                                                                        FILED
                                                            United States Court of Appeals
                                PUBLISH                             Tenth Circuit

               UNITED STATES COURT OF APPEALS                      January 11, 2016

                                                               Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                        Clerk of Court
                      _________________________________

TYLER SANCHEZ,

      Plaintiff-Appellee,

v.                                                   No. 14-1385

JOE RYAN HARTLEY, Detective,
in his individual capacity; RYAN
WOLFF, Detective, in his individual
capacity; MIKE DUFFY, Detective,
in his individual capacity;
HEATHER MYKES, Detective, in
her individual capacity; MICHAEL
DICKSON, Investigator, in his
individual capacity; BOARD OF
COUNTY COMMISSIONERS OF
DOUGLAS COUNTY, COLORADO;
DOUGLAS COUNTY SHERIFF’S
OFFICE,

      Defendants-Appellants,

and

OFFICE OF THE DISTRICT
ATTORNEY FOR THE
EIGHTEENTH JUDICIAL
DISTRICT,

       Defendant.
                      _________________________________

             Appeal from the United States District Court
                     for the District of Colorado
                (D.C. No. 1:13-CV-01945-WJM-CBS)
                     _________________________________
Kelly Dunnaway (Christopher K. Pratt, with him on the briefs), Douglas
County Attorney’s Office, Castle Rock, Colorado, for Mike Duffy,
Detective Heather Mykes, The Board of County Commissioners of Douglas
County, and Douglas County Sheriff’s Office, Defendants-Appellants.

Keith M. Goman (Andrew David Ringel, with him on the briefs), Hall &
Evans, LLC, Denver, Colorado, for Michael Dickson, Defendant-Appellant.

Gordon L. Vaughan, and Ann B. Smith, Vaughan & DeMuro, Colorado
Springs, Colorado, on the briefs, for Joe Ryan Hartley and Ryan Wolff,
Defendants-Appellants.

John A. Culver (Seth J. Benezra, with him on the brief), Benezra & Culver,
Lakewood, Colorado, for Plaintiff-Appellee.
                       _________________________________

Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH,
Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

      Mr. Tyler Sanchez sued state detectives and an investigator, alleging

that they had used a confession to obtain legal process even though they

knew the confession was untrue. The defendants moved to dismiss based in

part on qualified immunity and expiration of the limitations period. The

district court rejected both grounds, and the defendants brought this

interlocutory appeal. We affirm the district court’s denial of the

defendants’ motion to dismiss on the basis of qualified immunity; and we

dismiss the defendants’ appeal of the district court’s ruling on the statute

of limitations, holding that we lack jurisdiction on this part of the appeal.




                                      2
I.   Mr. Sanchez’s Claim

     This appeal grew out of an investigation into a 2009 burglary and

sexual assault of an 8-year-old girl. Four detectives (Joe Ryan Hartley,

Ryan Wolff, Mike Duffy, and Heather Mykes) and an investigator (Michael

Dickson) participated in the investigation. In carrying out the

investigation, the detectives and investigator interviewed Mr. Sanchez, an

18-year-old with substantial cognitive disabilities. After lengthy

interviews, Mr. Sanchez confessed to the burglary but not the sexual

assault. The confession led the district attorney to charge Mr. Sanchez with

burglary and sexual assault. Based in part on this confession, multiple

judges found probable cause, resulting in pretrial detention.

     Mr. Sanchez alleges that his confession was false, explaining that he

confessed only because his disabilities prevented him from understanding

what was happening during the interviews. A subsequent medical

examination supported Mr. Sanchez’s explanation, and the district attorney

dropped the charges in April 2012.

     After dismissal of the charges, Mr. Sanchez sued under 42 U.S.C.

§ 1983, arguing that the defendants had committed malicious prosecution

in violation of the Fourth Amendment by using a false confession to

institute legal process and cause continued pretrial detention.

     The defendants moved for dismissal, and the district court denied the

motion. The defendants then brought this interlocutory appeal, arguing that

                                      3
the district court should have ordered dismissal based on qualified

immunity and the statute of limitations. These arguments do not justify

reversal. Mr. Sanchez’s factual allegations are sufficient to overcome

qualified immunity at the pleadings stage, and we lack appellate

jurisdiction on the issue involving the statute of limitations.

