Lowery v. County of Riley

FILED

United States Court of Appeals

Tenth Circuit

April 14, 2008

PUBLISH Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDDIE JAMES LOWERY; AMANDA

MARIE LOWERY,

Plaintiffs - Appellees,

v. No. 06-3369

THE COUNTY OF RILEY; RILEY

COUNTY BOARD OF

COMMISSIONERS; RILEY COUNTY

LAW ENFORCEMENT

DEPARTMENT, also known as Riley

County Police Department; CITY OF

MANHATTAN; MANHATTAN

BOARD OF CITY COMMISSIONERS;

CITY OF OGDEN; OGDEN BOARD

OF CITY COMMISSIONERS; JOHN

DOES 1-10, police officers and

non-uniformed employees of the Riley

County Police Department, in their

individual capacities; RICHARD ROES

1-10, supervisory police officers of the

Riley County Police Department, in

their individual capacities; RILEY

COUNTY LAW ENFORCEMENT

AGENCY, The Law Board; WILLIAM

WATSON,

Defendants,

and

HARRY L. MALUGANI; DOUGLASS

JOHNSON, in their individual

capacities; ALVAN JOHNSON;

STEVE FRENCH; LARRY

WOODYARD,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D. Ct. No. 04-CV-3101-JTM-DWB)

Jeffrey A. Bullins, Holbrook & Osborn, P.A., Overland Park, Kansas, appearing

for Appellants.

Nick Brustin, Cochran Neufeld & Scheck, LLP, New York, New York (Barry A.

Clark, Clark & Kellstrom, Chtd., Manhattan, Kansas; Barry Scheck and Monica

R. Shah, Cochran Neufeld & Scheck, LLP, New York, New York; and Craig J.

Altenhofen, Hornbaker, Altenhofen, McCulley & Alt, Chartered Lawyers,

Junction City, Kansas, with him on the brief), appearing for Appellees.

Before O’CONNOR, * Associate Justice (Ret.), HENRY, Chief Circuit Judge, and

TACHA, Circuit Judge.

TACHA, Circuit Judge.

In 1982, Eddie James Lowery was convicted after a jury trial in the District

Court of Riley County, Kansas, of rape, aggravated battery, and aggravated

burglary. His convictions were secured primarily on the basis of an unrecorded

confession he made to Riley County Police Officers Harry Malugani and

*

The Honorable Sandra Day O’Connor, Associate Justice of the United

States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C.

§ 294(a).

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Douglass Johnson. He served ten years in prison and, upon release, spent another

ten years as a registered sex offender. In 2003, however, DNA testing proved that

Mr. Lowery did not commit the crimes. Thereafter, the same court vacated each

conviction and sentence, declaring him actually innocent of the crimes. Mr.

Lowery and his daughter Amanda then filed this action in federal district court

under 42 U.S.C. § 1983 and Kansas state law against many of the individuals and

municipal entities responsible for his arrest, conviction, and incarceration. The

district court denied the defendants’ motion for summary judgment based on

qualified immunity, which the defendants now appeal.

I. BACKGROUND

The following facts are set forth in the light most favorable to Mr. Lowery

as the nonmoving party. During the early morning hours of July 26, 1981, Mr.

Lowery was involved in a car accident in the vicinity of Arta Kroeplin’s house in

Ogden, Kansas. At approximately the same time, Ms. Kroeplin reported that a

burglar broke into her home and raped her. She knew that she was attacked by a

single assailant, but she could not describe him because he covered her face with

blankets during the attack. Indeed, she could not even identify the man’s race and

could only say he had a medium build. She reported that, during the attack, the

rapist struck her three times in the head with a knife. An investigation revealed

that the perpetrator entered through the back door of Ms. Kroeplin’s home by

cutting or tearing through the door screen.

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The following day, Officer Malugani, who had learned of Mr. Lowery’s

accident, contacted Mr. Lowery and asked him to come down to the police station

to talk. Mr. Lowery believed that Officer Malugani wanted to talk to him about

the car accident. Because Mr. Lowery did not have transportation, Officer

Malugani and Officer Johnson picked him up at his house at 4:00 p.m. and drove

him to the Riley County Police Department.

When they arrived at the station, the officers took Mr. Lowery to an

interview room and advised him of his Miranda 1 rights. Mr. Lowery was not told

whether he was under arrest. He signed a written waiver of rights at

approximately 4:30 p.m. The officers then questioned Mr. Lowery about the rape

for forty-five minutes. Thereafter, the officers obtained written consent from Mr.

