     Case: 14-10228   Document: 00513208430    Page: 1   Date Filed: 09/25/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                No. 14-10228                            FILED
                                                                September 25, 2015
                                                                   Lyle W. Cayce
RANDY COLE; KAREN COLE; RYAN COLE,                                      Clerk

                                         Plaintiffs-Appellees
v.

CARL CARSON,

                                         Defendant-Appellant


                         ****************



                                No. 15-10045


RANDY COLE; KAREN COLE; RYAN COLE,

                                         Plaintiffs-Appellees
v.

MICHAEL HUNTER; MARTIN CASSIDY,

                                         Defendants-Appellants




                Appeals from the United States District Court
                     for the Northern District of Texas
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                                     No. 14-10228


Before HIGGINBOTHAM, CLEMENT, AND HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Seventeen-year-old Ryan Cole was severely injured in an armed
encounter with police. Ryan and his parents, Karen and Randy Cole (“the
Coles”), brought suit against Officers Michael Hunter and Martin Cassidy,
alleging that they violated Ryan’s Fourth Amendment right not to be
subjected to excessive force. They also sued Officer Carl Carson, alleging
Carson violated Ryan’s rights under the Fourth and Fourteenth Amendments
by lying and concealing evidence in order to protect Hunter and Cassidy; that
he caused Ryan to be wrongfully charged with aggravated assault of a public
servant. The district court denied Carson’s motion to dismiss and Hunter and
Cassidy’s motion for summary judgment, rejecting the officers’ immunity
defense at the motion stage of the case.
       We dismiss defendants’ appeal of the district court’s order refusing to
grant summary judgment on the excessive force claim, and we affirm the
district court’s refusal to dismiss the due process claim relating to fabrication
of evidence. However, we conclude that the district court erred in allowing all
other claims to proceed.
                                            I
       Seventeen-year-old Ryan Cole was a junior at Sachse High School. 1
Ryan suffered from obsessive-compulsive disorder. The night before the
shooting, he quarreled with his parents, and later took guns and ammunition
from their gun safe. He visited his friend Eric Reed Jr. late that night



      1 One of the cases before us comes from a denial of summary judgment, and one from
a denial of a motion to dismiss. They involve distinct standards of review and universes of
relevant facts. For purposes of this summary, we describe the facts in broad strokes,
turning to their detail as we address specific issues.
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carrying weapons. The next morning, October 25, 2010, Ryan visited Eric
again carrying two handguns: a revolver and a Springfield 9mm semi-
automatic. At around 10:45 in the morning Ryan allowed Eric to take the
revolver, and used Eric’s cellphone to ask his grandparents to pick him up at
a nearby CVS.
      During the course of the morning, police were informed that Ryan was
carrying at least one gun and acting aggressively, and they began looking for
him. After Ryan left Eric’s house with his remaining handgun, he was seen
by several officers and ordered to stop. He continued to walk away from the
officers and placed the gun against his own head. He walked towards a set of
train tracks separated by a narrow wooded area and grassy strip from
Highway 78, a major road. The CVS where he was to meet his grandparents
was located on the other side of the wooded area, across Highway 78.
      Three police officers—Hunter, Cassidy, and Carson—were attempting
to locate Ryan on the other side of the wooded area, near Highway 78 and the
CVS. Ryan crossed the wooded area and backed out of the woods near Officer
Hunter, who was some distance from Officers Cassidy and Carson. The
officers believed Ryan was unaware of them when he backed out, and
remained quiet so as not to alert him. Then Ryan made some turning motion
to his left. The officers say that he turned to face Officer Hunter and pointed
his gun at him, while the Coles argue that he merely began to turn toward
the CVS, still with his gun pointed at his own head. Whether any warning
was given is disputed, but Officers Hunter and Cassidy opened fire, hitting
Ryan twice. In addition, Ryan’s gun discharged, hitting his own head, and
leaving stippling—gunpowder residue around the wound due to the gun being
fired from less than thirty inches away.


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       Ryan fell, and the officers ceased firing. He was picked up by an
ambulance and taken for treatment of his severe injuries. Over time, Ryan
has made a significant recovery, but lives with profound disabilities. He has
incurred extensive medical bills and continues to require care. After the
shooting, the three officers had an opportunity to confer before making their
statements to police investigators—statements which conveyed that Ryan
was given a warning and that he pointed his gun at Officer Hunter prior to
being shot. The Coles argue that these statements are lies contradicted by
recordings and physical evidence.
       The officers’ statements resulted in Ryan being charged with
aggravated assault on a public servant—a felony. As a result of the assault
charge, Ryan was placed under house arrest. The assault charge was
dismissed by the District Attorney on May 8, 2012, and Ryan received
deferred adjudication for an unlawful carrying charge. The Coles incurred
substantial legal fees in order to confront the aggravated assault charge,
which they allege was concocted by the officers to justify the shooting.
                                             II
       The Coles brought suit in the Eastern District of Texas. The appellant
officers 2 moved to transfer; answered, asserting absolute and qualified
immunity defenses; and moved to dismiss or alternatively for the court to
order a reply to their immunity defenses under Federal Rule of Civil
Procedure 7(a). 3 After transfer to the Northern District of Texas, the district
court ordered the Coles to notify it whether they would file additional



       2Along with other defendants.
       3 A procedure for employing Rule 7(a) to require a reply when a qualified immunity
defense is pleaded with specificity was described in Schultea v. Wood, 47 F.3d 1427 (5th Cir.
1995).
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documents in the form of a Rule 7(a) Reply or an amended Complaint.
      The Coles filed their First Amended Complaint which, as relevant here,
includes § 1983 claims against Officers Cassidy and Hunter for excessive
force and against all three officers for manufacturing and concealing evidence
in order to get Ryan falsely charged with assault. The defendants moved to
dismiss, with the appellant officers asserting absolute and qualified
immunity defenses. The court then issued a Memorandum Opinion and
Order denying the Motion to Dismiss with respect to the § 1983 claims based
on both excessive force and conspiracy to conceal and manufacture evidence
to bring a false charge. Officer Carson appealed that order with regard to the
latter claim; Officers Cassidy and Hunter did not. The district court stayed
the false charge claim as to Cassidy and Hunter pending the result of
Carson’s appeal. We heard argument on that appeal.
      Meanwhile, the district court allowed limited discovery focused on
Officers Cassidy and Hunter’s qualified immunity defense to the excessive
force charge. Those two officers then moved for summary judgment on that
charge, which the district court denied. Officers Cassidy and Hunter
appealed, and we consolidated their appeal with Carson’s.
                                      III
      Following the chronology of the underlying events, we turn first to the
excessive force claim. The district court denied Officers Cassidy and Hunter’s
motion for summary judgment, finding they were not entitled to qualified
immunity because, under the plaintiffs’ evidence, their use of force violated
clearly established law.
      a. Qualified immunity inquiry at summary judgment
      The officers are protected “from liability for civil damages” by qualified
immunity “insofar as their conduct does not violate clearly established
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statutory or constitutional rights of which a reasonable person would have
known.” 4 Qualified immunity is an immunity from suit and thus should be
resolved as early as possible. 5 At summary judgment, it is the plaintiff’s
burden to rebut a claim of qualified immunity once the defendant has
properly raised it in good faith. 6
       “District court orders denying summary judgment on the basis of
qualified immunity are immediately appealable . . . when based on a
conclusion of law.” 7 We may not review the district court’s determination that
a genuine fact dispute exists, 8 but we are called to determine whether,
resolving all fact disputes in the plaintiffs’ favor, the defendants are
nonetheless entitled to qualified immunity as a matter of law. 9 Within the
limited scope of our inquiry, review is de novo. 10 We must:
       engage in a two-pronged inquiry. The first asks whether the
       facts, “[t]aken in the light most favorable to the party asserting
       the injury . . . show the officer’s conduct violated a [federal] right .
       . . .” The second prong . . . asks whether the right in question was
       “clearly established” at the time of the violation. 11

We may address either prong first. 12
       b. Fourth Amendment violation




       4 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted).
       5 Id. at 231-32.
       6 Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992).
       7 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997).
       8 Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).
       9 Id. at 397-98; Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).
       10 Good, 601 F.3d at 398.
       11 Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2014) (citations omitted); see also Trent

v. Wade, 776 F.3d 368, 384 (5th Cir. 2015) (rejecting idea that the second prong should be
further subdivided to ask whether the defendants’ actions were “objectively reasonable”).
       12 Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (citing Pearson,

555 U.S. at 236).
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                                       No. 14-10228


       To show a violation of the Fourth Amendment’s prohibition against
excessive force, the Coles must prove that “the force used was objectively
unreasonable.” 13 In assessing the reasonableness of the force, we examine:
       the facts and circumstances of the particular case—the need for
       force determines how much force is constitutionally permissible.
       The court should consider “the severity of the crime at issue,
       whether the suspect poses an immediate threat to the safety of
       the officers or others, and whether he is actively resisting arrest
       or attempting to evade arrest by flight.” 14

In deadly force cases, “the severity and immediacy of the threat of harm to
officers or others are paramount to the reasonableness analysis.” 15
Additionally, we bear in mind both that “[t]he intrusiveness of a seizure by
means of deadly force is unmatched,” 16 and that the use of force “must be
judged from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” 17
       Accepting the Coles’ best version of the evidence, as they must, Officers
Cassidy and Hunter argue that shooting Ryan was not objectively
unreasonable—that he presented an immediate threat of serious harm when
they fired. 18 Accordingly, we recount the version of events most favorable to
the Coles.


