                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       NOV 17 1997
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                              TENTH CIRCUIT



 CAROLYN CLANTON,

       Plaintiff-Appellee,
 v.
                                                      No. 96-7082
 JODY COOPER,

       Defendant-Appellant.


                 Appeal from the United States District Court
                    for the Eastern District of Oklahoma
                          (D.C. No. CIV-95-426-B)


Charles K. Babb, Assistant Attorney General of Oklahoma, Oklahoma City, OK,
argued the cause for the appellant. W.A. Drew Edmondson, Attorney General of
Oklahoma, and Benjamin Gore Gaines, Assistant Attorney General of Oklahoma,
assisted on the brief.

Gene V. Primomo, Wilcoxen, Wilcoxen, & Primomo, Muskogee, OK, argued the
cause for the appellee. John H. Helm, Houston, TX, assisted on the brief.


Before BRORBY, HOLLOWAY, and EBEL, Circuit Judges.


EBEL, Circuit Judge.



      Plaintiff-Appellee Carolyn Clanton (“Clanton”) was arrested for arson,

pursuant to a warrant issued by Defendant-Appellant Jody Cooper (“Cooper”), an
Oklahoma Fire Marshal Agent. The warrant was predicated on an oral statement

made by Clanton’s alleged accomplice, who later testified that his statement was

coerced by Cooper. In addition, after Clanton was arrested, Cooper falsely told

the arresting officers that Clanton was “possibly involved in a homicide still

under investigation,” and that Clanton was not eligible for bail, causing Clanton

to be imprisoned overnight. The arrest warrant was later quashed by a state court.

No charges were ever filed against Clanton.

      Clanton then sued Cooper under 42 U.S.C. § 1983 (1994 & Supp. 1997),

alleging that Cooper deprived her of her liberty under color of state law, by

causing her to be arrested without probable cause and by causing her to be falsely

imprisoned following the arrest. Cooper’s motion for summary judgment on the

ground of qualified immunity was denied. Cooper now appeals.


                                 BACKGROUND

      Several important facts in the present case are disputed. The following

statement of facts is set forth in the light most favorable to Plaintiff-Appellee

Carolyn Clanton, the nonmovant for summary judgment. See Kaul v. Stephan, 83

F.3d 1208, 1212 (10th Cir. 1996). All reasonable inferences from the factual

record have been drawn in favor of Clanton.

      Around July 25, 1993, Carolyn Clanton, a Texas resident, arrived in the

City of Checotah, in McIntosh County, Oklahoma, to attend her recently deceased

                                         -2-
mother's funeral, and to participate in the disposition of the mother’s estate.

Clanton’s mother had lived in a trailer house in Checotah owned by Clanton's

brother, Joe Burns. Although Clanton's stepfather Odie Sheffield still lived in the

trailer house, Burns had ordered Sheffield to remove himself and his belongings

from the trailer house immediately following the mother's death. Burns intended

to sell the trailer to another neighbor, Nadine Lawson.

      That evening, several arguments ensued regarding the right to possession of

the trailer house. Odie Sheffield's relatives said that if he couldn't live in the

trailer they would burn it. By 11:30 p.m., the trailer had been emptied of

possessions. At that time, Clanton and her nephew Michael Eaves (“Michael”)

returned to the trailer, where they found that water was running from the washer

hookup, the lights were on, and the doors were wide open. Clanton then

borrowed a wrench from Nadine Lawson to stop the running water, secured the

premises, and left with Michael at about midnight. Clanton and Michael spent the

next one-and-one-half hours together at the Green Country Diner.

      At about 12:20 a.m., while Clanton and Michael were in the Diner, the

trailer house was set on fire. Defendant-Appellant Jody Cooper, an Oklahoma

State Fire Marshal Agent, investigated the fire the following morning. Cooper

interviewed a number of witnesses, including Clanton, but did not solve the

crime. While being interviewed by Agent Cooper, Clanton expressed


                                          -3-
dissatisfaction with the course of Cooper’s investigation. Clanton also told

Cooper that she would be traveling in Europe and would not be returning to the

United States until September, 1993.

      In late August, 1993, the State Fire Marshal's office received a phone call

from Clanton's nephew Bobby Eaves (Michael's brother). Bobby Eaves

(“Bobby”) claimed to have information about the July 26 arson, and agreed to

meet with Agent Cooper on August 24, 1993. At this meeting, Bobby Eaves

signed a written statement alleging that his brother Michael had told him that

Michael and Clanton had committed the arson.

