Bledsoe v. Board Cty Comm. Jefferson KSBledsoe v. Board Cty Comm. Jefferson KS
Eric Turner, Foulston Siefkin LLP, Overland Park, Kansas (Michael J. Norton, Foulston Siefkin LLP, Wichita, Kansas, with him on the briefs), for Defendants-Appellants.
Ruth Brown (Theresa Kleinhaus and Russell Ainsworth with her on the brief), Loevy & Loevy, Chicago, Illinois, for Plaintiff-Appellee.
Plaintiff-Appellee Floyd Bledsoe spent sixteen years in prison for the November 1999 murder of his fourteen-year-old sister-in-law Camille in Jefferson County, Kansas—a crime he did not commit. In 2015, new DNA testing and a suicide note from Bledsoe’s brother Tom supported Bledsoe’s longstanding claim that Tom was the killer and Bledsoe was innocent. A state court subsequently vacated Bledsoe’s convictions and prosecutors dismissed all charges against him.
In 2016, Bledsoe filed this
In doing so, we first conclude that the Supreme Court’s decision in Parratt2 does not preclude Bledsoe’s substantive due process claims. We further conclude that Bledsoe adequately alleged substantive due process and Fourth Amendment claims against each Appellant for evidence fabrication and for suppressing exculpatory evidence (Counts I and III), a malicious prosecution claim (Count IV), conspiracy claims (Count II and V), and a failure-to-intervene claim (Count VI). Lastly, we conclude that all the constitutional violations Bledsoe has alleged except his failure-to-intervene claim were clearly established in 1999. The district court, therefore, correctly denied Appellants qualified immunity on all but the failure-to-intervene claim.
I. BACKGROUND
A. Factual Overview
For the purposes of this appeal, we accept Bledsoe’s well-pled factual allegations as true and draw all reasonable inferences in his favor. Ullery v. Bradley, 949 F.3d 1282, 1287 (10th Cir. 2020).3 Those facts paint a dark picture of law enforcement’s plot to convict Bledsoe falsely.
In November 1999, Bledsoe was twenty-three years old and working as a farmhand. He lived in Jefferson County with
On November 5, 1999, Camille arrived home from school at 4:20 p.m., but was not there when her friend stopped by at 5:00 p.m. Bledsoe and Heidi reported the girl’s disappearance to the Jefferson County Sheriff’s Office and searched for Camille for the next forty-eight hours. On November 7, Tom separately told his Sunday school teacher and his parents that he had killed Camille. Tom’s parents immediately hired attorney Michael Hayes to represent Tom.4 Hayes and Tom met with Sheriff’s Office personnel that same evening, November 7. They told officers that Camille had been shot several times, including once in the back of the head, and that her body was hidden in the trash dump on the property where Tom lived. Tom and Hayes then took officers to that trash dump, where they found Camille’s body, along with three bullet casings, an X-rated movie, and a T-shirt that read “Countryside Baptist Church,” of which Tom was a member. (Id. at ¶¶ 28, 38.) Camille’s wounds matched Tom’s description. Hayes turned over the murder weapon—Tom’s recently purchased nine-millimeter pistol. The coroner found sperm in the victim’s vagina, but could not say who it belonged to or whether Camille had been forcibly sexually abused. Tom was arrested and charged with Camille’s murder.
Despite this substantial evidence against Tom, Defendants allegedly conspired to frame Bledsoe instead for the murder.5 Defendants did so despite the fact that Bledsoe’s whereabouts were accounted for from the time Camille went missing on November 5 to the time of Tom’s confession on November 7. Bledsoe’s alibi was corroborated by numerous witnesses, a time-stamped receipt, phone records, and even testimony of Appellant Carreno—the lead investigator on the case—who had searched for Camille alongside Bledsoe on November 6.
Bledsoe alleges that Defendants’ general plan to frame him was to have Tom recant his confession and to coach Tom to explain that he knew the details of the murder because Bledsoe had told him those details. Specifically, Tom would state falsely that he met Bledsoe at a roadway intersection on Saturday, November 6, at which time Bledsoe confessed to Tom that he had killed Camille, told Tom the details of the murder, and “persuaded Tom to take the blame by threatening to expose Tom’s history of viewing X-rated movies, masturbating, and attempting to have sex with a dog.” (Id. at ¶ 52.) Bledsoe claims that this meeting never happened.
“Shortly before Tom’s staged recantation,” Tom’s defense attorney “Hayes sought [Bledsoe] out and told him that Hayes was taking Tom off the ‘hot seat’ and putting [Bledsoe] on, or words to that effect.” (Id. at ¶ 55.) On November 12, a Kansas Bureau of Investigation (“KBI“) officer, Defendant Johnson, administered
Bledsoe passed his lie detector test by “truthfully disavowing any involvement in the crime.” (Id. at ¶ 60.) Defendant Johnson falsified the results, however, inaccurately reporting that Tom had been truthful in denying his involvement in the murder, while Bledsoe had been deceptive in denying that he was involved. Based on those false polygraph results, the prosecutor dropped the charges against Tom, “pursuant to an agreement that was never disclosed to” Bledsoe or his defense counsel, and arrested and charged Bledsoe. (Id. at ¶¶ 61–62, 88.)