II.   We engage in de novo review of the district court’s denial of
      qualified immunity.

      In considering the defense of qualified immunity, we engage in de

novo review. Peterson v. Jensen, 371 F.3d 1199, 1201-02 (10th Cir. 2004).

This review is based on our standards for dismissal and qualified

immunity.

      Under the standard for dismissal, we assume that all of the

allegations in the complaint are true and view the reasonable inferences in

the light most favorable to Mr. Sanchez. Anderson v. Suiters, 499 F.3d

1228, 1232 (10th Cir. 2007). In applying this standard to the defense of

qualified immunity, we consider whether Mr. Sanchez’s factual allegations

and related inferences show the violation of a clearly established

constitutional right. Lybrook v. Members of Farmington Mun. Sch. Bd. of

Educ., 232 F.3d 1334, 1337 (10th Cir. 2000).




                                       4
III.   Mr. Sanchez adequately pleaded the violation of a clearly
       established constitutional right.

       Mr. Sanchez argues that the complaint stated a constitutional

violation by alleging that the detectives and investigator had used a

confession that they knew was untrue. We agree.

       A.    Mr. Sanchez alleged the violation of a constitutional right.

       In the complaint, Mr. Sanchez brings a § 1983 claim against the

defendants for malicious prosecution in violation of the Fourth

Amendment. In our view, Mr. Sanchez adequately pleaded the violation of

a constitutional right. 1

       According to Mr. Sanchez, the detectives and investigator sought

legal process based on the confession even though they either knew the

confession was untrue or recklessly ignored that possibility. If Mr.

Sanchez’s allegation is credited, it would involve a constitutional

violation, for we have held that the Fourth Amendment prohibits officers

from knowingly or recklessly relying on false information to institute legal

process when that process results in an unreasonable seizure. Pierce v.

Gilchrist, 359 F.3d 1279, 1292, 1298-99 (10th Cir. 2004). Therefore, Mr.

1
    “Under our cases, a § 1983 malicious prosecution claim includes the
following elements: (1) the defendant caused the plaintiff’s continued
confinement or prosecution; (2) the original action terminated in favor of
the plaintiff; (3) no probable cause supported the original arrest, continued
confinement, or prosecution; (4) the defendant acted with malice; and (5)
the plaintiff sustained damages.” Wilkins v. DeReyes, 528 F.3d 790, 799
(10th Cir. 2008).

                                      5
Sanchez’s factual allegations, if proven, would entail a Fourth Amendment

violation.

      The defendants do not dispute that in the abstract, the Constitution is

violated when an officer knowingly or recklessly uses false information to

institute legal process. See Appellants’ Reply Br. at 19 (conceding that the

defendants “do not argue it is constitutional to knowingly use false

statements”). Instead, the defendants present five reasons that the

complaint fails to allege violation of a constitutional right for purposes of

Section 1983 2:

      1.     Section 1983 does not permit recovery for malicious
             prosecution under the Fourth Amendment.

      2.     In the complaint, Mr. Sanchez did not adequately allege
             knowledge or recklessness.

      3.     Mr. Sanchez’s only possible claim is for false imprisonment,
             not malicious prosecution.

      4.     A malicious-prosecution theory could implicate the District
             Attorney, but not the detectives or the investigator because
             they could not have decided to prosecute Mr. Sanchez.

      5.     Mr. Sanchez has not alleged conduct that would shock the
             conscience.


2
      The appeal was brought by all defendants, including the Douglas
County Board of County Commissioners and the Douglas County Sheriff’s
Office. But qualified immunity is available only to defendants sued in their
individual capacities. Langley v. Adams Cty., 987 F.2d 1473, 1477 (10th
Cir. 1993). Thus, the district court’s ruling on qualified immunity affected
only the individual defendants, not the board of county commissioners or
the sheriff’s office.

