Randy Cole v. Michael Hunter

Case: 14-10228 Document: 00513208430 Page: 1 Date Filed: 09/25/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 14-10228 FILED

September 25, 2015

Lyle W. Cayce

RANDY COLE; KAREN COLE; RYAN COLE, Clerk

Plaintiffs-Appellees

v.

CARL CARSON,

Defendant-Appellant

****************

No. 15-10045

RANDY COLE; KAREN COLE; RYAN COLE,

Plaintiffs-Appellees

v.

MICHAEL HUNTER; MARTIN CASSIDY,

Defendants-Appellants

Appeals from the United States District Court

for the Northern District of Texas

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Before HIGGINBOTHAM, CLEMENT, AND HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Seventeen-year-old Ryan Cole was severely injured in an armed

encounter with police. Ryan and his parents, Karen and Randy Cole (“the

Coles”), brought suit against Officers Michael Hunter and Martin Cassidy,

alleging that they violated Ryan’s Fourth Amendment right not to be

subjected to excessive force. They also sued Officer Carl Carson, alleging

Carson violated Ryan’s rights under the Fourth and Fourteenth Amendments

by lying and concealing evidence in order to protect Hunter and Cassidy; that

he caused Ryan to be wrongfully charged with aggravated assault of a public

servant. The district court denied Carson’s motion to dismiss and Hunter and

Cassidy’s motion for summary judgment, rejecting the officers’ immunity

defense at the motion stage of the case.

We dismiss defendants’ appeal of the district court’s order refusing to

grant summary judgment on the excessive force claim, and we affirm the

district court’s refusal to dismiss the due process claim relating to fabrication

of evidence. However, we conclude that the district court erred in allowing all

other claims to proceed.

I

Seventeen-year-old Ryan Cole was a junior at Sachse High School. 1

Ryan suffered from obsessive-compulsive disorder. The night before the

shooting, he quarreled with his parents, and later took guns and ammunition

from their gun safe. He visited his friend Eric Reed Jr. late that night

1 One of the cases before us comes from a denial of summary judgment, and one from

a denial of a motion to dismiss. They involve distinct standards of review and universes of

relevant facts. For purposes of this summary, we describe the facts in broad strokes,

turning to their detail as we address specific issues.

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carrying weapons. The next morning, October 25, 2010, Ryan visited Eric

again carrying two handguns: a revolver and a Springfield 9mm semi-

automatic. At around 10:45 in the morning Ryan allowed Eric to take the

revolver, and used Eric’s cellphone to ask his grandparents to pick him up at

a nearby CVS.

During the course of the morning, police were informed that Ryan was

carrying at least one gun and acting aggressively, and they began looking for

him. After Ryan left Eric’s house with his remaining handgun, he was seen

by several officers and ordered to stop. He continued to walk away from the

officers and placed the gun against his own head. He walked towards a set of

train tracks separated by a narrow wooded area and grassy strip from

Highway 78, a major road. The CVS where he was to meet his grandparents

was located on the other side of the wooded area, across Highway 78.

Three police officers—Hunter, Cassidy, and Carson—were attempting

to locate Ryan on the other side of the wooded area, near Highway 78 and the

CVS. Ryan crossed the wooded area and backed out of the woods near Officer

Hunter, who was some distance from Officers Cassidy and Carson. The

officers believed Ryan was unaware of them when he backed out, and

remained quiet so as not to alert him. Then Ryan made some turning motion

to his left. The officers say that he turned to face Officer Hunter and pointed

his gun at him, while the Coles argue that he merely began to turn toward

the CVS, still with his gun pointed at his own head. Whether any warning

was given is disputed, but Officers Hunter and Cassidy opened fire, hitting

Ryan twice. In addition, Ryan’s gun discharged, hitting his own head, and

leaving stippling—gunpowder residue around the wound due to the gun being

fired from less than thirty inches away.

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Ryan fell, and the officers ceased firing. He was picked up by an

ambulance and taken for treatment of his severe injuries. Over time, Ryan

has made a significant recovery, but lives with profound disabilities. He has

incurred extensive medical bills and continues to require care. After the

shooting, the three officers had an opportunity to confer before making their

statements to police investigators—statements which conveyed that Ryan

was given a warning and that he pointed his gun at Officer Hunter prior to

being shot. The Coles argue that these statements are lies contradicted by

recordings and physical evidence.

The officers’ statements resulted in Ryan being charged with

aggravated assault on a public servant—a felony. As a result of the assault

charge, Ryan was placed under house arrest. The assault charge was

dismissed by the District Attorney on May 8, 2012, and Ryan received

deferred adjudication for an unlawful carrying charge. The Coles incurred

substantial legal fees in order to confront the aggravated assault charge,

which they allege was concocted by the officers to justify the shooting.

II

The Coles brought suit in the Eastern District of Texas. The appellant

officers 2 moved to transfer; answered, asserting absolute and qualified

immunity defenses; and moved to dismiss or alternatively for the court to

order a reply to their immunity defenses under Federal Rule of Civil

Procedure 7(a). 3 After transfer to the Northern District of Texas, the district

court ordered the Coles to notify it whether they would file additional

2Along with other defendants.

3 A procedure for employing Rule 7(a) to require a reply when a qualified immunity

defense is pleaded with specificity was described in Schultea v. Wood, 47 F.3d 1427 (5th Cir.

1995).

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documents in the form of a Rule 7(a) Reply or an amended Complaint.

The Coles filed their First Amended Complaint which, as relevant here,

includes § 1983 claims against Officers Cassidy and Hunter for excessive

force and against all three officers for manufacturing and concealing evidence

in order to get Ryan falsely charged with assault. The defendants moved to

dismiss, with the appellant officers asserting absolute and qualified

immunity defenses. The court then issued a Memorandum Opinion and

Order denying the Motion to Dismiss with respect to the § 1983 claims based

on both excessive force and conspiracy to conceal and manufacture evidence

to bring a false charge. Officer Carson appealed that order with regard to the

latter claim; Officers Cassidy and Hunter did not. The district court stayed

the false charge claim as to Cassidy and Hunter pending the result of

Carson’s appeal. We heard argument on that appeal.

Meanwhile, the district court allowed limited discovery focused on

Officers Cassidy and Hunter’s qualified immunity defense to the excessive

force charge. Those two officers then moved for summary judgment on that

charge, which the district court denied. Officers Cassidy and Hunter

appealed, and we consolidated their appeal with Carson’s.

III

Following the chronology of the underlying events, we turn first to the

excessive force claim. The district court denied Officers Cassidy and Hunter’s

motion for summary judgment, finding they were not entitled to qualified

immunity because, under the plaintiffs’ evidence, their use of force violated

clearly established law.

a. Qualified immunity inquiry at summary judgment

The officers are protected “from liability for civil damages” by qualified

immunity “insofar as their conduct does not violate clearly established

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statutory or constitutional rights of which a reasonable person would have

known.” 4 Qualified immunity is an immunity from suit and thus should be

resolved as early as possible. 5 At summary judgment, it is the plaintiff’s

burden to rebut a claim of qualified immunity once the defendant has

properly raised it in good faith. 6

“District court orders denying summary judgment on the basis of

qualified immunity are immediately appealable . . . when based on a

conclusion of law.” 7 We may not review the district court’s determination that

a genuine fact dispute exists, 8 but we are called to determine whether,

resolving all fact disputes in the plaintiffs’ favor, the defendants are

nonetheless entitled to qualified immunity as a matter of law. 9 Within the

limited scope of our inquiry, review is de novo. 10 We must:

engage in a two-pronged inquiry. The first asks whether the

facts, “[t]aken in the light most favorable to the party asserting

the injury . . . show the officer’s conduct violated a [federal] right .

. . .” The second prong . . . asks whether the right in question was

“clearly established” at the time of the violation. 11

We may address either prong first. 12

b. Fourth Amendment violation

4 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted).

5 Id. at 231-32.

6 Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992).

7 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997).

8 Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).

9 Id. at 397-98; Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).

10 Good, 601 F.3d at 398.

11 Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2014) (citations omitted); see also Trent

v. Wade, 776 F.3d 368, 384 (5th Cir. 2015) (rejecting idea that the second prong should be

further subdivided to ask whether the defendants’ actions were “objectively reasonable”).

12 Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (citing Pearson,

555 U.S. at 236).

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To show a violation of the Fourth Amendment’s prohibition against

excessive force, the Coles must prove that “the force used was objectively

unreasonable.” 13 In assessing the reasonableness of the force, we examine:

the facts and circumstances of the particular case—the need for

force determines how much force is constitutionally permissible.

The court should consider “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” 14

In deadly force cases, “the severity and immediacy of the threat of harm to

officers or others are paramount to the reasonableness analysis.” 15

Additionally, we bear in mind both that “[t]he intrusiveness of a seizure by

means of deadly force is unmatched,” 16 and that the use of force “must be

judged from the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” 17

Accepting the Coles’ best version of the evidence, as they must, Officers

Cassidy and Hunter argue that shooting Ryan was not objectively

unreasonable—that he presented an immediate threat of serious harm when

they fired. 18 Accordingly, we recount the version of events most favorable to

the Coles.

