The rule in this circuit is that a Louisiana district attorney, sued in his or her official capacity, is a local government official who is not entitled to Eleventh Amendment immunity. Mairena v. Foti, 816 F.2d 1061, 1064 n.1 (5th Cir. 1987), cert. denied, 484 U.S. 1005 (1988); see also Hudson v. City of New Orleans, No. 96-30964, 1999 WL 249147, at *3 (5th Cir. May 13, 1999) (clarifying why the Eleventh Amendment does not immunize the Orleans Parish District Attorney's Office). It is a firm rule of this circuit that in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court, a panel cannot overrule a prior panel's decision. See Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir.), cert. denied, 119 S. Ct. 413 (1998). We are bound by the decision in Mairena because it has not been overruled.

Burge's suit against the District Attorney in his official capacity for failure to promulgate appropriate policies and procedures for his office is not subject to a defense of absolute immunity; and (2) based on the evidence of record viewed in the light most favorable to Burge, a reasonable trier of the facts could conclude that the District Attorney in his official capacity is liable to Burge in damages under § 1983 for his constitutional injury due to the Brady violation caused by the District Attorney's failure to promulgate and implement policies, training and procedures to assure that all evidence favorable to an accused obtained by the Sheriff's Office is conveyed to the District Attorney and disclosed to the defense when the evidence is material either to guilt or to punishment. We agree that the District Attorney may not invoke an absolute prosecutorial immunity privilege in an in official capacity suit for the reasons stated in the foregoing section, but we conclude that the summary judgment must be affirmed because the evidence of record does not reasonably meet the requirements for § 1983 liability under Monell and City of Canton v. Harris.

the torts of a district attorney's employees under state law is the office of the district attorney as an independent local government entity. ⁽⁹⁾ In a suit under Louisiana tort law against a sheriff, seeking to hold him vicariously liable for the tort of his employee or deputy, and not because of the sheriff's own negligence, the sheriff in his official capacity is the appropriate governmental entity on which to place responsibility for the torts of a deputy sheriff. See Jenkins v. Jefferson Parish Sheriff's Office , 402 So.2d 699, 671 (La. 1981); accord Riley v. Evangeline Parish Sheriff's Office , 637 So.2d 395 (La. 1994).

The "official policy" requirement may be met in at least three different ways: Id. at 406-08. (1) "[W]hen the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy." Id. at 417 (Souter, J., dissenting). See, e.g., Monell, 436 U.S. at 660-61 (city agencies issued a rule requiring pregnant employees to take unpaid leaves before any medical need arose); (2) Where no "official policy" was announced or promulgated but the action of the policymaker itself violated a constitutional right. Bryan County, 520 U.S. at 417-18 (Souter, J., dissenting). See Owen v. City of Independence , 445 U.S. 622 (1980) (city council allegedly censured and discharged an employee without a hearing); Newport v. Fact Concerts, Inc. , 453 U.S. 247 (1981) (city council canceled a license permitting a concert following dispute over the content of performance); Pembaur , 475 U.S. at 485 (county prosecutor, acting as county's final decision maker, directed county deputies to forcibly enter plaintiff's place of business to serve capiases upon third persons); and (3) Even when the policymaker fails to act affirmatively at all, if the need to take some action to control the agents of the local governmental entity "is so obvious, and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights, that the policymake[r]. . . can reasonably be said to have been deliberately indifferent to the need." Canton, 489 U.S. at 390 ("Only where a municipality's failure to train its employees . . . evidences a 'deliberate indifference' to the rights of its inhabitants can . . . a shortcoming be . . . city 'policy or custom'. . . actionable under §1983.").

Unlike various government officials, when sued in their personal or individual capacities, municipalities do not enjoy immunity from suit -- either absolute or qualified -- under § 1983. See Leatherman, 507 U.S. at 166; Owen 445 U.S. at 650. Personal- or individual-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Graham , 473 U.S. at 165. "Official-capacity suits, in contrast, 'generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Id. (quoting Monell , 436 U.S. at 690).

Accordingly, the Sheriff's assertion that his office cannot be held liable under § 1983 as interpreted by Monell and its progeny, because the evidence does not reasonably support a finding that his policy or custom caused a violation of federal law does not rank as an immunity from suit. "Instead, the plea ranks as a 'mere defense to liability.'" Swint , 514 U.S. at 42 (quoting Mitchell , 472 U.S. at 526).

Claims of qualified immunity are analyzed under a two-part framework. Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th Cir. 1994). The court first determines whether the plaintiff has asserted a violation of constitutional right at all. Id. This court uses "currently applicable constitutional standards to make this assessment." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993). Then the court assesses whether that right was clearly established such that a reasonable person in the defendant's position would have known that his conduct violated that right. See Siegert v. Gilley, 500 U.S. 226, 231-32 (1991).

Orders denying qualified immunity are based on an issue of law when: (1) they decide whether the legal right allegedly violated by the official was clearly established at the time of the challenged action; or (2) in cases in which the district court has denied summary judgment for the official on the ground that even under the defendant's version of the facts, the defendant's conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took. Mitchell, 472 U.S. at 528.

In sum, we possess no jurisdiction over a claim that a plaintiff has not presented enough evidence to prove that the plaintiff's version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established law accepting the facts as the district court viewed them.