                                      6
We reject each argument.

     1.    Under § 1983, an arrestee can recover for malicious
           prosecution under the Fourth Amendment.

     The defendants argue that § 1983 might allow recovery for malicious

prosecution based on violation of the Fourteenth Amendment, but not the

Fourth Amendment. We disagree, for we have repeatedly recognized a

cause of action under § 1983 for malicious prosecution under the Fourth

Amendment. See, e.g., Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir.

2013) (discussing a § 1983 claim for malicious prosecution under the

Fourth Amendment); Wilkins v. DeReyes, 528 F.3d 790, 797 (10th Cir.

2008) (same); Taylor v. Meacham, 82 F.3d 1556, 1560-61 (10th Cir. 1996)

(same).

     The defendants point to two opinions in arguing that § 1983 does not

allow recovery for malicious prosecution under the Fourth Amendment:

Mondragón v. Thompson and Rehberg v. Paulk. The defendants’ reliance

on these opinions is misguided.

     The defendants first argue that under Mondragón v. Thompson, 519

F.3d 1078 (10th Cir. 2008), a malicious prosecution resulting in legal

process is actionable under the Fourteenth Amendment as a deprivation of

procedural due process, but is not actionable under the Fourth Amendment.

It is true that Mondragón recognized the existence of a § 1983 malicious-

prosecution claim based on the Fourteenth Amendment. Mondragón, 519


                                     7
F.3d at 1083. In dictum, we questioned whether the same claim could also

be based on the Fourth Amendment. Id. at 1083 n.4. In subsequent cases,

however, we squarely addressed this question, recognizing a cause of

action under § 1983 for malicious prosecution based on the Fourth

Amendment. See, e.g., Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir.

2013). Our dictum in Mondragón does not negate our more recent

pronouncements recognizing such a cause of action under § 1983.

     The defendants also argue that reliance on the Fourth Amendment is

precluded by Rehberg v. Paulk,    U.S.    , 132 S. Ct. 1497 (2012). But

Rehberg does not bear on our issue. There the Supreme Court held only

that “a grand jury witness,” including a law-enforcement officer, “has

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

testimony.” Rehberg, 132 S. Ct. at 1506. Mr. Sanchez’s allegations relate

to the defendants’ conduct before Mr. Sanchez was charged, not testimony

before a grand jury. Thus, Rehberg does not undermine our precedents

allowing recovery under § 1983 for malicious prosecution based on

violation of the Fourth Amendment.

     In our view, a cause of action exists under § 1983 for malicious

prosecution in violation of the Fourth Amendment.




                                     8
      2.    The complaint contains sufficient allegations of knowledge
            or recklessness.

      To state a claim for a Fourth Amendment violation, Mr. Sanchez

bears the burden of alleging facts indicating not only that the confession

was untrue, but also that the defendants either knew that the confession

was untrue or recklessly disregarded that possibility. See Wolford v.

Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (“It is a violation of the Fourth

Amendment for an arrest warrant affiant to ‘knowingly, or with reckless

disregard for the truth,’ include false statements in the affidavit.” (quoting

Franks v. Delaware, 438 U.S. 154, 155 (1978))). Relying on this burden,

the defendants argue that Mr. Sanchez failed to allege facts indicating

knowledge that the confession was untrue or reckless disregard of this

possibility. We disagree.

      On this issue, we must determine whether Mr. Sanchez has plausibly

alleged the defendants’ knowledge or reckless disregard for the truth. See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (holding that to

survive a motion to dismiss, the plaintiff must “state a claim to relief that

is plausible on its face”). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Thus, “a well-pleaded complaint may

proceed even if it strikes a savvy judge that actual proof of [the alleged]


                                      9
facts is improbable, and ‘that a recovery is very remote and unlikely.’”

Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236

(1974)).

