                 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

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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

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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

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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.
                         ______________________________




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