                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                January 4, 2013
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 NICK LYNCH,

       Plaintiff-Appellee,

 v.                                                    No. 12-1222
 ADAM BARRETT; SGT. STEPHEN
 KENFIELD; MICHAEL MORELOCK;
 CITY AND COUNTY OF DENVER,

       Defendants-Appellants,

 and

 ABBEGAYLE DORN,

       Defendant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. No. 1:11-CV-01120-RBJ-MEH)


Wendy J. Shea, Assistant City Attorney, Office of City Attorney, Litigation Section
(Stuart Shapiro, Assistant City Attorney, Douglas Jewell, Bruno, Colin, Jewell &
Lowe, P.C., and Reid J. Elkus, Elkus, Sisson & Rosenstein, P.C., with her on the
brief), Denver, Colorado, for Defendants-Appellants.

Robert M. Liechty, Cross Liechty Lance PC, Greenwood Village, Colorado, for
Plaintiff-Appellee.


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
BALDOCK, Circuit Judge.


      Plaintiff Nick Lynch claims Defendants Adam Barrett, Stephen Kenfield, and

Michael Morelock, all police officers for Defendant City and County of Denver,

violated his constitutional right to court access by refusing to disclose who exercised

excessive force against him in the course of an arrest. Plaintiff further claims

Defendant City violated his right to court access by adopting a policy and practice

that precipitated the “conspiracy of silence” waged against him. As to Plaintiff’s

first claim, the district court entered an order denying Defendant Officers qualified

immunity in the context of their motion for summary judgment. As to Plaintiff’s

second claim, the district court in the same order denied Defendant City’s “standard”

motion for summary judgment, i.e., one that simply asserts the lack of any genuine

issue of material fact for trial. Defendant Officers appeal. We exercise jurisdiction

over their appeal, to the extent permitted by law, under 28 U.S.C. § 1291 pursuant

to the collateral order doctrine first announced in Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949). Our review is de novo. See Morris v. Noe, 672 F.3d

1185, 1189 (10th Cir. 2012). Defendant City too appeals, asking us to exercise

pendent party jurisdiction over what is, from the City’s perspective, an otherwise

unappealable order. See Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 41–43

(1995). After sorting through this kettle of fish, we reverse the district court’s

decision denying Defendant Officers qualified immunity, dismiss Defendant City’s

appeal for lack of jurisdiction, and remand for further proceedings.

                                          2
                                          I.

      According to the district court, the problem arose in March 2008 after Plaintiff

punched another individual outside a nightclub in downtown Denver. Plaintiff fled

the scene, jumped over the fence of a gated parking lot, and hid in some bushes. Up

to six officers followed him into the lot. With game over, Plaintiff stood up. One

or more officers then threw Plaintiff to the ground and struck him several times in

the back of his left thigh with a baton or flashlight. Because Plaintiff was face-down

on the ground, he could not identify the officer or officers responsible.

      In its written order, the district court first reached two legal conclusions as

they bore upon Defendant Officers’ claim to qualified immunity:

      This court is satisfied that intentional concealment of evidence by a
      police officer that interferes with an individual’s ability to obtain
      redress for police misconduct is unconstitutional. This court is also
      satisfied that it would be clear to a reasonable police officer that
      intentional concealment of evidence of another officer’s misconduct,
      the so-called conspiracy of silence, is unlawful. Accordingly, if these
      officers did intentionally conceal evidence of another officer’s [use] of
      excessive force, they are not entitled to qualified immunity.

Lynch v. Barrett, 2012 WL 1890442, at *3 (D. Colo. 2012) (unpublished) (internal

citations omitted). The court next recited some of the evidence that supported

Plaintiff’s version of events and concluded a jury could find Defendant Officers

intentionally concealed the identity of the officer or officers who had exercised

excessive force against him.

      [Officer Barrett] testified [in his deposition] that as he approached the
      bushes he “saw [Plaintiff] start to stand up, and then the [arresting]

                                          3
      officers rushed the bush, and he was taken down.” This testimony
      raises the factual questions of whether Officer Barrett saw who rushed
      [Plaintiff], who arrested him, and who either used excessive force or
      was in a position to know, if anyone, did. . . .