      Mr. Sanchez satisfied this standard. In the complaint, he provided

factual allegations and details that would plausibly indicate that the

defendants either knew the confession was untrue or acted in reckless

disregard of the truth. For example, Mr. Sanchez alleged these six facts in

the complaint:

     1.     The victim of the sexual assault gave a description of her
            attacker that did not suggest Mr. Sanchez. According to the
            victim, the attacker was roughly 40 years old, weighed about
            190 pounds, had no tattoos, and had brown hair parted down the
            middle. See Appellants’ App’x at 109. Mr. Sanchez was only 18
            years old, weighed only about 130 pounds, had prominently
            displayed tattoos on both arms, and had buzz-cut red hair. See
            id. The detectives and investigator knew that Mr. Sanchez did
            not fit the victim’s description of the perpetrator. See id. at 111
            (Detectives Wolff and Hartley), 114 (Detectives Duffy and
            Mykes), 118 (Investigator Dickson).

     2.     Mr. Sanchez has pronounced cognitive and developmental
            disabilities and IQ test scores in the 60s and 70s. These
            disabilities cause Mr. Sanchez to engage in noticeably unusual
            behavior. See id. at 108-09.

     3.     In interviews with the defendants, Mr. Sanchez had significant
            difficulty understanding and responding to questions. See, e.g.,
            id. at 110-12, 114-15.

     4.     Mr. Sanchez’s unusual behavior in the interviews was amplified
            by fatigue. He had been awake for over 30 hours by the end of
            the interviews, and he repeatedly told the defendants that he
            was tired and spoke with his eyes closed. See id. at 113-14, 117.



                                      10
     5.     The detectives and investigator noticed Mr. Sanchez’s unusual
            behavior. At one point, two detectives asked Mr. Sanchez if he
            was simply saying what they wanted to hear. See id. at 112
            (Detectives Wolff and Hartley). One of the detectives wrote
            that Mr. Sanchez had difficulty remembering details of his
            supposed crimes and had given vague answers. See id.
            (Detective Wolff). Two other detectives suspected
            intoxication, asking Mr. Sanchez to take a urine test to verify
            that he was not under the influence of drugs or alcohol. See id.
            at 116 (Detectives Mykes and Duffy). And the investigator
            observed that Mr. Sanchez was behaving unusually and
            experiencing difficulty answering questions. See id. at 119
            (Investigator Dickson).

     6.     Mr. Sanchez was unable to give any details regarding his
            involvement in the crime. Instead, Mr. Sanchez simply agreed
            to the details suggested to him. At one point, Mr. Sanchez
            agreed to an untrue detail that the investigator had posed (that
            Mr. Sanchez had climbed into the victim’s second-story
            window with a ladder). As the investigator knew, no ladder was
            found at the scene. See id. at 122.

These alleged facts plausibly support the required inference of the

defendants’ knowledge or recklessness.

      In oral argument, defense counsel suggested that the complaint does

not contain sufficient factual allegations to support an inference of

knowledge or recklessness against the investigator. Oral Argument at

31:40-33:10. We disagree. The complaint alleges that (1) the investigator

noticed Mr. Sanchez’s abnormal behavior and inability to provide any

detail about the burglary and sexual assault and (2) Mr. Sanchez agreed to

a detail about the crime that the investigator knew was untrue. These

allegations plausibly support the required inference that the investigator



                                     11
knew that the confession was untrue or recklessly disregarded this

possibility.

      3.       The initial warrantless arrest of Mr. Sanchez does not `
               invalidate Mr. Sanchez’s claim of malicious prosecution.

      Our case law distinguishes between seizures based on whether they

are imposed with or without legal process. Though both types of seizures

implicate the Fourth Amendment, seizures imposed pursuant to legal

process generally trigger claims for malicious prosecution, while seizures

imposed without legal process generally trigger claims for false

imprisonment. Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013).

Based on this distinction, the defendants argue that Mr. Sanchez could

assert only a false-imprisonment claim because he was arrested and

detained without a warrant.

      This argument is foreclosed by Wilkins v. DeReyes, 528 F.3d 790

(10th Cir. 2008). There we recognized a cause of action under § 1983 for

malicious prosecution in violation of the Fourth Amendment for seizures

that occur after a warrantless arrest. Wilkins, 528 F.3d at 798. “If arrested

without a warrant . . . a plaintiff can challenge the probable cause

determination made during the constitutionally-required probable cause

hearing,” which must occur after the initial warrantless arrest. Id. (citation

omitted). A plaintiff who brings such a challenge “would state a Fourth




                                      12
Amendment violation sufficient to support a § 1983 malicious prosecution

cause of action.” Id. at 799.