13 Luna v. Mullenix, 773 F.3d 712, 719 (5th Cir. 2014) (citing Goodson v. City of

Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)). The officers do not dispute that the Coles

have produced evidence of “(1) an injury; (2) which resulted directly from a use of force that

was clearly excessive to the need.” Luna, 773 F.3d at 719.

14 Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013) (footnotes omitted).

15 Luna, 773 F.3d at 719-20.

16 Tennessee v. Garner, 471 U.S. 1, 9 (1985).

17 Graham v. Connor, 490 U.S. 386, 396-97 (1989) (“The calculus of reasonableness

must embody allowance for the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.”).

18 Both the officers and the Coles focus on the reasonableness of the shooting as a

whole, without any serious attempt to separate the analysis as to each officer.

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Just before the shooting, Officer Hunter was in an exposed position

between Highway 78 and the narrow wooded area separating it from the

train tracks. He was looking for Ryan, expecting him to be nearby because of

his own observations and a radio report that Ryan was on the railroad tracks

near his position. Officer Cassidy was also between Highway 78 and the

wooded area with Officer Carson, but was some distance away. Officer

Hunter heard rustling in the woods near him, and signaled to the other

officers that Ryan was there. Ryan then backed out of the woods with his gun

to his own head, and his back to Officer Hunter. Both Officers Cassidy and

Hunter believed Ryan was initially unaware of their presence, and stayed

quiet so that he would not become aware of them. Ryan turned somewhat to

his left, possibly in order to approach the CVS where his grandparents were

waiting, and the officers opened fire without warning. Ryan turned further

around as the officers continued firing, and his own gun, still pointed at his

head and with his finger on the trigger, discharged involuntarily as a result

of his being shot.

At the time they fired, the officers were aware that Ryan had been

walking around the neighborhood holding a gun to his head, and that he had

not surrendered to other officers who came in contact with him. Ryan looked

like a teenager, and Officer Cassidy was aware that he had recently broken

up with his girlfriend, a student at Sachse High. Officer Hunter believed

Ryan might be suicidal or might simply be using the threat to himself to

evade officers. Both officers were aware that Ryan had brought guns to Eric

Reed Jr.’s house, and Officer Cassidy knew that there had been a disturbance

at the Cole house the night before. The officers were aware that Ryan had

told Eric not to try to take his remaining gun, and that he did not “wanna use

it on” him. This was the only threatening or aggressive action or speech

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Officer Hunter was aware of Ryan making. The officers knew that they were

firing in the vicinity of a busy road, across from shops and other populated

buildings. They knew there were schools within walking distance, and that

measures were taken to secure them and to protect Ryan’s ex-girlfriend.

First, the relevant principles. It is clear that the “use of deadly force,

absent a sufficiently substantial and immediate threat, violate[s] the Fourth

Amendment.” 19 The threat must be “immediate”; 20 we consider the totality of

the circumstances, 21 including relevant information known to the officers.

The fact that a person has a gun and is behaving in a dangerous

manner does not necessarily constitute an immediate and serious threat

justifying use of deadly force. In unpublished but persuasive decisions, we

have denied qualified immunity where a person, though undisputedly holding

a gun to his own head, was complying with officers’ orders, 22 and where a

person, reportedly armed and a suspect in a double-homicide, had ceased

running and had his arms at his sides. 23 When we have found officers

justified for shooting suicidal people who were armed with guns, we have

19 Luna, 773 F.3d at 725. Our focus is not upon actual risk, but upon the question of

whether the officer could have “reasonably believe[d] that the suspect pose[d] a threat of

serious harm to the officer or to others.’” Harris v. Serpas, 745 F.3d 767, 773 (5th Cir. 2014)

(quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)).

20 Luna, 773 F.3d at 725; Harris, 745 F.3d at 772; Sanchez v. Fraley, 376 F. App’x

449, 453 & n.1 (5th Cir. 2010) (unpublished) (“[I]t was clearly established well before [2007]

that ‘deadly force violates the Fourth Amendment unless “the officer has probable cause to

believe that the suspect poses a threat of serious physical harm”’ . . . [which] must be

‘immediate.’” (citations omitted) (quoting Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481,

488 (5th Cir. 2001), and Tennessee v. Garner, 471 U.S. 1, 11 (1985))); Reyes v. Bridgwater,

362 F. App’x 403, 407-09 (5th Cir. 2010); Reese v. Anderson, 926 F.2d 494, 500 (5th Cir.

1991).

21 See Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008); Reese, 926 F.2d at 500.

22 Graves v. Zachary, 277 F. App’x 344, 349 (5th Cir. 2008) (finding fact dispute over

whether the victim was complying with officer’s orders at the time he was shot to be

material, notwithstanding the fact that he was holding a gun to his own head); id. at 348

(“Merely having a gun in one’s hand does not mean per se that one is dangerous.”).

23 Sanchez, 376 F. App’x at 451-52.

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depended on the victim’s additional threatening “Manis” 24 acts and

disobedience of police commands, which elevated the immediacy and severity

of the danger. 25

Our caselaw persuasively has held that the fact that a suicidal person

who has a gun to his head, hence poses some deadly risk to officers and

others, does not always justify shooting him. 26 Just as there is no “open

season on suspects fleeing in motor vehicles,” 27 despite the inherent risks of

such flight, 28 there is no open season on suspects with guns. 29 Instead, “the

real inquiry is whether the fleeing suspect posed such a threat that the use of

deadly force was justifiable.” 30 “[T]he threat must be sufficiently imminent at

the moment of the shooting to justify deadly force.” 31

We conclude that the facts that Ryan was holding a gun to his head,

that the officers believed he had made some threat to use it against a peer,

and that the officers knew Ryan was attempting to evade officers, could not

24 See discussion below at notes 34-40.

25 See, e.g., Royal v. Spragins, 575 F. App’x 300, 301, 303-04 (5th Cir. 2014)

(emphasizing that suicidal victim ignored warning to drop his gun and pointed it at the

officers); Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1134-35 (5th Cir. 2014)

(emphasizing that the suicidal victim fired gun, ignored warnings to put it down, and

moved towards officers with it); Ramirez, 542 F.3d at 127, 131 (emphasizing that suicidal

victim with gun ignored officer’s commands, got out of his car, and “brought his hands

together in front of his waist” “as if to grip the handgun with both hands in preparation to

aim it at the officers”); see also City of San Francisco v. Sheehan, 135 S. Ct. 1765, 1770,

1775 (2015) (addressing shooting of woman with knife who threatened officers and, despite

warnings and then pepper spray, “kept coming at the officers until she was ‘only a few feet

from a cornered Officer Holder.’ At this point, the use of potentially deadly force was

justified.”).

26 See, e.g., Graves, 277 F. App’x at 349.

27 Lytle v. Bexar Cty., 560 F.3d 404, 414-15 (5th Cir. 2009).

28 Id. at 415 (“Nearly any suspect fleeing in a motor vehicle poses some threat of

harm to the public.”).

29 See Graves, 277 F. App’x at 348 (“Merely having a gun in one’s hand does not

mean per se that one is dangerous.”).

30 Id.

31 Luna, 773 F.3d at 723.

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in the circumstances here justify the use of deadly force. 32 Though Ryan was

approaching a busier area from which several witnesses observed the

shooting, he was shot in a relatively open area with only the officers

immediately present. 33 He was on foot and walking, not running, and he did

not know Officers Hunter, Cassidy, and Carson were there.

Indeed, the officers do not argue that they were justified in shooting

Ryan by the above circumstances alone. Instead, they focus on the fact that

Ryan, whose back was initially towards Officer Hunter, turned to his left

immediately before they shot. They argue that if they had waited, Ryan could

have continued turning until he was facing Officer Hunter, and shot him

before they could react. According to the officers, if Ryan had been allowed to

turn around and face Officer Hunter without being fired on, he would have

“posed an immediate deadly threat.”

The officers invoke cases in which we have found that a use of deadly

force was justified expressly because the person, ignoring police warnings,

made some threatening motion towards officers, or moved in a way

reasonably interpretable as drawing an immediately dangerous weapon. 34

32 The facts here contrast instructively with those in Ballard v. Burton, where we

found that shooting was justified even if the suicidal victim did not point his gun directly at

law enforcement officers just before he was shot because “during the course of the night’s

events [he] refused to put down his rifle, discharged the rifle into the air several times

while near officers, and pointed it in the general direction of law enforcement officers.” 444

F.3d 391, 402-03 (5th Cir. 2006).

33 Indeed, only Officer Hunter was reported by the officers as being in immediate

danger. Of course, officers may use deadly force to protect their own lives, but the relative

openness and lack of immediate bystanders or chaotic conditions informs our

understanding of the circumstances.