      Two days later, Cooper visited Michael Eaves. At first, Michael denied any

involvement in the arson. Cooper then falsely told Michael that physical evidence

linked Michael to the crime, and that if Michael did not confess he would go to

jail for twenty-five years. Cooper “suggested” that Michael had burned the house

at Clanton's request, according to Clanton's plan, and with Clanton's assistance.

He further “suggested” that Clanton's motive was to collect the fire insurance

money. Finally, he told Michael that if Michael confessed along these lines,

Michael would “get off lightly.” Subsequently, Michael signed a Miranda waiver

form and gave a tape-recorded oral statement in which he confessed to the arson

and implicated his aunt, Carolyn Clanton.




                                        -4-
      Immediately after giving his oral statement, Michael was arrested for the

arson. Several days later, on August 31, 1993, Cooper signed a probable cause

affidavit in support of a warrant for Clanton's arrest. Although the district

attorney had never filed a sworn information (and therefore no charges had been

filed against Clanton), the arrest warrant was issued that same day. On September

2, 1993, Cooper disseminated the arrest warrant information nationally, through

the National Crime Information Center (NCIC) computer system.

      Around September 13, 1993, upon her return from Europe, Clanton was

arrested by U.S. customs officers in Houston, Texas. She was then turned over to

the Houston police. When the Houston police contacted the McIntosh County,

Oklahoma Sheriff's Department to find out what to do with Clanton, they received

the following message through the NCIC computer system.

      PLEASE PLACE A HOLD ON SUBJECT CAROLYN BURNS
      CLAYTON [sic] FOR THIS DEPT SHE IS A WHITE FEMALE
      DOB/121051 HGT/504 WGT 130 EYES/BRO HAI/BRO
      SKN/LGT SHE IS CHARGED WITH ARSON OF RESIDENCE
      ENDANGERED LIFE AND POSSIBLY ENVOLVED [sic] IN A
      HOMICIDE STILL UNDER INVESTIGATION COURT WILL BE
      MCINTOSH CO COURT AT EUFAULA OK WT NO IS AWF/93-6
      DOW/083193 AND NO BOND IF PERSON WONT WAIVE
      EXTRADITION WE WILL EXTRADITE

Clanton v. Cooper, No. CIV-95-426-B, slip op. at 8-9 (E.D. Okla. July 25, 1996)

(Order) (Burrage, J.). Consequently, Clanton was incarcerated for one to three




                                         -5-
days 1 in the Harris County (Texas) jail. She was released on an “Own

Recognizance” bond only after the falsity of the “homicide” information was

established.

      On September 23, 1993, Michael Eaves recanted the oral statement which

had been the sole evidence implicating Clanton in the arson. Michael alleged that

Cooper had coerced him into making the earlier statement by threatening to send

him to jail for twenty-five years unless he agreed to repeat back, in substance, a

confession supplied by Cooper. 2

      On September 27, 1993, an Oklahoma trial court quashed the August 31,

1993 warrant for Clanton’s arrest. The court cited two grounds for quashing the

arrest: (1) no charges had ever been filed against Clanton by the D.A. (and no

grand jury had indicted her); and (2) probable cause for Clanton’s arrest could not

be established solely by a recanted oral statement of an alleged co-conspirator.


      1
        Clanton claims in her brief that her imprisonment lasted three days.
Cooper claims in his brief that Clanton’s imprisonment lasted only one day.
Similarly, in the argumentative section of Clanton’s brief, Clanton says that she
was released on September 14, 1994, implying that she was incarcerated for only
one day. Neither Cooper nor Clanton, however, cite to the record in support of
their respective assessments of the number of days Clanton was imprisoned.
Without any evidence to support either party’s claim, we simply cannot resolve
this conflict.
      2
       An Oklahoma state judge, later ruling on Michael's motion to suppress his
prior oral confession, found that the confession was given voluntarily. On
September 28, 1994, Michael pled guilty to second degree arson, and was given a
two-year suspended sentence.

                                        -6-
To date, no charges have been filed against Clanton in connection with the July

26, 1993 arson.

      On August 29, 1995, Clanton sued the City of Checotah, its police

department and police chief, the Oklahoma State Fire Marshal’s Office, its chief,

and Agent Cooper under 42 U.S.C. § 1983 (1994) and under Oklahoma state law.

The gravamen of Clanton’s complaint was that the defendants had intentionally

manufactured false evidence against Clanton (Michael Eaves’s oral statement),

and had intentionally made false statements about Clanton (that she was “possibly

involved in a homicide still under investigation”), and that these intentional

actions had caused Clanton’s false arrest and subsequent imprisonment.