      Officer Morelock states in an affidavit that “after I went over the fence,
      I turned towards the bushes and noticed several other officers already
      present. Therefore, I ran over to assist them.” Officer Barrett testified
      . . . that Officer Morelock climbed the fence with him . . . . There is
      at least some evidence that [Officer Morelock] was in a position to
      observe the arrest or, at least, who participated in it.

      Sgt. Kenfield reports in his affidavit that he did not participate in the
      arrest or witness it. . . . However, Sgt. Kenfield also reports that even
      though it took him four or five minutes to get over the fence, several
      officers were already present in the fenced-in area. He was by his own
      admission, in the near vicinity of the arrest when it happened and saw
      which officers were present.

Id. at *3–*4 (internal record cites and brackets omitted).

      Unlike the facts bearing upon Defendant Officers’ involvement in Plaintiff’s

arrest, the facts surrounding Defendant City’s alleged establishment of a policy or

practice that caused Defendant Officers’ “cover-up” are unimportant for present

purposes. Suffice to say the district court concluded Plaintiff raised genuine issues

of material fact for trial on his municipal liability claim against Defendant City. The

court decided a reasonable jury could find Defendant City maintained a policy or

practice that caused Defendant Officers’ cover-up and Plaintiff’s consequent inability

to obtain legal redress on his excessive force claim.

                                          II.

      As a preliminary matter, we point out that Plaintiff’s “backwards looking”


                                          4
denial-of-access claim is ripe for adjudication in the district court. A backwards

looking access claim may arise where a plaintiff alleges an underlying claim cannot

be tried, or be tried with all the evidence, because official conduct caused the loss

or inadequate resolution of that claim. See Jennings v. City of Stillwater, 383 F.3d

1199, 1208–09 (10th Cir. 2004) (distinguishing between “forward looking” and

“backwards looking” court access claims). In Christopher v. Harbury, 536 U.S. 403

(2002), the Supreme Court assumed a backwards looking denial-of-access claim is

actionable where based on a lost opportunity to seek legal redress on an underlying

claim. Id. at 412 n.6, 414 n.9. To allege a compensable injury, a plaintiff claiming

denial of court access under such circumstances,

      must identify a remedy that may be awarded as recompense but not
      otherwise available in some suit that may yet be brought. There is,
      after all, no point in spending time and money to establish facts
      constituting denial of access when a plaintiff would end up just as well
      off after litigating a simpler case without the denial-of-access element.

Id. at 415.

      Plaintiff has already litigated his underlying claim of excessive force against

Defendant Officers unsuccessfully, and so his opportunity to recover on that claim

has passed. The district court granted Defendant Officers’ Rule 50 motion for

judgment as a matter of law at the close of Plaintiff’s case because Plaintiff’s proof

was insufficient to establish the Officers were responsible for the force used against

him. Plaintiff did not appeal that ruling. Instead, Plaintiff now seeks, by way of his

denial-of-access claim in the district court, relief against Defendant Officers that is


                                          5
unavailable on his underlying claim for excessive force. 1

                                           III.

      Both Defendant Officers and Defendant City tell us we can assume “for the

purpose of this appeal” that “a cognizable right of access claim may arise from an

alleged cover-up by police officers.” Aplts’ Op. Br. at 11–12. As a prelude to their

principal argument, Defendant Officers “presume . . . that certain circumstances may

exist under which a plaintiff may establish a cognizable right of access claim based

upon a police officer’s intentional, bad faith cover-up of excessive force.” Id. at 17.

But “even assuming the validity of a backwards looking right of access claim based

on a cover-up,” Defendant Officers argue “the facts in this case are insufficient to

show that any [of them] personally participated in a cover-up to intentionally hide

the identities of the officers who arrested [Plaintiff] for the purpose of denying

him access to the courts.” Id. at 36–37. At this point, Defendant City makes its



      1
          Where a plaintiff prior to filing an underlying claim knows of facts
suggesting an evidentiary cover-up by government officials, the underlying claim and
the denial-of-access claim generally should be joined in the same action even if that
requires bifurcated trials. See Harbury, 536 U.S. at 416. The district court in
Plaintiff’s first suit, however, ruled Plaintiff could not join his denial-of-access claim
with his excessive force claim. The court dismissed Plaintiff’s access claim as
unripe. Lynch v. Barrett, 2010 WL 3938359, at *5–*6 (D. Colo. 2010). After the
court granted Defendant Officers’ Rule 50 motion on Plaintiff’s excessive force
claim, Plaintiff moved to amend his complaint to include his denial-of-access claim.
The court denied the motion. Plaintiff did not appeal that denial, but filed his access
claim anew in the district court. Notably, Defendant Officers have not asserted the
affirmative defense of claim preclusion in this case and the viability of such defense
is not before us.

