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Safar v. Tingle

United States Court of Appeals, Fourth Circuit

June 7, 2017

FADWA SAFAR; JAN ESHOW, Plaintiffs - Appellants,

          Argued: March 21, 2017

         Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:15-cv-00467-TSE-TCB)


          Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellants.

          Alexander Francuzenko, COOK CRAIG & FRANCUZENKO PLLC, Fairfax, Virginia; Julia Bougie Judkins, BANCROFT, MCGAVIN, HORVATH & JUDKINS, PC, Fairfax, Virginia, for Appellees.

         ON BRIEF:

          Maxwelle C. Sokol, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellants.

          Broderick C. Dunn, Philip C. Krone, COOK CRAIG & FRANCUZENKO PLLC, Fairfax, Virginia, for Appellee Lisa Tingle

          Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

          WILKINSON, Circuit Judge:

         Plaintiffs Jan Eshow and Fadwa Safar were arrested, and Safar briefly incarcerated, for an allegation of fraud that was mistakenly reported and almost immediately retracted. They brought suit under 42 U.S.C. § 1983 and state tort law against the police officer and prosecutor who, at different stages of the criminal process, learned that no crime had occurred and yet failed to take steps to withdraw an arrest warrant. For the reasons that follow, we affirm the grants of immunity to the police officer and prosecutor on the § 1983 claims. As to the state law claims, however, we remand with instructions to dismiss the claims without prejudice to plaintiffs' right to proceed in state court.


         This case is an appeal from a Rule 12(b)(6) dismissal, which requires us to "accept as true all of the factual allegations contained in the complaint." Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014). To survive a motion to dismiss, the complaint must state a "plausible claim for relief" that "permit[s] the court to infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         What began as a simple exercise in bargain shopping took an unfortunate turn. Plaintiffs Eshow and Safar are married residents of Alexandria, Virginia. In September 2012, Eshow purchased around $1, 000 of home flooring from Costco in Pentagon City, Virginia. Shortly thereafter, while browsing another Costco store, he saw that the same flooring was on sale. After learning that he could take advantage of the sale price at the store of purchase, on October 17, 2012 Eshow returned to the Pentagon City Costco to get the discount. Store personnel explained that he should purchase the identical flooring at the current markdown and then immediately return it, using his initial sales receipt as the basis for the refund. Eshow followed these instructions and obtained a refund on the joint account he shared with Safar.

         A few hours later, Costco called the Arlington County Police Department to report-mistakenly-that Eshow and Safar had fraudulently secured a refund on goods they never purchased. Officer Stephanie Rodriguez, along with another colleague, responded to the report and reviewed a video showing Eshow seeking the refund. Rodriguez filed an affidavit requesting arrest warrants for both plaintiffs, and a magistrate judge issued the warrants.

         The next day, Costco representatives contacted Rodriguez and notified her that the allegations against Eshow and Safar were unfounded-no fraud had in fact occurred. Rodriguez did not take any steps to correct her affidavit or withdraw the arrest warrants.

         Eight months went by without incident until Eshow was pulled over for speeding in Fairfax County, Virginia. Based on the outstanding arrest warrant, the police officers handcuffed Eshow in front of his family and placed him under arrest. On July 31, 2013, Eshow appeared before the Arlington County General District Court to contest the fraud charge. At the hearing, a Costco representative explained to Rodriguez and Lisa Tingle, the assistant commonwealth's attorney, that the charge was erroneous and should be dropped. Tingle moved for nolle prosequi and the court dismissed the case against Eshow.

         Both Rodriguez's investigative notes and Tingle's case file indicated that identical charges were pending against Safar, but neither took any action to withdraw her arrest warrant. Rodriguez and Tingle had previously been trained in the standard procedures for withdrawing warrants from statewide law enforcement databases. In particular, "an attorney for the Commonwealth may at any time move for the dismissal and destruction of any unexecuted warrant or summons issued by a magistrate." Va. Code Ann. § 19.2-76.1 (West 2011).

         In late 2013, Eshow and Safar applied for American citizenship. After passing her citizenship test, Safar turned to the next requirement and sought clearance letters from local police in counties where she previously resided. On December 23, 2013, Safar reported to the police headquarters in Prince George's County, Maryland to get a clearance letter. Upon reviewing her file, an officer informed her that she was under arrest pursuant to an active warrant. Safar was incarcerated in Maryland, and a magistrate advised her that a transfer to Arlington, Virginia could not be arranged until the county judges returned from the holiday.

         As part of the incarceration process, Safar was strip searched and inspected for smuggled contraband. She was the primary caregiver for three young children at the time and was denied the opportunity to use a breast pump. Safar remained in jail for three days until December 26, 2013, when she was transferred to Arlington, Virginia and released. The following day the case against her was dismissed nolle prosequi by a different assistant commonwealth's attorney.

         Plaintiffs filed a complaint against Rodriguez and Tingle in federal district court. Eshow and Safar asserted claims of unconstitutional arrest under § 1983. They also alleged, according to Virginia tort law, that the failure to withdraw Safar's arrest warrant was grossly negligent.

         Rodriguez and Tingle moved to dismiss all claims, and on April 4, 2016 the district court granted their motions. First, the district court rejected plaintiffs' § 1983 claims against Rodriguez. Neither the Fourth Amendment nor the Due Process Clause provided a basis for relief, the court reasoned, and Rodriguez was entitled to qualified immunity in any event. Turning to the § 1983 claim against Tingle, the court found that she was shielded by absolute prosecutorial immunity. Finally, the court held that plaintiffs failed to state a claim for gross negligence under Virginia law. This appeal followed.


         The bulk of plaintiffs' complaint alleges claims under § 1983. Section 1983, of course, is not an independent source of substantive rights, but simply a vehicle for vindicating preexisting constitutional and statutory rights. See Graham v. Connor, 490 U.S. 386, 393-94 (1989). The first step in any such claim is to pinpoint the specific right that has been infringed. See Baker v. McCollan, 443 U.S. 137, 140 (1979).

         Plaintiffs contend that Rodriguez's and Tingle's failure to withdraw the arrest warrants after learning that the charges were erroneous constituted an unconstitutional arrest. They assert that the alleged omissions breach two constitutional guarantees: the Fourth Amendment and the Fourteenth Amendment's Due Process Clause.

         As an initial matter, we are mindful of the Supreme Court's injunction that the Due Process Clause is not the proper lens through which to evaluate law enforcement's pretrial missteps. Compared to the "more generalized notion" of due process, the Fourth Amendment "provides an explicit textual source of constitutional protection against [unreasonable seizures and arrests], " Graham, 490 U.S. at 395, and "define[s] the 'process that is due' for seizures of persons or property in criminal cases, " Gerstein v. Pugh, 420 U.S. 103, 125 n.27 (1975). Consequently, a police officer who withholds exculpatory information does not violate the Fourteenth Amendment unless the officer's failure to disclose deprived the plaintiff of the "right to a fair trial." Taylor v. Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996). Further, insofar as plaintiffs' claims sound in generic negligence, the Due Process Clause "is simply not implicated" by acts of official carelessness. Daniels v. Williams, 474 U.S. 327, 328 (1986). The Fourth Amendment, then, is the only actionable ground for relief.

         Having identified the constitutional right at issue, we now turn to the precise scope of the Fourth Amendment guarantee and ...

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