      The district court exercised jurisdiction over Clanton’s federal civil rights

claims pursuant to 28 U.S.C. § 1331, 1343(a)(3) (1994), and over her pendent

state law claims pursuant to 28 U.S.C. § 1367(a) (1994). All Clanton’s claims

against all defendants other than Cooper were subsequently dismissed, either

voluntarily or by the district court. Cooper then moved for summary judgment on

the remaining claims against him, primarily on the grounds of qualified immunity.

Cooper argued that all of his actions were within the scope of his authority and

that he did not violate any “clearly established” law. The district court granted

Cooper’s motion for summary judgment with respect to Clanton’s state law

claims, but denied it with respect to Clanton’s federal Section 1983 claim.


                                         -7-
      Cooper now appeals the partial denial of his motion for summary judgment.



                                  DISCUSSION

                                  I.   Jurisdiction

      “Orders denying qualified immunity before trial are appealable to the extent

they resolve abstract issues of law.” Foote v. Spiegel, 118 F.3d 1416, 1422 (10th

Cir. 1997) (citing Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996), and Johnson v.

Jones, 515 U.S. 304, 312-14 (1995)). More specifically:

      a district court’s order denying a defendant’s motion for summary
      judgment [is] an immediately appealable “collateral order” (i.e., a
      “final decision”) under Cohen [v. Beneficial Indus. Loan Corp, 337
      U.S. 541 (1949)], where (1) the defendant [is] a public official
      asserting a defense of “qualified immunity” and (2) the issue
      appealed concern[s], not which facts the parties might be able to
      prove, but, rather, whether or not certain given facts show[] a
      violation of “clearly established” law.

Johnson v. Jones, 515 U.S. at 311 (citing Mitchell v. Forsyth, 472 U.S. 511, 528

(1985), and Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

      To the extent that the district court’s denial of the defendant’s motion for

summary judgment is predicated on “‘evidence sufficiency,’ i.e. which facts a

party may, or may not, be able to prove at trial,” the denial is not reviewable as a

“collateral order”. Id. at 313. Rather, “immunity appeals . . . [are] limited to




                                        -8-
cases presenting neat abstract issues of law.” Id. at 317 3 (quotation marks and

citation omitted).

      This court has recently summarized the practical effect of the Supreme

Court’s Behrens and Johnson decisions as follows:

      A determination that the law allegedly violated by the defendant was
      clearly established at the time of the challenged actions is an abstract
      issue of law that is immediately appealable. A determination that
      under either party's version of the facts the defendant violated clearly
      established law is also immediately appealable. See Behrens, at -,
      116 S. Ct. at 842; Johnson at 312-14, 115 S. Ct. at 2156-57;
      Mitchell, 472 U.S. at 528, 105 S. Ct. at 2816-17. However,
      government officials cannot appeal pretrial denial of qualified
      immunity to the extent the district court's order decides nothing more
      than whether the evidence could support a finding that particular
      conduct occurred. See Behrens, at -, 116 S. Ct. at 842. An order
      denying qualified immunity on summary judgment is not appealable
      if it merely determines the facts asserted by the plaintiff are
      sufficiently supported by evidence in the record to survive summary
      judgment. See Johnson, at 312-14 115 S. Ct. at 2156-57.

Foote v. Spiegel, 118 F.3d at 1422; see also Wilson v. Meeks, 98 F.3d 1247, 1251

(10th Cir. 1996) (surveying Tenth Circuit cases applying the rules announced in

Behrens and Johnson).

      With these principles in mind, we proceed to review whether, under

Clanton’s version of the facts, Cooper violated clearly established law. In making



      3
       The Supreme Court in Johnson overruled the Tenth Circuit’s prior line of
cases, which had held that appellate jurisdiction is always available to review
denials of qualified immunity claims. See Johnson v. Jones, 515 U.S. at 309
(overruling Austin v. Hamilton, 945 F.2d 1155, 1157, 1162-63 (10th Cir. 1991)).

                                        -9-
this determination, we must scrupulously avoid second-guessing the district

court’s determinations regarding whether Clanton has presented evidence

sufficient to survive summary judgment. See Foote, 118 F.3d at 1422. Rather,

we review only whether Cooper’s conduct, as alleged by Clanton, violated clearly

established law. Id. On appeal, “we review the denial of qualified immunity de

novo.” Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994) (citing Powell v.

Gallentine, 992 F.2d 1088, 1090 (10th Cir. 1993)).

                                         II.

