O'Connell v. Alejo

Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 16, 2021
_________________________________________
Christopher M. Wolpert
Clerk of Court
KRYSTAL O’CONNELL,
Plaintiff - Appellee,
v. No. 20-1148
(D.C. No. 1:18-CV-01359-RBJ)
MARCIA TUGGLE, former (D. Colo.)
caseworker of the Alamosa
Department of Human Services,
Defendant - Appellant,
and
HARRY ALEJO, former Alamosa
County Sheriff’s Office Sergeant;
BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF ALAMOSA,
COLORADO; ROBERT JACKSON,
Sheriff of Alamosa County,
Colorado,
Defendants.
__________________________________________
ORDER AND JUDGMENT *
__________________________________________
Before BACHARACH, BRISCOE, and EID, Circuit Judges.
___________________________________________
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2
This appeal stems from notes that a social worker made after
interviewing a woman suspected of child abuse. The social worker (Ms.
Marcia Tuggle) wrote that the woman (Ms. Krystal O’Connell) had
confessed. Ms. O’Connell denied confessing and presented evidence that
Ms. Tuggle had lied in her notes about the alleged confession. Did the law
clearly establish Ms. O’Connell’s constitutional protection from the social
worker’s fabrication of a confession in a criminal investigation? The
district court answered “yes,” as we do.
1. Ms. Tuggle allegedly fabricated a confession by Ms. O’Connell.
In 2003, Ms. O’Connell left her young son, Kyran, in the care of Mr.
Patrick Ramirez. Doctors soon diagnosed Kyran with serious brain injuries,
and he died about two months later.
The police opened an investigation. Sergeant Harry Alejo
interviewed Mr. Ramirez, who told the police that he was carrying Kyran
when he fell.
Ms. Tuggle also investigated. She interviewed Mr. Ramirez, who
repeated what he had told Sergeant Alejo. Two days later, Ms. Tuggle and
Sergeant Alejo attended doctors’ meetings and interviewed witnesses.
Sergeant Alejo first interviewed Ms. O’Connell without anyone else
in the room. Later the same day, Sergeant Alejo and Ms. Tuggle conducted
a joint interview of Ms. O’Connell. According to Ms. O’Connell, Sergeant
Alejo hurled accusations while Ms. Tuggle watched. Ms. Tuggle noted the
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responses, stating that Ms. O’Connell had admitted shaking Kyran and
slamming him on the bed. Ms. O’Connell denied saying this and presented
evidence that Ms. Tuggle had fabricated the confession.
Ms. O’Connell was ultimately convicted of child abuse resulting in
Kyran’s death. But in 2017, Ms. O’Connell’s conviction was overturned.
She then sued Ms. Tuggle for a denial of due process. The district court
denied Ms. Tuggle’s motion for summary judgment, rejecting her argument
for qualified immunity.
2. We have jurisdiction.
Ms. O’Connell moves to dismiss the appeal for lack of jurisdiction.
We deny this motion.
Appellate jurisdiction exists when a district court denies qualified
immunity based on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). The appeal turns on an issue of law because Ms. Tuggle concedes
“the most favorable view of the facts to [Ms.] O’Connell.” Appellant’s
Opening Br. at 14. Under this view, we follow the district court in
crediting allegations that Ms. Tuggle had participated in an investigation
into Ms. O’Connell, had participated in an interview with Sergeant Alejo,
and had taken notes regarding the investigation. Ms. Tuggle has also
conceded the use of her notes to deprive Ms. O’Connell of her liberty. So
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Ms. Tuggle has raised a purely legal question, triggering appellate
jurisdiction. 1
3. To determine whether the constitutional right was clearly
established, we conduct de novo review.
In exercising this jurisdiction, we conduct de novo review. Gutierrez
v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016). For this review, we apply the
same standard that governed in district court, which allows summary
judgment only if there is no genuine dispute of material fact and the
movant is entitled to judgment as a matter of law. Id. In determining the
existence of a dispute of material fact, we must view the evidence in the
light most favorable to the nonmoving party, Ms. O’Connell. Id.Ms. Tuggle moved for summary judgment based on qualified
immunity. So when viewing the evidence favorably to Ms. O’Connell, the
district court must deny Ms. Tuggle’s motion for summary judgment if
 a factfinder could reasonably find facts showing the violation
of a constitutional right and
 the right was clearly established when Ms. Tuggle engaged in
misconduct.
Id. at 900–01.
Ms. Tuggle does not contest the existence of facts showing the
violation of a constitutional right. She instead argues that the underlying
1
Ms. O’Connell also argues that we lack jurisdiction because the
assertion of qualified immunity is frivolous. Though we reject Ms.
Tuggle’s assertion of qualified immunity, her arguments are not frivolous.
4
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right had not been clearly established. A right is clearly established only if
a reasonable official would understand that the challenged conduct violates
that right. Perry v. Durborow, 892 F.3d 1116, 1122–23 (10th Cir. 2018).
Generally, a right is clear when it is apparent from controlling precedent or
the clear weight of persuasive authorities from other circuits. Id. at 1123.
But even without precedential or persuasive authorities, a right can be
clearly established when it is obvious. See Taylor v. Riojas, 141 S. Ct. 52,
53–54 (2020) (per curiam). “After all, some things are so obviously
unlawful that they don’t require detailed explanation and sometimes the
most obviously unlawful things happen so rarely that a case on point is
itself an unusual thing.” Browder v. City of Albuquerque, 787 F.3d 1076,
1082 (10th Cir. 2015) (Gorsuch, J.).
