JERRY E. SMITH, Circuit Judge:
Milton Evans sued William Ball and Diane Steadman, alleging common law malicious prosecution and constitutional violations pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court granted summary judgment in favor of Ball and Steadman. Finding no error, we affirm.
Ball and Steadman, Special Agents with the United States Forest Service, undertook an investigation of Evans, a Forest Service employee, focusing on whether Evans was falsifying public comments about Forest Service projects and activities.
Subject to a summons, Evans appeared in court to answer these charges. He was released on his own recognizance with instructions to report once a month to pretrial services. The indictment was subsequently dismissed without prejudice on the government's motion. The government claims it dismissed the indictment in exchange for Evans's agreement to retire from the Forest Service; Evans contends there was no such agreement.
Evans then sued Ball and Steadman, asserting a Bivens claim on two grounds.
On the state law malicious prosecution claim, Ball and Steadman argued that the summary judgment evidence could not establish that the prosecution had terminated in Evans's favor — a prerequisite to liability for malicious prosecution. Ball and Steadman contended that the government had dropped the claims against Evans in exchange for a promise to retire from the Forest Service. This "deal," defendants argued, did not constitute termination in Evans's favor.
The district court agreed that Evans had entered an "informal agreement" with prosecutors under which he would retire in exchange for dropping the charges. Because this resolution did not indicate that Evans was not guilty of the charges, the court determined that his prosecution had not terminated in his favor and that he thus could not establish malicious prosecution.
The court also granted summary judgment on Evans's Bivens claim. Determining that Evans had not alleged a violation of a clearly established constitutional right, the court concluded that Evans had failed to overcome the defendants' assertion of qualified immunity.
We review a summary judgment de novo, applying the same standard as did the district court. Melton v. Teachers Ins. & Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir.1997). Summary judgment is proper when the pleadings and summary judgment evidence present no genuine issue of material fact and indicate that the moving party is
Summary judgment was proper on the state law malicious prosecution claim. Termination of the prosecution in the accused's favor is an essential element,
Evans asserts that the court erred in deciding that there was insufficient record support for a finding that the prosecution terminated in his favor, because there is evidence that his retirement from the Forest Service was not part of the bargain he struck. Evans insists that he did not agree to retire in exchange for dropping the charges, but that he merely agreed not to advance a defense under the Speedy Trial Act should the government seek to reindict him.
The summary judgment evidence Evans points to is his own affidavit and that of his attorney, Claude Welch. Evans's affidavit states, "I was not about to resign as a part of an agreement to drop criminal charges . . . . I agreed only to waive any Speedy Trial rights I had if the government reindicted me." Welch's affidavit reflects that there was "an understanding" that Evans would retire, but "there was no agreement," and that "[t]he only agreement that Mr. Evans made was that he would not raise the Speedy Trial Act if the cases were dismissed." Evans contends that because the agreement did not involve even a tacit admission of guilt, the prosecution did, in fact, terminate in his favor.
We disagree. This court has set a high standard for what constitutes termination in the accused's favor. In Taylor v. Gregg, 36 F.3d 453, 455-56 (5th Cir.1994), we held that a "pretrial diversion" — an alternative to criminal prosecution that diverts certain defendants from traditional criminal justice processing into a program of supervision — is not termination in the defendant's favor, even if all criminal charges are dismissed. In so holding, we noted that "[t]he Second Circuit stated that proceedings are terminated in favor of the accused only when their final disposition indicates that the accused is not guilty." Id. at 456 (citing Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir.1980)). We then declared that "[w]e agree with the Second Circuit and adopt its holding and reasoning." Id.
The rule in this circuit, then, is that proceedings terminate in favor of the accused only when they affirmatively indicate that he is not guilty. While Evans advocates the position that favorable termination results when the disposition fails to indicate that the accused is guilty, the reasoning of Taylor forecloses that position; the disposition must affirmatively indicate a lack of guilt.
