Does a jury have to determine whether the affiant's false statements were material to the probable cause determination?

Hervey also argues that a jury should determine whether the affiant's false statements were material; in other words, could the magistrate have issued the warrant in the absence of the contested statements. At the summary judgment stage on the issue of qualified immunity, however, Hervey is not correct. ⁴ Although the practical effect of this rule is to reserve to the court the issue of the materiality of the false statements, that is the result of our decision in Branch. 937 F.2d at 1388 (at summary judgment stage, plaintiff must "establish that, but for the dishonesty, the challenged action would not have occurred.") (emphasis added). In any case, the question of qualified immunity is normally one for the court. See Hunter v. Bryant, 502 U.S. 224, 227-28, 112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991). It is only objectively unreasonable for a law enforcement officer to deliberately or recklessly misstate facts material to the probable cause determination. ⁵ This rule conserves judicial resources by allowing trials (or Franks hearings in the criminal context) only where the officer's behavior has an effect on the ultimate

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