4. Ms. O’Connell had a clearly established constitutional protection
against the fabrication of evidence in a criminal investigation.
To decide whether Ms. Tuggle violated a clearly established
constitutional right, we must determine the universe of facts that we can
consider. Given the denial of summary judgment, we credit Ms.
O’Connell’s allegations as true even if our own review of the record might
suggest otherwise. Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015).
The district court credited five of Ms. O’Connell’s allegations
bearing on qualified immunity:
1. Ms. Tuggle had participated in the investigation of Ms.
O’Connell and contributed to the deprivation of her liberty.
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2. Two interviews of Ms. O’Connell had taken place. In the first
one, Sergeant Alejo had conducted the questioning alone. Then
Sergeant Alejo, Ms. O’Connell, and Ms. Tuggle went to another
room. In that room, both Sergeant Alejo and Ms. Tuggle
combined to question Ms. O’Connell.
3. Ms. Tuggle had “participated in investigatory interviews which
solicited a confession from [Ms. O’Connell].” Appellant’s
App’x vol. 5, at 1266.
4. During the second interview, with Ms. Tuggle present, Sergeant
Alejo had “asked [Ms. O’Connell’s husband] to leave and then
began to interrogate her, accusing her of lying and stating that
she [had] slammed Kyran against the wall.” Id. at 1252.
5. In her notes, Ms. Tuggle had “deliberately falsified
information” about Ms. O’Connell’s statements.” Id. at 1268.
Given these allegations, we must consider the obviousness of a
constitutional violation when Ms. Tuggle fabricated a confession of child
abuse
 while “participating in investigatory interviews”
 as she combined with Sergeant Alejo in the questioning just
after he’d accused Ms. O’Connell of child abuse.
See pp. 5–6, above.
“[A] defendant’s due process rights are implicated when the state
knowingly uses false testimony to obtain a conviction.” Pierce v. Gilchrist,
359 F.3d 1279, 1299 (10th Cir. 2004). 2 Ms. O’Connell alleges a denial of
2
We decided Pierce after Ms. Tuggle’s alleged fabrication of the
confession. But in Pierce, we were referring to what an official should
have known in 1986—roughly seventeen years before Ms. Tuggle’s alleged
fabrication of the confession. 359 F.3d at 1299.
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due process through the knowing use of false testimony. Under Ms.
O’Connell’s version of events, Ms. Tuggle could not “have labored under
any misapprehension that the knowing or reckless falsification . . . of
evidence was objectively reasonable.” Id.According to Ms. Tuggle, the constitutional violation wasn’t obvious
because she had investigated “separately” from Sergeant Alejo. Appellant’s
Opening Br. at 18. But the district court credited the allegations that Ms.
Tuggle had participated in the investigation with Sergeant Alejo, had
participated in investigatory interviews, and had fabricated reports
“subsequently used to arrest and prosecute” Ms. O’Connell. Appellant’s
App’x vol. 5, at 1266.
Ms. Tuggle knew that there was a criminal investigation of Ms.
O’Connell. 3 After all, Ms. Tuggle had watched Sergeant Alejo accuse Ms.
O’Connell of child abuse. See pp. 2, 5–6, above. And Ms. Tuggle knew that
in the criminal investigation, her agency would need to share her notes
with the sheriff’s office. Appellant’s App’x vol. 4, at 1083, 1090; see
Colo. Stat. Ann. § 19–3–304(1), (2)(m) (2003) (requiring a social worker
to report information about child abuse to the county department or local
law enforcement agency).
3
The dissent states that the district court found no relevance in Ms.
Tuggle’s knowledge and intent about the criminal investigation. Dissent at
17 n.3. But the district court never said that Ms. Tuggle’s knowledge and
intent were irrelevant.
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The dissent states that Ms. Tuggle “would not have been aware that
her notes would be used in [the] prosecution.” Dissent at 17. This
statement clashes with the district court’s ruling and even Ms. Tuggle’s
own testimony.
The district court credited Ms. O’Connell’s allegations that Ms.
Tuggle had
 seen Sergeant Alejo accuse Ms. O’Connell of child abuse,
 participated with Sergeant Alejo in questioning Ms. O’Connell,
and
 “fabricated reports from those interviews, which included
inculpatory statements made by [Ms. O’Connell] that were
subsequently used to arrest and prosecute her.”
See pp. 5–6, above; Appellant’s App’x vol. 5, at 1266.
After participating in the joint questioning with Sergeant Alejo, Ms.
Tuggle wrote this in her notes:
8
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Appellant’s App’x vol. 1, at 112. Given the supposed admission of child
abuse during the joint interview, Ms. Tuggle would obviously expect to
share her notes with law enforcement.
Ms. Tuggle elsewhere admitted that she had known that a confession
would require her office to furnish her notes to law enforcement:
Q. If you obtained a statement from somebody wherein he
admitted to taking acts that might be endangering a child
or abusing a child, would you have an obligation to give
that information to law enforcement?
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A. If it rose to the level that it could be criminal, I would be
obligated by law to make that report to law enforcement,
yes.
. . . .
Q. Okay. So when there’s a criminal investigation, you --
Social Services has to share their notes with the sheriff’s
office; is that right?