Tom’s fabricated story was “the central piece” of the prosecution’s evidence against Bledsoe at trial. (Id. at ¶ 67.) Carreno and others at the Sheriff’s Office “knowingly and purposefully falsified” Tom’s story to fit his fictitious roadside meeting with Bledsoe “into the brief period of time in which they believed (wrongly) that [Bledsoe] lacked an alibi.” (Id. at ¶ 64.)
Defendants also “withheld evidence of Tom’s guilt from [Bledsoe’s] defense and the prosecution and generated additional false evidence against [Bledsoe] to secure his prosecution and conviction.” (Id. at ¶ 68.) For example, in addition to fabricating Tom’s story implicating Bledsoe in the murder and falsifying the polygraph results, Defendants fabricated an incriminating statement from Bledsoe indicating that he had returned home at the same time that Camille disappeared from their house. In fact, Bledsoe had denied returning home that afternoon.
Defendants also failed to disclose to Bledsoe and his defense attorney “Tom’s many inculpatory statements” confessing to the murder and his giving specific details of the crime, as well as “evidence that Tom had a history of pursuing young girls roughly Camille’s age and had made sexual advances on Camille just a few weeks before her disappearance.” (Id. at ¶ 69, 74.)
In addition, police skewed the investigation towards Bledsoe and away from Tom. For example, while officers thoroughly searched Bledsoe’s home and vehicle and also gathered clothing from a third suspect, they “purposefully declined to subject Tom’s home—or even his room or clothing—to any rigorous forensic examination,” and “declined to collect any physical evidence from the vehicles Tom drove,” including the truck in which Tom said he shot Camille. (Id. at ¶¶ 81–82.) Additionally, the officers “intentionally declined to collect any physical evidence from” the shovel Tom said he had used to bury Camille. (Id. at ¶ 82.) They also allowed Tom’s father to handle the murder weapon—Tom’s gun—before turning it over to police.
The prosecutor offered Bledsoe a plea deal under which he would be sentenced to
In 2015, after Bledsoe had been in prison for sixteen years, newly available DNA testing established that the semen found in Camille’s body likely matched Tom’s DNA; it was conclusively not a match for Bledsoe. Tom committed suicide soon after this revelation and left a note stating that he had killed Camille and:
I sent an innocent man to prison. The Jefferson County police and county attorney Jim Vanderbilt [sic] made me do it. I was told by Vanderbilt [sic] to keep my mouth shut. . . .
. . . .
I tried telling the truth but no one would listen. I was told to keep my mouth shut. . . .
Floyd S Bledsoe is an innocent man.
(Id. at ¶ 101.) Tom also left a diagram that showed where he shot Camille, which led the police to a fourth bullet casing that had not previously been found.
The state trial court vacated Bledsoe’s convictions and the county prosecutor dismissed the charges against him. Bledsoe filed the instant action shortly after his release from prison.
B. Factual Allegations as to Each Appellant
1. Randy Carreno
Carreno was a law enforcement officer for the Sheriff’s Office and was the lead investigator on Camille’s case. Bledsoe alleged that Carreno knew Bledsoe had not met Tom at the intersection on Saturday, November 6—where Tom falsely said Bledsoe had confessed to killing Camille—because Carreno was with Bledsoe most of that day looking for Camille. Accordingly, Bledsoe asserts that “Carreno and other Defendant Officers knowingly and purposefully falsified Tom’s statements to fit the fictitious roadside meeting into the brief period of time in which they believed (wrongly) that [Bledsoe] lacked an alibi, even though they knew that the entire roadside meeting never happened.” (Id. at ¶ 64.)7 Bledsoe further alleged that “Carreno . . . knowingly coached Tom to provide false explanations for how he had known so many details about Camille’s murder,” and Carreno “purposefully withheld documentation of Tom’s activities and statements between November 8th and 12th,” the dates Tom was arrested and then released. (Id. at ¶¶ 65, 72.)
Additionally, the district court reasonably inferred from the complaint’s factual allegations that Carreno was at the meeting between Tom’s defense counsel Hayes and prosecutor Vanderbilt when the conspiracy against Bledsoe was hatched, or that Carreno met with Hayes soon thereafter. The district court based that inference
2. Robert Poppa
Poppa was a law enforcement officer also employed by the Jefferson County Sheriff’s Office. Bledsoe alleged that Poppa was present when, on the night Tom turned himself in, Tom confessed in great detail to murdering Camille. Bledsoe specifically claimed that Poppa, along with other officers,
- “purposefully withheld their documentation of [Tom’s] inculpatory statements“;
- “purposefully withheld their documentation of Tom’s desire to commit suicide“;
- “subjected [Bledsoe’s] home and vehicle to thorough, rigorous forensic examination,” but
- “purposefully declined” to search Tom’s home, room, clothing, truck (where Tom said he shot Camille), and the shovel Tom said he used to bury the victim; and
- allowed Tom’s father to handle the murder weapon and ammunition, in order to further their scheme of wrongfully framing Bledsoe for the murder.
(Id. at ¶¶ 71, 79, 81–83.)