       13 Luna v. Mullenix, 773 F.3d 712, 719 (5th Cir. 2014) (citing Goodson v. City of
Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)). The officers do not dispute that the Coles
have produced evidence of “(1) an injury; (2) which resulted directly from a use of force that
was clearly excessive to the need.” Luna, 773 F.3d at 719.
       14 Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013) (footnotes omitted).
       15 Luna, 773 F.3d at 719-20.
       16 Tennessee v. Garner, 471 U.S. 1, 9 (1985).
       17 Graham v. Connor, 490 U.S. 386, 396-97 (1989) (“The calculus of reasonableness

must embody allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”).
       18 Both the officers and the Coles focus on the reasonableness of the shooting as a

whole, without any serious attempt to separate the analysis as to each officer.
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                                No. 14-10228


      Just before the shooting, Officer Hunter was in an exposed position
between Highway 78 and the narrow wooded area separating it from the
train tracks. He was looking for Ryan, expecting him to be nearby because of
his own observations and a radio report that Ryan was on the railroad tracks
near his position. Officer Cassidy was also between Highway 78 and the
wooded area with Officer Carson, but was some distance away. Officer
Hunter heard rustling in the woods near him, and signaled to the other
officers that Ryan was there. Ryan then backed out of the woods with his gun
to his own head, and his back to Officer Hunter. Both Officers Cassidy and
Hunter believed Ryan was initially unaware of their presence, and stayed
quiet so that he would not become aware of them. Ryan turned somewhat to
his left, possibly in order to approach the CVS where his grandparents were
waiting, and the officers opened fire without warning. Ryan turned further
around as the officers continued firing, and his own gun, still pointed at his
head and with his finger on the trigger, discharged involuntarily as a result
of his being shot.
      At the time they fired, the officers were aware that Ryan had been
walking around the neighborhood holding a gun to his head, and that he had
not surrendered to other officers who came in contact with him. Ryan looked
like a teenager, and Officer Cassidy was aware that he had recently broken
up with his girlfriend, a student at Sachse High. Officer Hunter believed
Ryan might be suicidal or might simply be using the threat to himself to
evade officers. Both officers were aware that Ryan had brought guns to Eric
Reed Jr.’s house, and Officer Cassidy knew that there had been a disturbance
at the Cole house the night before. The officers were aware that Ryan had
told Eric not to try to take his remaining gun, and that he did not “wanna use
it on” him. This was the only threatening or aggressive action or speech
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                                       No. 14-10228


Officer Hunter was aware of Ryan making. The officers knew that they were
firing in the vicinity of a busy road, across from shops and other populated
buildings. They knew there were schools within walking distance, and that
measures were taken to secure them and to protect Ryan’s ex-girlfriend.
       First, the relevant principles. It is clear that the “use of deadly force,
absent a sufficiently substantial and immediate threat, violate[s] the Fourth
Amendment.” 19 The threat must be “immediate”; 20 we consider the totality of
the circumstances, 21 including relevant information known to the officers.
       The fact that a person has a gun and is behaving in a dangerous
manner does not necessarily constitute an immediate and serious threat
justifying use of deadly force. In unpublished but persuasive decisions, we
have denied qualified immunity where a person, though undisputedly holding
a gun to his own head, was complying with officers’ orders, 22 and where a
person, reportedly armed and a suspect in a double-homicide, had ceased
running and had his arms at his sides. 23 When we have found officers
justified for shooting suicidal people who were armed with guns, we have

       19 Luna, 773 F.3d at 725. Our focus is not upon actual risk, but upon the question of
whether the officer could have “reasonably believe[d] that the suspect pose[d] a threat of
serious harm to the officer or to others.’” Harris v. Serpas, 745 F.3d 767, 773 (5th Cir. 2014)
(quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)).
       20 Luna, 773 F.3d at 725; Harris, 745 F.3d at 772; Sanchez v. Fraley, 376 F. App’x

449, 453 & n.1 (5th Cir. 2010) (unpublished) (“[I]t was clearly established well before [2007]
that ‘deadly force violates the Fourth Amendment unless “the officer has probable cause to
believe that the suspect poses a threat of serious physical harm”’ . . . [which] must be
‘immediate.’” (citations omitted) (quoting Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481,
488 (5th Cir. 2001), and Tennessee v. Garner, 471 U.S. 1, 11 (1985))); Reyes v. Bridgwater,
362 F. App’x 403, 407-09 (5th Cir. 2010); Reese v. Anderson, 926 F.2d 494, 500 (5th Cir.
1991).
       21 See Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008); Reese, 926 F.2d at 500.
       22 Graves v. Zachary, 277 F. App’x 344, 349 (5th Cir. 2008) (finding fact dispute over

whether the victim was complying with officer’s orders at the time he was shot to be
material, notwithstanding the fact that he was holding a gun to his own head); id. at 348
(“Merely having a gun in one’s hand does not mean per se that one is dangerous.”).
       23 Sanchez, 376 F. App’x at 451-52.

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depended on the victim’s additional threatening “Manis” 24 acts and
disobedience of police commands, which elevated the immediacy and severity
of the danger. 25
       Our caselaw persuasively has held that the fact that a suicidal person
who has a gun to his head, hence poses some deadly risk to officers and
others, does not always justify shooting him. 26 Just as there is no “open
season on suspects fleeing in motor vehicles,” 27 despite the inherent risks of
such flight, 28 there is no open season on suspects with guns. 29 Instead, “the
real inquiry is whether the fleeing suspect posed such a threat that the use of
deadly force was justifiable.” 30 “[T]he threat must be sufficiently imminent at
the moment of the shooting to justify deadly force.” 31
       We conclude that the facts that Ryan was holding a gun to his head,
that the officers believed he had made some threat to use it against a peer,
and that the officers knew Ryan was attempting to evade officers, could not


       24  See discussion below at notes 34-40.
       25   See, e.g., Royal v. Spragins, 575 F. App’x 300, 301, 303-04 (5th Cir. 2014)
(emphasizing that suicidal victim ignored warning to drop his gun and pointed it at the
officers); Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1134-35 (5th Cir. 2014)
(emphasizing that the suicidal victim fired gun, ignored warnings to put it down, and
moved towards officers with it); Ramirez, 542 F.3d at 127, 131 (emphasizing that suicidal
victim with gun ignored officer’s commands, got out of his car, and “brought his hands
together in front of his waist” “as if to grip the handgun with both hands in preparation to
aim it at the officers”); see also City of San Francisco v. Sheehan, 135 S. Ct. 1765, 1770,
1775 (2015) (addressing shooting of woman with knife who threatened officers and, despite
warnings and then pepper spray, “kept coming at the officers until she was ‘only a few feet
from a cornered Officer Holder.’ At this point, the use of potentially deadly force was
justified.”).
        26 See, e.g., Graves, 277 F. App’x at 349.
        27 Lytle v. Bexar Cty., 560 F.3d 404, 414-15 (5th Cir. 2009).
        28 Id. at 415 (“Nearly any suspect fleeing in a motor vehicle poses some threat of

harm to the public.”).
        29 See Graves, 277 F. App’x at 348 (“Merely having a gun in one’s hand does not

mean per se that one is dangerous.”).
        30 Id.
        31 Luna, 773 F.3d at 723.

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                                       No. 14-10228


in the circumstances here justify the use of deadly force. 32 Though Ryan was
approaching a busier area from which several witnesses observed the
shooting, he was shot in a relatively open area with only the officers
immediately present. 33 He was on foot and walking, not running, and he did
not know Officers Hunter, Cassidy, and Carson were there.
       Indeed, the officers do not argue that they were justified in shooting
Ryan by the above circumstances alone. Instead, they focus on the fact that
Ryan, whose back was initially towards Officer Hunter, turned to his left
immediately before they shot. They argue that if they had waited, Ryan could
have continued turning until he was facing Officer Hunter, and shot him
before they could react. According to the officers, if Ryan had been allowed to
turn around and face Officer Hunter without being fired on, he would have
“posed an immediate deadly threat.”
       The officers invoke cases in which we have found that a use of deadly
force was justified expressly because the person, ignoring police warnings,
made some threatening motion towards officers, or moved in a way
reasonably interpretable as drawing an immediately dangerous weapon. 34


       32 The facts here contrast instructively with those in Ballard v. Burton, where we
found that shooting was justified even if the suicidal victim did not point his gun directly at
law enforcement officers just before he was shot because “during the course of the night’s
events [he] refused to put down his rifle, discharged the rifle into the air several times
while near officers, and pointed it in the general direction of law enforcement officers.” 444
F.3d 391, 402-03 (5th Cir. 2006).
       33 Indeed, only Officer Hunter was reported by the officers as being in immediate

danger. Of course, officers may use deadly force to protect their own lives, but the relative
openness and lack of immediate bystanders or chaotic conditions informs our
understanding of the circumstances.
       34 See, e.g., Rice, 770 F.3d at 1134-35 (finding no constitutional violation where police

warned and then shot a suicidal man who “was undisputedly approaching the officers with
a loaded weapon which he had recently fired and which he refused to surrender”); Clayton
v. Columbia Cas. Co., 547 F. App’x 645, 653 (5th Cir. 2013) (qualified immunity appropriate
where “suspect with dangerous and violent propensities” “continued toward the Deputy,
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The act justifying deadly force is sometimes called a Manis act. 35 We have
found qualified immunity was inappropriate due to the absence of a Manis
act, even when the victim had or was believed to have a gun. 36
       Turning to one’s left is not a threatening Manis act in these
circumstances, particularly when the person does not even know the officers
are there. 37 It is distinctly unlike raising a gun at officers or moving a gun up
to waist-level and gripping as if preparing to fire. 38 The officers make much of
our statement in Rice that “the material fact” was that the victim was “armed
and moving toward the officers.” 39 But moving purposefully towards an
officer who is ordering the person to stop, with a drawn and recently fired
gun, 40 is much more threatening than having a gun to one’s own head, and
turning without knowledge of the officer’s presence.