A. Yes.
Q. So you -- and you knew that -- you knew that as a matter
of course in your job as a social worker, right?
A. Yeah.
Id. vol. 4, at 1083, 1090.
From Ms. Tuggle’s own testimony, the existence of an ongoing
criminal investigation would have been obvious. And Ms. Tuggle’s own
notes reflect Ms. O’Connell’s confession to the crime of child abuse. From
the existence of the criminal investigation and the confession of child
abuse, Ms. Tuggle recognized that her office would need to share her notes
with the sheriff’s office.
So under Ms. O’Connell’s version of events, Ms. Tuggle obviously
knew—when she fabricated the confession—that her fabricated report
would go to the sheriff’s office to advance the criminal investigation.
Given that knowledge, any reasonable social worker in Ms. Tuggle’s
position would have known that lying about a confession would contribute
to the prosecution of Ms. O’Connell for child abuse. See Truman v. Orem
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City, 1 F.4th 1227, 1240 (10th Cir. 2021) (concluding that a prosecutor’s
fabrication of evidence would have constituted an “obvious” violation in
2013 “even [if] existing precedent [had] not address[ed] similar
circumstances”) (quoting District of Columbia v. Wesby, 138 S. Ct. 577,
590 (2018)) (first alteration in original). Given that knowledge, Ms.
O’Connell’s version of events would create an obvious denial of due
process. We thus affirm the denial of summary judgment to Ms. Tuggle.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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No. 20-1148, O’Connell v. Tuggle, et al.
BRISCOE, Circuit Judge, concurring in part and dissenting in part.
This is an interlocutory appeal brought by a social worker, Marcia Tuggle
(“Defendant”), from a denial of qualified immunity in a § 1983 action filed by
Krystal O’Connell (“Plaintiff”). Only for the purpose of this appeal, Defendant
concedes that she included in a social services report, and related interview notes,
fabricated statements which she attributed to Plaintiff, who was later convicted of
child abuse resulting in the death of a child.
The statements at issue which were included in Defendant’s report and related
notes are similar to the statements Plaintiff had made earlier to Sergeant Alejo and
which were included in a confession written and signed by the Plaintiff. Plaintiff was
arrested as a result of the confession she gave to Sergeant Alejo and long before
Defendant’s report and notes were subpoenaed.
Defendant asserts that she is entitled to qualified immunity as to Plaintiff’s
Fourteenth Amendment due process claim because it was not clearly established in
February 2003 that notes fabricated during the course of a social services
investigation violate a parent’s constitutional rights associated with a separate, but
related, criminal investigation. I agree. Accordingly, I would conclude Defendant is
entitled to qualified immunity, and the district court’s denial of Defendant’s motion
for summary judgment should be reversed, and the case remanded.
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I
A. Factual Background
On January 31, 2003, Plaintiff’s young son, Kyran, was diagnosed with serious
brain injuries and flown by helicopter to a hospital in Denver. That evening, Harry
Alejo, a sergeant with the Alamosa County Sherriff’s Office, interviewed Patrick
Ramirez, Kyran’s babysitter, about the events leading to Kyran’s injury. According
to Ramirez, Kyran was injured when he fell from Ramirez’s shoulders while they
were walking outside. In a later interview, Ramirez admitted to smoking marijuana
and drinking beer while caring for Kyran. On February 2, Ramirez was arrested for
having caused Kyran’s injuries. On February 3, Defendant, a caseworker with the
Alamosa County Department of Social Services, conducted a social services
investigation to address the proper care and custody of Kyran going forward. As part
of her investigation, Defendant interviewed Ramirez in jail, at which time Ramirez
reiterated his earlier statements.
On February 4, Sergeant Alejo interviewed Plaintiff with no one else present.
During that interview, Plaintiff signed a written confession, stating that she “shook
[Kyran] 2–3 times, and probably more violently than [she] meant to.” Aplt. App.,
Vol. 5 at 1252. The parties dispute the veracity and voluntariness of the written
confession, as well as the substance of Sergeant Alejo’s interview with Plaintiff.1
1
In her criminal trial, Plaintiff filed a motion to suppress her February 4
written confession and statements given to Sergeant Alejo, contending they were
coerced and involuntary. The motion was denied, and Plaintiff’s written confession
and statements were admitted at trial. See Aplt. App., Vol. 5 at 1253.
2
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Later that day, Defendant also interviewed Plaintiff. Kyran’s father and Sergeant
Alejo were also present at that interview. In Defendant’s report of her interview,
Defendant noted that Plaintiff admitted to shaking Kyran “really hard” and
“slamm[ing] him on the bed.” Id., Vol. 1 at 112. Plaintiff alleges that during the
interview, Sergeant Alejo asked Kyran’s father to leave the room, and then Sergeant
Alejo also questioned Plaintiff.
On February 5, after Ramirez had been in jail for three nights, he recanted his
earlier statements. Ramirez then claimed that he had been covering for Plaintiff, and
that Kyran had been hurt before Ramirez arrived at the house. Later that day,
Plaintiff was arrested on a warrant that had been issued pursuant to an affidavit filed
by Sergeant Alejo. Kyran later died of his injuries on March 24, 2003. Plaintiff was
subsequently charged with, and convicted of, child abuse resulting in death; her
conviction was upheld on appeal.