                                            6
pitch: “Because the record confirms that [Plaintiff] has failed to meet his burden of

showing the undisputed facts of this case demonstrate a cognizable right of access

claim [against Defendant Officers], his claim against [Defendant City] also fails as

a matter of law.” Id. at 36. Finally, Defendant Officers argue in the alternative that

because “the Tenth Circuit has never expressly recognized a [constitutional] cause

of action based upon an alleged cover-up,” they are entitled to qualified immunity

for lack of clearly established law informing them their alleged obstinacy violated

Plaintiff’s right to court access. Id. at 33.

                                           A.

      We begin with Defendant Officers’ appeal based on their claim to qualified

immunity. “The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly

established . . . constitutional rights of which a reasonable officer would have

known.’”    Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). In contrast to a standard motion for summary

judgment, which places the burden on the moving party to point out the lack of any

genuine issue of material fact for trial, a motion based on a claim of qualified

immunity imposes the burden on the plaintiff to show “both that a constitutional

violation occurred and that the constitutional right was clearly established at the

time of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)

(internal quotations omitted). Here, the district court concluded Plaintiff carried his

                                            7
burden. The court held Plaintiff presented facts sufficient to warrant a finding that

Defendant Officers violated his constitutional right to court access. The court also

held Plaintiff had shown, based on those facts, that his right to court access was

clearly established at the time of Defendant Officers’ violation. That is according

to the district court, a reasonable officer would have understood Defendant Officers

violated Plaintiff’s right to access by intentionally concealing the identity of the

officer or officers responsible for subjecting him to excessive force.

      That portion of the district court’s order denying Defendant Officers qualified

immunity constitutes a “final decision[]” within the meaning of 28 U.S.C. § 1291,

and is appealable—at least in part. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the

Supreme Court held a district court order denying an official’s claim to qualified

immunity constituted a “collateral order,” and thus a final decision under § 1291,

where the issue appealed concerned, not which facts the parties might be able

to prove at trial, but rather, whether certain facts “support a claim of violation of

clearly established law.” Id. at 528 n.9. Subsequently, in Johnson v. Jones, 515 U.S.

304 (1995), the Supreme Court held a court order denying officials’ motion for

summary judgment based on their claim to qualified immunity was not appealable

where “[t]he order in question resolved a fact-related dispute about the pretrial

record, namely, whether . . . the evidence in the pretrial record was sufficient to

show a genuine issue of fact for trial.” Id. at 307. Explaining “immunity appeals

interfere less with the final judgment rule if they are limited to cases presenting neat

                                           8
abstract issues of law,” id. at 317 (internal brackets, ellipses, and quotations

omitted), the Court reiterated that an “appellate court reviewing the denial of the

defendant’s claim of immunity need not consider the correctness of the plaintiff’s

version of the facts.” Id. at 313 (quoting Mitchell, 472 U.S. at 528).

      In other words, “if a district court concludes a reasonable jury could find

certain specified facts in favor of the plaintiff, the Supreme Court has indicated

we usually must take them as true—and do so even if our own de novo review of

the record might suggest otherwise as a matter of law.” Lewis v. Tripp, 604 F.3d

1221, 1225 (10th Cir. 2010). Bound by those facts, we may consider only “the

‘abstract’ legal questions [1] whether those facts suffice to show a violation of law

and [2] whether that law was clearly established at the time of the alleged violation.”

Id. If we answer both questions yes, we affirm the district court’s denial of qualified

immunity. If we answer either question no, we reverse. For any number of reasons

outlined by the Supreme Court, we are permitted to exercise our sound discretion in

deciding whether to bypass the first question and proceed directly to the second.

