Keith A. Sylvester v. APD Inv. James Barnett, et al

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13258
____________________
KEITH A. SYLVESTER,
Plaintiff-Appellant,
versus
FULTON COUNTY JAIL,
Defendants,
APD INV. JAMES BARNETT,
#5918,
DARREN SMITH,
in their individual capacities,
Defendants-Appellees.
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2 Opinion of the Court 22-13258
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-04300-LMM
____________________
Before WILSON, J ILL PRYOR , and B RASHER , Circuit Judges.
B RASHER , Circuit Judge:
When a police officer intentionally lies or recklessly misleads
a judge to obtain an arrest warrant, the resulting arrest violates the
Fourth Amendment to the United States Constitution. Keith Syl-
vester says that he was the victim of such an arrest.
Sylvester’s mother and stepfather were found strangled and
burned to death in his mother’s home. Detective James Barnett
handled the murder investigation, eventually landing on Sylvester
as the culprit. Detective Barnett applied for and received a warrant
to arrest Sylvester, and Sylvester spent over a year in jail until the
district attorney dropped the charges. In this lawsuit, Sylvester
claims that Detective Barnett lacked probable cause when he ap-
plied for the arrest warrant because the evidence established that
the strangulations and arson occurred around 4:00 a.m., but Detec-
tive Barnett knew that Sylvester never set foot inside his mother’s
home after 9:00 p.m. the night before. Because Detective Barnett’s
warrant affidavit omitted that exonerating evidence, Sylvester be-
lieves that Detective Barnett intentionally lied to, or at least reck-
lessly misled, the state judge who issued the arrest warrant.
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22-13258 Opinion of the Court 3
The district court granted Detective Barnett summary judg-
ment. To the district court, the record did not establish that Detec-
tive Barnett knew about the exonerating information when he
wrote the warrant affidavit. The district court concluded that,
based on the totality of circumstances known to Detective Barnett
at the time of the arrest, Detective Barnett’s suspicion of Sylvester
was reasonable.
Sylvester’s appeal raises two questions. First, a legal inquiry
that we resolve today: Was Detective Barnett’s affidavit materially
false or misleading? Second, a factual dispute: Could a reasonable
jury find that any material inaccuracies resulted from intentional
or reckless misconduct by Detective Barnett, or is the only expla-
nation that Detective Barnett made some unfortunate but reason-
able mistakes?
We answer both questions in Sylvester’s favor. There were
material facts omitted from the warrant affidavit. When those
omissions are corrected, the affidavit fails to establish even argua-
ble probable cause. As to Detective Barnett’s state of mind when
he authored the affidavit, a reasonable jury could find that Detec-
tive Barnett intentionally or recklessly left out information that ex-
onerated Sylvester. And if a jury finds such misconduct, qualified
immunity will not shield Detective Barnett from liability. Accord-
ingly, we reverse the order granting Detective Barnett summary
judgment and remand for additional proceedings.
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I.
Early in the morning on July 3, 2018, the Atlanta Fire De-
partment responded to reports of a fire at the home of Deborah
Hubbard. The firefighters discovered the remains of Deborah and
her husband, Harry Hubbard, in the wreckage. Each body bore
signs of strangulation—specifically, wires wrapped around Debo-
rah’s neck and ligature marks on Harry’s neck. And fire officials
could tell that the fire was intentional, having been started from
multiple spots inside the home. An emergency fire response thus
became a murder and arson case. The Atlanta Fire Department
handled the arson investigation. Detective James Barnett of the At-
lanta Police Department led the homicide investigation, with help
from a medical examiner. Detective Barnett remained in contact
with the arson investigators and the medical examiner throughout
most of his investigation.
The majority of Detective Barnett’s investigatory work oc-
curred in the first few weeks after the fire. Over the next four
months, the flow of information slowed. Eventually, Detective
Barnett determined that he had gathered as much evidence as he
possibly could and decided to seek an arrest warrant charging his
sole suspect, Keith Sylvester—the son of Deborah and stepson of
Harry.
In support of the arrest warrant application, Detective Bar-
nett wrote an affidavit articulating a factual basis for suspecting Syl-
vester. As we will later explain, that affidavit is the focal point of
our legal analysis. So we spend time now going through the
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22-13258 Opinion of the Court 5
information Detective Barnett provided in—and, more im-
portantly, omitted from—that affidavit.
