I. Introduction
    Many of you have probably heard rumblings about having to sign affidavits for the District Attorney's (DA's) Office when you make an arrest. Officers have expressed some concern to me about swearing, in an official document, that a story told to them by someone else is true. Although this issue is far from settled, I can advise you that such concerns are overblown, assuming you word the affidavit correctly.
II. The McCormick Case
    The case that caused this uproar is McCormick v. Board of County Commissioners of Shawnee County, Kansas, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 85,499, filed 3/30/2001). In McCormick, a victim complained she was being stalked by Dale McCormick. The complaints were investigated and a detective forwarded reports to the DA's office without making an arrest. Based on the detective's reports, Assistant District Attorney Cindy Long signed a probable cause affidavit and filed a complaint charging McCormick with stalking. A warrant issued for McCormick's arrest. On September 28, 1999, the DA's office dismissed the case and apparently recalled the warrant, but it is unclear if appropriate authorities were notified that the warrant was recalled. The next day, on September 29, 1999, University of Kansas Police Officers detained McCormick for about an hour, thinking he had a felony arrest warrant. They apparently released him when they could not confirm the warrant. The following day, on September 30, 1999, the DA's office refiled the case against McCormick as a misdemeanor stalking case and obtained an arrest warrant in that case. McCormick was detained on suspicion of a warrant on the one day on which there was no active warrant for his arrest.
    McCormick sued various people, including Cindy Long, for false arrest, claiming that she has signed a false stalking affidavit and complaint. McCormick claimed that Long had facts at her disposal showing that the alleged victim was lying, and she deliberately excluded them from her affidavit. The district court granted Long's motion for dismissal of McCormick's false arrest complaint for failure to state a claim for which relief could be granted. The district court held that Long had absolute prosecutorial immunity for her actions as a prosecutor. McCormick appealed.
    The Kansas Court of Appeals reversed district court's ruling as to Long. It held that Long had prosecutorial immunity for filing the complaint, but only qualified immunity for signing the probable cause affidavit, noting that "it is a law enforcement officer who typically attests to facts in an affidavit." Turning to whether Long was entitled to qualified immunity, the court held a factual issue was present (whether officers relied upon an arrest warrant in detaining McCormick) that could not be answered by reference to McCormick's petition. When ruling on a motion to dismiss, the court has to assume all the facts stated in the plaintiff's petition are true. Because McCormick alleged Long made false statements and omitted exculpatory information in her affidavit, the district court had to assume those claims were true, and if true, constituted a violation of McCormick's Fourth Amendment rights.
    Qualified immunity protects public officials for discretionary decisions, and application of the doctrine means that those public officials are immune from lawsuits for damages unless they knowingly violate a constitutional right of which a reasonable person would have known, and which right was clearly established at the time of the alleged violation. In short order, the court determined that signing a false affidavit is clearly illegal and violates a person's Fourth Amendment rights, and this right was clearly established when Long signed the affidavit. The Court stated that when Long personally attested to the truth of statements in an affidavit, she stepped outside her role as a prosecutor and became a complaining witness in the case. Ethical rules prohibit lawyers from acting as both a lawyer and a witness in the same case. Thus, the Court of Appeals held that Long was not entitled to qualified immunity, reversed the decision as to her, and remanded the case for further proceedings.
    Although McCormick will bear the burden of proving that statements in Long's affidavit were false, if he provides proof that a reasonable juror could believe those statements were false, Long will have to successfully establish that probable cause for McCormick's arrest existed independent of any false statements in the affidavit and including any alleged material exculpatory information that should have been, but was not included in the affidavit. See State v. Olson, 11 Kan.App.2d 485, 490-91, 726 P.2d 1347 rev. denied 240 Kan. 805 (1986); State v. Ratzlaff, 255 Kan. 738, 753, 877 P.2d 397 (1994). This could be a heavy burden for Long, and if there are any disputed facts on these issues after Long files a motion for summary judgment, she will have to go before a jury and convince them of her position.
III. McCormick's Effect on Law Enforcement Officers in Shawnee County
    What does this mean to police officers? As noted above, law enforcement officers, not prosecutors, typically attest to facts in an affidavit. Kalina v. Fletcher, 522 U.S. 118, 130 n. 16, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). Police officers have always had qualified immunity (not absolute prosecutorial immunity) when making discretionary decisions such as when to arrest, and such decisions are usually based on what you are told by others and your own independent police investigation. This does not mean that you have to swear that what someone else told you is true. What it means is that you have to swear that someone said it was true, and based on your independent investigation, there is a fair probability that it is true.
    That is as it should be. Law enforcement officers, not prosecutors, are the ones present at the scene of a crime. Law enforcement officers, not prosecutors, have the chance to interview witnesses, make credibility determinations and perceive any physical evidence that is present. Law enforcement officers, not prosecutors, initially determine whether probable cause for an arrest exists. As the Court said in Kalina:

Testifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required "Oath or affirmation" is a lawyer, the only function that she performs in giving sworn testimony is that of a witness. Kalina, 522 U.S. at 131.

"The evidence need not be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove guilt is more probable than not. "It is only necessary the evidence lead the officer to believe that guilt is more than a possibility, and it is well-established that the belief may be predicated in part upon hearsay information." State v. Chapman, 23 Kan. App. 2d 999, 1005-1006, 939 P.2d 950 (1997).