Pearson, 555 U.S. 236–43.

                                           1.

      A prerequisite to the district court’s decision that Plaintiff presented facts

sufficient to warrant a finding Defendant Officers violated his constitutional right to

court access was its determination that “intentional concealment of evidence by a

police officer that interferes with an individual’s ability to obtain redress for police

                                           9
misconduct is unconstitutional.” Lynch, 2012 WL 1890442, at *3; cf. Siegert v.

Gilley, 500 U.S. 226, 232 (1991). As explained, Defendant Officers do not challenge

that determination. Rather, Defendant Officers challenge the court’s decision that

the facts warrant a finding they violated Plaintiff’s right to court access. Which

facts? Defendant Officers say the facts in the record, a “majority” of which the

district court ignored:

      To survive summary judgment, [Plaintiff] was required to present
      evidence sufficient to raise a genuine issue of material fact concerning
      each officer’s personal participation in an intentional . . . cover-up to
      hide the identities of the officers who allegedly used excessive force
      against him. The district court found that Plaintiff presented such
      evidence as to [Defendant] [O]fficers . . .; however, a review of the
      record reveals that the evidence concerning [Defendant Officers]
      alleged involvement in a cover-up is . . . speculative . . . .

                                        ***

      [T]he record is devoid of any evidence to suggest that from their
      various locations [Defendant Officer] Barrett, Morelock, or Kenfield
      would have been able to see what was happening regardless of darkness
      and the potential obstruction of their view . . . .

Aplts’ Op. Br. at 18–20 (emphasis added).

      The problem with Defendant Officers argument is that at this stage of the

litigation we have no jurisdiction to resolve “fact-related disputes about the pretrial

record, namely, whether . . . the evidence in the pretrial record was sufficient to

show a genuine issue of fact for trial.” Johnson, 515 U.S. 307. Yet this is precisely

what Defendant Officers propose we resolve. The Supreme Court has made the point

(as have we) time and again:       “[D]eterminations of evidentiary sufficiency at

                                          10
summary judgment are not immediately appealable merely because they happen to

arise in a qualified-immunity case.” 2 Behrens v. Pelletier, 516 U.S. 299, 313 (1996).

We choose to belabor this matter no further. Instead we now simply assume (1) a



      2
          In Lewis, we pointed out two exceptions that may allow us to look behind
a district court’s order denying officials qualified immunity at the summary judgment
stage. First, where the district court’s order “fails to identify the particular charged
conduct that it deemed adequately supported by the record,” we may “review the
entire record de novo to determine for ourselves as a matter of law which factual
inferences a reasonable jury could and could not make.” Lewis, 604 F.3d at 1225;
see also Johnson, 515 U.S. at 319 (noting that if a district court does not state the
facts a jury could find, “a court of appeals may have to undertake a cumbersome
review of the record to determine [those] facts”). Second, where the “‘version of
events’ the district court holds a reasonable jury could credit ‘is blatantly
contradicted by the record,’” we may “assess the case based on our own de novo
view of which facts a reasonable jury could accept as true.” Lewis, 604 F.3d at
1225–26 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Whether a district
court has stated facts tending to establish each element of a plaintiff’s claim, i.e., a
violation of the law, should be readily discernable, or we should hope. A mere claim
that the record “blatantly” contradicts the district court’s factual recitation, however,
may not be so easily resolved. Such claim alone does not require us to look beyond
the facts found and inferences drawn by the district court. Rather, the court’s
findings must constitute “visible fiction.” Scott, 550 U.S. at 380–81. Scott
illustrates the point. In that case, a videotape capturing the events in question “quite
clearly contradict[ed] the version of the story told by [plaintiff] and adopted by the
Court of Appeals.” Id. at 378. Only in their reply brief do Defendant Officers cite
Lewis and argue we should look behind the district court’s summary judgment order
because that order “fails to identify the specific facts upon which a reasonable jury
might rely to find that [Defendant] [O]fficers engaged in an intentional cover-up or
conspiracy.” Aplts’ Reply Br. at 3. To be sure, the district court’s order tells us
only that Defendant Officers were at the scene of Plaintiff’s arrest and were in a
position to witness the use of excessive force against him, but cannot identify the
responsible officer or officers. But whether this evidence is alone sufficient to
establish a “cover-up”, and thus a violation of Plaintiff’s right to court access, or
whether it is so lacking as to permit us to look behind the district court’s order to
ascertain those facts supporting Plaintiff’s claim, is a question not properly before
us because we do not consider arguments raised for the first time in a reply brief.
See Iqbal v. Holder, 693 F.3d 1189, 1195 n.4 (10th Cir. 2012).

