3d Cir. Model Jury Instr. (Civil) 4.12.3

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Last updated March 2026

his affidavits ‘with [a] high degree of awareness of their probable falsity’ ” (quoting Garrison v. 1

Louisiana, 379 U.S. 64, 74 (1964))); United States v. Brown, 631 F.3d 638, 650 (3d Cir. 2011) 2

(finding no clear error in district court’s finding that federal agent who prepared affidavit in support 3

of warrant application based on conversation with state trooper about trooper’s investigation acted 4

with reckless disregard when he included a paragraph in the affidavit that lacked any support in 5

the fruits of the trooper ’s investigation); Goodwin v. Conway, 836 F.3d 321, 328 (3d Cir. 2016) 6

(rejecting the argument that a booking sheet that showed a date of arrest shortly before the day of 7

the crime and had a blank line for date of release was exculpatory, reasoning that because the 8

booking sheet was undated, it was impossible for the detectives to infer that the plaintiff was still 9

incarcerated on the day of the crime, and concluding that the booking sheet did not trigger a duty 10

to investigate further); Dempsey v. Bucknell University, 834 F.3d 457, 472- 73 (3d Cir. 2016) 11

(holding that various information supporting the arrestee’s version of the events in a college dorm 12

should have been included in the affidavit). 13

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“To determine the materiality of the misstatements and omissions, ” the decisionmaker 15

must “excise the offending inaccuracies and insert the facts recklessly omitted, and then determine 16

whether or not the ‘corrected’ warrant affidavit would establish probable cause.” Wilson, 212 F.3d 17

at 789 (quoting Sherwood, 113 F.3d at 400); see also United States v. Savage , 85 F.4th 102, 127 18

(3d Cir. 2023) (concluding that even if the challenged statements were omitted, “the affidavit 19

would nonetheless establish probable cause”); Reedy v. Evanson, 615 F.3d 197, 211- 23 (3d Cir. 20

2010) (applying this test). In Dempsey v. Bucknell University, 834 F.3d 457, 470 & n.8 (3d Cir. 21

2016), the court clarified that this analysis requires district courts to literally “perform a word-by-22

word reconstruction of the affidavit” unless that is impracticable, and noted that “where additional 23

information in the record bears on the materiality of the recklessly omitted information to probable 24

cause, that additional information also should be included in the reconstructed affidavit.” 25

(Dempsey also explains how the summary judgment standard interacts with probable cause. Id. at 26

468.) In Andrews v. Scuilli , 853 F.3d 690 (3d Cir. 2017), the district court decision predated 27

Dempsey. In the interest of judicial economy, the court of appeals reconstructed the affidavit itself, 28

and decided that while misrepresentations as to the perpetrator’s physical appearance (hair color 29

and age estimates) were not material, misrepresentations regarding the description of cars were 30

material. The victim had described her assailant’s car as a red, four -door sedan and provided a 31

partial license plate. The next day, she saw a car that she thought was the same car. It was a red, 32

three-door coupe, and the full license plate was quite different from the one she provided the day 33

before. The affidavit seeking an arrest warrant for the owner of the car that she saw on the second 34

day omitted the partial license plate from the description of the car she saw on the first day, failed 35

to mention that the car she saw on the second day was a three door-coupe, and instead called it the 36

“same vehicle described above.” As a result, the issuing judge faced an affidavit that described the 37

car on day two as the “same vehicle” as the car on day one, but did not know about important 38

discrepancies that, unlike age estimates, are “irreconcilable differences that are not easily or 39

reasonably explained.” Id. at 703. See also United States v. Stanford, 75 F.4th 309 (3d Cir. 2023) 40