                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                August 7, 2018
                                     PUBLISH
                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 LAWRENCE RUBIN MONTOYA,

             Plaintiff - Appellee,
       v.                                              No. 17-1106
 DETECTIVE MARTIN E. VIGIL
 (Shield No. 86-12); DETECTIVE
 MICHAEL MARTINEZ (Shield No.
 82-29); and LIEUTENANT
 JONATHAN W. PRIEST (Shield No.
 86-12),

             Defendants - Appellants,
 and
 CITY OF COUNTY OF DENVER;
 and OFFICERS JOHN DOE, in their
 individual and official capacities.

             Defendants.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. NO. 1:16-CV-01457-RPM)


Peter H. Doherty (Leif O. Distad with him on the briefs), Lasatar & Martin,
Highlands Ranch, Colorado, for Appellants.

Jane Fisher-Byrialsen, Fisher & Byrialsen, Denver, Colorado, for Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit
Judges.


TYMKOVICH, Chief Judge.


      A jury convicted fourteen-year-old Lawrence Montoya for the New Year’s

Day murder of a teacher from his school. After serving over thirteen years in

prison, Montoya brought post-conviction claims for ineffective assistance of

counsel and actual innocence. The prosecution agreed to a compromise resulting

in Montoya’s release from prison. He then sued several detectives involved in the

investigation and trial, claiming they were responsible for his wrongful

conviction. Alleging constitutional violations under 42 U.S.C. § 1983, Montoya

claims the Detectives instigated a malicious prosecution against him, coerced his

confession in violation of the Fifth Amendment, and subjected him to false arrest.

      The district court held qualified immunity and absolute testimonial

immunity did not shield the Detectives from liability, and denied their motion to

dismiss. The Detectives filed this interlocutory appeal. We hold qualified

immunity shields the Detectives from liability for Montoya’s malicious

prosecution claim. We further conclude both qualified immunity and absolute

testimonial immunity bar Montoya’s Fifth Amendment claim. As for Montoya’s

false arrest claim, we lack jurisdiction to consider whether or not qualified

immunity applies.


                                         -2-
                                I. Background

      A. The Crime and Investigation

      On the morning of New Year’s Day in 2000, a neighbor found Emily

Johnson, a 29-year-old Denver school teacher, almost lifeless in her backyard.

Ms. Johnson died shortly thereafter. She had been beaten to death at her home,

and her white Lexus was gone.

      Martin Vigil and Michael Martinez, detectives with the Denver Police

Department, investigated the crime. After receiving a tip, they interviewed

Nicholas Martinez, who said that he and his cousin, Lloyd Martinez, had found

Ms. Johnson’s Lexus unlocked with the keys on the floor. They had taken the

car, Martinez said, and picked up friends for a joy ride—nothing more. Police

interviewed a number of people Martinez mentioned—including Luke Anaya,

Montoya’s cousin—but none directly implicated Montoya in the robbery and

murder. 1 Still, some of the persons implicated were either family or friends of

Montoya, and the Detectives eventually decided to interview Montoya.

      On January 10, 2000, beginning at about 8:00 PM, the Detectives

questioned Montoya about the crime. Montoya was fourteen years old and in the



      1
          There is some lack of clarity on this point. Montoya alleges no one
implicated him directly, but Detective Vigil testified that Nicholas Martinez made
reference to Montoya. App. 259, 273. And in his complaint, Montoya admits that
Nicholas Martinez mentioned he had picked up “Freddie’s brother” for the joy
ride, id. at 750 ¶ 32, which may have been a reference to Montoya. Id. at 733–34.

                                        -3-
eighth grade at the time. According to the complaint, “it was apparent that

[Montoya] suffered from clear cognitive deficiencies and developmental delays.”

App. 752 ¶ 46. Though his mother was present for approximately the first forty

minutes of the interview, both he and his mother consented to letting the police

interrogate Montoya alone after that.

