Sham Latent‑Print Verification as Fabrication: Eleventh Circuit Denies Qualified Immunity to Forensic Examiner, Rejects a Clearly Established Right to an “Exhaustive” Investigation

Introduction

This Eleventh Circuit decision arises from the wrongful prosecution of Clemente Javier Aguirre‑Jarquin, who was convicted in 2006 of the murders of Cheryl Williams and Carol Bareis, sentenced to death, and later exonerated after post‑conviction DNA testing and multiple confessions by Samantha Williams. Following vacatur of his convictions by the Supreme Court of Florida and dismissal of charges in 2018, Aguirre sued Seminole County law enforcement actors and the Sheriff under 42 U.S.C. § 1983 and Florida tort law.

The federal claims targeted: (i) alleged fabrication of latent print evidence by latent print examiner Donna Birks; (ii) an alleged Brady suppression claim against lead investigator Robert Hemmert; (iii) malicious prosecution (Hemmert and Birks); and (iv) a constitutionally defective/biased investigation (Hemmert and lead crime scene analyst Jacqueline Grossi). He also advanced a Florida intentional infliction of emotional distress (IIED) claim against Birks, Hemmert, and Grossi. The district court denied qualified immunity on several counts and denied state‑law immunity to Hemmert and Grossi, prompting this interlocutory appeal.

The Eleventh Circuit resolves multiple immunity questions while sharply defining the interaction between forensic verification practices, due process fabrication jurisprudence, the arguable probable cause standard in malicious prosecution, and the limits of a constitutional “right to an adequate investigation.” It also addresses Florida’s sovereign immunity statute, Fla. Stat. § 768.28(9)(a), and when a jury may assess the “wanton and willful disregard” exception.

Summary of the Opinion

The Court:

• Affirms the denial of qualified immunity to latent print examiner Birks on Count I (Fourteenth Amendment fabrication of evidence). The Court holds that deliberately circumventing proper verification—such as by using a verifier one knows to be incompetent or incapable—can constitute fabrication of inculpatory forensic evidence, which was clearly established as unconstitutional.
• Reverses the denial of qualified immunity to Hemmert and Birks on Count III (malicious prosecution). After excising one forensic misstatement and including asserted omissions, the Court finds there was still arguable probable cause to seize Aguirre, entitling the officers to qualified immunity on the malicious‑prosecution claim.
• Reverses the denial of qualified immunity to Hemmert and Grossi on Count IV (constitutionally defective/biased investigation). The Court holds it was not clearly established in 2004 that due process required officers to pursue all potentially exculpatory leads in the face of inculpatory evidence absent actual, serious doubts about the suspect.
• Affirms the denial of state‑law immunity to Hemmert and Grossi on Count VII (IIED) under Fla. Stat. § 768.28(9)(a), concluding there is a triable issue as to whether their conduct could amount to a “wanton and willful disregard of human rights, safety, or property” (while finding no evidence of “bad faith” or “malicious purpose”).
• Dismisses Aguirre’s cross‑appeal (Brady claim summary judgment; Monell claim; expert exclusion) and declines pendent appellate review of several non‑immunity issues, including objections to the district court’s consideration of a 2007 investigative report about the Latent Print Unit.

Bottom line: The fabrication claim against Birks proceeds; the IIED claim against Hemmert and Grossi may proceed to a jury on the “wanton and willful” exception; the malicious prosecution and “defective investigation” § 1983 claims against Hemmert, Grossi, and Birks are barred by qualified immunity.