                                           11
police cover-up designed to hinder pursuit of a legal claim may violate an

individual’s constitutional right to court access and (2) the facts set forth in the

district court’s order are sufficient to warrant a finding that Defendant Officers

violated Plaintiff’s right in this case. This allows us to broach the more manageable

question of whether Plaintiff’s right to court access was clearly established in the

specific context of this case.

                                          2.

      The second prong of the qualified immunity analysis shields a government

official from a claim of unconstitutional conduct where a reasonable official might

not have understood that such conduct violated the Constitution. “The contours of

the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001),

overruled in part on other grounds by Pearson 555 U.S. at 236. To overcome

Defendant Officers’ claim of qualified immunity, Plaintiff must show the scope of

his right to court access was sufficiently clear such that a reasonable officer would

have understood Defendant Officers’ refusal to name those responsible for exercising

excessive force against him was not merely ill-advised, but violated that right:

      Because the focus is on whether the officer had fair notice that her
      conduct was unlawful, reasonableness is judged against the backdrop of
      the law at the time of the conduct. If the law at that time did not clearly
      establish that the officer’s conduct would violate the Constitution, the
      officer should not be subject to liability or, indeed even the burdens of
      litigation.


                                          12
      It is important to emphasize that this inquiry must be undertaken in
      light of the specific context of the case, not as a broad general
      proposition.

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (internal quotations omitted). If a

reasonable officer would have had difficulty determining how the law concerning the

right to court access applied to the facts of this case, Defendant Officers are entitled

to qualified immunity. All this is not to say that qualified immunity shields official

action unless controlling precedent squarely holds the challenged action unlawful;

rather “in the light of pre-existing law the unlawfulness must be apparent.” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (internal quotations omitted).

      While the precise source of the constitutional right to court access remains

ambiguous, the existence of such right, generally speaking, is quite clear. Over two

decades ago we observed:

      The right of access to courts is basic to our system of government, and
      it is well established today that it is one of the fundamental rights
      protected by the Constitution. This right is one of the privileges and
      immunities accorded citizens under article 4 of the Constitution and the
      Fourteenth Amendment. It is also one aspect of the First Amendment
      right to petition the government for redress of grievances. Finally, the
      right of access is founded on the due process clause and guarantees the
      right to present to a court of law allegations concerning the violation of
      constitutional rights.

Smith v. Maschner, 899 F.2d 940 at 947 (10th Cir. 1990) (internal citations omitted).

But simply to say the Constitution recognizes a right to court access casts too high

a level of generality over our inquiry. To show his alleged right to court access was

clearly established in the proper sense, Plaintiff should identify “cases of controlling

                                          13
authority . . . at the time of the incident . . . [or] a consensus of cases of persuasive

authority” clearly establishing the scope of the right encompasses the facts presented,

“such that a reasonable officer could not have believed that his actions were

[consistent with that right].” Wilson v. Layne, 526 U.S. 603, 617 (1999); see also

Green, 574 F.3d at 1300.

      In 2002, the Supreme Court in Harbury “was careful not to endorse the validity

of . . . backwards looking [right to access] claims.” Jennings, 383 F.3d at 1209

(citing Harbury, 536 U.S. at 414 n.9). Henceforth, the Supreme Court has never

defined the right of court access to include a backwards looking claim based on a

“conspiracy of silence” aimed at interfering with an individual’s ability to procure

evidence of official misconduct. Nor have we ever endorsed such constitutional

claim. In McKay v. Hammock, 730 F.2d 1367, 1375 (10th Cir. 1984), we stated that

“conduct under color of law which interferes with [the] right [to court access] gives

rise to a cause of action under § 1983.” In that case, plaintiff alleged police officers

