Kennedy v. Peele
552 F. App'x 787
10th Cir.2014Background
- In 1991 two murders (Carpenter and Staskiewicz) were investigated; Deputy Mark Finley focused on Timothy Kennedy, who had pawned a .380 handgun found to be the same caliber as the murder weapon.
- FBI agent Ernest Peele performed a comparative bullet-lead analysis (CBLA) and issued a 1992 report saying some bullets were "analytically indistinguishable" or "consistent with originating from the same source." The report also noted compositional differences could occur within one box of cartridges.
- Kennedy was arrested, tried, convicted (two life terms), and later in 2009 had his convictions vacated based in part on new evidence and the FBI’s 2005 decision to stop using CBLA.
- Kennedy sued Peele under Bivens for malicious prosecution, alleging Peele knowingly misrepresented CBLA reliability and falsely stated bullets came from the same box; Peele moved to dismiss asserting qualified and absolute immunity.
- The district court held Peele had absolute immunity for trial testimony but denied qualified immunity for pretrial statements; Peele appealed the denial of qualified immunity.
- The Tenth Circuit reversed: it concluded the complaint did not plausibly allege that Peele fabricated test results like in Pierce and that CBLA was widely accepted at the time, so Peele was entitled to qualified immunity and the claims were to be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peele is entitled to qualified immunity for pretrial statements about CBLA | Kennedy: Peele knowingly fabricated evidence or overstated CBLA reliability, violating constitutional rights | Peele: No fabrication; he reported CBLA results and any reliability concerns did not make his conduct unconstitutional; CBLA was accepted at the time | Reversed denial of qualified immunity; dismissal ordered |
| Whether allegations show "fabrication" as in Pierce v. Gilchrist | Kennedy: Peele lied or gave definitive false statements that led to arrest/prosecution | Peele: Complaint attacks CBLA methodology generally, not that his test results actually contradicted the data | Court: Complaint fails to allege the kind of fabrication in Pierce; distinctions are qualitative, not merely degrees |
| Whether a forensic analyst must disclose error rates/confidence intervals pre-arrest | Kennedy: Failure to disclose statistical doubts rendered Peele’s statements materially false | Peele: No authority required disclosure; CBLA was widely used and accepted then | Held: No clearly established law requiring such disclosures then; plaintiff failed to show violation of a clearly established right |
| Whether documents attached to motion to dismiss (warrant affidavit) can be considered | Kennedy: Disputed wording in complaint about "same box" statement | Peele: Affidavit (attached to motion) shows he said "would be consistent with coming from the same box"; authenticity undisputed | Court: May consider such documents; complaint’s contradictory allegation not well-pleaded; affidavit undermined fabrication claim |
Key Cases Cited
- Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004) (fabricating forensic evidence in prosecution context defeated qualified immunity)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleading)
- Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (qualified immunity requires violation of clearly established law)
- Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (courts may consider documents incorporated by reference when ruling on 12(b)(6) motions)
- United States v. Higgs, 663 F.3d 726 (4th Cir. 2011) (noting widespread judicial admission of CBLA evidence into evidence historically)
- McBeth v. Himes, 598 F.3d 708 (10th Cir. 2010) (plaintiff must show the right was clearly established to overcome qualified immunity)