In August 2017, after filing a postconviction petition, Plaintiff was granted a
new trial based on ineffective assistance of counsel. The reviewing judge concluded
that Plaintiff’s trial counsel failed to pursue medical evidence that Kyran’s injuries
may have been consistent with his having fallen from Ramirez’s shoulders. The
district attorney elected not to re-try Plaintiff, the charges against her were dismissed,
and she was released from custody. At that point, Plaintiff had been incarcerated for
ten years.
3
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B. Procedural Background
In 2018, Plaintiff filed this § 1983 suit against Sergeant Alejo and Defendant,
among others. Among her claims, Plaintiff alleged that Defendant violated her
Fourteenth Amendment due process rights by fabricating evidence against her which
led to her prosecution and incarceration. Specifically, Plaintiff alleged that
Defendant fabricated inculpatory statements in a social services report and related
notes that were later subpoenaed and used in Plaintiff’s criminal case. Defendant
filed a motion for summary judgment, asserting qualified immunity against Plaintiff’s
fabrication of evidence claim. The district court concluded that Defendant was not
entitled to qualified immunity and denied summary judgment as to the fabrication of
evidence claim. The district court stated its ruling in summary:
Based on Between [sic] Snell and Franks (and, frankly, common sense), I
find that it was clearly established that a social worker, like any other
public official, cannot knowingly create false information in furtherance of
an investigation. Because [Plaintiff] alleges that [Defendant] deliberately
falsified information in her report, I find this alleged violation to be clearly
established, and that [Defendant] is not entitled to qualified immunity.
Id., Vol. 5 at 1268.
The district court granted summary judgment in favor of Defendant as to
Plaintiff’s other claims. Defendant timely appealed the district court’s denial of
qualified immunity.
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II
A. Standard of Review
We review a district court’s denial of qualified immunity de novo. Bowling v.
Rector, 584 F.3d 956, 963 (10th Cir. 2009). Our review is limited, however, to
questions of law. “[I]t is not our province to determine whether the record supports
the district court’s factual assumptions; instead, we simply take, as given, the facts
that the district court assumed when it denied summary judgment for a purely legal
reason.” Id. (internal quotations and alterations omitted). “So . . . if a district court
concludes that a reasonable jury could find certain specified facts in favor of the
plaintiff, the Supreme Court has indicated we usually must take them as true—and do
so even if our own de novo review of the record might suggest otherwise as a matter
of law.” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010).
“[W]e review summary judgment orders deciding qualified immunity
questions differently from other summary judgment decisions.” Bowling, 584 F.3d at
964. “Unlike most affirmative defenses . . . the plaintiff would bear the ultimate
burden of persuasion at trial to overcome qualified immunity by showing a violation
of clearly established federal law.” Estate of Booker v. Gomez, 745 F.3d 405, 411
(10th Cir. 2014). Thus, a defendant who asserts qualified immunity is entitled to
summary judgment, unless the plaintiff shows that a reasonable factfinder could
conclude that “(1) [the defendant] violated a federal statutory or constitutional right,
and (2) the unlawfulness of [the defendant’s] conduct was ‘clearly established at the
time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle
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v. Howards, 566 U.S. 658, 664 (2012)). Courts have discretion “in deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223,
236 (2009).
B. This Court Has Jurisdiction Over Defendant’s Interlocutory Appeal
I concur in the majority’s denial of Plaintiff’s motion to dismiss for lack of
jurisdiction. Plaintiff asserts that Defendant does not appeal a purely legal issue, but
instead seeks to “back-door” factual arguments under the guise of legal argument.
See Aple. Mot. Dismiss at 9. As a result, Plaintiff argues, Defendant’s interlocutory
appeal should be dismissed because we have no jurisdiction to review the district
court’s factual findings or to resolve factual disputes.
Federal appellate courts have jurisdiction to review only “final decisions.” 28
U.S.C. § 1291. “[A] district court’s denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final decision’ within the
meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Thus, jurisdiction is proper “over
appeals challenging the denial of a qualified-immunity-based motion for summary
judgment only if a defendant-appellant does not dispute the facts a district court
determines a reasonable juror could find but, instead, ‘raises only legal challenges to
the denial of qualified immunity based on those facts.’” Ralston v. Cannon, 884 F.3d
1060, 1067 (10th Cir. 2018) (quoting Henderson v. Glanz, 813 F.3d 938, 948 (10th
Cir. 2015)).
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For the purposes of this appeal, Defendant concedes “that [Defendant]
knowingly fabricated elements of her notes during the course of her Social Services’
child abuse investigation to include inculpatory statements made by Plaintiff.” Aplt.
Resp. Mot. Dismiss at 9; see also Aplt. Opening Br. at 14 (conceding “for purposes
of this appeal the most favorable view of the facts to [Plaintiff]”). Defendant only
challenges the district court’s legal conclusion that the law guiding her conduct was
“clearly established.” Defendant does not raise a factual challenge regarding the
conduct at issue, i.e., that she fabricated elements of her notes and report during a
social services investigation. Nor does Defendant dispute the facts that the district
court determined a reasonable juror could find. Ralston, 884 F.3d at 1067 (no
interlocutory jurisdiction to review whether there is a triable issue of fact).
Accordingly, I agree our jurisdiction is proper as we are left with only issues of law.