Under such a standard, Evans cannot demonstrate that the criminal prosecution terminated in his favor. While he insists that the agreement was not for him to retire, but simply for him to waive his Speedy Trial Act arguments should the government reindict him, he has admitted that he entered an agreement with prosecutors under which
Moreover, the evidence compels the conclusion that the agreement was for Evans to retire in exchange for dropping the charges. Evans's attorney wrote the Acting Forest Supervisor that the agreement was
(Emphasis in original.) Welch then wrote, "Yes, basically it was understood that Milton Evans would retire." These statements are "smoking guns" that indicate that Evans agreed to retire in exchange for having charges dropped. A reasonable jury could not find otherwise.
The district court correctly concluded that Evans's allegations in support of his Bivens claim fail to overcome the defense of qualified immunity. Summary judgment was therefore proper.
Qualified immunity protects government officials performing discretionary functions from civil liability if their conduct violates no clearly established statutory or constitutional right of which a reasonable person would have known. Sorenson v. Ferrie, 134 F.3d 325, 327 (5th Cir.1998). The Supreme Court has clarified how courts should address a qualified immunity assertion, requiring a two-pronged test. See Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991).
Once a defendant pleads qualified immunity, the district court first must determine whether, under current law, he has alleged a constitutional violation at all. Id. The second prong requires courts to make two separate inquiries: whether the allegedly violated right was "clearly established" at the time of the incident; and, if so, whether the defendant's conduct was objectively unreasonable in light of the clearly established law. Id.; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir.1998). We may not pretermit the first prong but must decide whether Evans has alleged any constitutional violation before we may move to the inquiries under the second prong. See, e.g., Quives v. Campbell, 934 F.2d 668, 670 (5th Cir.1991).
Evans purports to have alleged two violations of his clearly established constitutional rights. First, he claims the defendants' actions violated his right to be free from unreasonable seizures. He claims that the defendants' providing misleading information led to an unreasonable seizure that began when he received a summons pursuant to FED. R.CRIM.P. 9 to appear and answer to criminal charges. The summons, he avers, was accompanied by other restrictions on his liberty. In particular, he alleges that he was fingerprinted, photographed, forced to sign a personal recognizance bond, and required to report regularly to pretrial services, to obtain permission before leaving the state, and to provide federal officers with financial and identifying information. Taken together, Evans argues, the summons and these liberty restrictions constituted a seizure that, because it was based on false claims by Ball and Steadman, was unreasonable.
The district court held that an unreasonable seizure could not be grounds for abrogating Ball's and Steadman's qualified immunity because Evans "failed to allege or show a seizure within the meaning of the Fourth Amendment, or at a minimum, that the `seizure' alleged [violated] a clearly established Constitutional right." We disagree that Evans failed to allege a Fourth Amendment
A summons, coupled with the additional liberty restrictions that were imposed on Evans, may constitute a seizure under the Fourth Amendment. In Nesmith v. Taylor, 715 F.2d 194, 196 (5th Cir.1983), we expressly declined to decide whether a mere summons backed by a threat of arrest could ever constitute a seizure. The summons in the case at hand, however, was accompanied by liberty restrictions so significant as to render Evans seized. In so concluding, we are guided by the Second and Third Circuits, which recently have held that accused individuals are seized when the conditions of their pretrial release include restrictions such as those imposed on Evans, particularly restrictions on the right to interstate travel. See Gallo v. City of Philadelphia, 161 F.3d 217, 222-23 (3d Cir.1998); Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir.), cert denied, ___ U.S. ___, 118 S.Ct. 1051, 140 L.Ed.2d 114 (1998). We are also informed by the intimation in Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), that the right to interstate travel is addressable under the Fourth Amendment.
We conclude, in light of these authorities, that Evans's summons to appear in court, coupled with the requirements that he obtain permission before leaving the state, report regularly to pretrial services, sign a personal recognizance bond, and provide federal officers with financial and identifying information, diminished his liberty enough to render him seized under the Fourth Amendment. Because he has asserted that his seizure was based on false information provided by Ball and Steadman, he has alleged a constitutional violation — an unreasonable seizure, so the first prong of Siegert is satisfied.