Lowery to search his home. The record does not indicate whether the officers

uncovered incriminating evidence. After completing the search, the officers

asked if Mr. Lowery could return to the station the following day to take a

polygraph examination. Mr. Lowery said that he could, although he might need

to be picked up again.

Officer Malugani picked up Mr. Lowery at approximately 8:20 a.m. on July

28, 1981. Mr. Lowery had not slept much the night before and had not eaten

breakfast that morning. When they arrived at the station, the officers again took

Mr. Lowery to an interview room where he signed a waiver of his Miranda rights.

1

Miranda v. Arizona, 384 U.S. 436 (1966).

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The officers again questioned Mr. Lowery about the rape. Mr. Lowery asked for

a lawyer. Officer Malugani told Mr. Lowery that because he was not under arrest,

he did not need a lawyer at that time. Mr. Lowery was not provided with a

lawyer.

From approximately 9:30 a.m. to 12:30 p.m., Mr. Lowery took a polygraph

exam administered by Officer Allen Raynor. Mr. Lowery did not admit any

involvement in the crime during the examination. The defendants claim the exam

results, which have since disappeared, indicated deception on Mr. Lowery’s part.

Following the polygraph, Officers Malugani and Johnson further interrogated Mr.

Lowery. He again denied committing the crimes, but after Officer Malugani

loudly and continually insisted that he had, Mr. Lowery became very confused

and emotionally upset. He began crying and then responding affirmatively to the

officers’ suggestive questions in the hope that they would put him in jail and he

would finally be able to speak with a lawyer.

For example, knowing that the perpetrator had broken the screen door, the

officers asked Mr. Lowery: “How did you get into the house? Did you cut the

screen door or bust it open and pull the screen back?” Mr. Lowery responded that

he busted it open with his hands. Knowing that Ms. Kroeplin had been struck in

the head, the officers asked Mr. Lowery if he hit her with a knife or with a vase.

Mr. Lowery said he hit her with a knife. Knowing that Ms. Kroeplin’s face had

been covered during the attack, the officers asked Mr. Lowery whether he covered

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her face with a blanket or a pillow. Mr. Lowery said a blanket. According to Mr.

Lowery, these are just some of the suggestive and leading questions the officers

asked him. At the conclusion of the questioning, Mr. Lowery was arrested and

charged with rape, aggravated battery, and aggravated burglary.

The officers then prepared their official report describing the confession.

Although Mr. Lowery alleges that he largely adopted the officers’ suggestions as

to how he committed the crime, the officers represented in their contemporaneous

report and in their communications with the prosecutor 2 that Mr. Lowery’s

confession was credible because he revealed, without prompting or suggestion,

nonpublic facts that only the perpetrator of the rape could have known. In

addition, the report contained other “admissions” that Mr. Lowery did not, in fact,

make. For example, Mr. Lowery told the officers that he broke into the house

through the front door. The perpetrator, however, gained entry through the back

door, and the officers repeatedly maintained that Mr. Lowery told them he broke

in through the back.

At trial, the prosecution relied heavily on the officers’ report and their

testimony describing Mr. Lowery’s confession. The prosecution also presented

evidence that Mr. Lowery, along with thirty-eight percent of the population, had

2

The officers also testified at Mr. Lowery’s trial that he volunteered

nonpublic facts during his confession. The officers are, however, absolutely

immune from any claim arising out of their testimony at trial, even if that

testimony is perjurious. Briscoe v. LaHue, 460 U.S. 325, 328 (1983).

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the same blood type as the perpetrator. The jury could not reach a unanimous

verdict. A second trial was held, and this time the jury convicted Mr. Lowery on

all counts.