3. Troy Frost
Frost, too, was a law enforcement officer with the Sheriff’s Office. Bledsoe alleged that Frost
- “withheld evidence that Tom had a history of pursuing young girls roughly Camille’s age and had made sexual advances on Camille just a few weeks before her disappearance“;
- “falsely claimed that [Bledsoe] had confessed on two separate occasions to having visited his home at the time Camille disappeared from it“;
- “signed a search warrant affidavit to that effect,” knowing Bledsoe “had never made such a statement“;
- along with Poppa and Herrig, “subjected [Bledsoe’s] home and vehicle to thorough, rigorous forensic examination“; but
- “intentionally” and “purposefully declined” to search Tom’s home, room, clothing, truck (where Tom said he shot the victim) and shovel Tom said he used to bury the victim; and
- allowed Tom’s father to handle the murder weapon and ammunition, in order to further their scheme of wrongfully framing Bledsoe for the murder.
(Id. at ¶¶ 74, 79, 81–83, 89, 92).8
4. Jeffrey
Undersheriff Jeffrey Herrig was in charge of the day-to-day operations of the Jefferson County Sheriff’s Office, and his duties included the supervision of Carreno, Poppa, and Frost. Bledsoe alleged that Herrig, along with Poppa and Frost,
- “subjected [Bledsoe’s] home and vehicle to thorough, rigorous forensic examination“; but
- “intentionally” and “purposefully declined” to search Tom’s home, room, clothing, truck (where Tom said he shot the victim) and the shovel Tom said he used to bury the victim; and
- allowed Tom’s father to handle the murder weapon and ammunition, in order to further their scheme of wrongfully framing Bledsoe for the murder.
(Id. at ¶¶ 79, 81–83.)
C. Procedural background
Bledsoe initiated this
- Count I, alleging all Defendants deprived Bledsoe of due process—a fair trial—in violation of the Fourteenth Amendment by fabricating Tom’s “testimonial evidence” used against Bledsoe.
- Count II, alleging all Defendants conspired to deprive Bledsoe of due process by fabricating Tom’s testimonial evidence against Bledsoe.
- Count III, alleging Defendant Officers (Appellants and the KBI Defendants) deprived Bledsoe of due process—a fair trial—by fabricating additional inculpatory evidence used against Bledsoe and suppressing exculpatory evidence that would have established Bledsoe’s innocence.
- Count IV, alleging Tom’s defense attorney Hayes and the Defendant Officers maliciously caused Bledsoe’s arrest, pretrial detention, and prosecution without probable cause, in violation of the Fourth and Fourteenth Amendments’ due process guarantees.
- Count V, alleging Tom’s defense attorney Hayes and the Defendant Officers conspired to deprive Bledsoe of his constitutional rights by maliciously prosecuting him, suppressing exculpatory evidence and fabricating evidence against Bledsoe.10
- Count VI, alleging the Defendant Officers failed to intervene to prevent the deprivation of Bledsoe’s constitutional rights.11
Appellants filed a
II. JURISDICTION
This court has jurisdiction under
Bledsoe argues that this court lacks jurisdiction to review the district court’s determination addressing the first inquiry, whether he failed to state a plausible constitutional claim for relief under
In Iqbal, the Supreme Court directly held that a court hearing an interlocutory appeal from the denial of a motion to dismiss based on qualified immunity has “jurisdiction to pass on the sufficiency of his pleadings.” Id. at 673. Iqbal rejected an argument similar to the one made by Bledsoe here, that “a qualified immunity appeal based solely on the complaint’s failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Id. at 672 (internal quotation marks omitted). In so holding, the Supreme Court distinguished Johnson v. Jones, upon which Bledsoe relies and which held that an appellate court could not hear an interlocutory appeal from an order denying qualified immunity at the summary-judgment stage of litigation because the legal inquiry at that stage was predominantly “fact-based.” 515 U.S. 304, 317 (1995). Appeals from motions to dismiss, in contrast, are further from the “law-fact divide” and consequently better suited to immediate review. Iqbal, 556 U.S. at 674; see also Lowe v. Raemisch, 864 F.3d 1205, 1207 (10th Cir. 2017) (stating, in an appeal from the denial of qualified immunity, that “reviewing the sufficiency of a complaint . . . involves a pure issue of law“).12
Bledsoe’s reliance on Johnson instead of Iqbal is therefore unavailing, because this case reaches us on an appeal from a ruling on a motion to dismiss rather
III. DISCUSSION
A. Substantive Due Process Claims & Parratt
We begin with Appellants’ argument that involves only Bledsoe’s substantive due process claims (Counts I, III, and IV).14 Initially, Bledsoe based those three claims on both procedural and substantive due process. The district court dismissed those counts to the extent that they alleged a procedural due process claim, because Kansas tort law recognizes a claim for malicious prosecution and its availability bars any
The district court held that Counts I, III, and IV should be allowed to proceed, however, to the extent they alleged substantive due process violations because the court held the Parratt abstention doctrine does not apply in the substantive due process context. Appellants challenge that conclusion on appeal. They assert that we should extend Parratt to substantive due process claims and thus should “abstain” from deciding Bledsoe’s substantive due process claims as well because, like procedural
This court applies de novo review to a district court’s denial of a motion to dismiss raising Parratt abstention. See Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013). However, the application of Parratt to substantive due process claims is an “open question” in our jurisprudence. Browder v. City of Albuquerque, 787 F.3d 1076, 1079-81 (10th Cir. 2015). Today, we resolve that question and join other circuits in holding that Parratt abstention does not apply to
Parratt involved a
But we do not write on a blank slate. The Supreme Court has previously opined on the scope of Parratt, as have multiple other courts of appeals. In Zinermon, the Supreme Court held that the plaintiff had adequately stated a claim under
under the