Detective Barnett’s affidavit alleges several facts that justi-
fied his suspicion of Sylvester. Sylvester was motivated to kill Deb-
orah and Harry based on an expected home insurance policy pay-
out. Some of Sylvester’s actions the day before the fire were odd.
The morning of July 2, he sent his wife, Melissa, away to visit fam-
ily. That afternoon, he purchased mothballs and rubbing alcohol,
which “could have been used to start the house fire and leave no
trace of accelerant.” Sylvester showed no signs of distress when he
learned about the fire. He drove to his mother’s house without
speeding or committing any traffic violations. His first priority
upon arriving at Deborah’s home—while firefighters were still ex-
tinguishing the flames and before anyone knew of the murders—
was to establish an alibi for the preceding hours. In the days and
weeks following the fire, Sylvester submitted to (and even initi-
ated) multiple interviews with Detective Barnett and other investi-
gators, often trying to bolster his own alibi and cast suspicion on
friends, family, and neighbors of Deborah and Harry. In one of
those voluntary interviews, a computer voice analyzer detected de-
ception.
But that is far from all the information the murder and arson
investigations uncovered. The affidavit asserts that Sylvester said
he left Deborah’s house, at the latest, at 9:00 p.m. on July 2. In fact,
Sylvester’s movements on the night of July 2 and the morning of
July 3 were captured on video—on his vehicle’s dashcam and
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security cameras at gambling establishments—and documented by
location data from his cellphone carrier. Because of this evidence,
Detective Barnett conceded in his deposition that he “had no rea-
son to doubt [Sylvester’s] location” during this period and believed
that Sylvester “was where [Sylvester] said he was[.]”
The resulting timeline of events makes it exceedingly un-
likely that Sylvester committed the murders. Sylvester was last in-
side Deborah’s home no later than 9:00 p.m. on July 2. Harry’s
niece, Nyaira Walton, told Detective Barnett that Harry was alive,
well, and on the phone with her at 9:30 p.m. that night. The foren-
sic evidence established that the murder-arson likely began with
the culprit strangling the Hubbards to a point of unconsciousness
and then setting multiple small fires in the house before leaving.
The forensic evidence further established that the strangulations
and the arson likely took place shortly before the Atlanta Fire De-
partment was alerted to the house fire. That call came at 3:56 a.m.
on July 3—seven hours after Sylvester was last inside the home and
six hours or more after Walton spoke to Harry. Thus, when Detec-
tive Barnett submitted his affidavit, a great deal of evidence tending
to exonerate Sylvester had already come to light. Yet, none of that
evidence was included in the affidavit.
Presented with some inculpatory evidence, and no exculpa-
tory evidence, a state judge concluded that there was probable
cause to arrest Sylvester. Sylvester was arrested and placed in pre-
trial detention. He launched this lawsuit while in state custody, but
the district court stayed this federal civil case to see how the state
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22-13258 Opinion of the Court 7
criminal prosecution played out. That case resolved with the Ful-
ton County District Attorney’s office dropping the charges against
Sylvester. The district attorney’s office conducted its own investi-
gation and charged a burglar for the murders and fire. After spend-
ing more than a year in pretrial custody, Sylvester was set free in
March 2020.
Upon his release from state custody, this federal lawsuit be-
gan in earnest. Sylvester sued Detective Barnett under 42 U.S.C. §
1983, alleging that Detective Barnett violated his Fourth Amend-
ment right to be free from unreasonable seizures by causing him to
be arrested and detained without probable cause. Sylvester’s the-
ory is that Detective Barnett already had in his possession all the
exculpatory information discussed above when he authored the af-
fidavit in support of the arrest warrant. The omission of that evi-
dence was so significant, Sylvester says, that the basis for the state
judge’s probable cause determination was constitutionally insuffi-
cient. And, the argument goes, a jury could find that Detective Bar-
nett either intentionally lied to the state judge or was so reckless
with the truth that he misled the state judge into thinking there was
probable cause.
Detective Barnett moved for summary judgment. He con-
tended that, based on his entire investigation at the time of Syl-
vester’s arrest, there was probable cause to suspect Sylvester. He
disclaimed knowledge of most of the allegedly exonerating infor-
mation on which Sylvester based his Fourth Amendment claim. Es-
sentially, Detective Barnett’s argument was that everything he did
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8 Opinion of the Court 22-13258
was reasonable in light of all the facts known to him at the time.
The district court agreed, concluding that the “totality of the cir-
cumstances” known to Detective Barnett in December 2018 pro-
vided probable cause and that the record contained no evidence
that Detective Barnett knew or should have known about all the
allegedly exonerating information. Accordingly, the district court
granted summary judgment to Detective Barnett and closed the
case. Sylvester timely appealed.