Analysis

Precedents Cited and Their Influence

• Fabrication and Due Process: The Court relies on a core line of cases holding that state actors violate due process by using or creating false inculpatory evidence: Schneider v. Estelle (5th Cir. 1977), Riley v. City of Montgomery (11th Cir. 1997), Jones v. Cannon (11th Cir. 1999), Rowe v. City of Fort Lauderdale (11th Cir. 2002), and the Supreme Court’s Napue v. Illinois (1959). These decisions collectively supply the clearly established principle that knowingly presenting false incriminating evidence violates the Fourteenth Amendment.
• Malicious Prosecution under the Fourth Amendment: The Court follows Thompson v. Clark (U.S. 2022) recognizing Fourth Amendment malicious prosecution, and its own Williams v. Aguirre (11th Cir. 2020) and Butler v. Smith (en banc 2023) for the framework: seizure pursuant to legal process is unconstitutional when the process is infected by deliberate/reckless misstatements or omissions material to probable cause (a Franks doctrine analogy). Paez v. Mulvey (11th Cir. 2019) and Franks v. Delaware (U.S. 1978) guide the misstatement/omission analysis and “reasonable belief in veracity” standard.
• Arguable Probable Cause and Competing Inferences: Skop v. City of Atlanta (11th Cir. 2007), Kingsland v. City of Miami (11th Cir. 2004), Gerstein v. Pugh (U.S. 1975), Baker v. McCollan (U.S. 1979), and Maryland v. Pringle (U.S. 2003) underpin the conclusion that probable cause can coexist for multiple suspects and that the existence of alternative suspects or conflicting inferences does not by itself vitiate probable cause. The Court also references a recent Eleventh Circuit formulation that exculpatory evidence defeats probable cause only if it “obviously and irrefutably” establishes the absence of probable cause (Scott v. City of Miami, 2025).
• Limits on a “Right to an Adequate Investigation”: The Court distinguishes Tillman v. Coley (11th Cir. 1989)—which required officers to resolve serious doubts about identity known to them—from a generalized duty to exhaust exculpatory leads. Patterson v. New York (U.S. 1977) and Baker v. McCollan (U.S. 1979) emphasize there is no constitutional guarantee of an error‑free or exhaustive investigation. Rankin v. Evans (11th Cir. 1998), Ortega v. Christian (11th Cir. 1996), and Kelly v. Curtis (11th Cir. 1994) shape when further inquiry is required (e.g., where evidence is facially inadequate or the exculpatory information is apparent, easily obtainable, or specifically identified by the accused).
• Florida State‑Law Immunity: Fla. Stat. § 768.28(9)(a) and Florida appellate decisions—Parker v. State Board of Regents (Fla. 1st DCA 1998), Eiras v. Florida (M.D. Fla. 2017), Richardson v. City of Pompano Beach (Fla. 4th DCA 1987), Sierra v. Associated Marine (Fla. 2d DCA 2003), and Peterson v. Pollack (Fla. 3d DCA 2020)—define “bad faith,” “malicious purpose,” and “wanton and willful disregard.” McGhee v. Volusia County (Fla. 1996), District Bd. of Trustees v. Martin (Fla. 5th DCA 1994), Ondrey v. Patterson (Fla. 4th DCA 2004), Willingham v. City of Orlando (Fla. 5th DCA 2006), Lemay v. Kondrk (Fla. 5th DCA 2006), Castellano v. Raynor (Fla. 2d DCA 1999), and Ingram v. Pettit (Fla. 1976) guide the summary‑judgment posture and the jury’s role in borderline “more than gross negligence” cases.
• Appellate Jurisdiction: Mitchell v. Forsyth (U.S. 1985) permits immediate appeals of denials of qualified immunity on issues of law; Butler v. Gualtieri (11th Cir. 2022) recognizes interlocutory appeals under § 768.28(9)(a); Swint v. Chambers County Commission (U.S. 1995) and related circuit authority cabin pendent appellate jurisdiction to rare, inextricably intertwined issues.

Legal Reasoning

1) Fabrication of Evidence by a Forensic Examiner (Count I)

The Court identifies a two‑step process for a latent print “positive identification”: (i) an examiner’s comparison of a suitable latent print to known exemplars; and (ii) independent verification by a competent, qualified examiner. Reporting a “positive identification” without proper verification is not simply an error or overconfidence; it omits a required step that gives the finding its forensic reliability. The Court reasons that intentionally using an incompetent verifier—and doing so to avoid a proper verification—amounts to fabricating a forensic “result,” analogous to representing a drug test as positive when no confirming test actually exists.

On the clearly established prong, the Court invokes long‑standing due process principles condemning the creation or knowing use of false inculpatory evidence (Schneider, Riley, Jones, Rowe, Napue). Those general statements, applied with “obvious clarity,” gave fair notice that a deliberate sham verification to create a purportedly “positive” latent print match is unconstitutional. Because record evidence (viewed in Aguirre’s favor) would permit a jury to find that Birks selected a verifier she considered incompetent, had “exceptions” to verification, and leveraged those “exceptions” to get results she could not otherwise legitimately report, the Court affirms the denial of qualified immunity. The fabrication claim against Birks proceeds to trial.

2) Malicious Prosecution and Arguable Probable Cause (Count III)

The Court applies the warrantless‑arrest followed by probable‑cause‑finding framework, focusing on the arrest report as the operative “probable cause affidavit” for malicious‑prosecution analysis. Under Paez, Franks, and Butler v. Smith, the Court “cures” the affidavit by excising material misstatements made intentionally or recklessly and including material omissions—then assesses whether arguable probable cause remained. Three key rulings:

• Misstatements excised: The Court excises the footwear‑impression statement because the crime scene analyst failed to disclose an individualizing artifact (a twig lodged in Aguirre’s shoe tread) that made any positive match untenable. Omitting that context rendered the “similarity” conclusion misleading.
• Misstatements not excised: The Court declines to excise statements tying the bloodied Sysco knife found in Aguirre’s yard to (a) missing Sysco chef’s knives at his workplace and (b) a missing white‑handled kitchen knife from his shared residence. The affiant and transmitting officers reasonably believed in the veracity of those links based on contemporaneous statements, recordings, and searches.
• Omissions included (alternative suspect evidence): The Court includes twelve omissions about Samantha Williams (e.g., mental health issues, a fight with her mother the night before, initial false alibi) and her boyfriend. But the presence of an alternative suspect does not, by itself, negate probable cause; probable cause tolerates conflicting inferences and can coexist for multiple suspects.