      State government officials performing discretionary functions enjoy

qualified immunity from liability under 42 U.S.C. § 1983. Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). Such immunity is “qualified” in that it does not obtain

when otherwise immune officials violate “clearly established statutory or

constitutional rights of which a reasonable person would have known.” Id.; Gehl

Group v. Koby, 63 F.3d 1528, 1533 (10th Cir. 1995); Hilliard v. City and County

of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991). The Tenth Circuit has set forth

the following framework for analyzing the application of the qualified immunity

defense to claims brought pursuant to 42 U.S.C. § 1983:

      In analyzing qualified immunity claims, we first ask if a plaintiff has
      asserted the violation of a constitutional right at all, and then assess
      whether that right was clearly established at the time of a defendant's
      actions. Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793,
      114 L.Ed.2d 277 (1991). Once a public official raises a qualified
      immunity defense, the plaintiff bears the burden of (1) coming

                                        - 10 -
      forward with sufficient facts to show that the defendant's conduct
      violated the law; and (2) demonstrating that the relevant law was
      clearly established when the alleged violation occurred. Pueblo
      Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th
      Cir. 1988).

Gehl Group, 63 F.3d at 1533; accord Lawmaster v. Ward, -- F.3d --, No. 96-5028,

1997 WL 577708, at #4 (10th Cir. Sept. 5, 1997).

      If the defendant’s conduct as alleged by the plaintiff does not violate the

law, we need not reach the issue of whether the law was clearly established.

Gehl Group, 63 F.3d at 1533 (citing Hinton v. City of Elwood, Kan., 997 F.2d

774, 782 (10th Cir. 1993)). If, however, we are persuaded that the defendant’s

conduct violated the law, “the plaintiff must [also] show the right the defendant’s

conduct violated was clearly established such that a reasonable person in the

defendant’s position would have known the conduct violated the right.”

Lawmaster, No. 96-5028, 1997 WL 577708, at #4 (citing Garramone v. Romo, 94

F.3d 1446, 1449 (10th Cir. 1996)). “While the plaintiff need not show that the

specific action at issue has previously been held unlawful, the alleged

unlawfulness must be ‘apparent’ in light of preexisting law.” Medina v. City and

County of Denver, 960 F.2d 1493, 1497 (10th Cir. 1992) (quoting Hilliard, 930

F.2d at 1518). “The contours of the right must be sufficiently clear that a

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

Id. (internal quote marks omitted).


                                        - 11 -
      In the present case, Clanton alleges that Agent Cooper violated her clearly

established constitutional rights in three ways: (1) by knowingly including false

information in a sworn affidavit in support of a warrant for Clanton’s arrest; (2)

by knowingly transmitting over the NCIC computer system the false information

that Clanton was “possibly involved in a homicide” and was not entitled to bail;

and (3) by coercing Michael Eaves into making a false confession which

implicated Clanton. We now consider whether each of these instances of

Cooper’s alleged conduct, if proved, would violate clearly established law.

                              A.   The Arrest Warrant

      In her complaint, Clanton alleged that “Agent Jody Cooper, with

information he knew was false and unreliable, swore in an affidavit to untrue

facts, thereby securing an arrest warrant for Carolyn Clanton.” (Complaint at ¶

15, Aplt.’s App. at 4). The complaint further elaborates that: (1) “[t]he arrest

warrant for Carolyn Clanton was issued based solely on the affidavit of Agent

Jody Cooper which cited the uncorroborated statements of an alleged co-

conspirator”; (2) “[n]o underlying criminal charges were pending against Carolyn

Clanton at the time Agent Jody Cooper secured the warrant for Ms. Clanton’s

arrest”; and (3) “[t]he arrest warrant for Carolyn Clanton was issued without the

presentment, indictment, or information in violation of . . . the 5th Amendment of

the United States Constitution.” (Id. at 4-5). The district court found that these


                                        - 12 -
allegations, if true, would constitute a violation of Clanton’s clearly established

constitutional rights. We agree.

      It has long been clearly established that the Fourth Amendment’s warrant

requirement is violated when “a false statement knowingly and intentionally, or

with reckless disregard for the truth, was included by the affiant in the warrant

affidavit” if the false statement is necessary to a finding of probable cause.

Franks v. Delaware, 438 U.S. 154, 155-56 (1978); see also Kaul v. Stephan, 83

F.3d 1208, 1213 n.4 (10th Cir. 1996) (“A state officer is not automatically

shielded from Section 1983 liability merely because a judicial officer approves a

warrant.”) (citing Malley v. Briggs, 475 U.S. 335, 344-46 (1986)). Under Franks,

it is the deliberate falsity or reckless disregard “of the affiant, not of any

nongovernmental informant” that is unconstitutional. Franks, 438 U.S. at 171.