In 2003, the District Court of Riley County, Kansas vacated Mr. Lowery’s

convictions and declared him actually innocent of the crimes based on DNA

evidence that excluded him as the rapist. Mr. Lowery then filed this action under

§ 1983 and Kansas state law. The claims relevant to this appeal include: (1)

§ 1983 claims against Officers Malugani and Johnson for violating his right to

due process by coercing his confession and by failing to adequately investigate

the crimes, and for violating his Fourth and Fourteenth Amendment rights by

fabricating evidence and by maliciously prosecuting him; (2) § 1983 claims

against Officers Malugani’s and Johnson’s supervisors for failing to train police

officers and for conspiring to violate Mr. Lowery’s constitutional rights; and (3) a

§ 1983 claim against all defendants for depriving Mr. Lowery and Amanda of

their right to familial association. 3 The defendants filed a motion for summary

judgment on the basis of qualified immunity, which the district court denied with

respect to all claims. The defendants now appeal. For the reasons that follow, we

dismiss for lack of jurisdiction the defendants’ appeal of the denial of qualified

immunity as to the claims for coercion, failure to investigate, fabrication of

3

Several additional claims raised in the first amended petition have been

dropped by the plaintiffs or are otherwise not before the Court in this

interlocutory appeal. Those claims are not discussed herein.

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evidence, and malicious prosecution. We reverse the district court’s denial of

qualified immunity on Mr. Lowery’s and Amanda’s claim for loss of familial

association. Finally, we affirm in part and reverse in part the district court’s

denial of qualified immunity as to the supervisory liability claims.

II. DISCUSSION

Government officials performing discretionary functions are entitled to

qualified immunity from liability for civil damages so long as “their conduct does

not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). In considering whether an official is entitled to qualified immunity, the

first question a court must answer is “whether a constitutional right would have

been violated on the facts alleged” by the plaintiff. Saucier v. Katz, 533 U.S.

194, 200 (2001). If so, the court must then determine whether the right asserted

was clearly established at the time of the alleged violation. See id. In answering

this latter question, the relevant inquiry is whether “the right was sufficiently

clear that a reasonable officer would understand that what he is doing violates

that right.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001) (alteration and

quotations omitted).

Our jurisdiction to review an order denying summary judgment on the basis

of qualified immunity stems from 28 U.S.C. § 1291, which permits us to consider

appeals from “final decisions” of the district court. Although the denial of

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summary judgment is an interlocutory order not ordinarily subject to immediate

appellate review under § 1291, the Supreme Court has held that the denial of

summary judgment based on qualified immunity falls within the collateral-order

exception to that statute. See Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).

Our jurisdiction over such orders, however, is not without limit: we may consider

a qualified-immunity appeal only to the extent it turns on a matter of law. See

Johnson v. Jones, 515 U.S. 304, 313 (1995). Reviewable issues of law include

whether the right the defendant allegedly violated was “clearly established” at the

time of the violation, see Behrens v. Pelletier, 516 U.S. 299, 313 (1996), as well

as whether the plaintiffs’ version of the facts amounts to a constitutional

violation, see Garrett v. Stratman, 254 F.3d 946, 952 (10th Cir. 2001) (“[W]hen

the plaintiffs’ allegations are taken as true, denial of summary judgment on

qualified immunity resolves an abstract issue of law and is immediately

appealable.”); Gross, 245 F.3d at 1156–57. We do not have jurisdiction to

resolve disputed issues of fact and have therefore observed that a defendant may

not appeal the sufficiency—as opposed to the legal significance—of the

plaintiff’s evidence. See Garrett, 254 F.3d at 953 (“If we determine the district

court’s conclusion rests on findings of evidence sufficiency, we must dismiss for

lack of jurisdiction.” (quotations omitted)); Gross, 245 F.3d at 1156 (“Courts of

appeals clearly lack jurisdiction to review summary judgment orders deciding

qualified immunity questions solely on the basis of evidence sufficiency—which

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facts a party may, or may not, be able to prove at trial.” (quotations omitted)).

A. Nonreviewable Questions of Fact: Claims for Coercion, Failure to

Investigate, Fabrication of Evidence, and Malicious Prosecution

The defendants dispute the factual allegations that support Mr. Lowery’s

claims for coercion, failure to investigate, fabrication of evidence, and malicious

prosecution. Although the defendants claim that they accept Mr. Lowery’s

allegations as true, the defendants in fact only cite to select portions of the record

evidence and ignore the allegations as pleaded in Mr. Lowery’s complaint and

supported by other record evidence. Specifically, the defendants contest the

nature of and circumstances surrounding the questioning that led to Mr. Lowery’s

confession, as well as the extent—if any—to which Mr. Lowery was in custody

during the questioning. This amounts to a challenge to the sufficiency of the

evidence, which presents a question of fact that we do not have jurisdiction to

consider. See Garrett, 254 F.3d at 953; Gross, 245 F.3d at 1156. We therefore

dismiss the defendants’ appeal of the district court’s denial of qualified immunity

as to those claims.