ignoring his commands”); Elizondo v. Green, 671 F.3d 506, 510-11 (5th Cir. 2012) (finding it
was not clearly unreasonable to shoot a person who “ignored repeated instructions to put
down the knife he was holding” and “was hostile, armed with a knife, in close proximity to
[the officer], and moving closer”); Manis v. Lawson, 585 F.3d 839, 844 (5th Cir. 2009)
(finding no constitutional violation where victim ignored repeated police commands,
“reached under the seat of his vehicle and then moved as if he had obtained the object he
sought”); id. (collecting cases); Ramirez, 542 F.3d at 131 (“The totality of Ramirez’s conduct
could reasonably be interpreted as defiant and threatening. He repeatedly refused the
officers’ commands and ultimately stood, armed, several yards from the officers. Ramirez
brought his hands together in what we believe could reasonably be interpreted as a
threatening gesture, as if to grip the handgun with both hands in preparation to aim it at
the officers.”).
        35 See Manis, 585 F.3d at 844.
        36 See Sanchez, 376 F. App’x at 451-52 (finding qualified immunity inappropriate in

absence of Manis act where victim, who was a suspect in a double homicide and was
reported to have a gun and to have “forcibly attempted to enter somebody’s house,” had
ceased running and had his hands at his sides when shot); Graves, 277 F. App’x at 346 (“It
is not disputed that [the victim] never verbally threatened [the officers], never pointed his
gun at the officers, and did not even move aggressively.”).
        37 Recall that the officers themselves believed Ryan was not aware of their presence.
        38 See cases cited in note 34.
        39 Rice, 770 F.3d at 1135.
        40 Id. at 1134-35.

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       In sum, if the Coles’ version of the evidence is believed, it was not
objectively reasonable to use deadly force against Ryan Cole when the
teenager emerged on foot from the wooded area with a gun to his own head
and turned to his left.
       c. Clearly established law
       Under the second prong of the qualified immunity analysis, we ask
whether it was clearly established in October 2010 that using deadly force
against a person in circumstances like those here was objectively
unreasonable: 41
       A right is clearly established only if “the right’s contours were
       sufficiently definite that any reasonable official in the defendant’s
       shoes would have understood that he was violating it.” A case
       directly on point is not required; rather, “[t]he central concept is
       that of ‘fair warning’: The law can be clearly established despite
       notable factual distinctions between the precedents relied on and
       the cases then before the Court, so long as the prior decisions
       gave reasonable warning that the conduct then at issue violated
       constitutional rights.” 42

       In 2009, we held that “[i]t has long been clearly established that,
absent any other justification for the use of force, it is unreasonable for a
police officer to use deadly force against a fleeing felon who does not pose a
sufficient threat of harm to the officer or others.” 43 In Luna v. Mullenix we
extended that holding, finding that by March 2010, it was clearly established
that shooting at a fleeing car whose driver had threatened to shoot pursuing


       41 See Saucier v. Katz, 533 U.S. 194, 200 (2001).
       42 Trent, 776 F.3d at 383 (citations to Plumhoff v. Rickard, 134 S. Ct. 2012, 2023
(2014), and Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc), removed); see also
Sheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if ‘clearly
established’ law can simply be defined as the right to be free from unreasonable searches
and seizures.”).
       43 Lytle, 560 F.3d at 417.

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                                      No. 14-10228


police officers was objectively unreasonable. 44 We also held that it was clearly
established by March 2010 that the threat in question had to be “sufficiently
substantial and immediate.” 45
       If anything, the foot pursuit of Ryan Cole presented a less severe and
immediate threat than the chase in Luna. First, walking away on foot is less
inherently dangerous than fleeing in a car. Second, though in Ryan’s case
officers could see that he was pointing a gun at his own head, he never
threatened officers with it; in Luna, the victim not only claimed to have a gun
in the fleeing car, but explicitly threatened to shoot police officers. 46 In Luna,
we emphasized that the shooting officer decided to shoot the car before it
came into view—that he was not forced to make a “split-second judgment.” 47
In this case, though the officers may not have decided to shoot ahead of time,
they were expecting to encounter exactly what they found: Ryan walking
with a gun to his head.
       By October 2010, we had also repeatedly analyzed the sufficiency of
Manis acts to justify deadly force when the underlying circumstances might
not otherwise justify it. 48 In short, by October 2010, reasonable officers were
on notice that they could not lawfully use deadly force to stop a fleeing person
who did not pose a severe and immediate risk to the officers or others, and
they had many examples of the sorts of threatening actions which could




       44 773 F.3d at 725.
       45 Id.
       46 Id. at 722. It turned out that he did not actually have a gun.
       47 Id. at 723-24.
       48 See, e.g., Sanchez, 376 F. App’x at 451-52; Reyes, 362 F. App’x at 407; Manis, 585

F.3d at 844 (collecting cases); Graves, 277 F. App’x at 346; Ramirez, 542 F.3d at 127, 131;
Mace v. City of Palestine, 333 F.3d 621, 624-25 (5th Cir. 2003).
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                                       No. 14-10228


justify deadly force. 49 Turning left while unaware of an officer’s presence is
not among them.
       Under the Coles’ version of the facts, it was objectively unreasonable
under clearly established law to shoot Ryan. As a result, the fact disputes
identified by the district court—including the central issue of whether Ryan
pointed his gun at Officer Hunter—are material, and we dismiss the appeal
for lack of jurisdiction.
                                              IV
       We now turn to the claim that Officer Carson lied and concealed
evidence in order to protect Officers Hunter and Cassidy after the shooting.
The district court refused to dismiss the Coles’ claim that Officer Carson
agreed and acted with others “to deprive Ryan Cole of various constitutional
rights including, but not limited to, his right to remain free from malicious
prosecution, wrongful conviction, and unlawful confinement.” The court
located     the   source    of   the    rights     in   the   “Fourth     and     Fourteenth
Amendment[s].” Officer Carson appeals, asserting qualified and absolute
immunity defenses as he did below.




       49  The out-of-circuit cases cited by the officers do not lead to a different conclusion.
They involve situations where the victim had been warned repeatedly yet moved a gun
“very quickly” and pointed it at officers shortly before being shot, see Thomson v. Salt Lake
Cty., 584 F.3d 1304, 1311 (10th Cir. 2009); where it was difficult for officers to see, and the
victim ignored commands at the scene of the shooting and instead escalated matters by
raising a gun to his head, see Garczynski v. Bradshaw, 573 F.3d 1158, 1162-63, (11th Cir.
2009); where the victim fired a gun in a chaotic, crowded environment and then ignored an
officer’s orders to stop, see Montoute v. Carr, 114 F.3d 181, 185 (11th Cir. 1997); and where
the victim ignored the shooting officers’ commands and moved either his gun hand or his
other hand in the vicinity of his gun just prior to being shot, see Thurman v. Hawkins, CIV.
13-50-GFVT 2014, WL 4384387, at *1, 4 (E.D. Ky. Sept. 3, 2014). These cases are
distinguishable from the facts before us, and in any event do not undermine this circuit’s
clearly established law.
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                                       No. 14-10228


       The denial of a motion to dismiss based on qualified immunity or a
substantial claim of absolute immunity is immediately appealable to the
extent it turns on legal questions. 50 We review de novo, 51 accepting “all well-
pleaded facts as true and draw[ing] all reasonable inferences in favor of the
nonmoving party.” 52 To avoid dismissal based on qualified immunity, the
Coles had to allege (1) “a violation of a constitutional right” which (2) was
“‘clearly established’ at the time of [Carson’s] alleged misconduct.” 53 The
Coles had the burden of pleading “specific conduct and actions giving rise to a
constitutional violation” to meet the defense. 54
       a. Allegations that Officer Carson fabricated evidence
       The Coles pled the following relevant facts in their First Amended
Complaint (FAC) and the expert affidavits they attached to it. 55 First, Ryan
was seen by several officers walking in public openly carrying a handgun,
and at least one witness called police to report that he had a gun. The FAC
alleges that when Ryan emerged from the wooded area, he was facing away
from Officer Hunter, with the gun held to his own head. Without warning
Ryan or identifying themselves, Officers Hunter and Cassidy opened fire.
After the shooting, Officers Carson, Cassidy, and Hunter were “permitted to
leave the scene for a considerable period of time without any supervision,”


       50  Mitchell v. Forsyth, 472 U.S. 511, 525, 530 (1985); Hous. Cmty. Hosp. v. Blue Cross
& Blue Shield of Tex., Inc., 481 F.3d 265, 268-69 & n.11 (5th Cir. 2007).
        51 Morgan, 659 F.3d at 370 (qualified immunity); Orellana v. Kyle, 65 F.3d 29, 33