Thus, if Cooper relied in good faith on statements of Michael Eaves’s that turned

out to be false, there would be no Franks violation.

      Here, however, Clanton has alleged that Cooper knowingly and

intentionally swore to the veracity of Michael Eaves’s confession, while knowing

that confession to be false: a classic Franks violation. The district court found

that there are triable issues of material fact as to whether Cooper in fact did so.

Clanton’s claim is clearly legally sufficient. Cooper argues that Clanton merely

“alleged in a conclusory fashion that Cooper knew Michael Eaves’ statements


                                          - 13 -
were false, she came forward with no facts or factual allegations supporting that

argument.” However, the district court found there was a genuine dispute over

material facts and that is the kind of ruling that we lack jurisdiction to review in

an interlocutory appeal. Johnson v. Jones, 515 U.S. at 313. Thus, Cooper is not

entitled to qualified immunity on this general issue.

      Cooper is, however, entitled to qualified immunity on Clanton’s three

subsidiary claims pertaining to the arrest warrant. Contrary to Clanton’s claim,

the finding of probable cause necessary to support an arrest warrant may be

predicated entirely on the confession of a self-confessed co-conspirator, without

running afoul of the Constitution. See Fed. R. Crim. P. 4(b) (“The finding of

probable cause may be based upon hearsay evidence in whole or in part.”); see

also Illinois v. Gates, 462 U.S. 213, 230-32 (1983) (“probable cause” is

determined under a “practical, nontechnical” totality of the circumstances test that

takes individual account of the veracity and the basis of knowledge of the persons

supplying the hearsay information). 4 Here, the mere fact that Cooper relied

entirely upon a hearsay statement from Michael Eaves would not violate

Clanton’s constitutional rights.




      Clanton also claims that such a statement may not support an arrest
      4

warrant under Oklahoma law. However, an action may not be maintained under
42 U.S.C. § 1983 for a state official’s failure to adhere to state law. Baker v.
McCollan, 443 U.S. 137, 146 (1979).

                                         - 14 -
      In addition, Clanton claims that an arrest warrant cannot be valid where

charges have not yet been filed against the arrestee. However, the Fourth

Amendment guarantees that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the . . . persons or

things to be seized.” U.S. Const. Amend. IV (emphasis added). The

constitutional prerequisite for a valid warrant is thus “probable cause, supported

by Oath or affirmation. . . . ” Id. There is simply no additional requirement that

charges must already have been filed before an arrest may issue.

      In a related vein, Clanton claims that her Fifth Amendment rights were

violated because a warrant was issued for her arrest despite the fact that she was

never indicted. This claim largely overlaps with her Fourth Amendment claim,

and must be rejected for the same reasons. To the extent that Clanton’s Fifth

Amendment claim does not merely restate her Fourth Amendment claim, we note

that the Fifth Amendment right to grand jury indictment has never been

“incorporated” via the Fourteenth Amendment as a substantive restriction on state

criminal procedure, Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972), and thus

may not be the basis of a claim under 42 U.S.C. § 1983.

      In short, Clanton has stated a legally cognizable Section 1983 claim to the

extent that she has alleged that Cooper knowingly and intentionally swore to

untrue facts in an affidavit to obtain Clanton’s arrest warrant. Because the


                                        - 15 -
district court found that there are triable issues of material fact as to the truth of

this allegation, we lack jurisdiction to consider Cooper’s interlocutory appeal on

this issue. However, Clanton’s subsidiary claims pertaining to the legality of the

arrest warrant are not cognizable under 42 U.S.C. § 1983, and Cooper is therefore

entitled to qualified immunity with respect to each of those claims.

                             B.   The NCIC Transmission

      Clanton also claims that Cooper violated Clanton’s constitutional rights

after Clanton was arrested, by knowingly and intentionally transmitting false

information to the Houston Police and thereby causing Clanton’s post-arrest/ pre-

bail detention to be extended. Specifically, Clanton claims that she could have

been released shortly after being arrested if Cooper’s teletype had not falsely

informed the Houston police that Clanton had “ENDANGERED LIFE AND

POSSIBLY ENVOLVED [sic] IN A HOMICIDE,” and that Clanton was not

eligible to be released on bond when, in fact, the warrant issued by the McIntosh

County District Court had set Clanton’s bond at $5,000.