      Our holding in Wilkins forecloses the defendants’ argument that Mr.

Sanchez is confined to a false-imprisonment claim because he was arrested

without a warrant. It is true that the defendants initially arrested Mr.

Sanchez without a warrant and, therefore, without legal process. But after

this warrantless arrest, there were multiple judicial determinations of

probable cause to detain Mr. Sanchez on all of the pending charges. Based

on this legal process, Mr. Sanchez spent an additional 125 days in jail.

      Under Wilkins, Mr. Sanchez’s theory states a valid claim under

§ 1983 for malicious prosecution in violation of the Fourth Amendment,

and Mr. Sanchez’s initial warrantless arrest is immaterial to the validity of

this claim. See id. 3

      4.     The malicious-prosecution theory is not confined to the
             District Attorney.

      The defendants also argue that the malicious-prosecution claim must

be confined to the District Attorney because he was the official who

decided to prosecute. The defendants provide no support for this argument,

and it is invalid under Pierce v. Gilchrist. There we held that a malicious-


3
      After releasing Mr. Sanchez, the district court imposed pretrial
restrictions. The defendants argue that restrictions on movement did not
qualify as a seizure under the Fourth Amendment. We need not address this
argument because the jailing for 125 days constituted a seizure.

                                      13
prosecution theory would lie against a forensic analyst even though she did

not (and could not) decide to prosecute:

     [The forensic analyst] cannot “hide behind” the fact that she
     neither initiated nor filed the charges against [the plaintiff].
     The actions of a police forensic analyst who prevaricates and
     distorts evidence to convince the prosecuting authorities to
     press charges is no less reprehensible than an officer who,
     through false statements, prevails upon a magistrate to issue a
     warrant. In each case the government official maliciously
     abuses a position of trust to induce the criminal justice system
     to confine and then to prosecute an innocent defendant.

Pierce v. Gilchrist, 359 F.3d 1279, 1293 (10th Cir. 2004); see also

Stonecipher v. Valles, 759 F.3d 1134, 1147 (10th Cir. 2014) (“Of course,

the fact that a government lawyer makes the final decision to prosecute

does not automatically immunize an officer from liability for malicious

prosecution.”).

     Like the forensic analyst in Pierce, the four detectives and

investigator would incur liability under a malicious-prosecution theory if

they knowingly or recklessly used false information to institute legal

process.

     5.    The shock-the-conscience standard does not bear on Mr.
           Sanchez’s Fourth Amendment claim.

     The defendants argue that Mr. Sanchez has not pleaded facts that

would shock the conscience. But this argument is irrelevant because Mr.

Sanchez did not need to plead facts that shock the conscience.




                                     14
     The “shock the conscience” standard governs claims involving

substantive due process. Ruiz v. McDonnell, 299 F.3d 1173, 1183 (10th

Cir. 2002). Reliance on this standard is mistaken because Mr. Sanchez has

not invoked substantive due process. Instead, he invokes the Fourth

Amendment. For a claim under the Fourth Amendment, Mr. Sanchez need

not plead facts that shock the conscience. See Frohmader v. Wayne, 958

F.2d 1024, 1027 (10th Cir. 1992) (“The due process standard is more

onerous than the Fourth Amendment reasonableness standard since the

former requires, in addition to undue force, personal malice amounting to

an abuse of official power sufficient to shock the conscience.”).

                                   * * *

     Because Mr. Sanchez has pleaded facts reflecting a constitutional

violation, we must determine if the underlying right was clearly

established when the alleged violation took place.

     B.    The underlying right under the Fourth Amendment was
           clearly established when the violation occurred.

     Mr. Sanchez alleges that the defendants either knowingly or

recklessly used an untrue confession to initiate legal process. As we have

explained, this conduct would violate the Fourth Amendment. But to

overcome qualified immunity, Mr. Sanchez must also show that the

underlying right was clearly established in 2009, when the events took

place. He has made that showing.