(5th Cir. 1995) (absolute immunity).
        52 Morgan, 659 F.3d at 370 (footnote omitted).
        53 Pearson v. Callahan, 555 U.S. 223, 232 (2009); see also Hernandez v. United

States, 785 F.3d 117, 120 (5th Cir. 2015) (en banc).
        54 Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996).
        55 Neither party argues that the facts alleged in the expert affidavits, which were

attached to the FAC expressly to provide greater detail to meet the officers’ immunity
defenses, are not properly considered. See Davoodi v. Austin Indep. Sch. Dist., 755 F.3d 307,
310 (5th Cir. 2014); Wilson v. Birnberg, 569 F. App’x 343, 344 n.1 (5th Cir. 2014).
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                                 No. 14-10228


giving them opportunity to confer. The Coles allege that the officers “formed
and carried out an agreement . . . to hide and cover up . . . the true events” in
order to justify the use of force and avoid consequences for killing Ryan, who
they believed was likely to die. Their alleged aim was to “prosecute and
arrest Ryan Cole for . . . an offense that each of them knew he did not
commit.”
      The Coles allege that Officer Carson made false statements to
investigators that Ryan aimed his gun at Officer Hunter and that Hunter
warned him before shooting. The Coles allege that physical evidence,
recordings, and expert opinions show these statements cannot be true. They
allege that the false statements led “Garland police officers [to] file[] a case
with the District Attorney’s office in Dallas County charging Ryan Cole with
the felony offense of aggravated assault on a public servant.” Ryan was
subsequently indicted by a grand jury for that offense, based again on the
officers’ statements. “As a result of the fictitious charges . . . Ryan Cole was
confined indefinitely under house arrest.” We are also told that “[o]n or about
May 8, 2012, the Dallas County District Attorney’s office dismissed” the
assault charge. “At or near the same time,” Ryan “pleaded no contest” and
“received deferred adjudication for the charge of unlawfully carrying a
weapon.” The Coles incurred substantial legal fees in order to confront the
aggravated assault charge.
      We address the alleged constitutional violations in turn.
      b. Fourth Amendment violation




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       Pretrial use of fabricated evidence to secure a person’s arrest can
violate the Fourth Amendment. 56 However, we have said that in order to
make out a Fourth Amendment claim under either a “false arrest” or “illegal
detention” theory, the relevant actors must not be aware of facts constituting
probable cause to arrest or detain the person for any crime. 57 The Supreme
Court has made it clear that this is the law as far as warrantless arrests are
concerned. 58
       There is some suggestion that the standard may be different when a
magistrate is deceived in order to obtain a warrant. 59 In such a case, the
focus may not be on what facts officers were aware of, but on whether, once
the false information is excised, the information presented to the magistrate
could justify the arrest. 60 We need not decide the precise contours of these


       56  Castellano v. Fragozo, 352 F.3d 939, 959 (5th Cir. 2003) (en banc) (noting that, in
contrast to misconduct occurring at trial, Castellano’s “arrest and pretrial detention” could
support a Fourth Amendment claim).
        57 Whittington v. Maxwell, 455 F. App’x 450, 458-59 (5th Cir. 2011) (stating that

“[w]ith regard to pretrial confinement, ‘[t]he sole issue [under the Fourth Amendment] is
whether there is probable cause for detaining the arrested person pending further
proceedings,’” and finding illegal detention claim could stand where there was a factual
dispute over the existence of probable cause); O'Dwyer v. Nelson, 310 F. App’x 741, 745 (5th
Cir. 2009) (“‘[T]o prevail in a § 1983 claim for false arrest,’ . . . [a]s applied to the qualified
immunity inquiry, the plaintiff must show that the officers could not have reasonably
believed that they had probable cause to arrest the plaintiff for any crime.” (citations
omitted)).
        58 Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004).
        59 See Hamilton v. Collett, 83 F. App’x 634, 637 (5th Cir. 2003) (“[T]he question is

whether the allegedly false testimony was necessary to the Magistrate Judge's
determination of probable case.”); see also Baldwin v. Placer Cty., 418 F.3d 966, 970 (9th
Cir. 2005) (in search warrant case, finding that true information outside affidavit tainted
by lies could not be used to sustain warrant).
        60 See Hamilton, 83 F. App’x at 637. An arrest may be valid under the Fourth

Amendment though the warrant was not if there was probable cause for a warrantless
arrest. See Behrens v. Sharp, 15 F.3d 180, 1994 WL 24936, at *3-4 (5th Cir. 1994). We have
said that the Fourth Amendment is not implicated by an arrest by an officer with probable
cause, even when the offense is a misdemeanor occurring outside the officer’s presence.
Fields v. City of S. Houston, 922 F.2d 1183, 1189 (5th Cir. 1991). However, this analysis
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                                   No. 14-10228


issues now, however, because the Coles’ First Amended Complaint fails to set
out “specific conduct and actions” concerning Ryan’s seizure which can
survive qualified immunity.
      In Texas, unlawful carrying consists of “intentionally, knowingly, or
recklessly carr[ying] on or about [one’s] person a handgun” or other weapon
when one is not on his own property or inside of or directly en route to his
motor vehicle. 61 Based on the Coles’ pleadings, it appears that, during the
entire period Ryan was under house arrest, there was known probable cause
to arrest him for unlawful carrying of a weapon. Both the unlawful carry and
aggravated assault charges were disposed of “at or near the same time,” after
which Ryan was apparently no longer subject to house arrest.
      To the extent that the Coles seek to argue that the existence of known
probable cause to arrest Ryan for unlawful carrying is not fatal to their
Fourth Amendment claim, they have failed to allege specific conduct to meet
Officer Carson’s qualified immunity defense. We are told only that Ryan was
placed under house arrest “[a]s a result of [the] fictitious charges.”
      Given that the face of the FAC reveals the known existence of probable
cause to arrest for unlawful carrying, and given the Coles’ failure to plead
facts supporting a theory of Fourth Amendment violation despite that
probable cause, the Coles have not pled a violation of clearly established law,
and Officer Carson is entitled to qualified immunity. Put another way, the
Coles have alleged that Ryan was placed under house arrest with probable
cause. That is not a clearly established Fourth Amendment violation without



may be affected if Ryan was at home when he was placed under house arrest. Harris v.
Canulette, 997 F.2d 881, 1993 WL 261085, at *2 n.8 (5th Cir. 1993) (limiting Fields to
arrests outside the home).
       61 Tex. Penal Code Ann. § 46.02.

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                                     No. 14-10228


something more, and the Coles have not alleged what that something more
might be.
      c. Brady violation
      The Coles argue that Officer Carson also violated Ryan’s Fourteenth
Amendment due process rights, due both to a Brady 62 violation, and more
generally to his role in the filing of false charges. The Coles allege that
Officer Carson committed a Brady violation in two ways: by lying to conceal
his own knowledge that Ryan Cole never assaulted an officer, and by
conspiring with other officers to conceal physical evidence also tending to
exculpate Ryan. But prior to 2010, we had held that Brady is not implicated
when there is no trial. 63 Ryan Cole was not tried for aggravated assault, nor
did he plead guilty; the charge was dismissed. There is no suggestion that the
aggravated assault charge was used as leverage to secure a plea on the
unlawful carrying charge. It follows that Officer Carson was not on notice
that withholding evidence in these circumstances could violate Brady, and he
is entitled to qualified immunity for the alleged Brady violations.
       d. Due process violation – fabrication of evidence
       We turn now to the Coles’ claim that Officer Carson violated Ryan’s
clearly established due process rights when he allegedly lied to investigators
to secure a false charge of aggravated assault.
       We begin by recognizing that there is no “substantive right under the
Due Process Clause of the Fourteenth Amendment to be free from criminal



       62 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment”).
       63 United States v. Santa Cruz, 297 F. App’x 300, 301 (5th Cir. 2008); see also

Matthew v. Johnson, 201 F.3d 353, 361-62 (5th Cir. 2000) (applying rule in Teague v. Lane,
489 U.S. 288 (1989), to bar Brady attack on state court conviction).
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                                      No. 14-10228


prosecution except upon probable cause.” 64 That much is clear from the
Supreme Court’s fractured decision in Albright v. Oliver. In Albright, a
plaintiff was wrongfully charged with selling a cocaine look-alike substance, a
charge later dismissed. 65 The Court rejected his claim that the prosecution
violated due process. We have held that Albright’s reach is limited; the case
“did not speak to the Fourteenth Amendment beyond eschewing reliance
upon substantive due process to create a requirement of probable cause to
initiate a prosecution. . . .” 66 Moreover, “that portion of Albright that suggests
that the Fourth Amendment applies to pretrial deprivations of liberty did not
receive the support of a majority of the Justices.” 67
       Albright also differs in two important ways from the case at hand.
First, although the defendant detective in Albright accepted the story of an
unreliable informant and may have given “misleading” testimony, 68 there
was no suggestion that he deliberately fabricated evidence. In contrast, the
Coles allege that Officer Carson deliberately lied in order to get Ryan charged
to cover an unlawful use of force. Several of our sister circuits have found this
distinction pivotal in determining whether a due process violation is
committed by the fabrication of evidence. 69
       Second, a majority of the Justices in Albright depended upon the
potential availability of a Fourth Amendment recourse the plaintiff had


