Ryan Ferguson v. John Short

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-2857

___________________________

Ryan Ferguson

lllllllllllllllllllll Plaintiff - Appellee

v.

John Short, Detective; Jeff Nichols, Detective; Jeff Westbrook, Detective; Bryan

Liebhart, Detective; Latisha Stroer, Detective; Lloyd Simons, Detective

lllllllllllllllllllll Defendants - Appellants

____________

Appeal from United States District Court

for the Western District of Missouri - Jefferson City

____________

Submitted: September 21, 2016

Filed: October 19, 2016

____________

Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.

____________

ARNOLD, Circuit Judge.

This case is about an allegedly improper investigation into the murder of Kent

Heitholt. The murder went unsolved for two years until Charles Erickson caught the

attention of the detectives working the case. After implicating himself and Ryan

Ferguson in the killing, Erickson pleaded guilty to second-degree murder and first-

degree robbery and agreed to testify against Ferguson at Ferguson's murder trial. A

jury convicted Ferguson of second-degree murder and first-degree robbery based

largely on Erickson's testimony. More than five years later, the Missouri Court of

Appeals vacated Ferguson's convictions because the government had withheld

exculpatory evidence from him, undermining the outcome of his criminal trial. See

Ferguson v. Dormire, 413 S.W.3d 40, 73 (Mo. Ct. App. 2013).

Ferguson now sues several detectives who investigated the murder. He

contends that they destroyed or suppressed exculpatory evidence, in violation of his

right to procedural due process under the Fourteenth Amendment; fabricated evidence

and recklessly or intentionally failed to investigate the murder, in violation of his

right to substantive due process under the Fourteenth Amendment; and conspired to

deprive him of his constitutional rights. He also asserts state-law claims for malicious

prosecution and false arrest.

The detectives moved for summary judgment, which the district court granted

in part and denied in part. The district court granted summary judgment for the

detectives on Ferguson's procedural due-process claim and on one aspect of his

substantive due-process claim based on the fabrication of evidence. Ferguson does

not challenge these determinations here; rather, the detectives filed this interlocutory

appeal, challenging the district court's denial of their motion for summary judgment.

Ferguson moves to dismiss this appeal for lack of jurisdiction. We ordinarily

lack jurisdiction over an interlocutory appeal challenging the denial of a motion for

summary judgment, Van Wyhe v. Reisch, 581 F.3d 639, 647 (8th Cir. 2009), but we

have jurisdiction when summary judgment is denied on the issue of qualified

immunity. Mallak v. City of Baxter, 823 F.3d 441, 445 (8th Cir. 2016). Qualified

immunity shields government officials from liability unless their conduct violates

clearly established statutory or constitutional rights of which a reasonable person

would know. Id. Jurisdiction over these interlocutory appeals reaches only to issues

of law, Aaron v. Shelley, 624 F.3d 882, 883 (8th Cir. 2010); where the order below

-2-

turns on issues of fact rather than abstract issues of law, we lack jurisdiction. For

example, we lack jurisdiction to review the denial of summary judgment based on the

pretrial record showing a genuine dispute of material fact on a qualified-immunity

issue. Johnson v. Jones, 515 U.S. 304, 307 (1995).

Courts must resolve the matter of qualified immunity as soon as possible or the

party claiming it will be deprived of its benefit—immunity from suit. Payne v.

Britten, 749 F.3d 697, 700 (8th Cir. 2014). Government officials claiming qualified

immunity are entitled to a thorough examination of their defense. We therefore have

jurisdiction to review reasoned denials of qualified immunity and failures or refusals

to rule on qualified immunity. When the district court fails to rule on qualified

immunity, we will remand the case to the district court to decide the qualified-

immunity question. Id. at 701.

The parties dispute whether the detectives' appeal involves qualified immunity.

Indeed some of the 19 points that the detectives raise on appeal involve issues

unrelated to qualified immunity, which we cannot review. For example, we lack

jurisdiction under Johnson to review whether "Ferguson failed to present sufficient

evidence to show he was deprived of a constitutional right or that [the detectives]

reached an agreement to deprive him of his constitutional rights." But we usually do

not throw the baby out with the bathwater when an interlocutory appeal raises both

reviewable qualified-immunity questions and unreviewable ones. See, e.g., White v.

McKinley, 519 F.3d 806, 812–13 (8th Cir. 2008). Some of the points raised here do,

at least on their surface, raise qualified-immunity issues.

Ferguson is correct that the detectives cannot save their interlocutory appeal

simply by framing their arguments in terms of qualified immunity. Austin v. Long,

779 F.3d 522, 524 (8th Cir. 2015). But instead of classifying the multiple points on

appeal as either wheat or chaff, we resolve this case on the ground that we simply

lack an order denying a motion for summary judgment on qualified-immunity

-3-

grounds. The district court issued a thorough 62-page opinion resolving the motion

for summary judgment, but qualified immunity made only a brief cameo appearance

in one paragraph at the beginning of the opinion's discussion section. In that

paragraph, the district court set out the broad principles of qualified immunity;

nowhere were these principles, in this paragraph or elsewhere in the opinion, applied

to the facts. The opinion reads like an ordinary summary-judgment ruling,

determining if there are factual disputes and resolving legal points unrelated to

qualified immunity. We are therefore unable to construe this order as one from which

an interlocutory appeal can lie.

Ferguson asks us simply to dismiss this appeal, arguing that the detectives

failed to raise and preserve the qualified-immunity issue in the district court

altogether and only now couch their appeal in terms of qualified immunity to ensure

our jurisdiction. We are unwilling to go that far. References to qualified immunity are

peppered throughout the detectives' suggestions in support of their motion for

summary judgment. In fact, the first numbered paragraph in the detectives' two-page

motion for summary judgment says, "Summary Judgment is also appropriate on the

basis of qualified immunity." So this is not a situation where the detectives raise an

argument only in an inconspicuous footnote. Cf. Equip. Mfrs. Inst. v. Janklow, 300

F.3d 842, 848 n.2 (8th Cir. 2002).

Since we conclude that the detectives raised the qualified-immunity issue on

the face of the papers, we remand the case to the district court for consideration of the

motion for summary judgment on the basis of qualified immunity. In considering that

motion, the district court of course can decide as a preliminary matter whether the

detectives discussed the issue of qualified immunity in sufficient detail and with

sufficient citations to undisputed record evidence to enable the district court to rule

on the matter. See Jones v. United Parcel Serv., Inc., 461 F.3d 982, 990 (8th Cir.

2006). If it determines that the detectives did so, the district court can then enter an

explicit order and judgment on the matter one way or the other. If it determines that

-4-

the detectives did not do so, the district court can proceed to resolve the case in the

ordinary course and may consider any motions by the detectives as may be consistent

with any scheduling orders that the district court deems applicable.

We deny the motion to dismiss the appeal and remand the case to the district

court.

______________________________

-5-