These statements by the Supreme Court, while technically dicta, directly suggest that substantive due process claims are distinguishable from procedural due process claims for purposes of Parratt’s analysis, and so are actionable in federal court regardless of state-law remedies. That conclusion is sound. “[T]he Due Process Clause, like its forebear in the Magna Carta, . . . was ‘intended to secure the individual from the arbitrary exercise of the powers of government.’” Daniels, 474 U.S. at 331 (quoting Hurtado v. California, 110 U.S. 516, 527 (1884)). Where the government takes such an action that is arbitrary in substance rather than procedure, “the constitutional violation is complete as soon as the prohibited action is taken; the independent federal remedy is then authorized by the language and legislative history of
Additionally, all federal courts of appeals to have considered this question have held that Parratt abstention does not extend to
Against the substantial weight of authority in Zinermon and opinions from our sister circuits, Appellants urge the extension of Parratt to substantive due process claims. They rely almost exclusively on concurring opinions by then-Judge Gorsuch in two Tenth Circuit cases. See Browder, 787 F.3d at 1085 (Gorsuch, J., concurring); Cordova v. City of Albuquerque, 816 F.3d 645, 665 (10th Cir. 2016) (Gorsuch, J., concurring), abrogated on other grounds by Thompson v. Clark, 142 S. Ct. 1332, 1335–36 (2022). In those opinions, Judge Gorsuch emphasized that Zinermon’s language is non-binding dicta and advocated departing from its view of substantive due process claims under Parratt. He suggested that plaintiffs could vindicate their rights just as well via state-law tort claims, and that
Judge Gorsuch also rested his defense of extending Parratt in part on the “famously malleable” “distinction between procedural and substantive due process,” as well as the Supreme Court’s frequent reminders “to proceed with special caution when handling substantive due process claims.” Browder, 787 F.3d at 1085 (Gorsuch, J., concurring). While true that the substantive due process doctrine has been vociferously debated, it is also true that it has continually endured. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246–47 (2022); Dias v. City & Cty. of Denver, 567 F.3d 1169, 1181 (10th Cir. 2009); Peter J. Rubin, Square Pegs and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights, 103 Colum. L. Rev. 833, 835 (2003). To quarrel with its existence is not within our power nor our preference. And whether a plaintiff has sufficiently stated a substantive due process claim, rather than a procedural claim, is a question (albeit a sometimes difficult one) that is separate from whether that plaintiff may pursue a federal remedy for such a claim.
Where, as here, the alleged due process violations were concededly substantive in nature, we hold that Parratt does not apply
B. Appellants are not entitled to qualified immunity on any of Bledsoe’s § 1983 claims except the failure-to-intervene claims
We now turn to Appellants’ arguments challenging the district court’s decision to deny them qualified immunity from Bledsoe’s
1. Standard of review and relevant legal principles
Where, as here, defendants moved for dismissal of
The first inquiry requires us to decide whether Bledsoe adequately pled a claim for relief that is based on the violation of a constitutional or statutory right. Here, Bledsoe specifically asserted
We review de novo the district court’s ruling on a
In considering whether the complaint’s allegations are sufficient, the court first eliminates conclusory allegations, mere “labels and conclusions,” and any “formulaic recitation of the elements of a cause of action.” Id. (quoting Twombly, 550 U.S. at 555). The court then accepts as true all well-pled factual allegations and considers “whether they plausibly give rise to an entitlement to relief.” VDARE Found., 11 F.4th at 1159.
“In the context of a
The second qualified-immunity inquiry focuses on whether the constitutional violation alleged was clearly established at the time of the events at issue; here that is November 1999, when Defendants first interacted with Bledsoe. See Pierce, 359 F.3d at 1297. To demonstrate that a right is “clearly established,” a plaintiff must identify “an on-point Supreme Court or published Tenth Circuit decision,” or show that “the clearly established weight of authority from other courts has found the law to be as the plaintiff maintains.” Perry v. Durborow, 892 F.3d 1116, 1123 (10th Cir. 2018) (quoting Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015)) (alteration omitted). Alleging only a violation of abstract rights, without more, is insufficient because “general statements of the law are inherently incapable of giving fair and clear warning” to a government actor. White v. Pauly, 580 U.S. 73 (2017) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). “But ‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.’” Thompson v. Ragland, 23 F.4th 1252, 1255–56 (10th Cir. 2022) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002) (brackets, internal quotation marks omitted)).
“[Q]ualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” Hope, 536 U.S. at 739 (internal quotation marks omitted). “[E]xisting law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “‘[T]he salient question . . . is whether the state of the law’ at the time of an incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was unconstitutional.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (alterations in original) (quoting Hope, 536 U.S. at 741).
Lastly, we note that here Appellants asserted qualified immunity at the motion-to-dismiss stage of the litigation.
The procedural posture of the qualified-immunity inquiry may be critical. Because they turn on a fact-bound inquiry, “qualified immunity defenses are typically resolved at the summary judgment stage” rather than on a motion to dismiss. Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). “Asserting a qualified immunity defense via a
Rule 12(b)(6) motion . . . subjects the defendant to a more challenging standard of review than would apply on summary judgment.” Id. (internal quotation marks omitted). On a motion to dismiss, “it is the defendant’s conduct as alleged in the complaint that is scrutinized for [constitutionality].” Behrens v. Pelletier, 516 U.S. 299, 309 (1996).