In its order denying immunity, the district court was detailed and precise in articulating the genuine issues of fact that precluded summary judgment. For the following reasons, we conclude that this court lacks appellate jurisdiction to review the district court's denial of Hale's summary judgment motion seeking qualified immunity from Burge's § 1983 claims.

Brady held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. In United States v. Bagley , 473 U.S. 667, 682 (1985), the Court "held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Kyles v. Whitley , 514 U.S. 419, 433 (1995) (quoting Bagley, 473 U.S. at 682). " Bagley materiality is defined 'in terms of suppressed evidence considered collectively, not item-by-item.'" Id. at 436. Accordingly, the definition of Bagley materiality in terms of the cumulative effect of suppression leaves the government with a degree of discretion, and it imposes a corresponding burden. Id. at 437.

Hale's motion for summary judgment must be evaluated in light of the evidence of his other relevant suppressions of evidence.

In short, the issue presented by Hale's motion for summary judgment and the evidence of record is the existence or non-existence of a triable issue of fact about Hale's intent, which is the kind of factual controversy that is not immediately reviewable. See Johnson, 515 U.S. at 316. ⁽¹²⁾ Therefore, this court lacks jurisdiction over Hale's appeal of the court's denial of qualified immunity on Burge's § 1983 Brady claim.

To establish a constitutional claim for false arrest, the plaintiff must prove that the police officer lacked probable cause to arrest him. . . . The presence or absence of probable cause is a material question of fact in dispute, as Detective Hale knew at the time of the first trial that the one witness who could identify Burge as having been with the victim shortly before his murder could not testify as to that fact the day following the murder. While it is certainly possible, indeed perhaps likely, that the factfinder would conclude that there was sufficient evidence to meet the probable cause standard as to the arrest of Burge, such a determination as a matter of law based upon disputed facts is not appropriate in a summary judgment ruling.

Hale argues that there was sufficient evidence to meet the probable cause standard needed for the arrest of Burge, i.e., that Hale had knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. See Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979); Greer v. Turner, 639 F.2d 229, 232 (5th Cir. Unit B Mar. 1981).

Burge and Hale dispute underlying historical facts material to probable cause: (1) whether Burge had contact with Frierson after midnight on the day of the murder; (2) whether Burge gave inconsistent statements to the police; and (3) whether Burge had a motive for killing Frierson.

based on the present disputed state of factual development, it is not now possible to conclude as a matter of law -- considering the conflicting evidence in a light most favorable to Burge -- that Hale acted in an objectively reasonable manner in arresting Burge on October 24, 1980. See Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993). In such case, this court lacks appellate jurisdiction over an appeal from denial of summary judgment. See id. at 435-36; Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994).

In examining Burge's claim that Hale violated his civil rights arising under the Louisiana Constitution, the district court found that "[b]ecause there are allegations that . . . Hale was not acting in good faith, but intentionally, in depriving plaintiff of his constitutional rights, qualified immunity for state constitutional violations must be denied."

Therefore, we are persuaded that Louisiana law insulates government officials entitled to qualified immunity from liability and the burden of suit, as well as from judgment for damages, so that orders premised on the denial of qualified immunity in actions based on Louisiana constitutional violations are appealable in a federal court action to the same extent as district court orders premised on the denial of federal qualified immunity. See Cantu, 77 F.3d at 804.

We then address whether the district court's denial of Hale's motion for summary judgment on Burge's state constitutional claims on the grounds of qualified immunity "turned on an issue of law." Id. We conclude that it does not.

Whether we can exercise pendent appellate jurisdiction over Burge's ordinary state law tort claims against Hale depends on whether we have jurisdiction over Hale's appeal of the denial of qualified immunity. See Swint, 514 U.S. at 51 (pendent appellate jurisdiction is limited to questions that are "inextricably interwoven" with an issue that is properly before the appellate court"); see also Shinault v. Cleveland County Bd. of County Comm'rs, 82 F.3d 367, 370 (10th Cir. 1996), cert. denied, 519 U.S. 1078 (1997). Because we conclude that we lack jurisdiction over Hale's interlocutory appeal of the denial of qualified immunity, we cannot exercise pendent appellate jurisdiction to review Hale's state law claims of malicious prosecution, false arrest and false imprisonment. See Shinault, 82 F.3d. at 371; Sevier v. City of Lawrence, Kan., 60 F.3d 695, 701 (10th Cir. 1995) ("given our holding that we lack jurisdiction over Defendants' appeal of the district court's ruling on qualified immunity, no permissible appeal exists upon which to exercise pendent jurisdiction").

2.   ¹ In Brady v. Maryland, 373 U.S. 83, 87 (1963), the U.S. Supreme Court held that the "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution."

6.   ⁵ Monell claims are limited to those against local governmental units that are not considered part of the State for Eleventh Amendment purposes. See Monell, 436 U.S. at 691 n.54.

[N]o one doubts that police investigators

sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that "procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it." Giglio v. United States , 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Since, then, the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.

Thus, the Court held that a state prosecutor is responsible, for purposes of the criminal case, for the failure, by any other person acting on the government's behalf in the case, including the police, to disclose known, defendant-favorable evidence rising to a material level of importance.