II.
We review a grant of summary judgment de novo. Sunbeam
Television Corp. v. Nielsen Media Rsch., Inc., 711 F.3d 1264, 1270 (11th
Cir. 2013). Summary judgment is proper if the movant shows that
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ.
P. 56(a)). The summary judgment record is viewed in the light
most favorable to the non-moving party, and all reasonable infer-
ences must be drawn in favor of the non-moving party. Id.
III.
The Fourth Amendment prohibits “unreasonable . . . sei-
zures.” U.S. Const. amend. IV. That prohibition extends to state
and municipal officials, such as Detective Barnett, through the
Fourteenth Amendment’s Due Process Clause. Kerr v. City of W.
Palm Beach, 875 F.2d 1546, 1548 n.4 (11th Cir. 1989). Everyone
agrees that Sylvester was seized from the moment he was arrested
in December 2018 until he was released in March 2020. See Manuel
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22-13258 Opinion of the Court 9
v. City of Joliet, 580 U.S. 357, 359–60 (2017). So the question is
whether that seizure was “reasonable.” The reasonableness of the
seizure is governed by our “malicious prosecution” precedents be-
cause Sylvester was arrested pursuant to a warrant. See, e.g., Land
v. Sheriff of Jackson Cnty., 85 F.4th 1121, 1126 (11th Cir. 2023).
A Fourth Amendment malicious prosecution claim requires
that (1) “the legal process justifying [the plaintiff’s] seizure was con-
stitutionally infirm,” (2) the “seizure would not otherwise be justi-
fied without legal process,” and (3) “the criminal proceedings
against [the plaintiff] terminated in his favor.” Luke v. Gulley, 975
F.3d 1140, 1144 (11th Cir. 2020) (“Luke I”). Neither the second nor
the third element is at issue. The duration of Sylvester’s seizure—
more than a year—means that valid legal process was constitution-
ally required. Butler v. Smith, 85 F.4th 1102, 1112 (11th Cir. 2023);
Luke v. Gulley, 50 F.4th 90, 96 (11th Cir. 2022) (“Luke II”). And Syl-
vester’s criminal case terminated favorably to him when the district
attorney dropped the charges. Laskar v. Hurd, 972 F.3d 1278, 1285
(11th Cir. 2020). That leaves the constitutional infirmity of the legal
process that justified Sylvester’s arrest and detention.
We have held that legal process is constitutionally infirm if
the officer who provided the probable cause affidavit “intentionally
or recklessly made misstatements or omissions necessary to sup-
port the warrant.” Luke II, 50 F.4th at 95–96; see also id. (discussing
another way to establish constitutional infirmity). Capitalizing on
that holding is a two-step process for a plaintiff. The plaintiff must
first explain how any inaccuracies were material, i.e., “necessary to
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10 Opinion of the Court 22-13258
support the warrant.” Id. If the affidavit still manages to establish
probable cause for the crime charged even after correcting the de-
fendant’s purported lies, misleading statements, and omissions,
then that misconduct did not cause the plaintiff any harm. Next,
the plaintiff must create a triable issue as to the defendant’s state of
mind when authoring the affidavit. That is, there must be evidence
in the record that would allow a reasonable jury to find that the
inaccuracies in the affidavit did not result from a “reasonable mis-
take” but stemmed from intentional or reckless deception. Wil-
liams v. Aguirre, 965 F.3d 1147, 1165–66 (11th Cir. 2020). A plaintiff
that checks both boxes also overcomes qualified immunity because
we have previously held that any officer who intentionally or reck-
lessly submits an affidavit plagued by material misstatements or
omissions violates clearly established law. Butler, 85 F.4th at 1112
(citing Paez v. Mulvey, 915 F.3d 1276, 1287 (11th Cir. 2019)).
A.
Before addressing the facts here, we pause to emphasize that
Sylvester has raised a Fourth Amendment malicious prosecution
claim, not a Fourth Amendment false arrest claim. A “malicious
prosecution” claim is that an officer used a constitutionally defi-
cient legal process to effectuate an arrest—here, an allegedly defec-
tive warrant. See, e.g., Land, 85 F.4th at 1126. A “false arrest” claim
challenges as constitutionally deficient an officer’s on-the-spot de-
termination of probable cause. See, e.g., Edger v. McCabe, 84 F.4th
1230, 1236–37 (11th Cir. 2023).