34 See, e.g., Rice, 770 F.3d at 1134-35 (finding no constitutional violation where police

warned and then shot a suicidal man who “was undisputedly approaching the officers with

a loaded weapon which he had recently fired and which he refused to surrender”); Clayton

v. Columbia Cas. Co., 547 F. App’x 645, 653 (5th Cir. 2013) (qualified immunity appropriate

where “suspect with dangerous and violent propensities” “continued toward the Deputy,

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The act justifying deadly force is sometimes called a Manis act. 35 We have

found qualified immunity was inappropriate due to the absence of a Manis

act, even when the victim had or was believed to have a gun. 36

Turning to one’s left is not a threatening Manis act in these

circumstances, particularly when the person does not even know the officers

are there. 37 It is distinctly unlike raising a gun at officers or moving a gun up

to waist-level and gripping as if preparing to fire. 38 The officers make much of

our statement in Rice that “the material fact” was that the victim was “armed

and moving toward the officers.” 39 But moving purposefully towards an

officer who is ordering the person to stop, with a drawn and recently fired

gun, 40 is much more threatening than having a gun to one’s own head, and

turning without knowledge of the officer’s presence.

ignoring his commands”); Elizondo v. Green, 671 F.3d 506, 510-11 (5th Cir. 2012) (finding it

was not clearly unreasonable to shoot a person who “ignored repeated instructions to put

down the knife he was holding” and “was hostile, armed with a knife, in close proximity to

[the officer], and moving closer”); Manis v. Lawson, 585 F.3d 839, 844 (5th Cir. 2009)

(finding no constitutional violation where victim ignored repeated police commands,

“reached under the seat of his vehicle and then moved as if he had obtained the object he

sought”); id. (collecting cases); Ramirez, 542 F.3d at 131 (“The totality of Ramirez’s conduct

could reasonably be interpreted as defiant and threatening. He repeatedly refused the

officers’ commands and ultimately stood, armed, several yards from the officers. Ramirez

brought his hands together in what we believe could reasonably be interpreted as a

threatening gesture, as if to grip the handgun with both hands in preparation to aim it at

the officers.”).

35 See Manis, 585 F.3d at 844.

36 See Sanchez, 376 F. App’x at 451-52 (finding qualified immunity inappropriate in

absence of Manis act where victim, who was a suspect in a double homicide and was

reported to have a gun and to have “forcibly attempted to enter somebody’s house,” had

ceased running and had his hands at his sides when shot); Graves, 277 F. App’x at 346 (“It

is not disputed that [the victim] never verbally threatened [the officers], never pointed his

gun at the officers, and did not even move aggressively.”).

37 Recall that the officers themselves believed Ryan was not aware of their presence.

38 See cases cited in note 34.

39 Rice, 770 F.3d at 1135.

40 Id. at 1134-35.

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In sum, if the Coles’ version of the evidence is believed, it was not

objectively reasonable to use deadly force against Ryan Cole when the

teenager emerged on foot from the wooded area with a gun to his own head

and turned to his left.

c. Clearly established law

Under the second prong of the qualified immunity analysis, we ask

whether it was clearly established in October 2010 that using deadly force

against a person in circumstances like those here was objectively

unreasonable: 41

A right is clearly established only if “the right’s contours were

sufficiently definite that any reasonable official in the defendant’s

shoes would have understood that he was violating it.” A case

directly on point is not required; rather, “[t]he central concept is

that of ‘fair warning’: The law can be clearly established despite

notable factual distinctions between the precedents relied on and

the cases then before the Court, so long as the prior decisions

gave reasonable warning that the conduct then at issue violated

constitutional rights.” 42

In 2009, we held that “[i]t has long been clearly established that,

absent any other justification for the use of force, it is unreasonable for a

police officer to use deadly force against a fleeing felon who does not pose a

sufficient threat of harm to the officer or others.” 43 In Luna v. Mullenix we

extended that holding, finding that by March 2010, it was clearly established

that shooting at a fleeing car whose driver had threatened to shoot pursuing

41 See Saucier v. Katz, 533 U.S. 194, 200 (2001).

42 Trent, 776 F.3d at 383 (citations to Plumhoff v. Rickard, 134 S. Ct. 2012, 2023

(2014), and Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc), removed); see also

Sheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if ‘clearly

established’ law can simply be defined as the right to be free from unreasonable searches

and seizures.”).

43 Lytle, 560 F.3d at 417.

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police officers was objectively unreasonable. 44 We also held that it was clearly

established by March 2010 that the threat in question had to be “sufficiently

substantial and immediate.” 45

If anything, the foot pursuit of Ryan Cole presented a less severe and

immediate threat than the chase in Luna. First, walking away on foot is less

inherently dangerous than fleeing in a car. Second, though in Ryan’s case

officers could see that he was pointing a gun at his own head, he never

threatened officers with it; in Luna, the victim not only claimed to have a gun

in the fleeing car, but explicitly threatened to shoot police officers. 46 In Luna,

we emphasized that the shooting officer decided to shoot the car before it

came into view—that he was not forced to make a “split-second judgment.” 47

In this case, though the officers may not have decided to shoot ahead of time,

they were expecting to encounter exactly what they found: Ryan walking

with a gun to his head.

By October 2010, we had also repeatedly analyzed the sufficiency of

Manis acts to justify deadly force when the underlying circumstances might

not otherwise justify it. 48 In short, by October 2010, reasonable officers were

on notice that they could not lawfully use deadly force to stop a fleeing person

who did not pose a severe and immediate risk to the officers or others, and

they had many examples of the sorts of threatening actions which could

44 773 F.3d at 725.

45 Id.

46 Id. at 722. It turned out that he did not actually have a gun.

47 Id. at 723-24.

48 See, e.g., Sanchez, 376 F. App’x at 451-52; Reyes, 362 F. App’x at 407; Manis, 585

F.3d at 844 (collecting cases); Graves, 277 F. App’x at 346; Ramirez, 542 F.3d at 127, 131;

Mace v. City of Palestine, 333 F.3d 621, 624-25 (5th Cir. 2003).

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justify deadly force. 49 Turning left while unaware of an officer’s presence is

not among them.

Under the Coles’ version of the facts, it was objectively unreasonable

under clearly established law to shoot Ryan. As a result, the fact disputes

identified by the district court—including the central issue of whether Ryan

pointed his gun at Officer Hunter—are material, and we dismiss the appeal

for lack of jurisdiction.

IV

We now turn to the claim that Officer Carson lied and concealed

evidence in order to protect Officers Hunter and Cassidy after the shooting.

The district court refused to dismiss the Coles’ claim that Officer Carson

agreed and acted with others “to deprive Ryan Cole of various constitutional

rights including, but not limited to, his right to remain free from malicious

prosecution, wrongful conviction, and unlawful confinement.” The court

located the source of the rights in the “Fourth and Fourteenth

Amendment[s].” Officer Carson appeals, asserting qualified and absolute

immunity defenses as he did below.

49 The out-of-circuit cases cited by the officers do not lead to a different conclusion.

They involve situations where the victim had been warned repeatedly yet moved a gun

“very quickly” and pointed it at officers shortly before being shot, see Thomson v. Salt Lake

Cty., 584 F.3d 1304, 1311 (10th Cir. 2009); where it was difficult for officers to see, and the

victim ignored commands at the scene of the shooting and instead escalated matters by

raising a gun to his head, see Garczynski v. Bradshaw, 573 F.3d 1158, 1162-63, (11th Cir.

2009); where the victim fired a gun in a chaotic, crowded environment and then ignored an

officer’s orders to stop, see Montoute v. Carr, 114 F.3d 181, 185 (11th Cir. 1997); and where

the victim ignored the shooting officers’ commands and moved either his gun hand or his

other hand in the vicinity of his gun just prior to being shot, see Thurman v. Hawkins, CIV.

13-50-GFVT 2014, WL 4384387, at *1, 4 (E.D. Ky. Sept. 3, 2014). These cases are

distinguishable from the facts before us, and in any event do not undermine this circuit’s

clearly established law.

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The denial of a motion to dismiss based on qualified immunity or a

substantial claim of absolute immunity is immediately appealable to the

extent it turns on legal questions. 50 We review de novo, 51 accepting “all well-

pleaded facts as true and draw[ing] all reasonable inferences in favor of the

nonmoving party.” 52 To avoid dismissal based on qualified immunity, the

Coles had to allege (1) “a violation of a constitutional right” which (2) was

“‘clearly established’ at the time of [Carson’s] alleged misconduct.” 53 The

Coles had the burden of pleading “specific conduct and actions giving rise to a

constitutional violation” to meet the defense. 54

a. Allegations that Officer Carson fabricated evidence

The Coles pled the following relevant facts in their First Amended

Complaint (FAC) and the expert affidavits they attached to it. 55 First, Ryan

was seen by several officers walking in public openly carrying a handgun,

and at least one witness called police to report that he had a gun. The FAC

alleges that when Ryan emerged from the wooded area, he was facing away

from Officer Hunter, with the gun held to his own head. Without warning

Ryan or identifying themselves, Officers Hunter and Cassidy opened fire.

After the shooting, Officers Carson, Cassidy, and Hunter were “permitted to

leave the scene for a considerable period of time without any supervision,”

50 Mitchell v. Forsyth, 472 U.S. 511, 525, 530 (1985); Hous. Cmty. Hosp. v. Blue Cross

& Blue Shield of Tex., Inc., 481 F.3d 265, 268-69 & n.11 (5th Cir. 2007).

51 Morgan, 659 F.3d at 370 (qualified immunity); Orellana v. Kyle, 65 F.3d 29, 33

(5th Cir. 1995) (absolute immunity).