                                     15
     1.    The underlying constitutional right was clearly established
           at the time of the alleged conduct.

     By 2009, our precedents had clearly established that the defendants’

alleged actions would have violated the Fourth Amendment. Five years

earlier, we had held in Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004),

that “[n]o one could doubt that the prohibition on falsification or omission

of evidence, knowingly or with reckless disregard for the truth, was firmly

established as of 1986, in the context of information supplied to support a

warrant for arrest.” 359 F.3d 1279, 1298 (10th Cir. 2004). Under Pierce,

the four detectives and investigator should have known by 2009 that the

knowing or reckless use of a false confession would violate the Fourth

Amendment.

     2.    The defendants’ arguments to the contrary are invalid.

     The defendants present three arguments that Mr. Sanchez’s asserted

constitutional right was not clearly established in 2009:

     1.    The Fourth Amendment did not require accommodation of a
           cognitive disability.

     2.    The contours of a malicious-prosecution claim were ill defined.

     3.    It was not clearly established that a seizure imposed pursuant
           to wrongful legal process would violate the Fourth Amendment
           (as opposed to the Fourteenth Amendment).

Each argument is invalid.

     First, the defendants contend that the Fourth Amendment did not

clearly require interrogators to (1) determine whether a suspect had

                                     16
cognitive disabilities or (2) accommodate these disabilities. But this

contention reflects confusion on Mr. Sanchez’s claim. Mr. Sanchez claims

that the defendants either knew that his confession was untrue or recklessly

disregarded that possibility. If that was the case, the defendants would

have violated the Fourth Amendment, regardless of whether they had a

specific duty to ascertain and accommodate Mr. Sanchez’s cognitive

difficulties.

      Second, the defendants argue that the contours of a § 1983 claim for

malicious prosecution were not clearly defined in 2009. But this argument

confuses the alleged constitutional violation with the underlying cause of

action that provides a remedy for the violation. Section 1983 merely

provides a cause of action; the substantive rights are created elsewhere.

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see also Taylor v.

Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996) (“[O]ur circuit takes the

common law elements of malicious prosecution as the ‘starting point’ for

the analysis of a § 1983 malicious prosecution claim, but always reaches

the ultimate question . . . of whether the plaintiff has proven a

constitutional violation.” (emphasis in original)). As a result, the contours

of a malicious-prosecution claim do not help resolve the material question

in this appeal: whether the Constitution would clearly have prohibited the

knowing or reckless use of a false confession in 2009. As discussed above,

our precedents had clearly recognized this prohibition by 2009.

                                      17
     Third, the defendants argue that in 2009, it was not clearly

established whether the underlying constitutional violation would involve

the Fourth Amendment or the Fourteenth Amendment’s right to procedural

due process. For this argument, the defendants rely on Mondragón v.

Thompson, 519 F.3d 1078 (10th Cir. 2008). In Mondragón, we held that if

a defendant “has been imprisoned pursuant to legal but wrongful process,

he has a claim under the procedural component of the Fourteenth

Amendment’s Due Process Clause analogous to a tort claim for malicious

prosecution.” Mondragón, 519 F.3d at 1082. In dictum we added that we

did not “foreclose the additional, though unlikely, possibility” that such

wrongful process could also give rise to a separate violation of the Fourth

Amendment. Id. at 1083 n.4.

     We reject the defendants’ argument for two reasons.

     First, we said in Pierce v. Gilchrist, which preceded Mondragón, that

it was a Fourth Amendment violation to knowingly or recklessly use false

information to initiate legal process when that process leads to an

unreasonable seizure. Pierce v. Gilchrist, 359 F.3d 1279, 1298-99 (10th

Cir. 2004).

     Second, after our dictum in Mondragón, we held in Wilkins v.

DeReyes that an arrestee can bring a malicious-prosecution claim when

legal process is initiated and results in an unreasonable seizure under the

Fourth Amendment. Wilkins v. DeReyes, 528 F.3d 790, 797 (10th Cir.