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22-13258 Opinion of the Court 11
For present purposes, the most important distinction be-
tween malicious prosecution and false arrest claims is the way we
look at the factual record. See Butler, 85 F.4th at 1113. In the false
arrest context, we ask whether the totality of the circumstances
known to the arresting officer at the time of the seizure provided
probable cause to suspect the plaintiff of a crime. See Williams, 965
F.3d at 1157–58. And in that context, we do not consider evidence
that the arresting officer may have harbored ill will toward the
plaintiff; all that matters is whether an objectively reasonable of-
ficer could have made the same seizure under the same circum-
stances. See id. at 1158–62.
In a malicious prosecution case, however, the inquiry is
about the legal process that justified the plaintiff’s arrest and the
defendant’s role in that process. So we focus on “the affidavit charg-
ing the plaintiff.” Luke II, 50 F.4th at 95. We ask whether the affida-
vit that led to the arrest warrant was materially false or misleading.
And we do not care if the defendant knew about additional incul-
patory evidence that was not in the affidavit. Id. at 96.
Even though we must focus on the facts recounted in the
affidavit for purposes of assessing probable cause, the district court
and Detective Barnett erroneously invoked extrinsic inculpatory
evidence to bolster the case for an arrest. When moving for sum-
mary judgment, Detective Barnett pointed to evidence outside the
affidavit that he believed reaffirmed his suspicion of Sylvester. The
district court relied on some of that evidence when granting Detec-
tive Barnett summary judgment. But it is no response to Sylvester’s
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12 Opinion of the Court 22-13258
malicious prosecution claim that Detective Barnett could have, but
did not, present inculpatory evidence in the affidavit that estab-
lished probable cause for an arrest. Under our caselaw, Detective
Barnett cannot now “rehabilitate[]” his affidavit by resorting to ev-
idence that he never relayed to the state judge. Id. (citation omit-
ted); see also Land, 85 F.4th at 1127. For his part, Sylvester can attack
as inaccurate statements of fact that were in the affidavit and pre-
sent exculpatory evidence that was omitted from the affidavit. See
Butler, 85 F.4th at 1113.
B.
We now turn to the two issues in this appeal: (1) whether
the affidavit contained material misstatements of fact or omitted
material exculpatory evidence; and, if so, (2) whether those mis-
statements and omissions were intentional, reckless, or merely a
reasonable mistake.
1.
We begin with materiality. We remove from the affidavit
any false or misleading inculpatory statements, insert any omitted
exculpatory information, and then assess whether the corrected af-
fidavit is still able to establish at least arguable probable cause. See
Butler, 85 F.4th at 1113. Probable cause requires facts that allow “a
person of reasonable caution to believe” that “there was a substan-
tial chance” that Sylvester killed Deborah and Harry. Garcia v. Ca-
sey, 75 F.4th 1176, 1186 (11th Cir. 2023) (citations omitted). Argua-
ble probable cause exists here if “a reasonable officer” presented
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22-13258 Opinion of the Court 13
with the corrected version of Detective Barnett’s affidavit could
“reasonably but mistakenly conclude that probable cause is pre-
sent” to suspect Sylvester. Butler, 85 F.4th at 1116 (cleaned up).
Sylvester takes aim at nearly every statement of fact in the
warrant affidavit. To be sure, he makes a good case that many im-
portant statements in the affidavit are seriously misleading. But we
need not go line by line through the affidavit. Instead, we conclude
that the affidavit would not have established arguable probable
cause if it had included the full timeline of the night of the murders.
That timeline starts with a fact included in the affidavit—
Sylvester left Deborah’s house, at the latest, at 9:00 p.m. on July 2.
But the affidavit did not tell the state judge that Sylvester never
reentered Deborah’s home after that point. If Sylvester was the per-
son who strangled Deborah and Harry and set fire to the house,
then he must have done all of that by 9:00 p.m. on July 2. But the
affidavit also omits that the Hubbards were apparently alive and
well when Sylvester left the home for the last time. Detective Bar-
nett’s investigative file reflects that Harry called his niece at 9:30
p.m. on July 2 and showed no signs of distress on the call. That
phone call was not in the affidavit.