52 Morgan, 659 F.3d at 370 (footnote omitted).

53 Pearson v. Callahan, 555 U.S. 223, 232 (2009); see also Hernandez v. United

States, 785 F.3d 117, 120 (5th Cir. 2015) (en banc).

54 Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996).

55 Neither party argues that the facts alleged in the expert affidavits, which were

attached to the FAC expressly to provide greater detail to meet the officers’ immunity

defenses, are not properly considered. See Davoodi v. Austin Indep. Sch. Dist., 755 F.3d 307,

310 (5th Cir. 2014); Wilson v. Birnberg, 569 F. App’x 343, 344 n.1 (5th Cir. 2014).

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giving them opportunity to confer. The Coles allege that the officers “formed

and carried out an agreement . . . to hide and cover up . . . the true events” in

order to justify the use of force and avoid consequences for killing Ryan, who

they believed was likely to die. Their alleged aim was to “prosecute and

arrest Ryan Cole for . . . an offense that each of them knew he did not

commit.”

The Coles allege that Officer Carson made false statements to

investigators that Ryan aimed his gun at Officer Hunter and that Hunter

warned him before shooting. The Coles allege that physical evidence,

recordings, and expert opinions show these statements cannot be true. They

allege that the false statements led “Garland police officers [to] file[] a case

with the District Attorney’s office in Dallas County charging Ryan Cole with

the felony offense of aggravated assault on a public servant.” Ryan was

subsequently indicted by a grand jury for that offense, based again on the

officers’ statements. “As a result of the fictitious charges . . . Ryan Cole was

confined indefinitely under house arrest.” We are also told that “[o]n or about

May 8, 2012, the Dallas County District Attorney’s office dismissed” the

assault charge. “At or near the same time,” Ryan “pleaded no contest” and

“received deferred adjudication for the charge of unlawfully carrying a

weapon.” The Coles incurred substantial legal fees in order to confront the

aggravated assault charge.

We address the alleged constitutional violations in turn.

b. Fourth Amendment violation

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Pretrial use of fabricated evidence to secure a person’s arrest can

violate the Fourth Amendment. 56 However, we have said that in order to

make out a Fourth Amendment claim under either a “false arrest” or “illegal

detention” theory, the relevant actors must not be aware of facts constituting

probable cause to arrest or detain the person for any crime. 57 The Supreme

Court has made it clear that this is the law as far as warrantless arrests are

concerned. 58

There is some suggestion that the standard may be different when a

magistrate is deceived in order to obtain a warrant. 59 In such a case, the

focus may not be on what facts officers were aware of, but on whether, once

the false information is excised, the information presented to the magistrate

could justify the arrest. 60 We need not decide the precise contours of these

56 Castellano v. Fragozo, 352 F.3d 939, 959 (5th Cir. 2003) (en banc) (noting that, in

contrast to misconduct occurring at trial, Castellano’s “arrest and pretrial detention” could

support a Fourth Amendment claim).

57 Whittington v. Maxwell, 455 F. App’x 450, 458-59 (5th Cir. 2011) (stating that

“[w]ith regard to pretrial confinement, ‘[t]he sole issue [under the Fourth Amendment] is

whether there is probable cause for detaining the arrested person pending further

proceedings,’” and finding illegal detention claim could stand where there was a factual

dispute over the existence of probable cause); O'Dwyer v. Nelson, 310 F. App’x 741, 745 (5th

Cir. 2009) (“‘[T]o prevail in a § 1983 claim for false arrest,’ . . . [a]s applied to the qualified

immunity inquiry, the plaintiff must show that the officers could not have reasonably

believed that they had probable cause to arrest the plaintiff for any crime.” (citations

omitted)).

58 Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004).

59 See Hamilton v. Collett, 83 F. App’x 634, 637 (5th Cir. 2003) (“[T]he question is

whether the allegedly false testimony was necessary to the Magistrate Judge's

determination of probable case.”); see also Baldwin v. Placer Cty., 418 F.3d 966, 970 (9th

Cir. 2005) (in search warrant case, finding that true information outside affidavit tainted

by lies could not be used to sustain warrant).

60 See Hamilton, 83 F. App’x at 637. An arrest may be valid under the Fourth

Amendment though the warrant was not if there was probable cause for a warrantless

arrest. See Behrens v. Sharp, 15 F.3d 180, 1994 WL 24936, at *3-4 (5th Cir. 1994). We have

said that the Fourth Amendment is not implicated by an arrest by an officer with probable

cause, even when the offense is a misdemeanor occurring outside the officer’s presence.

Fields v. City of S. Houston, 922 F.2d 1183, 1189 (5th Cir. 1991). However, this analysis

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issues now, however, because the Coles’ First Amended Complaint fails to set

out “specific conduct and actions” concerning Ryan’s seizure which can

survive qualified immunity.

In Texas, unlawful carrying consists of “intentionally, knowingly, or

recklessly carr[ying] on or about [one’s] person a handgun” or other weapon

when one is not on his own property or inside of or directly en route to his

motor vehicle. 61 Based on the Coles’ pleadings, it appears that, during the

entire period Ryan was under house arrest, there was known probable cause

to arrest him for unlawful carrying of a weapon. Both the unlawful carry and

aggravated assault charges were disposed of “at or near the same time,” after

which Ryan was apparently no longer subject to house arrest.

To the extent that the Coles seek to argue that the existence of known

probable cause to arrest Ryan for unlawful carrying is not fatal to their

Fourth Amendment claim, they have failed to allege specific conduct to meet

Officer Carson’s qualified immunity defense. We are told only that Ryan was

placed under house arrest “[a]s a result of [the] fictitious charges.”

Given that the face of the FAC reveals the known existence of probable

cause to arrest for unlawful carrying, and given the Coles’ failure to plead

facts supporting a theory of Fourth Amendment violation despite that

probable cause, the Coles have not pled a violation of clearly established law,

and Officer Carson is entitled to qualified immunity. Put another way, the

Coles have alleged that Ryan was placed under house arrest with probable

cause. That is not a clearly established Fourth Amendment violation without

may be affected if Ryan was at home when he was placed under house arrest. Harris v.

Canulette, 997 F.2d 881, 1993 WL 261085, at *2 n.8 (5th Cir. 1993) (limiting Fields to

arrests outside the home).

61 Tex. Penal Code Ann. § 46.02.

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something more, and the Coles have not alleged what that something more

might be.

c. Brady violation

The Coles argue that Officer Carson also violated Ryan’s Fourteenth

Amendment due process rights, due both to a Brady 62 violation, and more

generally to his role in the filing of false charges. The Coles allege that

Officer Carson committed a Brady violation in two ways: by lying to conceal

his own knowledge that Ryan Cole never assaulted an officer, and by

conspiring with other officers to conceal physical evidence also tending to

exculpate Ryan. But prior to 2010, we had held that Brady is not implicated

when there is no trial. 63 Ryan Cole was not tried for aggravated assault, nor

did he plead guilty; the charge was dismissed. There is no suggestion that the

aggravated assault charge was used as leverage to secure a plea on the

unlawful carrying charge. It follows that Officer Carson was not on notice

that withholding evidence in these circumstances could violate Brady, and he

is entitled to qualified immunity for the alleged Brady violations.

d. Due process violation – fabrication of evidence

We turn now to the Coles’ claim that Officer Carson violated Ryan’s

clearly established due process rights when he allegedly lied to investigators

to secure a false charge of aggravated assault.

We begin by recognizing that there is no “substantive right under the

Due Process Clause of the Fourteenth Amendment to be free from criminal

62 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment”).

63 United States v. Santa Cruz, 297 F. App’x 300, 301 (5th Cir. 2008); see also

Matthew v. Johnson, 201 F.3d 353, 361-62 (5th Cir. 2000) (applying rule in Teague v. Lane,

489 U.S. 288 (1989), to bar Brady attack on state court conviction).

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prosecution except upon probable cause.” 64 That much is clear from the

Supreme Court’s fractured decision in Albright v. Oliver. In Albright, a

plaintiff was wrongfully charged with selling a cocaine look-alike substance, a

charge later dismissed. 65 The Court rejected his claim that the prosecution

violated due process. We have held that Albright’s reach is limited; the case

“did not speak to the Fourteenth Amendment beyond eschewing reliance

upon substantive due process to create a requirement of probable cause to

initiate a prosecution. . . .” 66 Moreover, “that portion of Albright that suggests

that the Fourth Amendment applies to pretrial deprivations of liberty did not

receive the support of a majority of the Justices.” 67

Albright also differs in two important ways from the case at hand.

First, although the defendant detective in Albright accepted the story of an

unreliable informant and may have given “misleading” testimony, 68 there

was no suggestion that he deliberately fabricated evidence. In contrast, the

Coles allege that Officer Carson deliberately lied in order to get Ryan charged

to cover an unlawful use of force. Several of our sister circuits have found this

distinction pivotal in determining whether a due process violation is

committed by the fabrication of evidence. 69

Second, a majority of the Justices in Albright depended upon the

potential availability of a Fourth Amendment recourse the plaintiff had

64 Albright v. Oliver, 510 U.S. 266, 268 (1994) (plurality).

65 Id. at 268-69.

66 Castellano, 352 F.3d at 948.

67 Brothers v. Klevenhagen, 28 F.3d 452, 456 n.3 (5th Cir. 1994).

68 Albright, 510 U.S. at 277 (opinion of Ginsburg, J.); id. at 292-93 (Stevens, J.,

dissenting).