      This claim was not specifically stated in Clanton’s complaint. For this

reason, the district court expressed “reluctan[ce] to definitively address the

validity of this claim.” Clanton v. Cooper, slip op. at 9. Nonetheless, the court

held that Cooper did not enjoy qualified immunity from this claim, finding that,

“at the very least, a genuine issue of material fact exists with regard to the


                                          - 16 -
circumstances surrounding the composing, authorizing, reviewing and

transmitting of the teletype message concerning the warrant for Plaintiff’s arrest,

thereby precluding summary judgment.” Id. The court apparently construed the

NCIC claim to fall within the general claims stated in Clanton’s complaint that

Cooper violated Clanton’s Fourth and Fourteenth Amendment rights against

unreasonable seizures and against deprivations of liberty without due process of

law.

       Cooper responds that the transmission of his false statements over the

NCIC computer system caused no injury to Clanton, because “it is clear in this

case that Plaintiff was not arrested in Houston because of the allegedly false

statements, but instead was arrested because of the Arrest Warrant for Plaintiff in

connection with the crime of arson.” In support of this defense, Cooper notes that

“[t]he teletype itself states that Plaintiff was wanted for arson and does not state

that she is charged with anything else, and gives the warrant number and gives the

court the warrant was filed in.” In circumstances such as the present ones, where

no separate or additional detention or imprisonment is caused by a false NCIC

statement, Cooper argues, such a statement cannot be said to have caused a

deprivation of liberty or an unreasonable seizure. Finally, Cooper argues that his

false statements caused Clanton no injury because Texas courts are not bound by

Oklahoma bond settings, but rather are free to set bond as they see fit.


                                         - 17 -
      We cannot agree that Cooper’s false statements knowingly transmitted

through the NCIC, as a matter of law, could not have caused an injury to Clanton.

While Cooper is correct that Clanton would have been arrested on the arson

warrant with or without the false NCIC statements, there are certainly factual

issues as to whether she would have been quickly released on bond but for the

NCIC transmission. The warrant, after all, set bond at $5,000 and did not identify

Clanton as especially dangerous or possibly homicidal. Under these

circumstances, it is not unreasonable to infer that the NCIC transmission was the

proximate cause of Clanton’s extended incarceration at the Harris County jail.

      The Fourteenth Amendment protects persons from being deprived of liberty

without due process of law. Cooper’s teletype allegedly caused Clanton to be

needlessly incarcerated for one to three days, without due process of law. The

teletype was literally dispatched “under color of state law.” It is thus hard to

imagine a more paradigmatic application of Section 1983 liability.

      For this reason, we do not think that Clanton’s failure to cite cases clearly

establishing the unconstitutionality of knowingly transmitting false information

over the NCIC computer system is fatal to her claim. The purpose of the

requirement that the law be “clearly established” before its violation may waive

qualified immunity is to insure that officials may reasonably anticipate when their

actions might give rise to liability for damages. Lawmaster, No. 96-5028, 1997


                                        - 18 -
WL 577708, at #8. “Consequently, it is the plaintiff’s burden to establish the

asserted right’s contours are sufficiently clear such that a ‘reasonable official

would understand that what he is doing violates that right.’” Id. (quoting

Anderson v. Creighton, 483 U.S. at 635, 640 (1987)).

      Ordinarily, to carry this burden, a plaintiff must establish that there is a

Supreme Court or Tenth Circuit opinion on point, or that the clearly established

weight of authority from other courts has held the law to be as the plaintiff

maintains. Id. (citing Garramone v. Romo, 94 F.3d 1446, 1451 (10th Cir. 1996)).

This test is not rigid, however. Rather:

      where the reasonableness inquiry necessarily turns on the cases’
      particular facts such that the reasonableness determination must be
      made on an ad hoc basis, we must allow some degree of generality in
      the contours of the constitutional right at issue. We would be placing
      an impracticable burden on plaintiffs if we required them to cite a
      factually identical case before determining they showed the law was
      ‘clearly established’ and cleared the qualified immunity hurdle.
      Thus, . . . we adopt the approach of requiring some but not precise
      factual correspondence in demanding that officials apply general,
      well-developed legal principles. . . . While qualified immunity was
      meant to protect officials performing discretionary duties, it [] should
      not present an insurmountable obstacle to plaintiffs seeking to
      vindicate their constitutional rights.

Id. at 9 (internal citations omitted).

      In the present case, we think that the knowing transmission of false

statements over the NCIC computer system, in order to cause unjustifiedly

extended incarceration of a suspect, is sufficiently similar to the swearing


                                           - 19 -
knowingly (or with reckless disregard of the truth) of false information in a

warrant application, proscribed by Franks v. Delaware, 438 U.S. 154 (1978), that

a reasonable official would have known it to be illegal. We therefore hold that

Cooper enjoyed no qualified immunity to engage in such activity.