Thompson, 23 F.4th at 1256; see also Truman, 1 F.4th at 1238.
Before applying these legal principles to each of Bledsoe’s claims, we address several general arguments Appellants make.
2. Appellants’ general arguments against Bledsoe’s § 1983 claims
As a starting point, Appellants make several unavailing arguments that apply generally to all of Bledsoe’s
Next, Appellants assert that Bledsoe’s claims are facially implausible because there is an equally possible innocent explanation for their charging Bledsoe—that they honestly, but mistakenly, believed he had killed Camille and that, at most, they were negligent in investigating the crime, which is not actionable under
Those arguments mischaracterize Bledsoe’s allegations. Bledsoe alleges that Defendants fabricated false evidence against him, knowingly suppressed exculpatory evidence that would have proven his innocence, and facilitated his arrest, pretrial detention and trial without probable cause to believe he was guilty. None of those alleged actions, by definition, can be done mistakenly or “innocently.”
Next we address each of Bledsoe’s claims in turn. As the district court noted, Appellants “assert a barrage of arguments for [their] dismissal.” (Aplt. App. at 856.) They attack some claims for failing sufficiently to state a plausible constitutional claim for relief pursuant to
3. With the exception of the failure-to-intervene claims, Bledsoe adequately alleged that each Appellant personally participated in clearly established constitutional violations
For ease of discussion, we begin with Bledsoe’s claims alleging that Defendants conspired to violate his constitutional rights. This court has recognized “a
Evans, 992 F.3d 1003, 1024 (10th Cir. 2021) (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998)), cert. denied, 142 S. Ct. 427 (2021).
Moreover, a
A
To state a
Here, Bledsoe alleged the specific goal of the conspiracy—to frame Bledsoe despite
Bledsoe further identified specific actions Defendants allegedly took to carry out the plan, including fabricating and supporting Tom’s false story; fabricating other inculpatory evidence, such as the false polygraph test results and the false statement that Bledsoe had admitted to returning home at the time when Camille disappeared; purposefully neglecting to search for evidence that would implicate Tom in the murder; and suppressing evidence that would tend to exculpate Bledsoe. These allegations were bolstered by Tom’s suicide note, which claimed that the Jefferson County police and prosecutor Vanderbilt made Tom send an innocent Bledsoe to prison and refused to listen to Tom. These allegations were sufficient to allege the existence of a conspiracy to violate Bledsoe’s constitutional rights, supporting Counts II and V.
Furthermore, Bledsoe alleged that each Appellant participated in the conspiracy. This requires a closer look at the facts, and the allegations are stronger for some Appellants than others. Ultimately, we find the complaint sufficient as to each of them. We summarize here the allegations we have already set forth in greater detail earlier in this opinion.
First up is Randy Carreno, who was the lead investigator. We agree with the district court that Bledsoe adequately alleged that Carreno
- personally participated in the conspiracy to frame Bledsoe;
- joined the conspiracy either by attending the meeting between Tom’s defense attorney Hayes and prosecutor Vanderbilt when the conspiracy was hatched, or meeting with Hayes soon thereafter;
- then acted to further the conspiracy by purposefully withholding documentation of Tom’s activities and statements made between November 8 and 12, from the time he was arrested until his release from custody;
- coaching Tom to assert the false story of Tom’s roadside meeting with Bledsoe on November 6, in order to explain how Tom knew all the details of the murder; and
- concocting a time of this meeting for when Carreno believed, wrongly, that Bledsoe had no alibi for his whereabouts.
Second is Robert Poppa. Based on the allegations recited in the factual overview, the district court reasonably found that Bledsoe had adequately alleged that Poppa personally fabricated inculpatory evidence and withheld exculpatory evidence (Count III), and maliciously prosecuted Bledsoe (Count IV). The court further held that “these actions support an inference that Mr. Poppa joined the conspiracy to frame [Bledsoe], allowing imputed liability for Count I at the motion to dismiss stage.” (Aplt. App. at 876.) We agree.19
Finally we turn to Herrig, against whom Bledsoe provides the fewest specific allegations. The district court held that the factual allegations against Herrig were sufficient “to support [Bledsoe’s] claim that [Herrig] withheld (or purposefully didn’t collect) exculpatory evidence—a theory Claim III advances—and maliciously prosecuted [Bledsoe]—Count IV.” (Aplt. App. at 876.) The district court further held that Herrig’s alleged actions, in “intentionally declining,” along with Poppa and Frost, to search Tom’s room and truck, “support[ed] an inference that Mr. Herrig joined the conspiracy to frame [Bledsoe], allowing imputed liability for Count I at the motion to dismiss stage.” (Id. at 874) The district court also stated, generally, that “it’s reasonable to infer that the officers working on the investigation shared information throughout its course, and, ultimately, worked together to accomplish the alleged constitutional deprivations.” (Id. at 867.) Again we agree. The specific allegation that Herrig intentionally declined to search Tom’s room and belongings thoroughly, despite the clear probable cause that Tom was the culprit, is also supportive of the malicious prosecution and withholding of evidence claim. In addition, Bledsoe alleged that Herrig acted in concert with Poppa and Frost to search Bledsoe’s home, but purposefully to avoid searching the locations and items that Tom implicated in the murder he confessed to committing. Additionally, the general allegation that Herrig supervised the officers who did undertake more specific unlawful actions supports an inference that he knew about and participated in the conspiracy to frame Bledsoe, and simultaneously failed to intervene.