B. Reviewable Questions of Law: Claims for Loss of Familial Association and

Supervisory Liability

1. Loss of Familial Association

A child has a constitutionally protected liberty interest in a relationship

with her parent. See Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984)

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(“[C]hoices to enter into and maintain certain familial human relationships must

be secured against undue intrusion by the State because of the role of such

relationships in safeguarding the individual freedom that is central to our

constitutional scheme. In this respect, freedom of association receives protection

as a fundamental element of personal liberty.”); Trujillo v. Bd. of County

Comm’rs, 768 F.2d 1186, 1189 (10th Cir. 1985) (holding that a parental

relationship is a constitutionally protected liberty interest). This right to familial

association is grounded in the Fourteenth Amendment’s Due Process Clause. J.B.

v. Wash. County, 127 F.3d 919, 927 (10th Cir. 1997). To determine whether a

substantive right protected by the Due Process Clause has been violated, we

balance “the individual’s interest in liberty against the State’s asserted reasons for

restraining individual liberty.” Youngberg v. Romeo, 457 U.S. 307, 320 (1982).

In addition, in Trujillo, we held that “an allegation of intent to interfere with a

particular relationship protected by the freedom of familial association is required

to state a claim under section 1983.” 768 F.2d at 1190 (emphasis added). As a

result, “‘[n]ot every statement or act that results in an interference with the rights

of familial association is actionable.’ The conduct or statement must be directed

‘at the familial relationship with knowledge that the statements or conduct will

adversely affect that relationship.’” J.B., 127 F.3d at 927 (internal citation

omitted) (alteration in original) (quoting Griffin, 983 F.2d at 1548).

Here, Mr. Lowery and Amanda conceded during oral argument that,

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because there is no evidence that any of the defendants directed their conduct at

the familial relationship, Trujillo forecloses relief. They seek merely to preserve

this issue for en banc review, which they claim is justified in light of more recent

cases questioning Trujillo’s holding. See, e.g., Smith v. City of Fontana, 818 F.2d

1411, 1420 & n.12 (9th Cir. 1987) (expressly declining to follow Trujillo and

holding that the facts giving rise to a plaintiff’s claim for excessive use of force

by the police also “give[] the [plaintiff’s] children a substantive due process claim

based on their loss of his companionship”), overruled on other grounds by

Hodgers-Durgins v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc). Because

Trujillo remains the law of this Circuit, however, the defendants are entitled to

qualified immunity on Mr. Lowery’s and Amanda’s claim for loss of familial

association.

2. Supervisory Liability

A supervisor may be held liable under § 1983 for the acts of his subordinate

only if the plaintiff shows that the subordinate violated the Constitution and that

there is an affirmative link between the supervisor and the violation—“namely the

active participation or acquiescence of the supervisor in the constitutional

violation by the subordinate[].” Serna v. Colo. Dep’t of Corr., 455 F.3d 1146,

1151 (10th Cir. 2006). The defendants argue that Officers Steven French, Larry

Woodyard, and Alvan Johnson are not liable as supervisors or coconspirators

under § 1983 because Mr. Lowery has failed to allege sufficient facts to establish

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that their subordinates, Officers Harry Malugani and Douglass Johnson, violated

his constitutional rights. But the district court concluded that Mr. Lowery stated

claims against Officers Malugani and Johnson for coercion, failure to investigate,

fabrication of evidence, and malicious prosecution. Because we have not

disturbed these rulings on appeal, Mr. Lowery’s supervisory and conspiracy

claims must also survive summary judgment. To the extent the supervisory and

conspiracy claims are premised on Mr. Lowery’s and Amanda’s loss of

association claim, however, Mr. Lowery has failed to allege the violation of a

constitutional right. Qualified immunity therefore shields the supervisors from

liability on the basis of that claim.

III. CONCLUSION

We DISMISS for lack of jurisdiction the defendants’ appeal of the denial of

qualified immunity as to the claims for coercion, failure to investigate, fabrication

of evidence, and malicious prosecution. We REVERSE the district court’s denial

of qualified immunity as to Mr. Lowery’s and Amanda’s claim for loss of familial

association. We AFFIRM in part and REVERSE in part the district court’s denial

of qualified immunity as to the supervisory liability claims. Finally, we GRANT

the defendants’ motion to supplement the record on appeal.

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