       64 Albright v. Oliver, 510 U.S. 266, 268 (1994) (plurality).
       65 Id. at 268-69.
       66 Castellano, 352 F.3d at 948.
       67 Brothers v. Klevenhagen, 28 F.3d 452, 456 n.3 (5th Cir. 1994).
       68 Albright, 510 U.S. at 277 (opinion of Ginsburg, J.); id. at 292-93 (Stevens, J.,

dissenting).
       69 See Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002) (en banc) (“Although the

Fourth Amendment covers seizures . . . law enforcement’s intentional creation of damaging
facts would not fall within its ambit.”); see also Kennedy v. Peele, 552 F. App’x 787, 792-93
(10th Cir. 2014); Drumgold v. Callahan, 707 F.3d 28, 61-62 & n.27 (1st Cir. 2013).
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                                        No. 14-10228


rejected, 70 observing that Albright should have brought his claim under the
Fourth Amendment. 71 In contrast, the Coles tried to make out a Fourth
Amendment claim, but we have explained that it is unavailing due largely to
the existence of probable cause on another count. Yet setting aside his time
seized under house arrest, Ryan still was framed and charged with a felony,
and subjected to attendant monetary and reputational injuries flowing from
such a serious charge. Unlike Albright, who chose to invoke substantive due
process rather than the Fourth Amendment, Ryan Cole has no other option.
                                               1.
       We built upon the uncertain foundation of Albright in our en banc
decision in Castellano v. Fragozo. 72 Castellano held that the elements of a
state malicious prosecution claim were neither sufficient nor independently
necessary to state a claim under § 1983 where a state actor allegedly
fabricated evidence to procure an arrest and conviction. 73 Rather, the
particular constitutional violation alleged had to be identified with clarity: 74
       [C]ausing charges to be filed without probable cause will not
       without more violate the Constitution. . . . It is equally apparent
       that additional government acts that may attend the initiation of
       a criminal charge could give rise to claims of constitutional
       deprivation.
             The initiation of criminal charges without probable cause


       70 Albright, 510 U.S. at 271 (plurality); Id. at 277 (opinion of Ginsburg, J.) (noting
that “Albright deliberately subordinated invocation of the Fourth Amendment” as a
“strategic decision); id. at 289 (opinion of Souter, J.).
       71 The Justices noted that all of Albright’s injuries could likely have been remedied

via such a challenge. Id. at 274 (plurality); id. at 276-77 (opinion of Ginsburg, J.); id. at 288-
91 (opinion of Souter, J.) (noting “rule of reserving due process for otherwise homeless
substantial claims”).
       72 352 F.3d 939.
       73 Id. at 953-54.
       74 Id. at 945.

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       may set in force events that run afoul of explicit constitutional
       protection—the Fourth Amendment if the accused is seized and
       arrested, for example, or other constitutionally secured rights if a
       case is further pursued. 75

We ultimately found that a Fourth Amendment violation had been alleged
with regard to Castellano’s pretrial seizure, and a Fourteenth Amendment
due process violation was pled with regard to the knowing use of fabricated
evidence and perjury at trial. 76
       While the due process violation in Castellano was tied to the “right to a
fair trial,” 77 we rejected the idea that “the specific constitutional rights
guiding a criminal trial spend their force in assuring a fair trial.” 78 Moreover,
we later held in Boyd v. Driver that officials’ perjured testimony and
tampering with video evidence constituted a due process violation even where
the plaintiff was acquitted. 79 Thus even when a trial functions properly to
vindicate a person’s innocence, the “manufacturing of evidence and knowing
use of that evidence along with perjured testimony to obtain a wrongful
conviction deprives a defendant of his long recognized right to a fair trial
secured by the Due Process Clause.” 80
       We returned once more to Albright and Castellano in Cuadra v.
Houston Independent School District. 81 There we considered a claim against a
school district for manipulating evidence which led to charges against the


       75 Id. at 953.
       76 Id. at 953-55, 960. Thus, as in Albright, Castellano did not address a situation
where the Fourth Amendment provided no recourse.
       77 Id. at 942, 957-58.
       78 Id. at 956.
       79 579 F.3d 513, 514-15 (5th Cir. 2009); see also Boyd v. Driver, 495 F. App’x 518, 523

(5th Cir. 2012) (reiterating that the first Boyd case decided no conviction was necessary).
       80 Boyd, 579 F.3d at 515 (quoting Castellano, 352 F.3d at 942).
       81 626 F.3d 808 (5th Cir. 2010).

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                                     No. 14-10228


plaintiff, and stated that the “claims are based on alleged pretrial
deprivations of [plaintiff’s] constitutional rights and, under the holding in
Albright, such claims should be brought under the Fourth Amendment.” 82
Citing Cuadra, we recently held in Bosarge that a person indicted and held
for six months based on a mistaken identification had not stated a due
process claim. 83 But neither Cuadra nor Bosarge involved deliberate
fabrication of evidence to support false charges. Cuadra focused on a failure
of certain school officials to turn over a key document; 84 and in Bosarge, we
did not credit conclusory allegations that the misidentification was
intentional. 85 Neither case answers the question of whether deliberate
fabrication by law enforcement officers to justify a police shooting violates
due process.
      In sum, we have held that a victim of intentional fabrication of
evidence by officials is denied due process when he is either convicted or
acquitted. We have never decided whether false charges must survive to the
trial stage in order to implicate due process rights.
                                            2.
      Our sister circuits have taken varying approaches to fabrication of
evidence and “malicious prosecution” claims in the wake of Albright. 86 That
said, they largely either have held that charges based on fabricated evidence
support a due process claim, or have not yet answered the question. Two

      82  Id. at 814.
      83  Bosarge v. Miss. Bureau of Narcotics, 14–60242, 2015 WL 4282372, at *5 (5th Cir.
July 15, 2015). Bosarge also cited Castellano, which we have discussed, and Blackwell v.
Barton, which involved a mistaken identification rather than intentional fabrication, and
only a brief detention—no charges were brought. 34 F.3d 298, 300-01 (5th Cir. 1994).
       84 Cuadra, 626 F.3d at 811, 813-14.
       85 Bosarge, 2015 WL 4282372, at *6.
       86 See, e.g., Castellano, 352 F.3d at 949-53 (surveying the circuits’ “approaches to

malicious prosecution claims”).
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                                      No. 14-10228


circuits have found that there is no due process claim in the absence of a
conviction—a requirement we have not insisted upon.
      The Ninth Circuit held in Devereaux v. Abbey that “there is a clearly
established constitutional due process right not to be subjected to criminal
charges on the basis of false evidence that was deliberately fabricated by the
government,” 87 a formulation we quoted approvingly in Good v. Curtis. 88 In
Devereaux, the plaintiff alleged that investigators charged him with rape and
molestation on the basis of statements they should have known were false. 89
Though the charges were dropped in exchange for a guilty plea to two
misdemeanors, 90 the Ninth Circuit reasoned that:
      Under Pyle v. Kansas, 317 U.S. 213, 216 (1942), the knowing use
      by the prosecution of perjured testimony in order to secure a
      criminal conviction violates the Constitution. While Pyle does not
      deal specifically with the bringing of criminal charges, as opposed
      to the securing of a conviction, we find that the wrongfulness of
      charging someone on the basis of deliberately fabricated evidence
      is sufficiently obvious, and Pyle is sufficiently analogous, that the
      right to be free from such charges is a constitutional right. 91

      In Ricciuti v. N.Y.C. Transit Authority, the police arrested a plaintiff
with probable cause, but then allegedly fabricated a confession resulting in
additional charges. 92 The Second Circuit denied qualified immunity for the
fabrication despite the fact that the charges were dismissed without trial. 93
The court held that “[w]hen a police officer creates false information likely to
influence a jury’s decision and forwards that information to prosecutors, he


      87 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc).
      88 601 F.3d at 398-99.
      89 263 F.3d at 1073.
      90 Id.
      91 Id. at 1075 (citation shortened).
      92 124 F.3d 123, 126-27, 129 (2d Cir. 1997).
      93 Id. at 129-30 (citing due process cases and principles).