In sum, the district court correctly held that Bledsoe adequately alleged a conspiracy to frame Bledsoe for Camille’s murder,
We turn now to Bledsoe’s substantive constitutional claims.
b. Bledsoe’s claims alleging that Appellants deprived him of substantive due process by fabricating Tom’s false testimony (Count I) and other evidence against him (Count III)
In Counts I and III, Bledsoe alleged that Defendants deprived him of due process by fabricating Tom’s false testimony implicating Bledsoe in the murder and fabricating other false evidence against him, and conspired to do so. On appeal, Appellants do not argue generally that these Counts fail to state plausible claims for the deprivation of substantive due process. Nor could they. See Pierce, 359 F.3d at 1285–63 (10th Cir.) (addressing claim alleging deprivation of liberty without due process “as the result of the fabrication of evidence by a government official acting in an investigative capacity” (citing Anthony, 767 F.2d at 662)).20
Further, this constitutional violation was clearly established by 1999. In fact, this court has recognized that “the prohibition on falsification or omission of evidence, knowingly or with reckless disregard for the truth, was firmly established as of 1986.” Id. at 1298; see also id. at 1298–99 (citing, e.g., Pyle v. Kansas, 317 U.S. 213, 216 (1942), Franks v. Delaware, 438 U.S. 154, 155–56 (1978), Stewart v. Donges, 915 F.2d 572, 581–83 (10th Cir. 1990)).
Appellants’ only rebuttal on appeal is that Pierce was not decided “until 2004, five years after the appellants’ investigation [of Bledsoe] in 1999.” (Aplt. Br. at 54.) But they misunderstand Pierce’s holding—the court expressly held that such claims had been clearly established constitutional violations since 1986, not as of 2004. Thus, Appellants here had fair warning in 1999 that fabricating evidence and knowingly using false testimony against Bledsoe was a violation of his constitutional rights when they began their alleged scheme in 1999.
Appellants’ primary argument is that Bledsoe failed to allege that each of them participated in these constitutional deprivations. We reject that argument.
Summarizing, Bledsoe alleged the following: lead investigator Carreno knew that Bledsoe had not had a roadside meeting with Tom on November 6, but nevertheless helped concoct that false story to explain why Tom knew all the details of the murder. Further, Carreno coached Tom on this false story, including fitting the fictional meeting into a time period when Carreno thought (wrongly) that Bledsoe did not have an alibi. In support of Tom’s fabricated testimony, Appellant Poppa, who was present on the night that Tom turned himself in and confessed in detail to killing Camille, withheld documentation
Bledsoe’s Count III alleged that Defendants fabricated other evidence as well against Bledsoe, and conspired to do so. That conspiracy included Bledsoe’s allegation that Frost falsely claimed that Bledsoe had twice admitted to being at home at the time Camille disappeared, when that was, in fact, not the case. Further, Frost used these false statements to obtain a warrant to search Bledsoe’s home.
c. Bledsoe’s claim that Appellants suppressed exculpatory evidence (Count III)
In addition to alleging that Frost fabricated evidence against Bledsoe, Bledsoe also alleged that Defendants withheld and suppressed exculpatory evidence. On appeal, Appellants do not contend that those allegations fail to allege a plausible due process violation. See Brady v. Maryland, 373 U.S. 83, 86 (1963) (recognizing suppression of exculpatory evidence violated due process guaranteed under the
Appellants’ primary argument is, again, that Bledsoe failed to allege each of them participated in this constitutional violation. We again disagree. Bledsoe alleged:
- Carreno withheld documentation of Tom’s activities and statements while he was in custody, from November 8 to 12, and withheld documentation of Tom’s confessions to the murder and his desire to commit suicide;
- Frost suppressed evidence that Tom made advances towards Camille several weeks before she was murdered;
- Frost, Poppa and Herrig subjected Bledsoe’s home to a “thorough” and
“rigorous forensic examination,” but purposefully avoided searching Tom’s room, truck and the shovel he confessed to using to bury Camille’s body (2d Am. Compl. ¶¶ 77–78. 81–83); and - their concerted action indicated they were part of the conspiracy to frame Bledsoe.
d. Bledsoe’s malicious prosecution claim (Count IV)
In Count IV, Bledsoe alleged a
i. Bledsoe adequately alleged a malicious prosecution claim
Bledsoe specifically alleged that Defendants unlawfully detained him pretrial in violation of the
violation of the
a. Causation
Appellants assert that they did not cause Bledsoe’s arrest, pretrial detention, and prosecution because it was the prosecutor who decided to prosecute Bledsoe, the state trial judge who allowed the case to go forward, and the jury that ultimately convicted Bledsoe. Those arguments are negated because, accepting Bledsoe’s allegations as true, all of those decisions were based on evidence of Bledsoe’s guilt that Appellants fabricated or conspired to fabricate, and without exculpatory evidence tending to support Bledsoe’s innocence that Defendants suppressed or conspired to suppress. See Pierce, 359 F.3d at 1292–93.
b. Lack of arguable probable cause
Probable cause is “a ‘substantial probability’ . . . that the suspect committed the crime, requiring something ‘more than a bare suspicion.’” Stonecipher, 759 F.3d at 1141 (quoting Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011)). Probable cause is measured by considering whether, “without the falsified inculpatory evidence, or with the withheld
In the context of a qualified immunity defense . . ., we ascertain whether a defendant violated clearly established law “by asking whether there was ‘arguable probable cause’” for the challenged conduct. Kaufman[ v. Higgs], 697 F.3d [1297,] 1300 [(10th Cir. 2012)]. Arguable probable cause is another way of saying that the officers’ conclusions rest on an objectively reasonable, even if mistaken, belief that probable cause exists. Cortez v. McCauley, 478 F.3d 1108, 1120 (10th Cir. 2007) [(reh’g en banc)].