69 See Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002) (en banc) (“Although the

Fourth Amendment covers seizures . . . law enforcement’s intentional creation of damaging

facts would not fall within its ambit.”); see also Kennedy v. Peele, 552 F. App’x 787, 792-93

(10th Cir. 2014); Drumgold v. Callahan, 707 F.3d 28, 61-62 & n.27 (1st Cir. 2013).

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rejected, 70 observing that Albright should have brought his claim under the

Fourth Amendment. 71 In contrast, the Coles tried to make out a Fourth

Amendment claim, but we have explained that it is unavailing due largely to

the existence of probable cause on another count. Yet setting aside his time

seized under house arrest, Ryan still was framed and charged with a felony,

and subjected to attendant monetary and reputational injuries flowing from

such a serious charge. Unlike Albright, who chose to invoke substantive due

process rather than the Fourth Amendment, Ryan Cole has no other option.

1.

We built upon the uncertain foundation of Albright in our en banc

decision in Castellano v. Fragozo. 72 Castellano held that the elements of a

state malicious prosecution claim were neither sufficient nor independently

necessary to state a claim under § 1983 where a state actor allegedly

fabricated evidence to procure an arrest and conviction. 73 Rather, the

particular constitutional violation alleged had to be identified with clarity: 74

[C]ausing charges to be filed without probable cause will not

without more violate the Constitution. . . . It is equally apparent

that additional government acts that may attend the initiation of

a criminal charge could give rise to claims of constitutional

deprivation.

The initiation of criminal charges without probable cause

70 Albright, 510 U.S. at 271 (plurality); Id. at 277 (opinion of Ginsburg, J.) (noting

that “Albright deliberately subordinated invocation of the Fourth Amendment” as a

“strategic decision); id. at 289 (opinion of Souter, J.).

71 The Justices noted that all of Albright’s injuries could likely have been remedied

via such a challenge. Id. at 274 (plurality); id. at 276-77 (opinion of Ginsburg, J.); id. at 288-

91 (opinion of Souter, J.) (noting “rule of reserving due process for otherwise homeless

substantial claims”).

72 352 F.3d 939.

73 Id. at 953-54.

74 Id. at 945.

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may set in force events that run afoul of explicit constitutional

protection—the Fourth Amendment if the accused is seized and

arrested, for example, or other constitutionally secured rights if a

case is further pursued. 75

We ultimately found that a Fourth Amendment violation had been alleged

with regard to Castellano’s pretrial seizure, and a Fourteenth Amendment

due process violation was pled with regard to the knowing use of fabricated

evidence and perjury at trial. 76

While the due process violation in Castellano was tied to the “right to a

fair trial,” 77 we rejected the idea that “the specific constitutional rights

guiding a criminal trial spend their force in assuring a fair trial.” 78 Moreover,

we later held in Boyd v. Driver that officials’ perjured testimony and

tampering with video evidence constituted a due process violation even where

the plaintiff was acquitted. 79 Thus even when a trial functions properly to

vindicate a person’s innocence, the “manufacturing of evidence and knowing

use of that evidence along with perjured testimony to obtain a wrongful

conviction deprives a defendant of his long recognized right to a fair trial

secured by the Due Process Clause.” 80

We returned once more to Albright and Castellano in Cuadra v.

Houston Independent School District. 81 There we considered a claim against a

school district for manipulating evidence which led to charges against the

75 Id. at 953.

76 Id. at 953-55, 960. Thus, as in Albright, Castellano did not address a situation

where the Fourth Amendment provided no recourse.

77 Id. at 942, 957-58.

78 Id. at 956.

79 579 F.3d 513, 514-15 (5th Cir. 2009); see also Boyd v. Driver, 495 F. App’x 518, 523

(5th Cir. 2012) (reiterating that the first Boyd case decided no conviction was necessary).

80 Boyd, 579 F.3d at 515 (quoting Castellano, 352 F.3d at 942).

81 626 F.3d 808 (5th Cir. 2010).

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plaintiff, and stated that the “claims are based on alleged pretrial

deprivations of [plaintiff’s] constitutional rights and, under the holding in

Albright, such claims should be brought under the Fourth Amendment.” 82

Citing Cuadra, we recently held in Bosarge that a person indicted and held

for six months based on a mistaken identification had not stated a due

process claim. 83 But neither Cuadra nor Bosarge involved deliberate

fabrication of evidence to support false charges. Cuadra focused on a failure

of certain school officials to turn over a key document; 84 and in Bosarge, we

did not credit conclusory allegations that the misidentification was

intentional. 85 Neither case answers the question of whether deliberate

fabrication by law enforcement officers to justify a police shooting violates

due process.

In sum, we have held that a victim of intentional fabrication of

evidence by officials is denied due process when he is either convicted or

acquitted. We have never decided whether false charges must survive to the

trial stage in order to implicate due process rights.

2.

Our sister circuits have taken varying approaches to fabrication of

evidence and “malicious prosecution” claims in the wake of Albright. 86 That

said, they largely either have held that charges based on fabricated evidence

support a due process claim, or have not yet answered the question. Two

82 Id. at 814.

83 Bosarge v. Miss. Bureau of Narcotics, 14–60242, 2015 WL 4282372, at *5 (5th Cir.

July 15, 2015). Bosarge also cited Castellano, which we have discussed, and Blackwell v.

Barton, which involved a mistaken identification rather than intentional fabrication, and

only a brief detention—no charges were brought. 34 F.3d 298, 300-01 (5th Cir. 1994).

84 Cuadra, 626 F.3d at 811, 813-14.

85 Bosarge, 2015 WL 4282372, at *6.

86 See, e.g., Castellano, 352 F.3d at 949-53 (surveying the circuits’ “approaches to

malicious prosecution claims”).

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circuits have found that there is no due process claim in the absence of a

conviction—a requirement we have not insisted upon.

The Ninth Circuit held in Devereaux v. Abbey that “there is a clearly

established constitutional due process right not to be subjected to criminal

charges on the basis of false evidence that was deliberately fabricated by the

government,” 87 a formulation we quoted approvingly in Good v. Curtis. 88 In

Devereaux, the plaintiff alleged that investigators charged him with rape and

molestation on the basis of statements they should have known were false. 89

Though the charges were dropped in exchange for a guilty plea to two

misdemeanors, 90 the Ninth Circuit reasoned that:

Under Pyle v. Kansas, 317 U.S. 213, 216 (1942), the knowing use

by the prosecution of perjured testimony in order to secure a

criminal conviction violates the Constitution. While Pyle does not

deal specifically with the bringing of criminal charges, as opposed

to the securing of a conviction, we find that the wrongfulness of

charging someone on the basis of deliberately fabricated evidence

is sufficiently obvious, and Pyle is sufficiently analogous, that the

right to be free from such charges is a constitutional right. 91

In Ricciuti v. N.Y.C. Transit Authority, the police arrested a plaintiff

with probable cause, but then allegedly fabricated a confession resulting in

additional charges. 92 The Second Circuit denied qualified immunity for the

fabrication despite the fact that the charges were dismissed without trial. 93

The court held that “[w]hen a police officer creates false information likely to

influence a jury’s decision and forwards that information to prosecutors, he

87 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc).

88 601 F.3d at 398-99.

89 263 F.3d at 1073.

90 Id.

91 Id. at 1075 (citation shortened).

92 124 F.3d 123, 126-27, 129 (2d Cir. 1997).

93 Id. at 129-30 (citing due process cases and principles).

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violates the accused’s constitutional right to a fair trial, and the harm

occasioned by such an unconscionable action is redressable in an action for

damages under 42 U.S.C. § 1983.” 94 The Second Circuit has since recognized

that the fabrication in Ricciuti deprived the plaintiffs of liberty in part

because it “caused [them] to be charged with a more serious crime.” 95

In Pierce v. Gilchrist, a plaintiff was arrested and convicted on the

basis of falsified evidence created by an investigator. 96 Though not always

distinguishing clearly between the plaintiff’s Fourth and Fourteenth

Amendment claims, 97 the Tenth Circuit upheld the district court’s refusal to

dismiss on qualified immunity grounds based on the use of false evidence to

“induce prosecutors to initiate an unwarranted prosecution.” 98 The court

explained that it saw no “reason to distinguish between falsifying evidence to

facilitate a wrongful arrest and engaging in the same conduct several days

later to induce prosecutors to initiate an unwarranted prosecution.” 99 Thus

the fact that there was probable cause for the arrest was immaterial. In

another “malicious prosecution” case ending in dismissal of criminal charges,

the court explicitly rejected substantive and procedural due process claims 100

94 Id. at 130.

95 Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012). The circuit

reiterated its holding in a later case which ended with a not-guilty verdict after “28 court

appearances,” an apparent reference to the burdensomeness of defending against false

charges. Jocks v. Tavernier, 316 F.3d 128, 133, 138 (2d Cir. 2003).