                                     18
2008). 4 Thus, by 2009, our holding in Wilkins would have provided notice

to the detectives and the investigator that their alleged conduct would

violate the Fourth Amendment. See Anderson v. Creighton, 483 U.S. 635,

640 (1987) (holding that for a constitutional right to be clearly established,

“[t]he contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right”).

      In these circumstances, we conclude that the defendants should have

realized that the knowing or reckless use of a false confession to institute

legal process would violate a clearly established constitutional right. The

purported uncertainty did not involve the constitutionality of the conduct;

instead, the purported uncertainty involved whether the violation would

      ●     constitute malicious prosecution or false imprisonment
            and

      ●     involve the Fourth Amendment or the Fourteenth
            Amendment’s right to procedural due process.


4
      The defendants characterize this conclusion in Wilkins as dictum
rather than a holding. We respectfully disagree with this characterization.
In Wilkins, the plaintiffs asserted a cause of action for malicious
prosecution after the initiation of legal process. Wilkins v. DeReyes, 528
F.3d 790, 799 (10th Cir. 2008). In light of this characterization of the
claim, we analyzed it as a malicious-prosecution claim under the Fourth
Amendment. Id. at 797; see also Myers v. Koopman, 738 F.3d 1190, 1194-
95 (10th Cir. 2013) (relying on Wilkins and holding that “[u]nreasonable
seizures imposed with legal process precipitate Fourth Amendment
malicious-prosecution claims”). Thus, our recognition of a Fourth
Amendment malicious-prosecution claim, after the initiation of legal
process, was necessary to Wilkins’s disposition. See Seminole Tribe of Fla.
v. Florida, 517 U.S. 44, 67 (1996) (distinguishing holdings from dicta).

                                      19
In our view, the defendants misread our precedents, which by 2009 had

clearly recognized malicious-prosecution claims under the Fourth

Amendment after the initiation of a legal process resulting in an

unreasonable seizure.

                                    * * *

      The district court properly held that Mr. Sanchez had adequately

alleged the violation of a clearly established constitutional right. As a

result, we uphold the denial of the defendants’ motion to dismiss on the

basis of qualified immunity.

IV.   We decline to assert pendent appellate jurisdiction on the issue
      involving the statute of limitations.

      The defendants also argue that the malicious-prosecution claim is

barred by the statute of limitations. We have discretion over whether to

address this argument at the interlocutory stage. Exercising this discretion,

we decline to decide whether the claim is time-barred.

      The threshold issue is whether we can consider this issue. Although

an interlocutory appeal is ordinarily available upon the denial of qualified

immunity, an interlocutory appeal for the statute of limitations is

ordinarily not appealable. See Wilkins v. DeReyes, 528 F.3d 790, 796 (10th

Cir. 2008) (“A statute of limitations defense is ordinarily not appealable as

part of an interlocutory qualified immunity appeal.”). Therefore, we can

decide whether Mr. Sanchez’s claim is time-barred only if we first exercise


                                      20
pendent appellate jurisdiction over that issue. Moore v. City of

Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995).

      But the exercise of pendent appellate jurisdiction is both

discretionary and “generally disfavored.” Id. Using this discretion, we

decline to decide the issue of timeliness.

      Although we have rejected the defendants’ arguments for qualified

immunity, our analysis of that issue may not fully resolve the defendants’

argument on the statute of limitations. See id. at 930 (holding that pendent

appellate jurisdiction is appropriate only “when the appellate resolution of

the [appealable issue] necessarily resolves the [otherwise non-appealable

issue] as well” (emphasis in original)).

      Because we decline to exercise pendent appellate jurisdiction over

the defendants’ argument on the statute of limitations, we dismiss this

portion of the defendants’ appeal based on a lack of appellate jurisdiction.

See Cox v. Glanz, 800 F.3d 1231, 1257 (10th Cir. 2015).

V.    Disposition

      We affirm the district court’s denial of the defendants’ motion to

dismiss on the basis of qualified immunity; and we dismiss the portion of

the appeal relating to the statute of limitations, holding that we lack

appellate jurisdiction.




                                      21