                             C.    Coerced Confession

      Clanton alleges that Cooper initially violated Clanton’s constitutional rights

by “coercing” a false confession from Michael Eaves which implicated Clanton.

Specifically, Clanton claims that Michael Eaves’s confession was coerced

because: (1) Cooper falsely told Michael Eaves that physical evidence connected

Michael to the crime; and (2) Cooper told Michael that he would get a twenty-

five-year sentence if he didn’t confess, but would “get off lightly” if he confessed

to a pattern of events suggested by Cooper. If these facts, taken together, do not

amount to “coercion” under clearly established law, then Cooper is entitled to

qualified immunity. Before discussing the coercion issue, however, we must

determine whether Clanton may contest the voluntariness of Eaves’s confession.

We conclude that she may.

      There are two types of constitutional protections that invoke exclusionary

rules. In the first category, the exclusion of unconstitutionally obtained evidence

is designed to protect the enjoyment of constitutional rights themselves. Thus, for

example, the Fourth Amendment protects the right to privacy by prohibiting


                                        - 20 -
officers from bursting into a home (lacking consent or exigent circumstances) and

seizing evidence without a warrant; if the officers do so, the resulting evidence,

though accurate, will be suppressed to discourage such unconstitutional actions.

See, e.g., United States v. Moore, 91 F.3d 96 (10th Cir. 1996). In this category,

only the victims of the unconstitutional conduct may challenge the

unconstitutional nature of the officer’s actions, because only their rights have

been violated. See, e.g., United States v. Moffett, 84 F.3d 1291, 1293 (10th Cir.

1996) (citing Rakas v. Illinois, 439 U.S. 128, 139-40 (1978)).

      In the second category, a constitutional violation may assist officers in

gathering evidence, but the violation has both offended the Constitution and

rendered the evidence unreliable. A coerced confession fits into this category.

As stated by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 385-86

(1964):

      It is now inescapably clear that the Fourteenth Amendment forbids
      the use of involuntary confessions not only because of the probable
      unreliability of confessions that are obtained in a manner deemed
      coercive, but also because of the ‘strongly felt attitude of our society
      that important human values are sacrificed where an agency of the
      government, in the course of securing a conviction, wrings a
      confession out of an accused against his will,’ Blackburn v.
      Alabama, 361 U.S. 199, 206-207, and because of the ‘deep-rooted
      feeling that the police must obey the law while enforcing the law;
      that in the end life and liberty can be as much endangered from
      illegal methods used to convict those thought to be criminals as from
      the actual criminals themselves.’ Spano v. New York, 360 U.S. 315,
      320-321.


                                        - 21 -
Consequently, because the evidence is unreliable and its use offends the

Constitution, a person may challenge the government’s use against him or her of a

coerced confession given by another person. “Confessions wrung out of their

makers may be less reliable than voluntary confessions, so that using one person’s

coerced confession at another’s trial violates his rights under the due process

clause.” Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994). Further, “It

is unthinkable that a statement obtained by torture or by other conduct belonging

only in a police state should be admitted at the government’s behest in order to

bolster its case. . . . Yet methods offensive when used against an accused do not

magically become any less so when exerted against a witness.” LaFrance v.

Bohlinger, 499 F.2d 29, 34 (1st Cir. 1974). See also United States v. Merkt, 764

F.2d 266, 274 (5th Cir. 1985); United States v. Chiavola, 744 F.2d 1271, 1273

(7th Cir. 1984); Bradford v. Johnson, 476 F.2d 66, 66 (6th Cir. 1973) (per

curiam), aff’g 354 F. Supp. 1331 (E.D. Mich. 1972). Clanton may contest the

voluntariness of Eaves’s confession not based on any violation of his

constitutional rights, but rather as a violation of her own Fourteenth Amendment

right to due process.

      Having established that Clanton has standing to contest the voluntariness of

Eaves’s confession, we consider whether Cooper is entitled to qualified immunity

for his conduct in eliciting the confession. The Fifth Amendment provides that


                                        - 22 -
“[n]o person ... shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. “To be admissible, a confession must be made

freely and voluntarily; it must not be extracted by threats in violation of due

process or obtained by compulsion or inducement of any sort.” Griffin v. Strong,

983 F.2d 1540, 1542 (10th Cir. 1993) (citing Haynes v. Washington, 373 U.S.

503, 513 (1963)). To determine whether a confession was made freely and

voluntarily, the “totality of the circumstances” must be considered. Arizona v.

