independent-intermediary doctrine “becomes relevant
when . . . a plaintiff’s claims depend on a lack of probable cause.” 47 Green’s
Fourth Amendment claims depend on an absence of probable cause.
Accordingly, Detective Thomas must show an “intermediate’s decision
[broke] the causal chain and insulate[d]” her. 48 As we have held,
[T]he chain of causation between the officer’s conduct and the
unlawful arrest “is broken only where all the facts are
presented to the grand jury, or other independent intermediary
where the malicious motive of the law enforcement officials

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46
See Green, 734 F. Supp. 3d at 558.
47
Trevino, 79 F.4th at 531 (quoting Buehler v. City of Austin, 824 F.3d 548, 553 (5th
Cir. 2016)).
48
Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977).

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does not lead them to withhold any relevant information from

the independent intermediary.” 49
The doctrine does not apply if “it can be shown that the deliberations
of that intermediary were in some way tainted by the actions of the
defendant” 50 and that “taint” is material—“that is, even knowing
misstatements or omissions will not satisfy the taint exception if the
misstated or omitted information would not have altered the intermediary’s
probable-cause finding.” 51
The standard for “taint” in grand jury deliberations is relatively low.
An officer “taint[s]” the deliberation by “withhold[ing] any relevant
information.” 52 And “[a]ny misdirection of the magistrate or the grand jury
by omission or commission perpetuates the taint of the original official
behavior.” 53
Detective Thomas, in arguing that Green has no evidence of anything
“improperly presented,” “misl[eading],” or “malicious[],” holds Green to
too high a bar at the motion-to-dismiss stage. 54 Of course, a criminal
defendant—and, as here, later a § 1983 plaintiff—has limited knowledge of

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49
Winfrey, 901 F.3d at 497 (emphasis added) (quoting Buehler, 824 F.3d at 554).
50
Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010) (internal
quotation marks and citation omitted).
51
Trevino, 79 F.4th at 532 (citations omitted).
52
Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988).
53
Id.
54
Detective Thomas relies on summary-judgment-stage cases, which of course
require a higher burden of proof for plaintiffs than those ruling on motions to dismiss. See
Craig v. Dallas Area Rapid Transit Authority, 504 F. App’x 328, 331–32 (5th Cir. 2012);
Buehler, 824 F.3d at 553–54.

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what occurs in grand jury proceedings. 55 So “[a]t the motion-to-dismiss

stage, ‘mere allegations of taint’ may be adequate ‘where the complaint
alleges other facts supporting the inference.’” 56 Accordingly, a plaintiff must
specifically allege that the officer “‘deliberately or recklessly’ provided false
information to . . . the grand jury” or made “knowing and intentional
omissions that result in a warrant being issued without probable cause.” 57
Regardless of which claims it applies to, the independent-
intermediary doctrine does not shield Detective Thomas. 58 Green’s
complaint and its attachments—including Jennings’s recantation—assert
that Detective Thomas manipulated a photo lineup and relied on an
uncorroborated statement from a jailhouse informant who was high or
experiencing withdrawals. It also asserts that Detective Thomas withheld
crucial, specific evidence from the grand jury which would contradict
Jennings’s original statement that Green moved the deceased body, would
suggest Jennings’s unreliability as a witness and in his identification of Green,
and would suggest another individual was with the deceased person earlier in
the day of his murder. And Green asserted that this withheld evidence was
material: “No Grand Jury would have indicted Plaintiff had it been truthfully
informed that Jennings’[s] statement was false, was contrary to the known

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55
See, e.g., Wilson v. Stroman, 33 F.4th 202, 212–13 (5th Cir. 2022) (finding that,
given “a general rule of secrecy shrouds the proceedings of grand juries,” plaintiff
sufficiently alleged “taint” when they stated that officials made material omissions and
misrepresentations to grand jury and withheld video evidence from grand jury that
undermined probable cause (quoting Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004))).
56
Trevino, 79 F.4th at 532 (citing McLin v. Ard, 866 F.3d 682, 690 (5th Cir. 2017)).
57
Anokwuru v. City of Hous., 990 F.3d 956, 964 (5th Cir. 2021) (citations omitted).
58
See Winfrey, 901 F.3d at 497 (“[B]ecause, at best, it is not clear whether ‘all the
facts [were] presented to the grand jury,’ we hold that the independent-intermediary
doctrine does not apply.” (alterations in original) (quoting Cuadra, 626 F.3d at 813)).

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No. 24-60314

evidence, and was given by a drug addict in a mentally-altered condition.”

Accordingly, Green’s pleadings are sufficient to suggest Detective Thomas
materially tainted the grand jury proceedings, and thus, the independent-
intermediary doctrine does not apply.
VI
Finally, we turn to Green’s argument that qualified immunity is
unlawful. Though recognizing the uphill battle, Green preserves his
argument that qualified immunity rests on an erroneous interpretation of the
Civil Rights Act of 1871 and is “unsound law.” The district court, agreeing
with Green, provided significant background on the doctrine’s faulty
underpinnings and effects. 59
But given our role as “middle-management circuit judges, we must
follow binding precedent.” 60 The district court is “not free to overturn” our
circuit’s precedent, 61 nor are we permitted to overturn the Supreme Court’s.
We readily acknowledge the legal, social, and practical defects of the
judicially contrived qualified-immunity doctrine, but we are powerless to
scrap it.

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59
Green, 734 F. Supp. 3d at 543–48, 559–69; see also Rogers v. Jarrett, 63 F.4th 971,
979-980 (5th Cir. 2023) (Willett, J., concurring); Zadeh v. Robinson, 928 F.3d 457, 474–
81 (5th Cir. 2019) (Willett, J., concurring in part, dissenting in part); Horvath v. City of
Leander, 946 F.3d 787, 800 (5th Cir. 2020), as revised (Jan. 13, 2020) (Ho, J., concurring
in the judgment in part, dissenting in part).
60
Consumers’ Rsch. v. Consumer Prod. Safety Comm’n, 91 F.4th 342, 346 (5th Cir.
2024), cert. denied, No. 23-1323, 2024 WL 4529808 (U.S. Oct. 21, 2024).
61
In re Bonvillian Marine Serv., Inc., 19 F.4th at 789.

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VII
Qualified immunity does not protect government officials “who
knowingly violate the law.” 62 Based on the allegations in the complaint,
Detective Thomas falls into that camp.
Because Green has sufficiently alleged violations of his clearly
established Fourth and Fourteenth Amendment rights—and the
independent-intermediary doctrine doesn’t apply—Detective Thomas is not
entitled to qualified immunity. However, because a constitutional malicious-
prosecution claim did not exist in our circuit at the time of Green’s arrest,
Detective Thomas gets qualified immunity for that claim only.
Accordingly, we AFFIRM the district court’s denial of qualified
immunity for Green’s false arrest and due process claims under the Fourth
and Fourteenth Amendments and REVERSE its denial of qualified
immunity for Green’s Fourth Amendment malicious-prosecution claim.

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62
Malley v. Briggs, 475 U.S. 335, 341 (1986).

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