Plaintiff’s jurisdictional argument also appears to misunderstand Defendant’s
merits argument on appeal. Plaintiff asserts that Defendant contests the district
court’s factual findings by claiming Defendant’s “fabrication of evidence did not
occur in connection with a criminal investigation or prosecution,” and that her
“fabricated notes were not part of the criminal investigation.” Aple. Answer Br. at
27 (citing Aplt. Opening Br. at 23, 29). Yet, as Defendant’s arguments make clear,
Defendant does not dispute whether her notes were used in Plaintiff’s prosecution;
rather, Defendant only asserts that her notes were not created for use in Plaintiff’s
prosecution.
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Defendant’s argument on appeal is consistent with the district court’s
characterization of the facts. The district court similarly treated Defendant’s notes as
being initially created for the purpose of a social services investigation—not a
criminal investigation. For example, the district court found that Defendant “[did]
not dispute that she participated in an investigation into [Plaintiff].” Aplt. App., Vol.
5 at 1266. Although Defendant acknowledged that she participated in a social
services investigation, she vigorously disputed any personal involvement in a
criminal investigation. See id., Vol. 1 at 87–88. Similarly, in addressing whether the
law was clearly established, the district court relied on language in Snell v. Tunnell
indicating that using known false information to obtain a court order to search a
home is unconstitutional “even in the context of a child abuse investigation.” Id.,
Vol. 5 at 1268 (citing Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990)) (emphasis
added). Because Defendant raises a purely legal question and does not challenge the
district court’s review for evidence sufficiency, we have jurisdiction over this
interlocutory appeal.
C. Defendant’s Argument Is Preserved
Plaintiff’s assertion that Defendant failed to present her argument to the
district court is without merit. Defendant expressly presented the same argument to
the district court as she presents here. Specifically, in her motion for summary
judgment, under a subsection titled “There Was A Lack Of Personal Participation By
[Defendant],” Defendant distinguished social services investigations from criminal
investigations:
8
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Personal participation is an essential allegation in a §1983
civil rights action. Bennett v. Passic, 545 F.2d 1260, 1262–63
(10th Cir. 1976). Plaintiff must show that the individual
defendant caused the deprivation of a federal right. Kentucky
v. Graham, 473 U.S. 159, 166 (1985). Plaintiff’s case is
based entirely on the criminal charges brought against her,
and is not based on any social services child custody
proceedings. A social worker does not initiate and prosecute
criminal charges. Franz v. Lytle, 997 F.2d 784, 791 (10th Cir.
1993) (while a criminal prosecution may emanate from the
social worker’s activity, that prospect is not a part of the
social worker’s cachet); Ex. N, Tuggle depo, P24, ln.10–25.
Accordingly, Plaintiff’s claims should be dismissed against
[Defendant] based on lack of personal participation.
App., Vol. 1 at 87–88.
In that same motion, Defendant also explained why the distinction between
social services investigations and criminal investigations showed that she was
entitled to qualified immunity because the law was not clearly established in 2003:
This case does not involve the typical situation in which a
social worker is sued for her actions or failure to act in the
protection of a child. [Defendant] is unaware of any legal
authority which holds a social worker liable for violation of
the constitutional rights of a parent with respect to the
criminal prosecution of that parent for causing harm to the
child. Because there was no clearly established legal
authority in January/February 2003 to guide [Defendant] in
her conduct in this matter, [Defendant] is entitled to qualified
immunity.
Id. at 91.
And, in her reply brief in support of her motion for summary judgment,
Defendant distinguished her conduct from Snell on the same grounds she now asserts
on appeal:
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Snell v. Tunnel[l], 920 F.2d 673 (10th Cir. 1990) is factually
dissimilar as it involved social services workers along with
the police entering and searching the plaintiff’s home without
probable cause and a warrant procured with known false
allegations. The present matter did not involve [Defendant’s]
search of Plaintiff or her home and Plaintiff’s arrest warrant
was not predicated on any information from [Defendant’s]
interview with Plaintiff or [Defendant’s] notes.
Id., Vol. 5 at 1210.
The district court addressed, and rejected, Defendant’s arguments that she did
not personally participate in the violation of Plaintiff’s constitutional rights, and that
the law was not clearly established. See id. at 1265 (distinguishing Franz); id. at
1268 (relying on Snell).
Like her jurisdictional argument, Plaintiff’s waiver argument stems from her
misunderstanding of Defendant’s argument on appeal. Plaintiff complains that
“[Defendant] never argued below that her fabricated notes and report were not used
in Plaintiff’s criminal proceedings to deprive her of liberty without due process.”
Aple. Answer Br. at 31 (emphasis added). Yet, as explained above, Defendant
concedes for the purposes of this appeal that her notes were “used” in Plaintiff’s
criminal case; Defendant only asserts that her notes were not “created” for the
purpose of prosecuting Plaintiff, which is consistent with the district court’s ruling.
Accordingly, Defendant’s argument is preserved.
D. Plaintiff Has Not Shown That the Law Was Clearly Established
“‘Clearly established’ means that, at the time of the officer’s conduct, the law
was ‘sufficiently clear’ that every ‘reasonable official would understand that what he
10
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is doing’ is unlawful. In other words, existing law must have placed the
constitutionality of the officer’s conduct ‘beyond debate.’” Wesby, 138 S. Ct. at 589(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Ordinarily, to show that a
right was “clearly established” in our circuit, “the plaintiff must point to a Supreme
Court or Tenth Circuit decision on point, or the clearly established weight of
authority from other courts must have found the law to be as the plaintiff maintains.”