96 359 F.3d 1279, 1281-82, 1284 (10th Cir. 2004).

97 See id. at 1296 & n.11.

98 Id. at 1296.

99 Id.

100 Becker v. Kroll, 494 F.3d 904, 919-24 (10th Cir. 2007). The same month, the court

considered, but rejected for other reasons, another Fourteenth Amendment claim where the

charges ended in dismissal. See generally Novitsky v. City Of Aurora, 491 F.3d 1244 (10th

Cir. 2007).

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footed on a failure to hand over certain exculpatory evidence. 101

More recently, the Tenth Circuit has clarified its stance. In Klen v. City

of Loveland, the court reversed a grant of summary judgment against a claim

that various defendants fabricated evidence “thus facilitating” prosecution of

a plaintiff who eventually pleaded no-contest. 102 There the court noted that

“[u]se of an indictment based on perjured testimony to bring charges, for

example, itself represents a denial of due process” despite the lack of a

trial; 103 the “use of a perjured affidavit to defeat a defendant’s attempt to

dismiss an indictment on grounds of selective prosecution” could also support

a due process claim. 104

The Eighth Circuit likewise found that a due process claim is stated

where a police officer claimed that, though he was innocent of using excessive

force against a victim, he was “set up,” prosecuted (and acquitted), and

administratively charged “for patently arbitrary reasons.” 105 In Moran v.

Clarke, the en banc court held that the substantive due process claim should

not have been denied in a judgment as a matter of law because the officer

presented evidence that he was intentionally set up, and there was damage to

his professional reputation and evidence of improper consideration of his

race. 106 Such actions could violate fundamental rights and “shock the

conscience.” 107 The Eighth Circuit has since found that a substantive due

process violation survived summary judgment in the absence of a trial where

101 Becker, 494 F.3d at 924. The Tenth Circuit has also emphasized the importance of

intentional fabrications. See Kennedy, 552 F. App’x at 792-93.

102 661 F.3d 498, 515 (10th Cir. 2011).

103 Id. at 516.

104 Id.

105 Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc).

106 Id. at 644-45, 647.

107 Id.

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false evidence was used to cause plaintiffs to plead guilty, 108 and in a case

where the charges were dropped without a plea. 109

The Second, Eighth, Ninth, and Tenth Circuits have thus all found

denials of due process when charges rest on fabricated evidence. The Seventh

Circuit’s decisions appear to point the other way. The court has held that “a

police officer does not violate an acquitted defendant’s due process rights

when he fabricates evidence.” 110 Acquittal forecloses the claim. 111 In the

Seventh Circuit’s view, the only liberty interest damaged in such cases

“stems from [plaintiff’s] initial arrest” 112 and should be addressed under the

Fourth Amendment; 113 being forced to defend oneself at trial is no

deprivation of liberty. 114 The Seventh Circuit’s no-due process violation

decisions have occurred in cases that either did not address the availability of

a Fourth Amendment claim 115 or found that the claim had been purposefully

abandoned, 116 and it has suggested a willingness to consider deprivations

short of conviction and imprisonment if properly raised. 117

The remaining circuits do not appear to have answered the question

before us. The First Circuit has held that police officers violate due process

when they fabricate evidence in order to get someone falsely convicted 118 or

immediately punished with segregation within a jail. 119 The circuit has

108 Winslow v. Smith, 696 F.3d 716, 735 (8th Cir. 2012).

109 Livers v. Schenck, 700 F.3d 340, 343-44, 354-55 (8th Cir. 2012).

110 Saunders-El v. Rohde, 778 F.3d 556, 560-61 (7th Cir. 2015).

111 Id. at 560-61.

112 Id. at 561 (quoting Alexander v. McKinney, 692 F.3d 553, 557 (7th Cir. 2012)).

113 Alexander, 692 F.3d at 557-58.

114 Saunders-El, 778 F.3d at 561.

115 Id. at 559-61.

116 See Alexander, 692 F.3d at 556.

117 Serino v. Hensley, 735 F.3d 588, 594-95 (7th Cir. 2013).

118 Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004).

119 Surprenant v. Rivas, 424 F.3d 5, 15 (1st Cir. 2005).

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emphasized the importance of the specific intent to fabricate or use false

evidence, 120 and explained in oft-quoted broad terms that:

[S]ome truths are self-evident. This is one such: if any concept is

fundamental to our American system of justice, it is that those

charged with upholding the law are prohibited from deliberately

fabricating evidence and framing individuals for crimes they did

not commit. Actions taken in contravention of this prohibition

necessarily violate due process (indeed, we are unsure what due

process entails if not protection against deliberate framing under

color of official sanction). 121

Clear enough, but the circuit does not appear to have explicitly addressed

whether false charges in the absence of a conviction or immediate

punishment state a denial of due process.

The Third Circuit considered a § 1983 claim that police fabricated

evidence leading to charges and a wrongful conviction. 122 Though the court

expressly did not answer “whether pre-trial detentions can implicate

constitutional rights beyond the Fourth Amendment,” 123 it did state that

“[w]hen falsified evidence is used as a basis to initiate the prosecution of a

defendant, or is used to convict him, the defendant has been injured.” 124 The

Sixth Circuit “recognize[s] a . . . claim of malicious prosecution under the

Fourth Amendment, which encompasses wrongful investigation, prosecution,

conviction, and incarceration,” 125 but it remains unclear whether a

120 See Drumgold, 707 F.3d at 61-62 & n.27.

121 Limone, 372 F.3d at 44-45 (citation to Devereaux, 263 F.3d at 1074-75, omitted);

see also Halsey v. Pfeiffer, 750 F.3d 273, 296 (3d Cir. 2014) (quoting Limone); Whitlock v.

Brueggemann, 682 F.3d 567, 581-82 (7th Cir. 2012) (same); Brown v. Miller, 519 F.3d 231,

237 (5th Cir. 2008) (same); Washington v. Wilmore, 407 F.3d 274, 285 (4th Cir. 2005)

(same); Atkins v. County of Riverside, 151 F. App’x 501, 506 (9th Cir. 2005) (same).

122 Halsey, 750 F.3d at 288-89.

123 Id. at 293.

124 Id. at 289.

125 Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (citation omitted).

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substantive due process claim might lie in some circumstances. In Gregory v.

City of Louisville, the court held that “the subset of malicious prosecution

claims which allege continued detention without probable cause must be . . .

analyzed under the Fourth Amendment,” 126 but expressly reserved the

question of whether “malicious prosecution” claims based on liberty

deprivations distinct from pretrial detention might state due process

violations. 127

The D.C. Circuit does not appear to have addressed the issue of

whether a due process claim could lie when police fabricate evidence, though

it has noted its view that Albright “held that malicious prosecution does not

violate ‘substantive’ due process rights.” 128 The Eleventh Circuit has done

likewise, 129 though noting the possibility that a procedural due process claim

might lie. 130 The circuit recently recognized a due process claim where a

plaintiff alleged that police officers shot, tasered, and beat him, and then

fabricated a cover-up which resulted in two years of jail and an eventual

acquittal on charges of aggravated assault on a law enforcement officer. 131

3.

126 444 F.3d 725, 750 (6th Cir. 2006).

127 Id. at 748 n.10. In a recent unpublished decision where plaintiffs alleged

constitutional violations stemming from several search warrants and an indictment, the

court held that the Fourth Amendment rather than substantive due process governed the

claims “[t]o the extent that [they] involve a challenge to the warrant affidavit and the

resulting searches, seizures, and prosecutions.” Meeks v. Larsen, 14-1381, 2015 WL

2056346, at *9 (6th Cir. May 5, 2015). Besides being non-precedential, this was not a case of

intentional fabrication of evidence, as the court did not credit conclusory allegations that

the indictment or warrants were based on “false and misleading information.” Id. at *4

(indictment); id. at *6-7 (warrants).

128 Pitt v. D.C., 491 F.3d 494, 512 (D.C. Cir. 2007).

129 Wood v. Kesler, 323 F.3d 872, 881 n.14 (11th Cir. 2003).

130 U.S. Steel LLC, v. Tieco, Inc., 261 F.3d 1275, 1289 (11th Cir. 2001).

131 Weiland v. Palm Beach Cty. Sheriff’s Off., 13-14396, 2015 WL 4098270, at *1-2, 9

(11th Cir. July 8, 2015).

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All the circuits that have squarely considered the question have either

found that a due process violation may lie where state officers fabricate

evidence to support false charges against a plaintiff, or have found no due

process violation in the absence of a conviction, an approach we have

expressly rejected. 132 We agree with those that have found a due process

right not to have police deliberately fabricate evidence and use it to frame

and bring false charges against a person.