Stonecipher, 759 F.3d at 1141.
Appellants, relying on the trial transcript and the state appellate and federal habeas decisions upholding Bledsoe’s convictions, argued there was arguable probable cause to arrest, detain, and prosecute Bledsoe because there was some evidence supporting his guilt: “Polygraph findings showed [Bledsoe] had exhibited deception when asked if he killed Camille, statements of his 2-year-old son implicated him, independent witnesses told officers that Camille was afraid of him, and a witness reported to officers that he heard screaming near his worksite the day Camille went missing.” (Aplt. Br. 51.) Even accepting Appellants’ rendition of this evidence at the
c. Malice
Lastly, Appellants assert that Bledsoe failed to allege that each of them acted with the requisite malice; they argue that at most they acted negligently. But “[m]alice may be inferred if a defendant causes the prosecution without arguable probable cause.” Stonecipher, 759 F.3d at 1146. As alleged, Bledsoe was arrested, detained, and prosecuted without arguable probable cause, based instead on evidence Defendants fabricated and without exculpatory evidence that Defendants improperly suppressed. Bledsoe, therefore, adequately alleged that each Appellant acted with the requisite malice.
In sum, Bledsoe adequately alleged a malicious prosecution claim, as well as the two substantive due process claims, against Defendants generally.
ii. Bledsoe adequately alleged each Appellant participated in the malicious prosecution
On appeal, Appellants argue perfunctorily that Bledsoe failed to allege that each Appellant participated in the malicious prosecution. Bledsoe’s allegations against each Appellant, as explained above, are adequate to state a malicious prosecution claim against each of them.
e. Failure-to-Intervene Claims (Count VI)
In Count VI, Bledsoe asserted a discrete claim alleging that Defendants
The Tenth Circuit has recognized “that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)); see also Fogarty, 523 F.3d at 1163 (holding that, if an officer “were . . . present . . . with an opportunity to prevent the excessive use of force, he would have had a duty to intervene“); Casey v. City of Fed. Heights, 509 F.3d 1278, 1283 (10th Cir. 2007) (holding that, where the defendant should have known the force used against the plaintiff was excessive, defendant “had some responsibility” to intervene). A plaintiff states a constitutional violation in the form of failure to intervene by alleging that 1) a government officer violated his constitutional rights, 2) a different government actor (the defendant) observed or had reasons to know about that constitutional violation, and 3) the defendant had a realistic opportunity to intervene, but failed to do so. See Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015); see also Est. of Booker v. Gomez, 745 F.3d 405, 422–23 (10th Cir. 2014).
Here, Bledsoe alleged all the necessary elements of a failure-to-intervene claim. First, he alleged that Defendants violated his constitutional rights in several ways, including fabricating false evidence against him, suppressing exculpatory evidence, and maliciously prosecuting him without probable cause to believe he was guilty. Second, Bledsoe alleged that each Appellant knew of the ongoing constitutional deprivations. Third, the conspiracy at issue here to frame Bledsoe unfolded over months and months, giving each Appellant a reasonable opportunity to intervene to prevent harming Bledsoe, yet no Appellant did so.
Appellants argue that failure-to-intervene claims are limited to situations involving excessive force claims. We disagree. It is true that Tenth Circuit case law has frequently addressed failure-to-intervene claims in the context of officers failing to step in when another officer is using excessive force. See, e.g., Vondrak, 535 F.3d at 1210. But that is not always the case. See Reid v. Wren, Nos. 94-7122, 94-7123, 94-7124, 1995 WL 339401, at *1–2 (10th Cir. 1995) (unpublished) (recognizing failure-to-intervene claim involving unlawful search and seizure). Moreover, most other circuits recognize that failure-to-intervene claims can involve failing to stop constitutional deprivations beyond just the use of excessive force. See Livers v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012) (noting, in case addressing claims alleging defendants fabricated evidence, suppressed exculpatory evidence and maliciously prosecuted plaintiff, that Second, Fourth, Seventh, and Tenth Circuits, in the unpublished Reid decision, “have recognized a duty to intervene outside of the excessive force context” but the Eleventh Circuit declined to find that a duty to intervene to stop other constitutional violations was clearly established, citing cases). We hold that a failure-to-intervene claim is not limited to excessive force violations, but can involve other underlying constitutional violations. Specifically, here, Bledsoe adequately alleged a violation of his constitutional rights premised on Defendants’ failure to intervene in the alleged fabrication of evidence against Bledsoe, the suppression of exculpatory evidence that would have proven his innocence, and the malicious arrest, prosecution, and conviction of Bledsoe without probable cause to believe he was guilty.