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                                      No. 14-10228


violates the accused’s constitutional right to a fair trial, and the harm
occasioned by such an unconscionable action is redressable in an action for
damages under 42 U.S.C. § 1983.” 94 The Second Circuit has since recognized
that the fabrication in Ricciuti deprived the plaintiffs of liberty in part
because it “caused [them] to be charged with a more serious crime.” 95
       In Pierce v. Gilchrist, a plaintiff was arrested and convicted on the
basis of falsified evidence created by an investigator. 96 Though not always
distinguishing clearly between the plaintiff’s Fourth and Fourteenth
Amendment claims, 97 the Tenth Circuit upheld the district court’s refusal to
dismiss on qualified immunity grounds based on the use of false evidence to
“induce prosecutors to initiate an unwarranted prosecution.” 98 The court
explained that it saw no “reason to distinguish between falsifying evidence to
facilitate a wrongful arrest and engaging in the same conduct several days
later to induce prosecutors to initiate an unwarranted prosecution.” 99 Thus
the fact that there was probable cause for the arrest was immaterial. In
another “malicious prosecution” case ending in dismissal of criminal charges,
the court explicitly rejected substantive and procedural due process claims 100




       94 Id. at 130.
       95 Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012). The circuit
reiterated its holding in a later case which ended with a not-guilty verdict after “28 court
appearances,” an apparent reference to the burdensomeness of defending against false
charges. Jocks v. Tavernier, 316 F.3d 128, 133, 138 (2d Cir. 2003).
       96 359 F.3d 1279, 1281-82, 1284 (10th Cir. 2004).
       97 See id. at 1296 & n.11.
       98 Id. at 1296.
       99 Id.
       100 Becker v. Kroll, 494 F.3d 904, 919-24 (10th Cir. 2007). The same month, the court

considered, but rejected for other reasons, another Fourteenth Amendment claim where the
charges ended in dismissal. See generally Novitsky v. City Of Aurora, 491 F.3d 1244 (10th
Cir. 2007).
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                                     No. 14-10228


footed on a failure to hand over certain exculpatory evidence. 101
       More recently, the Tenth Circuit has clarified its stance. In Klen v. City
of Loveland, the court reversed a grant of summary judgment against a claim
that various defendants fabricated evidence “thus facilitating” prosecution of
a plaintiff who eventually pleaded no-contest. 102 There the court noted that
“[u]se of an indictment based on perjured testimony to bring charges, for
example, itself represents a denial of due process” despite the lack of a
trial; 103 the “use of a perjured affidavit to defeat a defendant’s attempt to
dismiss an indictment on grounds of selective prosecution” could also support
a due process claim. 104
      The Eighth Circuit likewise found that a due process claim is stated
where a police officer claimed that, though he was innocent of using excessive
force against a victim, he was “set up,” prosecuted (and acquitted), and
administratively charged “for patently arbitrary reasons.” 105 In Moran v.
Clarke, the en banc court held that the substantive due process claim should
not have been denied in a judgment as a matter of law because the officer
presented evidence that he was intentionally set up, and there was damage to
his professional reputation and evidence of improper consideration of his
race. 106 Such actions could violate fundamental rights and “shock the
conscience.” 107 The Eighth Circuit has since found that a substantive due
process violation survived summary judgment in the absence of a trial where


      101  Becker, 494 F.3d at 924. The Tenth Circuit has also emphasized the importance of
intentional fabrications. See Kennedy, 552 F. App’x at 792-93.
       102 661 F.3d 498, 515 (10th Cir. 2011).
       103 Id. at 516.
       104 Id.
       105 Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc).
       106 Id. at 644-45, 647.
       107 Id.

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                                     No. 14-10228


false evidence was used to cause plaintiffs to plead guilty, 108 and in a case
where the charges were dropped without a plea. 109
      The Second, Eighth, Ninth, and Tenth Circuits have thus all found
denials of due process when charges rest on fabricated evidence. The Seventh
Circuit’s decisions appear to point the other way. The court has held that “a
police officer does not violate an acquitted defendant’s due process rights
when he fabricates evidence.” 110 Acquittal forecloses the claim. 111 In the
Seventh Circuit’s view, the only liberty interest damaged in such cases
“stems from [plaintiff’s] initial arrest” 112 and should be addressed under the
Fourth Amendment; 113 being forced to defend oneself at trial is no
deprivation of liberty. 114 The Seventh Circuit’s no-due process violation
decisions have occurred in cases that either did not address the availability of
a Fourth Amendment claim 115 or found that the claim had been purposefully
abandoned, 116 and it has suggested a willingness to consider deprivations
short of conviction and imprisonment if properly raised. 117
      The remaining circuits do not appear to have answered the question
before us. The First Circuit has held that police officers violate due process
when they fabricate evidence in order to get someone falsely convicted 118 or
immediately punished with segregation within a jail. 119 The circuit has


      108 Winslow v. Smith, 696 F.3d 716, 735 (8th Cir. 2012).
      109 Livers v. Schenck, 700 F.3d 340, 343-44, 354-55 (8th Cir. 2012).
      110 Saunders-El v. Rohde, 778 F.3d 556, 560-61 (7th Cir. 2015).
      111 Id. at 560-61.
      112 Id. at 561 (quoting Alexander v. McKinney, 692 F.3d 553, 557 (7th Cir. 2012)).
      113 Alexander, 692 F.3d at 557-58.
      114 Saunders-El, 778 F.3d at 561.
      115 Id. at 559-61.
      116 See Alexander, 692 F.3d at 556.
      117 Serino v. Hensley, 735 F.3d 588, 594-95 (7th Cir. 2013).
      118 Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004).
      119 Surprenant v. Rivas, 424 F.3d 5, 15 (1st Cir. 2005).

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emphasized the importance of the specific intent to fabricate or use false
evidence, 120 and explained in oft-quoted broad terms that:
       [S]ome truths are self-evident. This is one such: if any concept is
       fundamental to our American system of justice, it is that those
       charged with upholding the law are prohibited from deliberately
       fabricating evidence and framing individuals for crimes they did
       not commit. Actions taken in contravention of this prohibition
       necessarily violate due process (indeed, we are unsure what due
       process entails if not protection against deliberate framing under
       color of official sanction). 121

Clear enough, but the circuit does not appear to have explicitly addressed
whether false charges in the absence of a conviction or immediate
punishment state a denial of due process.
       The Third Circuit considered a § 1983 claim that police fabricated
evidence leading to charges and a wrongful conviction. 122 Though the court
expressly did not answer “whether pre-trial detentions can implicate
constitutional rights beyond the Fourth Amendment,” 123 it did state that
“[w]hen falsified evidence is used as a basis to initiate the prosecution of a
defendant, or is used to convict him, the defendant has been injured.” 124 The
Sixth Circuit “recognize[s] a . . . claim of malicious prosecution under the
Fourth Amendment, which encompasses wrongful investigation, prosecution,
conviction, and incarceration,” 125 but it remains unclear whether a


       120  See Drumgold, 707 F.3d at 61-62 & n.27.
       121  Limone, 372 F.3d at 44-45 (citation to Devereaux, 263 F.3d at 1074-75, omitted);
see also Halsey v. Pfeiffer, 750 F.3d 273, 296 (3d Cir. 2014) (quoting Limone); Whitlock v.
Brueggemann, 682 F.3d 567, 581-82 (7th Cir. 2012) (same); Brown v. Miller, 519 F.3d 231,
237 (5th Cir. 2008) (same); Washington v. Wilmore, 407 F.3d 274, 285 (4th Cir. 2005)
(same); Atkins v. County of Riverside, 151 F. App’x 501, 506 (9th Cir. 2005) (same).
        122 Halsey, 750 F.3d at 288-89.
        123 Id. at 293.
        124 Id. at 289.
        125 Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (citation omitted).

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                                      No. 14-10228


substantive due process claim might lie in some circumstances. In Gregory v.
City of Louisville, the court held that “the subset of malicious prosecution
claims which allege continued detention without probable cause must be . . .
analyzed under the Fourth Amendment,” 126 but expressly reserved the
question of whether “malicious prosecution” claims based on liberty
deprivations distinct from pretrial detention might state due process
violations. 127
       The D.C. Circuit does not appear to have addressed the issue of
whether a due process claim could lie when police fabricate evidence, though
it has noted its view that Albright “held that malicious prosecution does not
violate ‘substantive’ due process rights.” 128 The Eleventh Circuit has done
likewise, 129 though noting the possibility that a procedural due process claim
might lie. 130 The circuit recently recognized a due process claim where a
plaintiff alleged that police officers shot, tasered, and beat him, and then
fabricated a cover-up which resulted in two years of jail and an eventual
acquittal on charges of aggravated assault on a law enforcement officer. 131
                                             3.


       126 444 F.3d 725, 750 (6th Cir. 2006).
       127  Id. at 748 n.10. In a recent unpublished decision where plaintiffs alleged
constitutional violations stemming from several search warrants and an indictment, the
court held that the Fourth Amendment rather than substantive due process governed the
claims “[t]o the extent that [they] involve a challenge to the warrant affidavit and the
resulting searches, seizures, and prosecutions.” Meeks v. Larsen, 14-1381, 2015 WL
2056346, at *9 (6th Cir. May 5, 2015). Besides being non-precedential, this was not a case of
intentional fabrication of evidence, as the court did not credit conclusory allegations that
the indictment or warrants were based on “false and misleading information.” Id. at *4
(indictment); id. at *6-7 (warrants).
       128 Pitt v. D.C., 491 F.3d 494, 512 (D.C. Cir. 2007).
       129 Wood v. Kesler, 323 F.3d 872, 881 n.14 (11th Cir. 2003).
       130 U.S. Steel LLC, v. Tieco, Inc., 261 F.3d 1275, 1289 (11th Cir. 2001).
       131 Weiland v. Palm Beach Cty. Sheriff’s Off., 13-14396, 2015 WL 4098270, at *1-2, 9

(11th Cir. July 8, 2015).
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                                       No. 14-10228


       All the circuits that have squarely considered the question have either
found that a due process violation may lie where state officers fabricate
evidence to support false charges against a plaintiff, or have found no due
process violation in the absence of a conviction, an approach we have
expressly rejected. 132 We agree with those that have found a due process
right not to have police deliberately fabricate evidence and use it to frame
and bring false charges against a person.
       Executive action must shock the conscience in order to violate
substantive due process. 133 We have said that:
       Conduct sufficient to shock the conscience for substantive due
       process purposes has been described in several different ways. It
       has been described as conduct that ‘violates the decencies of
       civilized conduct’; conduct that is ‘so brutal and offensive that it
       [does] not comport with traditional ideas of fair play and
       decency’; conduct that ‘interferes with rights implicit in the
       concept of ordered liberty’; and conduct that ‘is so egregious, so
       outrageous, that it may fairly be said to shock the contemporary
       conscience.’ 134

Deliberate framing of a person by the state offends the most strongly held
values of our nation. We echo again the apt words of the First Circuit that, “if
any concept is fundamental to our American system of justice, it is that those
charged with upholding the law are prohibited from deliberately fabricating
evidence and framing individuals.” 135 As the Third Circuit has stated, “no
sensible concept of ordered liberty is consistent with law enforcement cooking




       132 Boyd, 579 F.3d at 514.
       133 Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 867 (5th
Cir. 2012); see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); id. at 860-62
(Scalia, J., concurring).
       134 Doe ex rel Magee, 675 F.3d at 867 (quoting Lewis, 523 U.S. at 846-47 & n.8).
       135 Limone, 372 F.3d at 44-45.