Frasier v. Evans, 992 F.3d 1003, 1014 (10th Cir. 2021). “Typically, the precedent
must have clearly established the right ‘in light of the specific context of the case, not
as a broad general proposition.’” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12
(2015)). “It is not enough that the rule is suggested by then-existing precedent. The
precedent must be clear enough that every reasonable official would interpret it to
establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one
that ‘every reasonable official’ would know.” Wesby, 138 S. Ct. at 590 (citations
omitted). Accordingly, the Supreme Court has “repeatedly told courts . . . not to
define clearly established law at a high level of generality.” Kisela v. Hughes, 138
S. Ct. 1148, 1152 (2018) (quoting City & Cnty. of S.F. v. Sheehan, 575 U.S. 600, 613
(2015)). That said, “under certain ‘extreme circumstances,’ general constitutional
principles established in the caselaw may give reasonable government officials fair
warning that their conduct is constitutionally or statutorily unlawful.” Frasier, 992
F.3d at 1015 (citing Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (per curiam)); see also
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[T]he salient question that the Court of
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Appeals ought to have asked is whether the state of the law in 1995 gave respondents
fair warning that their alleged treatment of [petitioner] was unconstitutional.”).
When considered in the factual context of this case, I find no clearly applicable
Tenth Circuit or Supreme Court case law that would have alerted Defendant that her
actions would violate the constitutional rights Plaintiff now asserts. Plaintiff
primarily relies on three cases: Franks v. Delaware, 438 U.S. 154 (1978); Snell v.
Tunnell, 920 F.2d 673 (10th Cir. 1990); and Pierce v. Gilchrist, 359 F.3d 1279 (10th
Cir. 2004). Plaintiff asserts that these cases, when read together, show that
“government officials—including social workers—could not fabricate false evidence
for use in a criminal investigation and prosecution.” Aple. Answer Br. at 37.
Defendant asserts that the law was not clearly established that fabricating a social
services report violates constitutional rights associated with criminal investigations.
I agree with Defendant that the law was not clearly established.
In 1978, Franks established that the Fourth and Fourteenth Amendments
entitle a defendant to an evidentiary hearing testing the validity of a search warrant,
where the defendant offers proof of deliberate falsehood or reckless disregard for the
truth in statements contained in the affidavit presented in support of a warrant
request, and where the affidavit would not support a finding of probable cause after
setting aside the challenged material. 438 U.S. at 171–72. The Supreme Court
recognized an “obvious assumption . . . that there will be a truthful showing” in a
warrant affidavit by the affiant. Id. at 164–65 (emphasis in original). The Supreme
Court also recognized that the right to an evidentiary hearing and the implicit
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requirement that the government rely on truthful evidence when seeking judicial
authorization for a warrant are derived from the warrant requirement under the
Fourth Amendment, as well as the Fourteenth Amendment and the exclusionary rule
as incorporated against the states. Id. at 164 (citing Mapp v. Ohio, 367 U.S. 643(1961)).
In 1990, in Snell, this court applied Franks to administrative searches
conducted by social workers engaged in a social services investigation. 920 F.2d at
699–700. The plaintiffs in Snell alleged that social workers knowingly fabricated
evidence of child abuse, pornography, and prostitution to procure a “pick-up” order.
The “pick-up” order authorized the social workers to enter the plaintiffs’ home,
identify the children residing there, and separate those children from the plaintiffs.
Id. at 677.
In Snell, we held that the social workers were not entitled to qualified
immunity because “even in the context of a child abuse investigation, a reasonable
public official would have known that using known false information to secure an
order to justify entry and search of a private home would violate the fourth
amendment’s proscription on unreasonable searches and seizures.” Id. at 700. In
reaching that conclusion, we recognized that “[a]lthough developed in the warrant
context, the principles of Franks appl[ied] to the information used in [that] case.” Id.Specifically, we reasoned that “equally implicit in the concept of reasonableness
[under the Fourth Amendment] is that the information on which the social worker
proceeds upon [to obtain a pick-up order] is not known to be false.” Id. at 699
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(emphasis in original). We also analogized a social worker’s deliberate reliance on
known falsehoods to perjury, reasoning that “perjury is not objectively reasonable
conduct.” Id. at 698 (citing Myers v. Morris, 810 F.2d at 1457).
In 2004, in Pierce, we applied Franks to lab reports written by a forensic
scientist employed by the Oklahoma City Police Department. In that case, after the
plaintiff’s arrest for rape in 1986, officers requested consent to collect head and hair
samples from the plaintiff, informing him that “if the hairs did not match [crime
scene evidence] he would be released.” 359 F.3d at 1282. A forensic scientist
falsely reported that the crime scene evidence was “microscopically consistent” with
the samples taken from the plaintiff. Id. Contrary to that report, subsequent audits
showed that the crime scene evidence was not consistent with the samples taken from
the plaintiff, and, in fact, a DNA analysis later exonerated the plaintiff. Id. at 1283.
The plaintiff then brought a § 1983 claim against the forensic scientist.