Fulminante, 499 U.S. 279, 285-86 (1991). In applying this test, we have

explained that:

      The central consideration in determining whether a confession has
      been coerced always involves this question: did the governmental
      conduct complained of bring about a confession not freely self-
      determined? Incriminating statements obtained by government acts,
      threats, or promises that permit the defendant's will to be overborne
      are coerced confessions running afoul of the Fifth Amendment.

Griffin, 983 F.2d at 1543 (internal citation, punctuation marks, and footnote

omitted).

      It is well-settled that a confession is not considered coerced merely because

the police misrepresented to a suspect the strength of the evidence against him.

As Professor LaFave explains:

      Although dictum in Miranda v. Arizona[, 384 U.S. 436 (1966),] was
      highly critical of [police trickery and deception], as a general matter
      it may be said that courts have not deemed such conduct sufficient by
      itself to make a confession involuntary. One type of trickery
      involves misrepresenting to the suspect the strength of the existing

                                        - 23 -
         case against him. . . . [L]ower courts have held confessions
         admissible when they were prompted by such misrepresentations as
         that the murder victim was still alive, that nonexistent witnesses have
         been found, that the murder weapon had been uncovered, that
         defendant’s prints were found at the crime scene, and that an
         accomplice had confessed and implicated the defendant.

1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.2, at 446-47

(1984) (footnotes omitted) (citing Frazier v. Cupp, 394 U.S. 731 (1969), and

lower court cases). Thus, Michael Eaves’ confession was not coerced just

because Cooper falsely told him that physical evidence connected him to the

crime.

         However, Cooper also told Michael that he would get a twenty-five-year

sentence if he didn’t confess, but would “get off lightly” if he confessed to a

pattern of events suggested by Cooper. As Professor LaFave goes on to say

following the above-quoted passage, “[c]ourts are much less likely to tolerate

misrepresentations of law.” Id.

         Under Supreme Court and Tenth Circuit precedent, a promise of leniency is

relevant to determining whether a confession was involuntary and, depending on

the totality of the circumstances, may render a confession coerced. See

Fulminante, 499 U.S. at 286-87 (confession coerced where informant threatened

defendant with violence and promised defendant protection from inmate

violence); Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam) (confession

declared not involuntary, notwithstanding a plea bargain, because it was not the

                                          - 24 -
result of any direct or implied promises or any coercion); Griffin, 983 F.2d at

1543 (“Where a promise of leniency has been made in exchange for a statement,

an inculpatory statement would be the product of inducement, and thus not an act

of free will.” (internal quote marks and citation omitted)); United States v. Garot,

801 F.2d 1241, 1245 (10th Cir. 1986) (“The question in ‘plea bargaining’

situations is . . . whether the promise was coercive in nature, i.e. whether the

accused was so gripped by the hope of leniency that he did not or could not freely

and rationally choose among the available courses of action.”); United States v.

Fountain, 776 F.2d 878, 885 (10th Cir. 1985) (“[T]he Fifth Amendment [] . . .

prohibits the admission of incriminating statements obtained by Government acts,

threats or promises which permit the defendant’s will to be overborne and thus

rendered involuntary.”).

      All of these opinions were released before the events in this case. Thus, it

was clearly established at the time of the interrogation that a promise of leniency

may render a confession involuntary if it was sufficiently compelling and linked

to the confession so that it could be said that the defendant’s will was overcome

by the offer. Further, considering the totality of the circumstances adds the fact

that Cooper lied about the evidence against Eaves. Though the lies themselves

are not unconstitutional, a reasonable official should have been aware that adding

the lies to the apparent promises would make it more likely that the confession


                                         - 25 -
would be considered involuntary. In addition, even though the Tenth Circuit has

not previously addressed the issue, given the authority from other circuits a

reasonable official would have known that using Eaves’s involuntary confession

against Clanton would violate her due process rights. See Seamons v. Snow, 84

F.3d 1226, 1238 (10th Cir. 1996) (the weight of authority of other circuit courts

suffices to clearly establish the law).

      The district court concluded that “the totality of the circumstances

surrounding Eaves’ interrogation gives rise to an atmosphere which to this

Court’s conclusion that any statements arising from these circumstances cannot be

said to be ‘freely self-determined’ or of ‘free will.’” Under Johnson this is

sufficient to preclude our review on interlocutory appeal, because coercion is a

factual issue that must be evaluated on the entire record.

                                   CONCLUSION

      The district court’s decision to deny Cooper qualified immunity is

AFFIRMED.




                                          - 26 -