Executive action must shock the conscience in order to violate

substantive due process. 133 We have said that:

Conduct sufficient to shock the conscience for substantive due

process purposes has been described in several different ways. It

has been described as conduct that ‘violates the decencies of

civilized conduct’; conduct that is ‘so brutal and offensive that it

[does] not comport with traditional ideas of fair play and

decency’; conduct that ‘interferes with rights implicit in the

concept of ordered liberty’; and conduct that ‘is so egregious, so

outrageous, that it may fairly be said to shock the contemporary

conscience.’ 134

Deliberate framing of a person by the state offends the most strongly held

values of our nation. We echo again the apt words of the First Circuit that, “if

any concept is fundamental to our American system of justice, it is that those

charged with upholding the law are prohibited from deliberately fabricating

evidence and framing individuals.” 135 As the Third Circuit has stated, “no

sensible concept of ordered liberty is consistent with law enforcement cooking

132 Boyd, 579 F.3d at 514.

133 Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 867 (5th

Cir. 2012); see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); id. at 860-62

(Scalia, J., concurring).

134 Doe ex rel Magee, 675 F.3d at 867 (quoting Lewis, 523 U.S. at 846-47 & n.8).

135 Limone, 372 F.3d at 44-45.

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up its own evidence.” 136 Here, the framing was allegedly done in order to

conceal and justify excessive force against one of the people our laws and

systems are supposed to protect. The rule of law, which we have cherished

since our founding, cannot abide such conduct.

We agree with the Second Circuit that official framing of a person in

these circumstances undermines the right to a fair trial. 137 Being framed and

falsely charged brings inevitable damage to the person’s reputation,

especially where, as here, the crime is a felony involving the threat of

violence. 138 Alongside the reputational damage, 139 it requires the person

framed to mount a defense, 140 and places him in the power of a court of law,

where he may be required to appear. 141 Though these wrongs may be

addressed through a Fourth Amendment challenge in many cases, 142 they do

not disappear where there is no violation of that amendment. Instead, where

there is no more specific constitutional protection available, the Fourteenth

Amendment may offer protection. 143 It does so here, where the conduct is

136 Halsey, 750 F.3d at 292-93.

137 Ricciuti, 124 F.3d at 130; see also Boyd, 579 F.3d at 515 (noting that the right to a

fair trial is undermined by state fabrication of evidence even when defendant is acquitted).

138 See Albright, 510 U.S. at 278 (opinion of Ginsburg, J.) (discussing the

consequences of being charged with a serious offense); id. at 289 (opinion of Souter, J.).

139 See id. at 296 n.9 (Stevens, J., dissenting) (noting that Paul v. Davis, 424 U.S.

693, 701 (1976), “recognized that liberty is infringed by governmental conduct that injures

reputation in conjunction with other interests” and that “commencement of a criminal

prosecution is certainly such conduct”).

140 The Coles allege that they incurred “substantial legal fees and expenses for an

attorney to defend Ryan Cole and to subsequently obtain the dismissal of the” aggravated

assault on a public servant charge.

141 See Albright, 510 U.S. at 278 (opinion of Ginsburg, J.); id. at 289 (opinion of

Souter, J.).

142 See id. at 274 (plurality); id. at 276-77 (opinion of Ginsburg, J.); id. at 288-91

(opinion of Souter, J.) (noting the “rule of reserving due process for otherwise homeless

substantial claims”).

143 See id. at 273 (plurality) (“Where a particular Amendment ‘provides an explicit

textual source of constitutional protection’ against a particular sort of government behavior,

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undoubtedly shocking to the conscience and no conceivable state interest

justifies the deprivations imposed. 144

The Fourteenth Amendment forbids what allegedly happened to Ryan

Cole. Where police intentionally fabricate evidence and successfully get

someone falsely charged with a felony as cover for their colleagues’ actions,

and the Fourth Amendment is unavailing, there may be a due process

violation. 145

4.

Having found that the Coles have alleged a due process violation, we

must also decide whether the violation was clearly established in October

2010. As the Supreme Court has explained, “the right to due process of law is

quite clearly established by the Due Process Clause, and thus there is a sense

in which any action that violates that Clause (no matter how unclear it may

be that the particular action is a violation) violates a clearly established

right.” 146 That is not the test, as it would “convert the rule of qualified

immunity that our cases plainly establish into a rule of virtually unqualified

liability.” 147 On the other hand, officials may be on notice that their conduct

is unlawful even in “novel factual circumstances,” 148 though the courts have

‘that Amendment, not the more generalized notion of “substantive due process,” must be

the guide for analyzing these claims.’”) (quoting Graham v. Connor, 490 U.S. 386, 395

(1989)); see also Soldal v. Cook Cty., 506 U.S. 56, 70 (1992) (“Certain wrongs affect more

than a single right and, accordingly, can implicate more than one of the Constitution’s

commands.”).

144 See Moran, 296 F.3d at 643, 647-48.

145 We also note that the district court in this case ruled that the Coles cannot seek a

state law malicious prosecution remedy, and Officer Carson has not challenged that

finding. See Albright, 510 U.S. at 283-84 (opinion of Kennedy, J.) (discussing the

significance of adequate state post-deprivation remedies).

146 Anderson v. Creighton, 483 U.S. 635, 639 (1987).

147 Id.

148 Hope v. Pelzer, 536 U.S. 730, 741 (2002).

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not had occasion to rule on “‘materially similar’ conduct.” 149 Indeed, “a

general constitutional rule already identified in the decisional law may apply

with obvious clarity to the specific conduct in question.” 150

By 2010, no “reasonable law enforcement officer would have thought it

permissible to frame somebody for a crime he or she did not commit.” 151

Though the First Circuit was addressing official framing that led to

conviction, and the state of the law in 1967, the principle applies with obvious

clarity here. “To hold that police officers, having lawfully arrested a suspect,

are then free to fabricate false [evidence] at will, would make a mockery of

the notion that Americans enjoy the protection of due process of the law and

fundamental justice.” 152 “[T]he wrongfulness of charging someone on the

basis of deliberately fabricated evidence is sufficiently obvious,” 153 that in

light of our due process violation holdings in Castellano and Boyd and the

decisions of our sister circuits, 154 a reasonable officer in Officer Carson’s

shoes would have known his conduct violated the Constitution. “[N]o

reasonably competent police officer could believe otherwise.” 155

5.

149 Id. at 753 (Thomas, J., dissenting); see also Safford Unified Sch. Dist. No. 1 v.

Redding, 557 U.S. 364, 377-78 (2009).

150 Hope, 536 U.S. at 741 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997));

see also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (“Of course, in an obvious case, these

standards can ‘clearly establish’ the answer, even without a body of relevant case law.”

(citation omitted)).

151 Limone, 372 F.3d at 50.

152 Ricciuti, 124 F.3d at 130.

153 Devereaux, 263 F.3d at 1075.

154 To reiterate, the Second, Eighth, Ninth, and Tenth Circuits have found due

process violations in similar circumstances. The D.C., First, Third, Sixth, and Eleventh

Circuits have not answered the question, though some have spoken in broad terms about

the right not to be framed. The Fourth and Seventh have found no due process violation in

the absence of a conviction, but based on a theory (the need for conviction) we have rejected.

155 Ricciuti, 124 F.3d at 130.

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Finally, the Coles have pled “specific conduct and actions giving rise to

a constitutional violation.” 156 We will not rehearse the pleadings in detail yet

again. The Coles clearly allege that Officer Carson conspired with others and

intentionally lied in order to cover for his colleagues, among other things

telling investigators that Ryan turned and pointed his gun at the police. The

Coles further allege that Officer Carson and other officers’ lies led directly to

the decision to charge Ryan with aggravated assault. As we have explained,

that is enough for us to determine that they have pled a clearly established

constitutional violation.

V

Officer Carson claims absolute immunity for all of his alleged conduct

under Rehburg v. Paulk, 157 where the Supreme Court found that all grand

jury witnesses have:

absolute immunity from any § 1983 claim based on the witness’

testimony. In addition . . . this rule may not be circumvented by

claiming that a grand jury witness conspired to present false

testimony or by using evidence of the witness’ testimony to

support any other § 1983 claim concerning the initiation or

maintenance of a prosecution . . . In the vast majority of cases

involving a claim against a grand jury witness, the witness and

the prosecutor conducting the investigation engage in

preparatory activity, such as a preliminary discussion in which

the witness relates the substance of his intended testimony. We

decline to endorse a rule of absolute immunity that is so easily

frustrated. 158

The Court recognized that absolute immunity does not “extend[] to all

activity that a witness conducts outside of the grand jury room. For example,

we have accorded only qualified immunity to law enforcement officials who

156 Baker, 75 F.3d at 195; Schultea, 47 F.3d at 1433.

157 132 S. Ct. 1497 (2012).

158 Id. at 1506-07.

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falsify affidavits and fabricate evidence concerning an unsolved crime.” 159

Under Rehburg, Officer Carson is immune for grand jury testimony,

preparation for that testimony, and any conspiracy to falsely testify. He

argues that all of his alleged conduct falls into those categories, but the First

Amended Complaint goes further. The Coles allege that Officer Carson made

false statements in the course of the initial investigation into the shooting,

before a decision had been made by prosecutors to charge Ryan with

aggravated assault. The FAC indicates that Carson intended these

statements to influence the decision to bring charges against Ryan in the first

place.