“threatened to see that his probation was revoked if he filed a civil rights action

based on [unlawful] arrests.” Id. (emphasis added); see Foster v. City of Lake

Jackson, 28 F.3d 425, 429–31 (5th Cir. 1994) (characterizing the right of access as

encompassing only the right to file suit and not the right to proceed free of discovery

abuses or even an evidentiary cover-up). A decade later in Wilson v. Meeks, 52 F.3d

1547 (10th Cir. 1995), we squarely rejected a right to access claim based on, among

other things, allegations that a police official “ordered a ‘code of silence’ concerning

                                           14
the Wilson shooting:”

      Insofar as the “code of silence” refers to [the official’s] directive to
      police officers not to discuss the case, it is not a constitutional
      violation. There is no constitutional duty for a police department to
      disclose details concerning a police shooting to the public. Naturally,
      the duty to disclose such facts may arise in response to discovery or
      other legal process. In such case, however, the duty is merely legal
      rather than constitutional.

Id. at 1557 (emphasis added).

      This brings us to our 2004 decision in Jennings. In that case, plaintiff claimed

police officers violated her right to court access by intentionally undermining her

ability to bring a private tort action against her alleged sexual assailants, members

of the Oklahoma State football team. We began our analysis of plaintiff’s claim by

observing that “[t]his Circuit has not recognized a constitutional cause of action

based on denial of access to courts under these circumstances.” Jennings, 383 F.3d

at 1207. We then embarked on a discussion of Wilson:

      On appeal from the district court’s denial of summary judgment for the
      defendants based on qualified immunity, [Wilson] noted that while other
      circuits have recognized a cause of action for police cover-up, the Tenth
      Circuit had not endorsed this cause of action. Further, Wilson explained
      that even the Fifth Circuit, which first articulated the access-to-courts
      claim, had since limited these claims to cases alleging interference with
      the filing of a complaint [as opposed to interference with discovery]
      Wilson thus strongly suggests that a police cover-up does not give rise
      to a constitutional claim of denial of access to courts in this Circuit.[ 3]


      3
        In Jennings we eventually assumed Wilson did not foreclose plaintiff’s right
to access claim. Rather, Harbury foreclosed it because plaintiff was not denied court
access insofar as she had sought and obtained a like measure of damages in a prior
                                                                       (continued...)

                                          15
Id. at 1208 (emphasis added) (internal citations, brackets, and quotations omitted).

      The foregoing discussion makes apparent the point. At least in the Tenth

Circuit, the question of whether an evidentiary cover-up by police officials may

violate an individual’s constitutional right to court access was not clearly established

at the time of the alleged violation. A reasonable officer might not have understood

what Defendant Officers did (or refused to do) violated that right. “[I]n the light of

pre-existing law,” the unconstitutionality of Defendant Officers’ misfeasance simply

was not clear. Hope, 536 U.S. at 739. In other words, whether the scope of the right

to access extended as far as Plaintiff claims was “far from obvious.” Pearson, 555

U.S. at 237. What is obvious is that such right as defined by Plaintiff was not clearly

established. Assuming the truth of Plaintiff’s version of events, Defendant Officers’

conduct is inexcusable. “But that we are ‘morally outraged’ . . . by the alleged

conduct . . . does not mean necessarily that the offic[ers] should have realized that

it violated a constitutional right of access.” Foster, 28 F.3d at 430. Because

Defendant Officers are entitled to qualified immunity on Plaintiff’s right to access

claim based on the absence of clearly established law recognizing such right, we

reverse the district court’s decision denying them the same.




      3
       (...continued)
suit against four football players and the university. Jennings 383 F.3d at 1208–09;
see also Harbury 536 U.S. at 415.

                                          16
                                         B.

      We now turn to Defendant City’s appeal from the denial of their standard

motion for summary judgment. The district court’s denial of that motion, a motion

which raised a “mere defense to liability” based on the insufficiency of the evidence,

does not constitute a final decision under § 1291 and is not appealable as such.

