MARLOW HUMBERT v. BALTIMORE CITY POLICE DEPARTMENT
US Court of Appeals for the Fourth Circuit, Gregory, August 7, 2017*,
Qualified Immunity – Officers who obtained an arrest warrant based on an unduly suggestive photographic line-up were not entitled to qualified immunity for malicious prosecution

*Amended and re-issued Aug. 22

I’m disappointed that there wasn’t even a dissent on this one. “Any reasonable officer in the Officers’ positions would have doubted the reliability of the victim’s” statement that “that’s him” during a photo lineup because several days earlier one investigator allegedly showed the victim a photograph of a man that looked like Humbert. Any reasonable officer would have completely discounted the victim’s straight-up identification of the suspect??? Even though she later qualified the ID, the Court goes too far here in saying that PC beyond question didn’t exist.
This opinion could be a lot shorter and, therefore, less hazardous. I’m not even getting into looking at qualified immunity at the highest abstraction possible (it’s clearly established that you need probable cause to arrest) rather than the appropriate standard. Even the Court’s PC arguments are dangerous.
For example: the Court’s emphasis that a rape victim is supposed to know where her rapist lives is… questionable. As is minimizing the defendant’s presence near the location of the crime (eight days later shows that he, at least occasionally, is in the area. It’s not proof, but it IS evidence. The fact that his family lives miles away, on the other hand, is NOT). And a victim’s identification of a suspect is qualified, not “negated” (p. 24), when they later say that they aren’t positive.
A bigger issue here is the Court’s insinuation that the officers had an obligation to the defendant after the filing of charges. See JAN ESHOW v. LISA TINGLE decided way back in June. If the Court had distinguished by saying that a misleading warrant imposes an obligation, at least that would have been an acknowledgment that precedent is being set…
Moreover, the ASA in this case: 1) allegedly had knowledge of the negative DNA result for 14 of the 15 months that Humbert was incarcerated, 2) according to the victim’s testimony, convinced her to testify by saying that there were DNA results when there weren’t?, and 3) had the victim attend the arraignment when identification was an issue?

Facts:
(Note- Facts from the opinion represent findings of the jury and evidence viewed in the light most favorable to Humbert)
In 2008, a woman was raped in Charles Village. The victim gave a general description of the attacker and was transported to the hospital for an exam. Her clothing was collected and physical evidence was recovered from her body.
According to the victim, one of the BPD investigators showed her a picture of a man who “looked very much like” Humbert and told her that this was her attacker. This was done “either during or after” she completed a composite sketch of the suspect.
The victim was shown a line-up that included Humbert several days later. The rape victim identified Humbert as her attacker, stating “that’s him” and attempting to push away the photographs she was being shown.
The victim later testified that Humbert’s photo looked like the picture police showed her several days prior. While the victim wrote “that’s him” on the back of the photo and signed her name, she testified that she then informed police that she could not positively identify Humbert as her assailant because she needed to “see him in a physical lineup and hear his voice.”
Despite the victim’s claimed statement, police applied for and obtained an arrest warrant for Humbert on the basis that his “photograph was shown to the victim along with several other similar photographs, when the victim positively identified him as her attacker.” No mention was made in the arrest warrant of the victim’s subsequent qualification of her statement.
During the lawsuit, the victim testified that when she found out about the warrant she contacted one of the investigators to tell him once again that she could not positively identify Humbert as her attacker. She testified that she attended Humbert’s arraignment on June 23, 2008, but did not recognize him.
According to the victim’s testimony, she was convinced by police to testify because there was DNA evidence. She stated that she spoke with the ASA in the case and told him that she would testify as long as there was DNA evidence.
According to the opinion, police received a DNA report on June 2, 2008 excluding Humbert as a source of DNA found on the victim and her clothing. At the arraignment on June 23, 2008, the ASA involved in the case informed the court that he heard, but had not confirmed, that Humbert’s DNA did not match any found on the victim. Evidence was presented that the ASA in the case “needed the DNA reports for confirmation, but he did not receive them until May 11, 2009.”
The ASA “then informed the victim that there was no DNA evidence connecting Humbert to her attack, and he learned for the first time that the victim could not identify Humbert and she refused to testify.” On July 30, 2009, the ASA entered a nolle prosequi as to Humbert’s charges, and Humbert “was finally released about fifteen months after his arrest.”
In 2011, Humbert filed suit against the officers involved, state and local officials, the Mayor and City Council, as well as the BPD.
Humbert made claims for violations of the US Constitution and Maryland Declaration of Rights, alleging that “[o]fficers improperly influenced the victim to identify him as her attacker and that they arrested him without probable cause by submitting a materially false arrest warrant application. Humbert further alleged that, after his arrest, the Officers obtained DNA reports excluding him as the attacker, but intentionally failed to furnish the reports to [the ASA] or inform [the ASA] of the victim’s inability to positively identify him until the eve of his criminal trial.”
Some of the counts were dismissed, but many went to the jury.
A jury found that the victim identified Humbert during the photo line-up and was not coerced by police.
However, the jury found that Humbert had proven that the victim told officers both before and after Humbert’s arrest that she could not positively identify him as her attacker.
The jury then found that a reasonable officer in the Officers’ positions would not have believed that Humbert was responsible for the rape before issuing the arrest warrant.
The jury ultimately determined that the Officers were liable for malicious prosecution under § 1983 and awarded Humbert $2.3 million in compensatory and punitive damages.
The judge then struck the jury’s verdict, finding that based on the jury’s findings of fact the Officers had probable cause to arrest Humbert and were therefore entitled to qualified immunity.
Humbert appealed, arguing that the trial judge was wrong to grant immunity to the officers.