Under the second prong of Siegert, we must decide whether it was clearly established, when Evans was seized, that the summons and liberty restrictions to which he was subject constituted a seizure. We conclude that the law at the time of Evans's seizure was not clearly established to that effect.
This circuit has never considered the question whether a summons plus additional liberty restrictions can constitute a seizure, and we have expressly declined to answer the question whether a summons, standing alone, is a seizure. See Nesmith, 715 F.2d at 196. Although one Justice has opined on the subject,
Moreover, other courts
Evans's other purported allegation of a clearly established constitutional violation — his claim that Ball and Steadman violated his "right to be free from a prosecution not based on probable cause"—also fails to abrogate qualified immunity. A plaintiff attempting to state a claim under 42 U.S.C. § 1983 for prosecution unsupported by probable cause must establish, as with a common law malicious prosecution claim, that the prosecution terminated in his favor. See Brummett v. Camble, 946 F.2d 1178, 1183 (5th Cir.1991).
Evans thus does not allege a clearly established constitutional violation, because the prosecution did not terminate in his favor. Because he has alleged no violation of a clearly established constitutional right, he is unable to overcome the defense of qualified immunity, and the district court correctly granted summary judgment.
There is, however, no clearly established constitutional right to be free from a prosecution that is unsupported by probable cause but that does not rise to the level of malicious prosecution. First of all, the text of the Fourth Amendment does not refer to any right to be free from prosecutions not supported by probable cause. It states that "no Warrants shall issue, but upon probable cause," but there is a difference between a warrant unsupported by probable cause and a prosecution in the absence of probable cause. Indeed, there was no warrant (or arrest) in this case; Evans was summoned to court. Hence, the text of the Fourth Amendment does not support the proposition that a prosecution not based on probable cause is a constitutional violation.
That proposition also lacks support in our caselaw. We have held that malicious prosecution may be a constitutional violation, but only if all of its common law elements are established, including termination in favor of the accused. See Brummett, 946 F.2d at 1183. In Wheeler v. Cosden Oil & Chem. Co., 734 F.2d 254 (5th Cir.1984), we did state that "there is a federal right to be free from bad faith prosecutions," id. at 258 (quoting Shaw v. Garrison, 467 F.2d 113, 120 (5th Cir.1972)), and we defined bad faith as "without probable cause." Id. A close reading of that case, however, indicates that we meant only to be recognizing a federal right to be free from malicious prosecution.
The issue before the Wheeler court was whether malicious prosecution could form the grounds for a § 1983 action, and while the language quoted above suggests that a prosecution unsupported by probable cause (but not involving all the elements of malicious prosecution) would violate the Constitution, we did not so hold. In fact, we noted that other circuits agreeing with us that there is a § 1983 action based on malicious prosecution "have implicitly recognized such a cause of action in decisions holding that termination of the allegedly wrongful state proceedings in favor of the federal plaintiff is as essential to such a claim under § 1983 as it would be at common law." Id. at 260 n. 14. Wheeler, then, should not be read as recognizing a constitutional right to be free from prosecutions that are unsupported by probable cause but that do not rise to the level of malicious prosecution. In addition, in Brummett we questioned whether Wheeler's reasoning on "the implied constitutional right to have charges brought only upon probable cause . . . would survive the Supreme Court's recent attempts to predicate constitutional rights on a more textual footing." Brummett, 946 F.2d at 1181 (citing Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)).
Finally, the Supreme Court has noted that "the most expansive approach" any circuit has taken in finding a constitutional violation in a prosecution unsupported by probable cause still maintains that the elements of the constitutional cause of action "are the same as the common-law tort of malicious prosecution." Albright, 510 U.S. at 271 n. 4, 114 S.Ct. 807. Taken together, these observations demonstrate that Evans did not have a clearly established constitutional right "to be free from a prosecution that is not based upon probable cause." He has a right to be free from malicious prosecution, but to demonstrate a violation of that right, he would have to demonstrate all the elements of malicious prosecution, including termination in his favor.