Swint, 514 U.S. at 43. Unlike Defendant Officers, Defendant City is unable to claim

immunity from suit and “cannot invoke the collateral order doctrine to justify appeal

of an otherwise nonappealable decision.” Moore v. City of Wynnewood, 57 F.3d

924, 929 (10th Cir. 1995). Defendant City therefore asks us to exercise pendent

party appellate jurisdiction, claiming its appeal is inextricably intertwined with

Defendant Officers’ appeal.

      The Supreme Court has not “universally required courts of appeals to confine

review to the precise decision independently subject to appeal.” Swint, 514 U.S. at

50. Yet in Swint, the Court evinced concern that a “rule loosely allowing pendent

appellate jurisdiction would encourage parties to parlay Cohen-type collateral orders

into multi-issue interlocutory appeal tickets.” Id. at 49–50. The parties there,

however, did not assert the district court’s decision denying the county commission

summary judgment was “inextricably intertwined with that court’s decision to deny

the individual defendants[] qualified immunity . . . or that review of the former

decision was necessary to ensure meaningful review of the latter.” Id. at 51. So the

Court did not address “whether or when it may be proper for a court of appeals, with

                                         17
jurisdiction over one ruling, to review, conjunctively, related rulings that are not

themselves independently appealable.” Id. at 50–51.

      Subsequently in Moore, a § 1983 case raising constitutional claims against a

police chief and the city that employed him, we seized upon Swint to reason:

      As we read Swint, a pendant appellate claim can be regarded as
      inextricably intertwined with a properly reviewable claim on collateral
      appeal only if the pendent claim is coterminous with, or subsumed in,
      the claim before the court on interlocutory appeal—that is when the
      appellate resolution of the collateral appeal necessarily resolves the
      pendent claim as well. Here, we conclude that the two appeals are
      coterminous [1] because [plaintiff’s] federal . . . claim[] against the
      City . . . [is] premised on his claim that [the police chief] violated his
      First Amendment rights and [2] because we hold that no such First
      Amendment violation occurred. As such, the issues presented in the
      City’s appeal are no broader than those in [the police chief’s]
      permissible collateral appeal [from the denial of qualified immunity],
      and our disposition of [the police chief’s] appeal fully disposes of
      [plaintiff’s] claims against the City.

Moore, 57 F.3d at 930.

      Moore tells us that if we had held in this case that Defendant Officers’ conduct

did not violate Plaintiff’s constitutional right to court access, that holding would

have resolved any issue presented by Defendant City’s appeal. This is because

Plaintiff’s claim against the City is premised on his claim Defendant Officers

violated his right to court access. See City of Los Angeles v. Heller, 475 U.S. 796,

799 (1986) (holding that if a police officer inflicted no constitutional injury on

the suspect, “it is inconceivable” the police commissioners could be liable to the

suspect); Camuglia v City of Albuquerque, 448 F.3d 1214, 1223 (10th Cir. 2006)


                                         18
(recognizing a municipality may not be held liable for a policy or practice in the

absence of an underlying constitutional violation by an individual official). In that

case, nothing would be gained by declining to dispose of the City’s appeal on the

merits because “appellate resolution of the collateral appeal necessarily [would]

resolve[] the pendent claim as well.” Moore, 57 F.3d at 930.

      But because we assumed Defendant Officers violated Plaintiff’s right to court

access and held they were entitled to qualified immunity based on the lack of clearly

established law, Defendant City’s appeal in not “inextricably intertwined” with

Defendant Officer’s appeal.    Nor need we resolve the City’s appeal to ensure

meaningful review of the Officers’ appeal. See id. (“[T]he city’s appeal might

present different issues than [the police chief’s] appeal if we concluded that [he]

violated [plaintiff’s] [constitutional] rights, but . . . was protected by qualified

immunity because those rights were not clearly established.”) “[T]here is nothing

anomalous about allowing . . . a suit [against the city] to proceed when immunity

[based on a lack of clearly established law] shields the individual defendants.”

Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir. 1988). Nothing at this

point prevents Plaintiff’s claim against Defendant City from proceeding.

Accordingly, we dismiss Defendant City’s appeal for want of subject matter

jurisdiction.

      REVERSED IN PART; DISMISSED IN PART; and REMANDED for further

proceedings consistent with this opinion.

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