There’s more. Other evidence suggested that the Hubbards
were not strangled and the fire was not started until nearly 4:00
a.m. on July 3—at least seven hours after Sylvester was last inside
the home. The autopsies established that the Hubbards were stran-
gled, not to death, but to a state of unconsciousness and continued
breathing during the fire. That Deborah’s body still had the wires
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14 Opinion of the Court 22-13258
wrapped around her neck also meant that she remained uncon-
scious during the fire. Because a strangled person typically regains
consciousness within a short period of time, the autopsies estab-
lished that the strangulations and the fire likely occurred within a
short time of each other. Finally, the fire department’s best assess-
ment of the evidence at the scene was that the fire started shortly
before it was reported at 3:56 a.m. on July 3. None of that evidence
made it into the affidavit.
In response, Detective Barnett’s counsel argues that, per-
haps, Sylvester did not have a truly solid alibi and could have com-
mitted the crime in the early morning hours of July 3. After all, the
argument goes, Sylvester’s personal dashcam footage could have
been fabricated or otherwise altered. But this argument is refuted
by Detective Barnett himself. Detective Barnett accounted for Syl-
vester’s location not only through Sylvester’s dashcam but also
through security cameras at various gambling establishments Syl-
vester visited and through records from Sylvester’s cellphone pro-
vider. That evidence, taken together, so thoroughly corroborated
Sylvester’s alibi that Detective Barnett testified to having “no rea-
son to doubt” Sylvester’s location after he left the house by 9 p.m.
In other words, this isn’t a case in which a police officer harbored
doubts about a suspect’s alibi; instead, Detective Barnett concedes
that Sylvester was exactly where he claimed to be when he claimed
to be there.
The omission of the full timeline is material because a cor-
rected affidavit fails to establish even arguable probable cause. If
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22-13258 Opinion of the Court 15
the affidavit’s omissions are corrected, then the Hubbards were
alive for hours after Sylvester was inside the home for the last time.
And nothing in the affidavit explains how Sylvester could have
strangled the Hubbards and started a fire from inside the house
shortly before 4:00 a.m. on July 3 when he never reentered Debo-
rah’s home after 9:00 p.m. on July 2. No person of reasonable cau-
tion reading a corrected version of Detective Barnett’s affidavit
could think there was a substantial chance that Sylvester killed the
Hubbards and set fire to the house. Quite the opposite: any “rea-
sonable law officer [with knowledge of the omitted information]
would have known” that submitting the affidavit that Detective
Barnett submitted “would lead to [an arrest] in violation of federal
law.” Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997)
(quoting Haygood v. Johnson, 70 F.3d 92, 95 (11th Cir. 1995)).
2.
Sylvester has established that Detective Barnett’s affidavit
omitted material exculpatory information. Now, Sylvester must
point to evidence in the record that would allow a reasonable jury
to find that Detective Barnett intentionally lied to or recklessly mis-
led the state judge. Williams, 965 F.3d at 1165–66. Detective Bar-
nett’s state of mind is an issue of fact that, if genuinely disputed, a
jury will have to resolve. See id. When deciding whether there is
sufficient evidence that Detective Barnett acted with a culpable
state of mind, the entire summary judgment record is fair game for
both sides. And because Sylvester was the party opposing summary
judgment, we view the record in the light most favorable to him.
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Evidence of intent could include evidence that Detective
Barnett had actual knowledge of the exonerating information dis-
cussed in the preceding subsection. Actual knowledge of that infor-
mation would provide a sufficient basis for a jury to conclude that
the omissions of those facts were intentional. See Butler, 85 F.4th at
1114–17. Evidence of recklessness could include a lack of actual
knowledge. If Detective Barnett failed to learn about the exonerat-
ing information, and if a reasonable jury could find that the infor-
mation was easily discoverable, then a reasonable jury could find
that Detective Barnett’s omission of that information was due to
recklessness. See Laskar, 972 F.3d at 1282–83, 1296 (treating failure
to learn about readily available evidence as equivalent to actual
knowledge of that evidence); cf. Cozzi v. City of Birmingham, 892
F.3d 1288, 1294 (11th Cir. 2018), abrogation on other grounds recog-
nized by Garcia, 75 F.4th at 1186 n.1.
Detective Barnett’s actual knowledge of some of the just-
discussed exonerating information is beyond dispute. He agreed in
his deposition that he “had no reason to doubt [Sylvester’s] loca-
tion” during the key time period, testifying that he “believe[d] [Syl-
vester] was where [Sylvester] said he was[.]” Detective Barnett thus
knew that Sylvester never set foot back inside Deborah’s home af-
ter 9:00 p.m. on July 2. And the record is clear that he knew the
Hubbards were alive during the fire as it engulfed the home around
4:00 a.m. on July 3. During the autopsies just after the fire, the med-
ical examiner “showed [him] . . . ash and soot” in the Hubbards’
tracheas and explained to him that this evidence meant they were
“breathing during the fire.” From this actual knowledge, a
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22-13258 Opinion of the Court 17
reasonable jury could find that Detective Barnett intentionally
omitted from his affidavit that there was at least a seven-hour gap
between Sylvester leaving the house and the Hubbards’ deaths.
