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November 25, 1987

Michael Ogden, Plaintiff,
District Of Columbia, et al., Defendants

The opinion of the court was delivered by: HARRIS



 This matter is before the Court on defendants' motion for summary judgment. Upon consideration of the parties' submissions and the entire record, the Court concludes that there is no genuine issue of material fact and that defendants are entitled to judgment as a matter of law. Accordingly, defendants' motion is granted.


 Plaintiff Michael Ogden was arrested on April 5, 1985, and charged with the March 15, 1985, murder of Carolyn Eley, his former girlfriend. Ogden's arrest was based on what turned out to be an incorrect eyewitness identification. When detectives from the Metropolitan Police Department (MPD) initially interviewed William Brown, an elderly man who had been walking with Eley at the time she was shot, Brown provided a general description of the assailant. *fn1" He made no identification at that time and failed to do so in several subsequent interviews. On April 1, however, Brown told the police that at the time of the shooting he had recognized the assailant as Eley's former boyfriend, whom Brown knew only as "Michael." He claimed that he had not made the identification previously because he was afraid of Michael. Brown told detectives that he had met Ogden about two-and-one-half years before the murder, had seen him a number of times with Eley, and that the plaintiff had beaten Eley on several occasions. Ogden's relationship with Eley, as well as the beatings, were corroborated by at least one other person.

 Detective Manjoras, one of two detectives assigned to the Eley murder, noted in his "running resume" that Brown was a heavy drinker, "is less than sterling in character, and does have trouble remembering certain events and times . . . ." By the witness's own admission, he had been drinking the night that Eley was killed. Manjoras was on leave when Brown first identified Ogden as the assailant. He interviewed Brown again; Brown was sober and "was adamant" that Ogden was the assailant. Manjoras became convinced that Brown's identification was truthfully made. *fn2"

 In Manjoras's absence, the affidavit in support of the arrest warrant had been prepared by the detective who had taken Brown's formal statement. *fn3" Manjoras signed it on April 4. The affidavit recounted Brown's identification of Ogden as the assailant and the information that Eley previously had been assaulted by Ogden. The affidavit did not disclose Brown's prior inconsistent statements, nor did it reveal Manjoras's recorded concerns about Brown's character and sobriety. The affidavit was approved by Assistant United States Attorney Teslik and Lieutenant Pratt (Manjoras's supervisor), both of whom were aware of Brown's differing statements. Judge Mitchell of the Superior Court approved the warrant and Ogden was arrested. At Ogden's preliminary hearing on April 12, 1985, the Hearing Commissioner found probable cause to charge and released Ogden on bond. However, investigators eventually determined that Ogden had an alibi for the time of Eley's murder, and the charge of second-degree murder while armed was dismissed. *fn4" Several weeks later, the Superior Court of the District of Columbia granted Ogden's unopposed motion to seal the record of his arrest.


 I. Plaintiff's Section 1983 Claims

 The Supreme Court's most recent decision treating the immunity of police officers under section 1983 is Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). *fn5" In discussing the availability of immunity under section 1983, the Court stated that "in the case of an officer applying for a warrant, it is our judgment that the judicial process will on the whole benefit from a rule of qualified rather than absolute immunity." Id. 106 S. Ct. at 1097. The Court previously had defined qualified immunity in objective, rather than subjective, terms. See Harlow v. Fitzgerald, 457 U.S. 800, 819, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Under the Harlow ruling, "government 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." Id. at 818. The "objective reasonableness" standard set forth in Harlow has been further refined by the Court in subsequent holdings. In United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), for example, the Court held that an officer's reliance on a judge's or magistrate's probable cause determination "must be objectively reasonable and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the [search] warrant was properly issued. Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard to the truth." Id. at 922-23. Although Leon defined the contours of immunity in the context of a suppression hearing, the Court found it proper to apply the same standard of objective reasonableness to an officer's request for an arrest warrant. See Malley, 106 S. Ct. at 1098.

 First, the Court noted that "the qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Id. at 1096. In setting forth the appropriate standard to the situation presented in Malley -- an officer's request for an arrest warrant -- the Court held: "Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost." Id. at 1098. The Court further explained that the appropriate "question . . . is whether a reasonably well-trained officer . . . would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant." Id. (footnote omitted).

 In Malley itself, the affidavit supporting the arrest warrant failed to establish probable cause. The case at bar presents a slightly different issue. Here, the affidavit, on its face, established probable cause. Plaintiff, however, contends that facts omitted from the warrant would have negated probable cause. Such a subfacial attack is relevant, because if an officer seeking a warrant deliberately or recklessly withholds material facts, the officer may be liable for a civil rights violation. See United States v. Ferguson, 758 F.2d 843, 848 (2d Cir. 1985); cf. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). *fn6" The Malley Court, while recognizing the need to leave "ample room for mistaken judgments," id. 106 S. Ct. at 1097, emphasized that the purpose of granting qualified, rather than absolute, immunity is to cause an officer "to reflect, before submitting a request for a warrant, whether he has a reasonable basis for believing that his affidavit establishes probable cause." Id. Although Malley, as noted above, did not specifically address subfacial attacks on affidavits, its tenets are applicable.

 Examining the facts in light of the relevant standard, the Court concludes that summary judgment should be granted to defendants on either of two approaches. First, a Franks-type hearing on misstatements of material facts requires an initial finding that the challenged statements were necessary to establish probable cause in order to attack the affidavit successfully. See, e.g., United States v. Malsom, 779 F.2d 1228, 1235 (7th Cir. 1985); United States v. Ferguson, 758 F.2d 843, 848 (2d Cir. 1985). In the case of an attack based on omission, logic dictates that the affidavit be read as if the allegedly relevant material were included to determine whether probable cause would have been undermined. It is true, to be sure, that an officer's claim of an eyewitness identification of a murder suspect carries heavy weight in making a probable cause determination. Information tending to mitigate that identification would have been useful and relevant. The Court is not convinced, however, that Brown's previous failure to identify Ogden as the assailant and Brown's drinking problems necessarily negate probable cause. *fn7" The eyewitness identification was made by someone acquainted with the suspect. Further, despite some reservation about Brown's reliability, certain statements he made had been independently verified. The mere fact that Ogden's innocence later was established ...

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