Appellants nevertheless contend that they are entitled to qualified immunity on Bledsoe’s failure-to-intervene claim because such a claim was not clearly established in 1999.25 On this point, we agree. See Shaw v. Schutte, 36 F.4th 1006, 1020–21 (10th Cir. 2022) (holding claim alleging failure to intervene to stop unreasonable seizure during a traffic stop was not clearly established as of date of the incident). Moreover, while Bledsoe might have argued that the duty to intervene in the situation alleged here would have been obvious to any objectively reasonable law enforcement officer, see Hope, 536 U.S. at 741, Bledsoe has not made such an argument. We, therefore, reverse the district court’s decision to deny Appellants qualified immunity on Bledsoe’s failure-to-intervene theory of recovery.
f. Conclusion
For the foregoing reasons, then, we conclude that Bledsoe adequately alleged that each Appellant participated in depriving him of his constitutional rights and that, except for the failure-to-intervene theory, the alleged constitutional violations were clearly established by 1999. Said another way, except for the failure-to-intervene claim, each Appellant was on notice in 1999 that their conduct, as Bledsoe has alleged it—suppressing exculpatory evidence that would have shown Bledsoe’s innocence, fabricating evidence to use against him, and using that evidence to arrest, detain and prosecute him for a crime he did not commit—was unconstitutional. The district court, thus, correctly denied each Appellant qualified immunity on Bledsoe’s substantive constitutional claims, and on his conspiracy and personal participation theories of liability. As we noted in Pierce,
[q]ualified immunity is designed to protect public officials who act in good faith, on the basis of objectively reasonable
understandings of the law at the time of their actions, from personal liability on account of later-announced, evolving constitutional norms. [Appellants’] alleged misconduct did not stem from a miscalculation of [their] constitutional duties, nor was it undertaken in furtherance of legitimate public purposes that went awry. Rather, as alleged, [Appellants] engaged in a deliberate attempt to ensure the prosecution and conviction of an innocent man. Such conduct, if it can be proven at trial, violated [Bledsoe’s] constitutional rights with “obvious clarity.”
IV. CONCLUSION
Based on the foregoing, we AFFIRM the district court’s denial of the Appellants’ motion to dismiss as to all counts but Count VI (failure to intervene), we REVERSE the denial of Appellants’ motion to dismiss as to Count VI, and we REMAND to the district court for proceedings consistent with this opinion.
Bledsoe v. Board of County Commissioners of County of Jefferson, KS, No. 20-3252
EID, Circuit Judge, concurring in part and concurring in the judgment in part.
I join the majority opinion only in its result with respect to two issues. First, I do not join its holding that
I.
The majority answers an “open question” in this circuit by holding that Parratt abstention “does not apply to
II.
The majority additionally—and needlessly—decides that “a failure-to-intervene claim is not limited to excessive force violations, but can involve other underlying constitutional violations.” Maj. op. at 46. This court recently looked at the issue of whether failure-to-intervene claims extend beyond the excessive force context in Shaw. See 36 F.4th at 1020–21. There, the plaintiff’s theory was that the defendant officer failed to intervene when other officers improperly prolonged a traffic stop to enable a K-9 sweep. Id. at 1021. The plaintiff based his argument on Vondrak v. City of Las Cruces, 535 F.3d 1198 (10th Cir. 2008), which observed that “all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Id. at 1210 (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d. Cir. 1994)). But we rejected the plaintiff’s reliance on the “general proposition” of Vondrak, noting that its statement was made “in the context of an excessive force claim.” Shaw, 36 F.4th at 1020. We concluded that “where the intrusion and permanency of harm from the use of excessive force may exceed that from the relatively brief prolongation of a traffic stop, Vondrak does not clearly establish that an officer must intervene to prevent an illegal search and seizure.” Id.
The majority cites Shaw, without further elaboration, to hold that Appellants “are entitled to qualified immunity on Bledsoe’s failure-to-intervene claim because such a claim was not clearly established in 1999.” Maj. op. at 46–47. I agree with this holding.
But the majority fails to cite Shaw’s skepticism toward extending Vondrak beyond the excessive force context. Instead, it cites Vondrak’s “general proposition,” as Shaw put it, that officers have an affirmative duty to intervene to protect against constitutional violations committed in their presence. Id. at 44. And while the majority cites to an unpublished Tenth Circuit case and an Eighth Circuit case (which cites our unpublished case and cases from other circuits) for why such an extension is warranted, see id. at 46, none of this authority is binding. It goes on to conclude, based on the cited cases, that Bledsoe “adequately alleged a violation of his constitutional rights premised on Defendants’ failure to intervene in the alleged fabrication of evidence against Bledsoe, the suppression of exculpatory evidence that would have proven his innocence, and the malicious arrest, prosecution, and conviction of Bledsoe without probable cause to believe he was guilty.” Id.
We should be hesitant in this case to extend Vondrak beyond its boundaries given Shaw’s skepticism and the lack of binding precedent on the issue. Moreover, there is no reason to do so here, where the majority concludes the failure-to-intervene right was not clearly established in any event. To overcome the presumption of qualified immunity, Bledsoe must show that (1) the defendants’ actions violated a constitutional or statutory right, and (2) the right was clearly established at the time of the relevant conduct. See Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021). Courts “have discretion to decide
III.
For these reasons, I respectfully concur in the judgment only with respect to the two issues discussed above.