Tenth Circuit Rejects Qualified Immunity for Prosecutor Alleged to Have Fabricated Evidence, Despite no Previous Case with Materially Similar Facts
by Douglas Ankney
The U.S. Court of Appeals for the Tenth Circuit reversed the U.S. District Court for the District of Utah’s decision finding a prosecutor was entitled to qualified immunity in a suit alleging the prosecutor had fabricated evidence.
In 2012, Heidi Truman was killed from a gunshot to the head. Her husband, Conrad Truman, told police he heard a “pop” and then saw Heidi fall to the floor near the hallway entry to the kitchen. Her gun was located on the floor next to her.
The medical examiner listed the manner of death as “could not be determined.” But a year later, Truman was charged with murder. His defense was that Heidi either committed suicide or accidentally shot herself.
The medical examiner testified that he had changed Heidi’s manner of death to “homicide” after state prosecutor Craig Johnson showed him a PowerPoint presentation. Johnson told the medical examiner that the State’s theory was that Heidi was murdered. The PowerPoint included a slide showing her body over 12 feet away from the spot where Truman said he saw her after the fatal shot. Because it was physically impossible for someone shot in the head to walk more than a step or two before collapsing, the medical examiner concluded someone else had shot Heidi and that it wasn’t possible for her wound to have been self-inflicted.
A jury convicted Truman. While he was in prison, his legal team discovered that the PowerPoint slide was based on a crime-scene diagram made by Detective Thomas Wallace, who had typed the measurements of the hallway as 13.9 feet instead of 139 inches. This error caused the location of Heidi’s dead body to appear to be much farther from where Truman had said she was when he heard the shot.
Because the flawed evidence had been used at Truman’s trial, the state court ordered a new trial. At his retrial, the medical examiner did not testify, and the PowerPoint wasn’t included. Truman was acquitted.
Truman filed suit under 42 U.S.C. § 1983 alleging, inter alia, that his due process rights were violated as a result of Johnson fabricating evidence. He alleged Johnson prepared the PowerPoint slide based on the faulty diagram while knowing it to be faulty. Truman alleged that Johnson had been to the crime scene multiple times; that Johnson had done a walk-through of the crime scene; and that Johnson was aware of the actual place and position of Heidi’s body in relation to the hallway and thus knew that the PowerPoint did not accurately represent the facts of the case.
The district court dismissed the fabrication of evidence claim in a Rule 12(b)(6) proceeding after finding Johnson was entitled to qualified immunity. Truman appealed.
The Tenth Circuit observed “[d]istrict courts may grant a motion to dismiss on qualified immunity, but ‘[a]sserting a qualified immunity defense via a Rule 12(b)(6) motion ... subjects the defendant to a more challenging standard of review than would apply on summary judgment.’” Peterson v. Jensen, 371 F.3d 1199 (10th Cir. 2004). Specifically, the court analyzes “the defendant’s conduct as alleged in the complaint.” Thomas v. Kaven, 765 F.3d 1183 (10th Cir. 2014).
Qualified immunity is an “affirmative defense [that] creates a presumption that the defendant is immune from suit.” Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161 (10th Cir. 2020). To overcome this presumption, the plaintiff must show (1) the defendant’s actions violated a constitutional or statutory right and (2) that right was clearly established at the time of the defendant’s complained-of conduct. Thomas. A right is clearly established “when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as the plaintiff maintains.” Id.
To state a claim that one was deprived of liberty based on a fabrication of evidence, the plaintiff must allege (1) the defendant knowingly fabricated evidence, (2) the fabricated evidence was used against the plaintiff, (3) use of the fabricated evidence deprived the plaintiff of liberty, and (4) if the alleged unlawfulness would render a conviction or sentence invalid, the conviction has been invalidated or called into doubt. Warnick v. Cooley, 895 F.3d 746 (10th Cir. 2018).
Accepting Truman’s allegations as true and viewing them in the light most favorable to him—as courts must do in a Rule 12(b)(6) proceeding—they established the elements of a fabrication of evidence claim, the Court concluded. And the right not to be deprived of liberty as a result of the fabrication of evidence by a government officer was clearly established in 2004 via Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004).
Truman’s allegations also demonstrated “the rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” D.C. v. Wesby, 138 S. Ct. 577 (2018). In Taylor v. Riojas, 141 S. Ct. 52 (2020), a prisoner brought suit after he was kept for six days in one cell that was frigidly cold and another that was covered in feces. The Fifth Circuit held that prison officials were entitled to qualified immunity because it was not clearly established that “prisoners couldn’t be housed in cells teeming with human waste for only six days.” Despite the plaintiff’s inability to cite any case in which a court held that confining a prisoner to such extremely unsanitary conditions for six days violates the Constitution, he appealed.
The Supreme Court reversed, holding that “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.” The Taylor Court reiterated its holding in Hope v. Pelzer, 536 U.S. 730 (2002), for the rule that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question.” Id.
In the present case, the Court explained that the forgoing rule “applies with equal force here. The right not to be deprived of liberty as a result of the fabrication of evidence by a government officer is a general constitutional rule identified in decisional law prior to the prosecutor’s conduct.” See Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012) (collecting cases). The Court reasoned that just as any reasonable prison guard understands that the cell condition’s in Taylor violate the Constitution, “so too should any reasonable prosecutor understand that providing a medical examiner fabricated evidence and then putting him on the stand to testify base on that false information offends the Constitution.” Thus, the Court held that Truman “plausibly alleges a fabrication of evidence claim against the prosecutor.”
Accordingly, the Court reversed the dismissal of the claim against Johnson. See: Truman v. Orem City, 1 F.4th 1227 (10th Cir. 2021).
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