Even after curing, the Court finds ample grounds for arguable probable cause: a likely murder weapon with blood in Aguirre’s yard tied to places he lived and worked; Aguirre’s intoxication and memory lapse during the probable time of the murders; his history of entering the victims’ home at night uninvited; heavy blood on his clothing and shoes (reaching his underwear), hidden after the fact; and lies followed by piecemeal admissions once confronted. That sufficed for a reasonable officer to believe probable cause existed. The Court therefore reverses the denial of qualified immunity to Hemmert and Birks on the malicious‑prosecution claim.

3) No Clearly Established Right to an “Exhaustive” Investigation (Count IV)

Aguirre argued that Hemmert and Grossi violated due process by failing to pursue exculpatory leads and performing a biased, inadequate investigation. The Court rejects the district court’s broad abstraction (that officers must “eliminate doubts and inconsistencies”), holding the clearly established law in 2004 did not impose a constitutional duty to pursue all potentially exculpatory leads when officers do not actually harbor serious doubts about the suspect and there is facially adequate inculpatory evidence.

Distinguishing Tillman (which turned on known identity doubts), the Court emphasizes controlling authority: there is no constitutional right to an error‑free or exhaustive investigation (Patterson; Baker). Officers must conduct a “reasonable” investigation—e.g., when exculpatory facts are apparent, easily obtainable, or specifically identified—but not exhaust every lead to eliminate all doubt. Because no case law in 2004 clearly established the broader duty asserted here, Hemmert and Grossi are entitled to qualified immunity on Count IV.

4) Florida State‑Law Immunity and the “Wanton and Willful Disregard” Exception (Count VII)

Under § 768.28(9)(a), officers are immune for acts within the scope of employment unless they acted:

• in bad faith (akin to actual malice),
• with malicious purpose (ill will, evil intent), or
• in a manner exhibiting wanton and willful disregard of human rights, safety, or property (worse than gross negligence).

The Court finds no record evidence of “bad faith” or “malicious purpose” (conclusory allegations of ethnic bias are insufficient). But it affirms the district court’s denial of immunity under the third exception, holding a jury could reasonably find “worse than gross negligence” given (viewed favorably to Aguirre):

• Hemmert’s failure to meaningfully investigate Samantha Williams despite known red flags (diagnosed intermittent explosive disorder; prior Baker Act detentions; a fight with her mother; an injured arm); and
• Grossi’s failure to submit any of approximately 150 blood samples for testing, to document/assess certain Sysco‑related items, to analyze hair/fiber evidence, or to document a washing‑machine search that could corroborate or impeach accounts.

Given Florida’s reluctance to slice negligence into degrees at summary judgment, whether this conduct crosses the “wanton and willful” line is for the jury. The IIED claim thus survives as to Hemmert and Grossi.

5) Appellate Jurisdiction and Pendent Appellate Issues

• The Court exercises interlocutory jurisdiction over denials of qualified immunity (Mitchell v. Forsyth) and over the § 768.28(9)(a) immunity denials (Butler v. Gualtieri).
• It limits itself to legal questions; where appeals devolve into sufficiency‑of‑the‑evidence disputes, interlocutory review is unavailable.
• It declines pendent appellate jurisdiction over: (a) the district court’s use of a 2007 investigative report about the Latent Print Unit at summary judgment; (b) Birks’s request for merits summary judgment on Counts I and VII; (c) Hemmert and Grossi’s request for merits summary judgment on Count VII; and (d) Aguirre’s cross‑appeal of the Brady ruling, Monell ruling, and an expert exclusion. None were inextricably intertwined with the immunity questions.