We held the forensic scientist was not entitled to qualified immunity. We
concluded the law was clearly established in 1986 that “the deliberate or reckless
falsification or omission of evidence was a constitutional violation—even though the
arrest had already occurred.” Id. at 1299. We again relied upon the general principle
announced in Franks that police cannot knowingly rely on false information to obtain
a warrant. Id. We also relied upon the Supreme Court’s holdings that a state may
not knowingly rely on false testimony to obtain a conviction or withhold exculpatory
evidence from the defense. Id. (citing Pyle v. Kansas, 317 U.S. 213, 216 (1942) and
Brady v. Maryland, 373 U.S. 83 (1963)).
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None of those cases would have provided a reasonable social worker in
Defendant’s position with fair notice that fabricating a social services report violates
constitutional rights related to a criminal investigation. Franks and Pierce do not
describe similarly situated officials. Those cases described law enforcement officers
or those working for law enforcement for the purpose of investigating crimes. Here,
Defendant was a social worker responsible for drafting a social services report. To
be sure, Sergeant Alejo was present during Defendant’s interview with Plaintiff, and
Defendant was likely aware of a potential criminal prosecution. The mere presence
of a law enforcement officer, however, is clearly dissimilar from a forensic scientist
investigating crime scene evidence while employed by the police department and
knowing full well the evidentiary purpose and importance of her report. See Pierce,
359 F.3d at 1281. Thus, Defendant lacked fair notice that the holdings of Franks or
Pierce would apply to a social worker in her position.
Plaintiff asserts that “the fact that [Defendant] was a caseworker and not a
police officer should have no impact on the result here.” Aple. Answer Br. at 38.
Plaintiff’s argument has some force but is not clearly established in our case law. We
have elsewhere recognized that dicta in Snell and Franz “could be construed as
drawing distinctions between . . . social workers and law-enforcement officers.”
Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1249 (10th Cir. 2003). As we noted
in Roska, this distinction “of course, runs contrary to the general principle under
which we focus on the function being performed by the state actor, rather than her
particular job title, in conducting our immunity analysis.” Id. at 1249 n.18; see also
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Franz, 997 F.2d at 791 (noting that our case law “has looked to the function the
official performs to examine qualified immunity claims”). Yet, in Roska, we did not
clearly repudiate all distinctions between social workers and law enforcement
officers, and I would decline to do so here. The fact that Defendant was a “social
worker”—and not a law enforcement officer or a specialist employed by law
enforcement to opine on key evidence—is enough to distinguish this case from
Franks and Pierce for the purposes of determining whether the law was clearly
established as to Plaintiff’s fabrication of evidence claim.2
Further, even if we were to look past Defendant’s title, Defendant was not
functioning as a law enforcement officer or criminal investigator. As discussed
above, Defendant was primarily investigating child abuse in the social services
2
We should be careful not to conflate “probable cause and a warrant or
exigent circumstances” with “something approaching probable cause.” Roska, 328
F.3d at 1249–50 & n.23. The Roska court expressly distinguished these two
standards. The former is the standard established in Roska itself. See id. at 1250
n.23 (“the law is now clearly established”) (emphasis added). The latter is the
standard clearly established by Franz and Snell. And, because the social workers in
Roska had “substantial cause” to believe the child was in substantial, non-exigent
danger, we held that their “warrantless entry and seizure did not violate clearly
established law under the Fourth Amendment as it stood [at the time of the
violation].” Id. at 1250 (emphasis added).
The light between these two standards illustrates the differing constitutional
restrictions on social workers and police officers. Indeed, we recognized in Roska
that “Franz and Snell injected a degree of uncertainty” into how the warrant
requirement applies to social workers. Id. at 1249. And, although we held that the
warrant requirement applied to the social workers in that case, we declined to address
other possible distinctions between social workers and police officers, such as
entering a home “to assure the safety of the child’s conditions,” id. at 1242 n.9, or an
inspection of the child himself, id. at 1249 n.21. Thus, I would disagree with any
implication that the Fourth Amendment restrictions on social workers are clearly
congruent with those on police officers.
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context. There is no indication that Defendant prepared her report for use in a
criminal investigation or intended for her report to be used in a criminal prosecution.
And although Sergeant Alejo’s presence may have alerted Defendant to the
possibility of a criminal prosecution, Defendant would not have been aware that her
notes would be used in that prosecution. Indeed, Defendant’s notes were not
subpoenaed until over a year after Plaintiff’s arrest. Aplt. App., Vol. 4 at 1090.3
Unlike Franks and Pierce, Snell expressly addressed the immunity of social
service workers “in the context of a child abuse investigation.” 920 F.2d at 700.
Yet, Snell is distinguishable on other grounds. In Snell, we addressed search and
seizure rights under the Fourth Amendment. Id. at 698. Here, however, Plaintiff
does not allege an unconstitutional search or seizure. Instead, Plaintiff only asserts
Fourteenth Amendment Due Process rights related to her criminal prosecution—
3
The majority overstates Defendant’s knowledge and intent. See, e.g., Maj. at
7–10 (“[Defendant] knew that in the criminal investigation, her agency would need to
share her notes with the sheriff’s office.”) (emphases added), id. at 7; (“[A]ny
reasonable social worker in [Defendant]’s position would have known that lying
about a confession would contribute to the prosecution of [Plaintiff] for child
abuse.”) (emphases added), id. at 10. In her deposition, Defendant only indicated
that she was vaguely aware that her notes “might” be used as evidence in a criminal
case. Aplt. App., Vol. 4 at 1090. Accordingly, the district court did not find an issue
of material fact that Defendant “knew” her notes “would” be used in such a manner.
