Starting at Laviage v. Fite), a decision made last week by Judge Lynn Hughes, (S.D. Tex.) (Tex.) Houston Chronicle (Jay R. Jordan)):
Dennis Laviage is the president and chief executive officer of C&D Scrap Metal. The company buys scrap metal, then sends it overseas. The Texas Occupation Code requires that C&D report to the Texas Department of Public Safety its sales of regulated metals. C&D is required to send identical reports to the City of Houston.
C&D uses a software called “Scrap Dragon” to transmit its purchase documentation to the City of Houston. In November 2015, C&D’s reporting software occasionally failed to report purchases to the Department of Public Safety. The problem continued over several months until Sergeant Jesse Fite, from Harris County Police Department’s Metal Theft Unit discovered it. Laviage said that Fite informed him of his problems with software. He began reporting discrepancies to the Department manually.
Laviage claims that Fite’s interactions became more tense after that. Fite filed a formal complaint on Laviage’s behalf, which was reviewed by the police and ultimately dismissed. Laviage claims that the incident has strained their relationship.
Fite would compare C&D reports filed with the City of Houston to the Department’s. He discovered 24 reports which were not timely filed with the Department.
Laviage, who knew that he failed to submit reports from metal recycling entities to the Department on March 4, 2016, was taken into custody. Fite didn’t arrest Laviage. However, he had filed an affidavit in support of the arrest warrant. Laviage was found not guilty and the court exonerated him.
Fite was sued in Laviage’s name, among other reasons, for false arrest. Fite was found not to be protected by qualified immunity
Fite’s affidavit must contain enough information to permit the magistrate make an independent determination that Laviage was likely to be arrested. Fite could be liable if he made an intentional omission that results in a warrant being issued without probable cause….
Laviage has enough to say that Fite purposely wrote a misleading statement by exclusion of the software issues. Fite was also open to Laviage. Laviage was open with Fite and acknowledged his mistakes. He made every effort to rectify them. Laviage would not include the fact if it was not included.
The court can reasonably conclude that there was no probable cause for the warrant if the defendant pleads factual material.
Laviage is required to not submit the reports “intentionally” and “knowingly”. Laviage didn’t intend to hide. With the City of Houston, he filed identical substantive reports. Fite intentionally double-checked the Department’s reports against the City of Houston. Fite continued to fish despite being kept appraised by Laviage of his efforts in resolving the software issue.
The Magistrate Judge was able to draw reasonable conclusions from the evidence that Laviage didn’t “intentionally or knowingly” not report to the Department. This is the evidence that the original charge was not supported by the jury.
Fite claims he didn’t decide to pursue prosecution. The decision was made by the Assistant District attorney. The affidavit of Fite was the sole basis for his decision to pursue prosecution. Fite’s information was integral to the warrant for his arrest. Fite is liable for his omissions….