Impact

• For forensic laboratories and examiners: The Court’s articulation that “positive” latent print identifications require proper, competent verification—and that deliberate circumvention can constitute fabrication—places verification practice squarely within constitutional scrutiny. Selecting a verifier known to be incapable or unqualified exposes the examiner to personal liability.
• For investigators: The decision narrows due process exposure for “inadequate investigation” claims absent clearly established law requiring exhaustive pursuit of exculpatory leads. However, the state tort risk remains: significant investigative omissions can be tried to a jury under Florida’s “wanton and willful disregard” exception, even where arguable probable cause exists.
• For malicious‑prosecution claims in the Eleventh Circuit: The opinion reinforces a rigorous Franks‑style cleaning of affidavits, clarifies when technical forensic conclusions may be “recklessly” presented without necessary reliability context, and underscores that probable cause can exist simultaneously for multiple suspects. Alternative suspect evidence, standing alone, generally does not extinguish probable cause.
• For affidavit drafters and forensic reporters: Where a forensic conclusion has known reliability constraints (e.g., absence of individualizing features), the affiant or analyst should disclose that context so the magistrate can independently assess reliability. Omitting such context can render a statement recklessly misleading.
• For Florida public entities and officers: On summary judgment, “bad faith” or “malicious purpose” exceptions require evidence of subjective ill will; conclusory bias allegations are not enough. But investigative decisions that a jury could deem “worse than gross negligence” may defeat state‑law immunity.

Complex Concepts Simplified

• Qualified Immunity: Shields officials from suit unless (1) their conduct violated a constitutional right, and (2) that right was clearly established at the time. Courts can resolve either prong first.
• Clearly Established: Not a general maxim; requires precedent or principles that would make the unlawfulness apparent to every reasonable officer in similar circumstances.
• Fabrication of Evidence: Creating or knowingly presenting false inculpatory evidence (including by short‑circuiting required forensic verification) violates due process.
• Malicious Prosecution (Fourth Amendment): Focuses on seizures “pursuant to legal process” (e.g., a probable-cause finding). If the legal process rests on deliberate/reckless misstatements or omissions material to probable cause, the seizure is unconstitutional.
• Franks Misstatement/Omission: A statement is actionable if the affiant (or transmitting officer) lacked a reasonable belief in its veracity, or omitted contextual facts that made the affidavit misleading. Courts cure affidavits by excising misstatements and adding omissions, then re‑assess probable cause.
• Arguable Probable Cause: A qualified immunity standard; asks whether a reasonable officer could believe probable cause existed, even if it later turns out to be debatable. Probable cause can coexist for multiple suspects.
• Pendent Appellate Jurisdiction: An appellate court’s narrow discretion to review non‑appealable issues if inextricably intertwined with an appealable immunity decision or necessary to ensure meaningful review. Rarely invoked.
• Florida § 768.28(9)(a) Immunity: State actors are immune unless they act in “bad faith” (actual malice), with “malicious purpose” (ill will), or with “wanton and willful disregard” (conduct worse than gross negligence). Whether conduct crosses the “wanton and willful” threshold often presents a jury question.

What Survives and What Is Out

• Proceeds:
  • Count I (fabrication) against Birks — no qualified immunity.
  • Count VII (IIED) against Hemmert and Grossi — no state-law immunity under the “wanton and willful” exception at summary judgment (triable facts).
• Barred by Qualified Immunity:
  • Count III (malicious prosecution) against Hemmert and Birks.
  • Count IV (defective/biased investigation) against Hemmert and Grossi.
• Previously resolved by the district court (and not revived on appeal):
  • Count II (Brady) — summary judgment for Hemmert (cross‑appeal dismissed).
  • Counts V and VI (Monell) — summary judgment for the Sheriff (cross‑appeal dismissed).

Conclusion

This published decision lays down two important waypoints. First, it concretizes due process fabrication doctrine in the forensic context: a “positive” latent print identification requires bona fide, competent verification; intentionally circumventing that requirement can be actionable fabrication, defeating qualified immunity. Second, it clarifies the limits of an asserted constitutional right to an “adequate” investigation: absent clearly established authority and actual, serious doubts harbored by the officers, due process does not compel exhaustive pursuit of all exculpatory leads when inculpatory evidence supports probable cause.

On malicious prosecution, the Eleventh Circuit emphasizes that arguable probable cause is a forgiving standard: courts cleanse probable‑cause affidavits of intentional/reckless defects but still credit reasonable, contemporaneously‑supported inferences. Alternative suspects do not alone negate probable cause, which can exist for more than one person at a time. Yet, the opinion also signals care in forensic reporting—omitting reliability constraints (like an individualized tread artifact) may render statements recklessly misleading.

Finally, Florida tort law supplies an independent accountability track: even where federal claims are qualified‑immunity‑barred, significant investigative omissions may reach a jury under § 768.28(9)(a)’s “wanton and willful disregard” exception. Going forward, agencies and forensic units should reinforce verification rigor, documentation of reliability constraints, and contemporaneous rationales for investigative choices. Litigants should heed the opinion’s careful line‑drawing: fabrication claims anchored in deliberate verification end‑runs may proceed; broad “inadequate investigation” constitutional theories generally will not.