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                                        No. 14-10228


up its own evidence.” 136 Here, the framing was allegedly done in order to
conceal and justify excessive force against one of the people our laws and
systems are supposed to protect. The rule of law, which we have cherished
since our founding, cannot abide such conduct.
       We agree with the Second Circuit that official framing of a person in
these circumstances undermines the right to a fair trial. 137 Being framed and
falsely charged brings inevitable damage to the person’s reputation,
especially where, as here, the crime is a felony involving the threat of
violence. 138 Alongside the reputational damage, 139 it requires the person
framed to mount a defense, 140 and places him in the power of a court of law,
where he may be required to appear. 141 Though these wrongs may be
addressed through a Fourth Amendment challenge in many cases, 142 they do
not disappear where there is no violation of that amendment. Instead, where
there is no more specific constitutional protection available, the Fourteenth
Amendment may offer protection. 143 It does so here, where the conduct is


       136  Halsey, 750 F.3d at 292-93.
       137  Ricciuti, 124 F.3d at 130; see also Boyd, 579 F.3d at 515 (noting that the right to a
fair trial is undermined by state fabrication of evidence even when defendant is acquitted).
        138 See Albright, 510 U.S. at 278 (opinion of Ginsburg, J.) (discussing the

consequences of being charged with a serious offense); id. at 289 (opinion of Souter, J.).
        139 See id. at 296 n.9 (Stevens, J., dissenting) (noting that Paul v. Davis, 424 U.S.

693, 701 (1976), “recognized that liberty is infringed by governmental conduct that injures
reputation in conjunction with other interests” and that “commencement of a criminal
prosecution is certainly such conduct”).
        140 The Coles allege that they incurred “substantial legal fees and expenses for an

attorney to defend Ryan Cole and to subsequently obtain the dismissal of the” aggravated
assault on a public servant charge.
        141 See Albright, 510 U.S. at 278 (opinion of Ginsburg, J.); id. at 289 (opinion of

Souter, J.).
        142 See id. at 274 (plurality); id. at 276-77 (opinion of Ginsburg, J.); id. at 288-91
(opinion of Souter, J.) (noting the “rule of reserving due process for otherwise homeless
substantial claims”).
        143 See id. at 273 (plurality) (“Where a particular Amendment ‘provides an explicit

textual source of constitutional protection’ against a particular sort of government behavior,
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undoubtedly shocking to the conscience and no conceivable state interest
justifies the deprivations imposed. 144
       The Fourteenth Amendment forbids what allegedly happened to Ryan
Cole. Where police intentionally fabricate evidence and successfully get
someone falsely charged with a felony as cover for their colleagues’ actions,
and the Fourth Amendment is unavailing, there may be a due process
violation. 145
                                              4.
       Having found that the Coles have alleged a due process violation, we
must also decide whether the violation was clearly established in October
2010. As the Supreme Court has explained, “the right to due process of law is
quite clearly established by the Due Process Clause, and thus there is a sense
in which any action that violates that Clause (no matter how unclear it may
be that the particular action is a violation) violates a clearly established
right.” 146 That is not the test, as it would “convert the rule of qualified
immunity that our cases plainly establish into a rule of virtually unqualified
liability.” 147 On the other hand, officials may be on notice that their conduct
is unlawful even in “novel factual circumstances,” 148 though the courts have



‘that Amendment, not the more generalized notion of “substantive due process,” must be
the guide for analyzing these claims.’”) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)); see also Soldal v. Cook Cty., 506 U.S. 56, 70 (1992) (“Certain wrongs affect more
than a single right and, accordingly, can implicate more than one of the Constitution’s
commands.”).
        144 See Moran, 296 F.3d at 643, 647-48.
        145 We also note that the district court in this case ruled that the Coles cannot seek a

state law malicious prosecution remedy, and Officer Carson has not challenged that
finding. See Albright, 510 U.S. at 283-84 (opinion of Kennedy, J.) (discussing the
significance of adequate state post-deprivation remedies).
        146 Anderson v. Creighton, 483 U.S. 635, 639 (1987).
        147 Id.
        148 Hope v. Pelzer, 536 U.S. 730, 741 (2002).

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                                       No. 14-10228


not had occasion to rule on “‘materially similar’ conduct.” 149 Indeed, “a
general constitutional rule already identified in the decisional law may apply
with obvious clarity to the specific conduct in question.” 150
       By 2010, no “reasonable law enforcement officer would have thought it
permissible to frame somebody for a crime he or she did not commit.” 151
Though the First Circuit was addressing official framing that led to
conviction, and the state of the law in 1967, the principle applies with obvious
clarity here. “To hold that police officers, having lawfully arrested a suspect,
are then free to fabricate false [evidence] at will, would make a mockery of
the notion that Americans enjoy the protection of due process of the law and
fundamental justice.” 152 “[T]he wrongfulness of charging someone on the
basis of deliberately fabricated evidence is sufficiently obvious,” 153 that in
light of our due process violation holdings in Castellano and Boyd and the
decisions of our sister circuits, 154 a reasonable officer in Officer Carson’s
shoes would have known his conduct violated the Constitution. “[N]o
reasonably competent police officer could believe otherwise.” 155
                                             5.


       149  Id. at 753 (Thomas, J., dissenting); see also Safford Unified Sch. Dist. No. 1 v.
Redding, 557 U.S. 364, 377-78 (2009).
        150 Hope, 536 U.S. at 741 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997));

see also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (“Of course, in an obvious case, these
standards can ‘clearly establish’ the answer, even without a body of relevant case law.”
(citation omitted)).
        151 Limone, 372 F.3d at 50.
        152 Ricciuti, 124 F.3d at 130.
        153 Devereaux, 263 F.3d at 1075.
        154 To reiterate, the Second, Eighth, Ninth, and Tenth Circuits have found due

process violations in similar circumstances. The D.C., First, Third, Sixth, and Eleventh
Circuits have not answered the question, though some have spoken in broad terms about
the right not to be framed. The Fourth and Seventh have found no due process violation in
the absence of a conviction, but based on a theory (the need for conviction) we have rejected.
        155 Ricciuti, 124 F.3d at 130.

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                                     No. 14-10228


      Finally, the Coles have pled “specific conduct and actions giving rise to
a constitutional violation.” 156 We will not rehearse the pleadings in detail yet
again. The Coles clearly allege that Officer Carson conspired with others and
intentionally lied in order to cover for his colleagues, among other things
telling investigators that Ryan turned and pointed his gun at the police. The
Coles further allege that Officer Carson and other officers’ lies led directly to
the decision to charge Ryan with aggravated assault. As we have explained,
that is enough for us to determine that they have pled a clearly established
constitutional violation.
                                             V
      Officer Carson claims absolute immunity for all of his alleged conduct
under Rehburg v. Paulk, 157 where the Supreme Court found that all grand
jury witnesses have:
      absolute immunity from any § 1983 claim based on the witness’
      testimony. In addition . . . this rule may not be circumvented by
      claiming that a grand jury witness conspired to present false
      testimony or by using evidence of the witness’ testimony to
      support any other § 1983 claim concerning the initiation or
      maintenance of a prosecution . . . In the vast majority of cases
      involving a claim against a grand jury witness, the witness and
      the prosecutor conducting the investigation engage in
      preparatory activity, such as a preliminary discussion in which
      the witness relates the substance of his intended testimony. We
      decline to endorse a rule of absolute immunity that is so easily
      frustrated. 158

The Court recognized that absolute immunity does not “extend[] to all
activity that a witness conducts outside of the grand jury room. For example,
we have accorded only qualified immunity to law enforcement officials who

      156 Baker, 75 F.3d at 195; Schultea, 47 F.3d at 1433.
      157 132 S. Ct. 1497 (2012).
      158 Id. at 1506-07.

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                                       No. 14-10228


falsify affidavits and fabricate evidence concerning an unsolved crime.” 159
         Under Rehburg, Officer Carson is immune for grand jury testimony,
preparation for that testimony, and any conspiracy to falsely testify. He
argues that all of his alleged conduct falls into those categories, but the First
Amended Complaint goes further. The Coles allege that Officer Carson made
false statements in the course of the initial investigation into the shooting,
before a decision had been made by prosecutors to charge Ryan with
aggravated assault. The FAC indicates that Carson intended these
statements to influence the decision to bring charges against Ryan in the first
place.
         An officer who lies to investigating officers in order to try to get
someone charged with a crime—before the decision to charge has been
made—is not entitled to absolute testimonial immunity. The Supreme Court
has held that a prosecutor is not entitled to absolute immunity when she
falsifies an affidavit supporting an arrest warrant. 160 Neither is a police
officer who submits an affidavit for a warrant, leading to an arrest without
probable cause. 161 Nor are prosecutors absolutely immune when they act
alongside police officers to “solve” an unsolved crime by shopping for an
unscrupulous expert. 162 Rehberg confirmed that these holdings are still good
law. 163 We have likewise held that “non-testimonial pretrial actions, such as
the fabrication of evidence, are not within the scope of absolute immunity