The record provides more evidence that Detective Barnett
intentionally or recklessly obscured the timeline in his affidavit.
During his investigation, Detective Barnett understood that the
gap between Sylvester leaving the home and the Hubbards’ deaths
in the fire was a problem for his case against Sylvester. To account
for that problem, Detective Barnett theorized that Sylvester must
have strangled the Hubbards and started a “slow burn” fire before
leaving the house by 9:00 p.m. on July 2. According to Detective
Barnett’s theory, the Hubbards remained unconscious until 4:00
a.m., when the “slow burn” fire erupted, engulfed the house, and
killed them.
To be clear, this “slow burn” theory is not presented in the
affidavit. And it has at least two serious issues, both of which would
allow a jury to find that Detective Barnett intentionally or reck-
lessly obscured the timeline when he wrote his affidavit.
The first problem with the “slow burn” theory is that it
doesn’t account for the 9:30 p.m. phone call between Harry and
Harry’s niece on July 2. If Sylvester had set the “slow burn” fire
before he left the house by 9:00 p.m., then he would also have
strangled Harry before he left. If Harry was alive, on the phone,
and showing no signs of distress, then Detective Barnett’s theory is
impossible. There is no genuine dispute that Detective Barnett
knew about the Harry-Walton phone call. In the summary
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18 Opinion of the Court 22-13258
judgment record, there is a recorded phone call between Detective
Barnett and Walton. During that call, Walton informs Detective
Barnett about her July 2 call with Harry. Detective Barnett then
asks multiple follow-up questions about the call, including to con-
firm the time it took place. A reasonable jury could thus find that
Detective Barnett intentionally omitted the phone call from the af-
fidavit because it proved, contrary to his theory, that the Hubbards
were unharmed after Sylvester was last inside the home.
The second problem with the “slow burn” theory is that a
reasonable jury could find it to be incompatible with the forensic
evidence available to Detective Barnett at the time he submitted
his affidavit. The medical examiner testified that someone stran-
gled to a state of unconsciousness like the Hubbards would remain
unconscious for, most likely, a matter of minutes, and the fire cap-
tain testified that the fire almost certainly engulfed the house
within a short time of being lit. Their testimonies make clear that,
if Detective Barnett had disclosed his “slow burn” theory to either
of them, they would have told him that his theory was inconsistent
with the evidence. But Detective Barnett did not seek their views
before submitting the warrant affidavit. Instead, months after the
arrest, Detective Barrett asked a fire investigator about his “slow
burn” theory, and that investigator told Detective Barnett that the
fire was not a “slow burn” fire.
Finally, in addition to these problems with the “slow burn”
theory, the affidavit has other arguably inaccurate or misleading
statements that provide grounds for a reasonable jury to find that
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22-13258 Opinion of the Court 19
Detective Barnett was either less than forthright or less than careful
when authoring his affidavit. For example, Detective Barnett stated
in his affidavit that “[a]rson investigators believe the [m]othballs
and alcohol” Sylvester bought the day before “could have been
used to start the house fire and leave no trace of accelerant.” But a
reasonable jury could conclude that information in Detective Bar-
nett’s investigative file proved that the mothballs were not used to
start the fire—the mothballs were discovered, in unopened boxes,
on Deborah’s kitchen counter after the fire. Likewise, a reasonable
jury could find that the arson investigators never said that alcohol
is untraceable and that the arson investigators, in fact, tested for
alcohol as a possible accelerant and did not find it.
Sylvester has carried his burden. To be clear, on this record,
we do not know who murdered the Hubbards or whether Syl-
vester was involved in some way. We answer only the question
before us and hold that a reasonable jury could find that Detective
Barnett recklessly or intentionally wrote his affidavit in a way that
misled the state judge into thinking there was probable cause to
arrest Sylvester.
IV.
The judgment of the district court is REVERSED, and this
case is REMANDED for further proceedings.
USCA11 Case: 22-13258 Document: 32-1 Date Filed: 03/11/2024 Page: 19 of 19

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