Rather, the district court held that Defendant’s knowledge and intent regarding the
criminal investigation was irrelevant because her participation in a separate, social
services investigation still “contributed to [Plaintiff]’s deprivation of liberty.” Aplt.
App., Vol. 5 at 1266. But, absent such knowledge and intent, Defendant’s conduct
falls outside the ambit of Pierce. And, if I were to construe the district court’s order
as the majority does, then I would also have to construe Defendant’s appeal as a
challenge to evidence sufficiency and dismiss the appeal for lack of jurisdiction.
Johnson, 515 U.S. at 313.
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rights that were not addressed in Snell. Thus, the constitutional violation that
Plaintiff now asserts could not have been clearly established in Snell.
I do not read Snell as holding that it is categorically unconstitutional for social
workers to fabricate evidence of child abuse. Such a reading of Snell would
impermissibly “define clearly established law at a high level of generality.” Kisela,
138 S. Ct. at 1152. In addition to considering the circumstances leading to the
alleged fabrication of evidence, our immunity analysis must also consider the manner
in which that evidence was used. See Warnick v. Cooley, 895 F.3d 746, 753 (10th
Cir. 2018) (“We are aware of no authority for the proposition that the mere
preparation of false evidence, as opposed to its use in a fashion that deprives
someone of a fair trial or otherwise harms him, violates the Constitution.”) (internal
quotations and citations omitted). Because the evidence at issue here was not used to
support an unconstitutional search, Snell is inapposite.4
Nor does “the clearly established weight of authority from other courts”
support Plaintiff’s position. Frasier, 992 F.3d at 1014. The out-of-circuit cases cited
by Plaintiff are distinguishable on similar grounds as Franks and Pierce—namely,
4
Although not dispositive, the absence of an oath also distinguishes this case
from Snell, and by extension Franks. In Snell, we analogized the social workers’
fabrications to perjury and claims of judicial deception, as the false, sworn statements
were presented to a court to obtain a court order. 920 F.2d at 698 (citing Myers, 810
F.2d at 1457). And in Franks, the Supreme Court addressed a criminal defendant’s
right to challenge sworn statements made in an affidavit supporting a search warrant.
438 U.S. at 155–56. In contrast to the fabrications in Snell and Franks, Defendant’s
social services report was not submitted for the purposes of obtaining a court order;
nor was her report made under oath. See Aplt. App., Vol. 1 at 111–12.
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that they involved officials more closely involved in a criminal investigation, who
fabricated evidence for the purpose of avoiding or obtaining a criminal conviction.
See, e.g., Limone v. Condon, 372 F.3d 39, 43 (1st Cir. 2004) (denying qualified
immunity to a former FBI agent and a former Boston detective alleged to have
“framed” the plaintiffs); Whitlock v. Brueggemann, 682 F.3d 567, 580–82 (7th Cir.
2012) (denying qualified immunity to a prosecutor alleged to have manufactured
evidence while acting in an investigatory role); Moran v. Clark, 359 F.3d 1058, 1061
(8th Cir. 2004) (denying qualified immunity to police officers alleged to have
“scapegoat[ed] an innocent officer for acts of police brutality”).
The majority expends no effort in parsing our case law in this area, but rather
concludes the constitutional violation is “obvious.” Noteworthy here is the
majority’s reliance on two cases, both of which involve the fabrication of evidence
by law enforcement: Truman v. Orem City, 1 F.4th 1227 (10th Cir. 2021), addressed
a Fourth Amendment claim against a prosecutor for fabrication of evidence; and
District of Columbia v. Wesby, 138 S. Ct. 577 (2018), addressed a Fourth
Amendment claim against five police officers for false arrest. Reliance on these
cases elides the distinction made in our case law when Fourth Amendment or
Fourteenth Amendment claims are brought against social workers versus when
similar claims are brought against law enforcement, including prosecutors. Supra,
the discussion of Roska, at p. 16, footnote 3.
I am not convinced that the unconstitutionality of the alleged fabrication was
“obvious,” as the majority contends. See Hope, 536 U.S. at 738 (denying qualified
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immunity where Eighth Amendment violation was “obvious”). As the district court
observed, “common sense” should have informed Defendant that “a social worker,
like any other public official, cannot knowingly create false information in
furtherance of an investigation.” Aplt. App., Vol. 5 at 1268. Yet, neither common
sense nor our prior case law would have informed Defendant that she could not do so
for constitutional reasons, as opposed to some general, moral reason. And in
determining whether Defendant is entitled to qualified immunity, we must look to the
constitutionality of Defendant’s actions. See Sheehan, 575 U.S. at 616 (noting that
qualified immunity cannot be overcome merely by showing that an officer’s conduct
was “imprudent, inappropriate, or even reckless”); Frasier, 992 F.3d at 1018 (“[T]he
district court was wrong to deny the officers qualified immunity based on their
knowledge of [the plaintiff’s] purported First Amendment rights that they gained
from their training.”). I am not condoning the misconduct alleged in this case. Yet I
would reverse the district court because the constitutional dimensions of Plaintiff’s
claim were not clearly established in light of the particular facts presented.
Because I would conclude that the law was not clearly established, I need not
address whether Defendant violated Plaintiff’s constitutional rights. See Pearson,
555 U.S. at 236.
III
I concur in the denial of Plaintiff’s motion to dismiss, and dissent from the
denial of qualified immunity.
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