         159Id. at 1507 n.1 (citations omitted).
         160Kalina v. Fletcher, 522 U.S. 118, 129, 131 (1997).
        161 Malley v. Briggs, 475 U.S. 335, 344-45 (1986).
        162 Buckley v. Fitzsimmons, 509 U.S. 259, 275-76 (1993).
        163 Rehberg, 132 S.Ct. at 1507 n.1 (listing each of the preceding three cases to

illustrate that “absolute immunity [does not] extend[] to all activity that a witness conducts
outside of the grand jury room”).
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                                       No. 14-10228


because they are not part of the trial.” 164
       The conduct here—lying to investigators—comes closer to possibly
preparing for grand jury testimony than some of the conduct in earlier cases,
but the timing and purpose of the statements matter. The Supreme Court
and this court have emphasized that absolute immunity for prosecutors,
witnesses, and others is based on a need to protect central judicial
proceedings. 165 Thus conduct that occurs during investigation to discover
probable cause and before the decision to charge has been made is not
generally entitled to absolute immunity. 166 Some of the false statements in
this case are alleged to have been this investigation-stage type of conduct.
       In these circumstances, lying to investigating officers is similar to


       164    Castellano, 352 F.3d at 958 & n.107 (citing Buckley, 509 U.S. at 275-76, and
Spurlock v. Satterfield, 167 F.3d 995, 1003-04 (6th Cir. 1999), for the proposition that
“[d]efendants cannot shield any pretrial investigative work with the aegis of absolute
immunity merely because they later offered the fabricated evidence or testified at trial”).
          165 Briscoe v. LaHue, 460 U.S. 325, 334-35 (1983) (“The central focus of our analysis

has been the nature of the judicial proceeding itself.”); Kalina, 522 U.S. at 125, 128 (noting
that immunity covers “activities . . . intimately associated with the judicial phase of the
criminal process”); Malley, 475 U.S. at 342-43 (“We have interpreted § 1983 to give absolute
immunity to functions ‘intimately associated with the judicial phase of the criminal process
. . . .”); Keko v. Hingle, 318 F.3d 639, 643 (5th Cir. 2003) (“[A]n informal, ex parte probable
cause hearing is not the type of judicial proceeding for which a witness’s testimony would
require the full shield of absolute immunity. . . . We decline to extend absolute witness
immunity into an arena where the Supreme Court has not found factual testimony to
justify such heightened protection.”).
          166 Buckley, 509 U.S. at 273-74 (“The prosecutors do not contend that they had

probable cause to arrest petitioner or to initiate judicial proceedings . . . . Their mission at
that time was entirely investigative . . . .”); Hoog-Watson v. Guadalupe Cty., 591 F.3d 431,
438 (5th Cir. 2009) (finding under functional approach, “prosecutorial immunity protects
‘the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for
trial,’ but not ‘the detective’s role in searching for the clues and corroboration that might
give him probable cause to recommend that a suspect be arrested.’”); Beck v. Tex. State Bd.
of Dental Exam’rs, 204 F.3d 629, 637 (5th Cir. 2000) (“[A]lthough a prosecutor is absolutely
immune when she acts . . . as an advocate for the state by initiating and pursuing
prosecution, or when her conduct is ‘intimately associated with the judicial phase of the
criminal process,’ she does not enjoy absolute immunity for her acts of investigation . . . .”)
(citations omitted).
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                                       No. 14-10228


falsifying a police report, which the Second Circuit recently held is not
protected by testimonial immunity. The Second Circuit addressed how to
apply Rehberg “when a § 1983 plaintiff alleges that the officer withheld and
falsified evidence in addition to committing perjury before the grand jury.” 167
It concluded that testimonial immunity does not bar § 1983 claims that can
be made out without reference to the grand jury testimony or preparation for
it. 168 As the court explained, “[t]he fact that [defendant’s] grand jury
testimony paralleled information he gave in other contexts [such as police
reports] does not mean that [the claim] was ‘based on’ [the] grand jury
testimony. Rather it was based on [defendant’s] conduct that laid the
groundwork for [the] indictment.” 169 So here; the fact that some of Officer
Carson’s statements may have been presented to the grand jury can be
excised from the complaint and the Coles still make out a case that Carson
lied in order to ensure charges would be brought in the first place.
       A final wrinkle must be addressed. While we have said that plaintiffs
must plead with specificity when absolute immunity is asserted, just as with
qualified immunity, 170 the Supreme Court has held that “the official seeking
absolute immunity bears the burden of showing that such immunity is
justified for the function in question.” 171 Officials bear the “burden of



       167 Coggins v. Buonora, 776 F.3d 108, 112 (2d Cir. 2015).
       168 Id. at 113 & n.7.
       169 Id. at 113.
       170 Truvia v. Julien, 187 F. App’x 346, 348 (5th Cir. 2006); Elliott v. Perez, 751 F.2d

1472, 1482 (5th Cir. 1985) abrogated on other grounds by Leatherman v. Tarrant Cty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993).
       171 Burns v. Reed, 500 U.S. 478, 486-87 (1991) (“The presumption is that qualified

rather than absolute immunity is sufficient to protect government officials in the exercise of
their duties. We have been ‘quite sparing’ in our recognition of absolute immunity, and
have refused to extend it any ‘further than its justification would warrant.’”) (citation
omitted); Buckley, 509 U.S. at 269 (quoting Burns); Antoine v. Byers & Anderson, Inc., 508
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                                       No. 14-10228


establishing that they were functioning” in an absolutely immune role. 172 The
Court’s statements emphasize its reluctance to take absolute immunity too
far, and contemplate the need for defendants to take an active role in
claiming it. 173 Following these cases and our own precedent, we have held at
the summary judgment stage that the burden stays with the defendant to
establish his entitlement to absolute immunity. 174
       We need not decide whether a heightened pleading requirement applies
at the motion to dismiss stage. We have already explained that the Coles pled
“specific conduct and actions giving rise to a constitutional violation” insofar
as they allege that Officer Carson fabricated evidence to get Ryan falsely



U.S. 429, 432 (1993) (“The proponent of a claim to absolute immunity bears the burden of
establishing the justification for such immunity.”).
        172 Buckley, 509 U.S. at 274 (“The question, then, is whether the prosecutors have

carried their burden of establishing that they were functioning as ‘advocates’ . . . .”).
        This goes for cases before the Court on motions to dismiss, summary judgment, and
directed verdict. See id. at 264 (motion to dismiss); Burns, 500 U.S. at 483 (directed
verdict); Antoine, 508 U.S. at 431 (summary judgment).
        173 Antoine, 508 U.S. at 432 n.4 (“We have consistently ‘emphasized that the official

seeking absolute immunity bears the burden of showing that such immunity is justified for
the function in question. The presumption is that qualified rather than absolute immunity
is sufficient to protect government officials in the exercise of their duties. We have been
quite sparing in our recognition of absolute immunity . . . .’”); Buckley, 509 U.S. at 274 (“The
question, then, is whether the prosecutors have carried their burden of establishing that
they were functioning as ‘advocates’ . . . .”); Malley, 475 U.S. at 339-341 (noting that “[a]s
the qualified immunity defense has evolved, it provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.”); see also Lampton v. Diaz,
639 F.3d 223, 228 (5th Cir. 2011) (noting failure of proponent of immunity to point to a case
extending it to his situation).
        174 Hoog-Watson, 591 F.3d at 437 n.6 (“For summary judgment purposes, Buckley[,

509 U.S. 259], and Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997) . . . hold that the defendant
who pleads the affirmative defense of absolute prosecutorial immunity bears the burden of
proving that the conduct at issue served a prosecutorial function . . . . In contrast, more
recent Fifth Circuit decisions hold that after the defendant pleads the defense of
prosecutorial immunity, the plaintiff bears the burden of introducing evidence sufficient to
convince a reasonable factfinder that the defendant acted outside the scope of the
immunity. Cousin v. Small, 325 F.3d 627, 632-33 (5th Cir. 2003); Beck[, 204 F.3d at 633-
64]. But because Hart came before Cousin and Beck, Hart controls.”).
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                                 No. 14-10228


charged. The Coles alleged that Officer Carson lied to investigating officers,
telling them that Ryan turned around and pointed his gun at Officer Hunter
prior to his being shot, and that Officer Hunter gave a warning before firing.
They make it clear that some of these statements were made prior to the
decision to charge, were intended to influence, and did influence that
decision. Their pleadings are specific enough to meet any heightened
pleading requirement.
                             ---------------------------
      We DISMISS the appeal by Officers Hunter and Cassidy for lack of
jurisdiction. We AFFIRM the denial of Officer Carson’s motion to dismiss
insofar as it relates to the Coles’ due process claim based on fabricated
evidence and REVERSE the denial as to the Fourth Amendment and Brady
claims. We REMAND for further proceedings.




                                        40