An officer who lies to investigating officers in order to try to get

someone charged with a crime—before the decision to charge has been

made—is not entitled to absolute testimonial immunity. The Supreme Court

has held that a prosecutor is not entitled to absolute immunity when she

falsifies an affidavit supporting an arrest warrant. 160 Neither is a police

officer who submits an affidavit for a warrant, leading to an arrest without

probable cause. 161 Nor are prosecutors absolutely immune when they act

alongside police officers to “solve” an unsolved crime by shopping for an

unscrupulous expert. 162 Rehberg confirmed that these holdings are still good

law. 163 We have likewise held that “non-testimonial pretrial actions, such as

the fabrication of evidence, are not within the scope of absolute immunity

159Id. at 1507 n.1 (citations omitted).

160Kalina v. Fletcher, 522 U.S. 118, 129, 131 (1997).

161 Malley v. Briggs, 475 U.S. 335, 344-45 (1986).

162 Buckley v. Fitzsimmons, 509 U.S. 259, 275-76 (1993).

163 Rehberg, 132 S.Ct. at 1507 n.1 (listing each of the preceding three cases to

illustrate that “absolute immunity [does not] extend[] to all activity that a witness conducts

outside of the grand jury room”).

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because they are not part of the trial.” 164

The conduct here—lying to investigators—comes closer to possibly

preparing for grand jury testimony than some of the conduct in earlier cases,

but the timing and purpose of the statements matter. The Supreme Court

and this court have emphasized that absolute immunity for prosecutors,

witnesses, and others is based on a need to protect central judicial

proceedings. 165 Thus conduct that occurs during investigation to discover

probable cause and before the decision to charge has been made is not

generally entitled to absolute immunity. 166 Some of the false statements in

this case are alleged to have been this investigation-stage type of conduct.

In these circumstances, lying to investigating officers is similar to

164 Castellano, 352 F.3d at 958 & n.107 (citing Buckley, 509 U.S. at 275-76, and

Spurlock v. Satterfield, 167 F.3d 995, 1003-04 (6th Cir. 1999), for the proposition that

“[d]efendants cannot shield any pretrial investigative work with the aegis of absolute

immunity merely because they later offered the fabricated evidence or testified at trial”).

165 Briscoe v. LaHue, 460 U.S. 325, 334-35 (1983) (“The central focus of our analysis

has been the nature of the judicial proceeding itself.”); Kalina, 522 U.S. at 125, 128 (noting

that immunity covers “activities . . . intimately associated with the judicial phase of the

criminal process”); Malley, 475 U.S. at 342-43 (“We have interpreted § 1983 to give absolute

immunity to functions ‘intimately associated with the judicial phase of the criminal process

. . . .”); Keko v. Hingle, 318 F.3d 639, 643 (5th Cir. 2003) (“[A]n informal, ex parte probable

cause hearing is not the type of judicial proceeding for which a witness’s testimony would

require the full shield of absolute immunity. . . . We decline to extend absolute witness

immunity into an arena where the Supreme Court has not found factual testimony to

justify such heightened protection.”).

166 Buckley, 509 U.S. at 273-74 (“The prosecutors do not contend that they had

probable cause to arrest petitioner or to initiate judicial proceedings . . . . Their mission at

that time was entirely investigative . . . .”); Hoog-Watson v. Guadalupe Cty., 591 F.3d 431,

438 (5th Cir. 2009) (finding under functional approach, “prosecutorial immunity protects

‘the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for

trial,’ but not ‘the detective’s role in searching for the clues and corroboration that might

give him probable cause to recommend that a suspect be arrested.’”); Beck v. Tex. State Bd.

of Dental Exam’rs, 204 F.3d 629, 637 (5th Cir. 2000) (“[A]lthough a prosecutor is absolutely

immune when she acts . . . as an advocate for the state by initiating and pursuing

prosecution, or when her conduct is ‘intimately associated with the judicial phase of the

criminal process,’ she does not enjoy absolute immunity for her acts of investigation . . . .”)

(citations omitted).

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falsifying a police report, which the Second Circuit recently held is not

protected by testimonial immunity. The Second Circuit addressed how to

apply Rehberg “when a § 1983 plaintiff alleges that the officer withheld and

falsified evidence in addition to committing perjury before the grand jury.” 167

It concluded that testimonial immunity does not bar § 1983 claims that can

be made out without reference to the grand jury testimony or preparation for

it. 168 As the court explained, “[t]he fact that [defendant’s] grand jury

testimony paralleled information he gave in other contexts [such as police

reports] does not mean that [the claim] was ‘based on’ [the] grand jury

testimony. Rather it was based on [defendant’s] conduct that laid the

groundwork for [the] indictment.” 169 So here; the fact that some of Officer

Carson’s statements may have been presented to the grand jury can be

excised from the complaint and the Coles still make out a case that Carson

lied in order to ensure charges would be brought in the first place.

A final wrinkle must be addressed. While we have said that plaintiffs

must plead with specificity when absolute immunity is asserted, just as with

qualified immunity, 170 the Supreme Court has held that “the official seeking

absolute immunity bears the burden of showing that such immunity is

justified for the function in question.” 171 Officials bear the “burden of

167 Coggins v. Buonora, 776 F.3d 108, 112 (2d Cir. 2015).

168 Id. at 113 & n.7.

169 Id. at 113.

170 Truvia v. Julien, 187 F. App’x 346, 348 (5th Cir. 2006); Elliott v. Perez, 751 F.2d

1472, 1482 (5th Cir. 1985) abrogated on other grounds by Leatherman v. Tarrant Cty.

Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993).

171 Burns v. Reed, 500 U.S. 478, 486-87 (1991) (“The presumption is that qualified

rather than absolute immunity is sufficient to protect government officials in the exercise of

their duties. We have been ‘quite sparing’ in our recognition of absolute immunity, and

have refused to extend it any ‘further than its justification would warrant.’”) (citation

omitted); Buckley, 509 U.S. at 269 (quoting Burns); Antoine v. Byers & Anderson, Inc., 508

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establishing that they were functioning” in an absolutely immune role. 172 The

Court’s statements emphasize its reluctance to take absolute immunity too

far, and contemplate the need for defendants to take an active role in

claiming it. 173 Following these cases and our own precedent, we have held at

the summary judgment stage that the burden stays with the defendant to

establish his entitlement to absolute immunity. 174

We need not decide whether a heightened pleading requirement applies

at the motion to dismiss stage. We have already explained that the Coles pled

“specific conduct and actions giving rise to a constitutional violation” insofar

as they allege that Officer Carson fabricated evidence to get Ryan falsely

U.S. 429, 432 (1993) (“The proponent of a claim to absolute immunity bears the burden of

establishing the justification for such immunity.”).

172 Buckley, 509 U.S. at 274 (“The question, then, is whether the prosecutors have

carried their burden of establishing that they were functioning as ‘advocates’ . . . .”).

This goes for cases before the Court on motions to dismiss, summary judgment, and

directed verdict. See id. at 264 (motion to dismiss); Burns, 500 U.S. at 483 (directed

verdict); Antoine, 508 U.S. at 431 (summary judgment).

173 Antoine, 508 U.S. at 432 n.4 (“We have consistently ‘emphasized that the official

seeking absolute immunity bears the burden of showing that such immunity is justified for

the function in question. The presumption is that qualified rather than absolute immunity

is sufficient to protect government officials in the exercise of their duties. We have been

quite sparing in our recognition of absolute immunity . . . .’”); Buckley, 509 U.S. at 274 (“The

question, then, is whether the prosecutors have carried their burden of establishing that

they were functioning as ‘advocates’ . . . .”); Malley, 475 U.S. at 339-341 (noting that “[a]s

the qualified immunity defense has evolved, it provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.”); see also Lampton v. Diaz,

639 F.3d 223, 228 (5th Cir. 2011) (noting failure of proponent of immunity to point to a case

extending it to his situation).

174 Hoog-Watson, 591 F.3d at 437 n.6 (“For summary judgment purposes, Buckley[,

509 U.S. 259], and Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997) . . . hold that the defendant

who pleads the affirmative defense of absolute prosecutorial immunity bears the burden of

proving that the conduct at issue served a prosecutorial function . . . . In contrast, more

recent Fifth Circuit decisions hold that after the defendant pleads the defense of

prosecutorial immunity, the plaintiff bears the burden of introducing evidence sufficient to

convince a reasonable factfinder that the defendant acted outside the scope of the

immunity. Cousin v. Small, 325 F.3d 627, 632-33 (5th Cir. 2003); Beck[, 204 F.3d at 633-

64]. But because Hart came before Cousin and Beck, Hart controls.”).

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charged. The Coles alleged that Officer Carson lied to investigating officers,

telling them that Ryan turned around and pointed his gun at Officer Hunter

prior to his being shot, and that Officer Hunter gave a warning before firing.

They make it clear that some of these statements were made prior to the

decision to charge, were intended to influence, and did influence that

decision. Their pleadings are specific enough to meet any heightened

pleading requirement.

---------------------------

We DISMISS the appeal by Officers Hunter and Cassidy for lack of

jurisdiction. We AFFIRM the denial of Officer Carson’s motion to dismiss

insofar as it relates to the Coles’ due process claim based on fabricated

evidence and REVERSE the denial as to the Fourth Amendment and Brady

claims. We REMAND for further proceedings.

40