Held: The 4th Circuit agreed, holding that no reasonable police officer would believe that probable cause existed.

Qualified Immunity- Qualified immunity shields government officials from liability in a § 1983 suit as long as their conduct has not violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Qualified Immunity- There are two parts to a qualified immunity claim for wrongful seizure:
(1) Was there an unconstitutional seizure?
AND (2) was this violation clearly established at the time of the alleged event such that “a reasonable officer would have understood that his conduct violated the asserted right”?

Malicious Prosecution- A malicious prosecution suit may be filed if there is a claim that an arrest-warrant was not supported by probable cause

Malicious Prosecution- To support a malicious prosecution claim, the plaintiff must show that the police:
– caused a seizure of the plaintiff pursuant to legal process
– That this seizure was unsupported by probable cause
and – criminal proceedings ended in the plaintiff’s favor.

From the Case: “Despite finding that the victim had a strong emotional reaction when she viewed Humbert’s photo, said and wrote “that’s him,” and signed her name on his photo, the jury unequivocally found that the victim informed the Officers that she could not positively identify Humbert as her attacker”

Arrest Warrant- An arrest warrant may be challenged on the basis that it contains false information or information that officers included with a “reckless disregard” for whether it was true or not.

Arrest Warrant- Probable Cause- “[a]n investigation need not be perfect, but an officer who intentionally or recklessly puts lies before a magistrate, or hides facts from him, violates the Constitution unless the untainted facts themselves provide probable cause.”

From the case: A corrected warrant would include:
(1) a description of the assault,
(2) that an investigation was conducted in which an officer showed Humbert’s photo to the victim and identified him as the attacker,
(3) that a composite sketch was drawn and distributed throughout the area,
(4) that Humbert was one of several leads produced,
(5) that the victim initially responded emotionally to Humbert’s picture in a photobook and said “that’s him,”
(6) that the victim then stated that she could not positively identify Humbert without seeing him in person and hearing his voice,
and (7) that the Officers were unable to locate him.
Taking this information in the light most favorable to Humbert, the corrected warrant application would not have established probable cause to arrest Humbert.

Probable Cause- Time- An individual found in the area of a crime who matches a “generic” sketch of a suspect cannot be arrested eight days later based solely on the generic sketch