       In the questioning that followed—recorded on video—Montoya alleges the

officers coerced him into confessing to the robbery. They did so, he claims, by

falsely claiming they had evidence linking him to the crime, asking leading

questions, feeding him statements, illegally searching his shoes, and intimidating

him. Montoya initially admitted to having been present for the joy ride, but

denied any involvement in the robbery and murder. He insisted he was asleep at

the time of the early-morning assault. In fact, he claimed he had not met Nicholas

Martinez until Martinez and some acquaintances picked him up for the joy ride.

After maintaining this denial for about two hours (including the forty minutes

during which his mother was present), Montoya admitted he was at Ms. Johnson’s

house. A bit later, he further admitted he had been involved in the robbery. At

first, Montoya only said he had been a lookout, but upon further questioning he

said he entered the house too. The entire interrogation lasted approximately two

and a half hours. 2


       2
           We may take into account the interrogation video Montoya attached to
                                                                     (continued...)

                                         -4-
      With that confession in hand, the Detectives obtained an arrest warrant. As

the complaint recounts it, however, many of the details Montoya provided during

his confession were factually incorrect—proof of his innocence. Montoya alleges

this could not have escaped the Detectives’ notice, and yet the Detectives’

affidavit in support of the arrest warrant intentionally misrepresented Montoya’s

statements and omitted exculpatory evidence.

      Montoya was then charged with Felony Murder, Aggravated Robbery, First

Degree Burglary, and First Degree Aggravated Vehicle Theft. Before trial, the

court excluded all statements Montoya made after his mother left the

room—including his confession to being present at the robbery and

murder—because Montoya’s mother had not signed a written parental waiver

required by statute.

      B. The Trial

      In a joint trial including Nicholas Martinez and Lloyd Martinez, the

prosecution argued Montoya was actively involved in Ms. Johnson’s robbery and

murder. To support this theory, the state presented several witnesses. Matthew

Hernandez, a juvenile in custody at the same detention center as Montoya,

testified Montoya had told him he was guilty of the crime. Lieutenant Jonathan



      2
       (...continued)
his complaint. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010); Scott
v. Harris, 550 U.S. 372, 379 (2007).

                                        -5-
Priest, a defendant in this case, testified as a crime scene expert and corroborated

the details Hernandez put forward. And Detective Vigil—another defendant

here—provided testimony regarding Montoya’s interrogation. Though Vigil’s

testimony was supposed to be limited to the portion of the interrogation during

which Montoya’s mother was present, Montoya claims Vigil strayed into

impermissible territory. In two instances, Montoya alleges Vigil testified about

statements he made during the suppressed part of his interrogation—the part he

argues was coercive.

      The prosecution also presented physical evidence to link Montoya to the

crime. The state argued a pair of “Lugz” boots matching the footprints at the

crime scene belonged to Montoya. As proof of Montoya’s ownership, Detective

Vigil testified the boots were found in a bedroom that Montoya’s aunt had said

belonged to Montoya. Police had also found a Broncos jacket at the crime scene,

and the Prosecution argued it was Montoya’s. One more piece of evidence tied

Montoya to the scene, albeit only to the joy ride after the murder: police

recovered Montoya’s fingerprint from the rear passenger door of Ms. Johnson’s

stolen Lexus.

      This evidence did not go unchallenged. Montoya denied the jacket and

shoes were his—insisting the shoes, at least, belonged to his cousin, Luke Anaya.

Montoya’s aunt, Tomasita Martinez, corroborated Montoya’s side of the story.

Contradicting Detective Vigil’s testimony, she testified that the bedroom in which

                                         -6-
the boots were found was actually Luke’s room, not Montoya’s. Montoya did not

challenge the fingerprint evidence, as he admitted having joined the others for the

joy ride. He only contested his participation in the robbery.

      The jury convicted Montoya of first-degree felony murder, aggravated

robbery, and first-degree burglary. The court sentenced Montoya to life in prison

without the possibility of parole.

      C. The Post-Conviction Compromise and Release

      Over thirteen years after his conviction, Montoya filed a Rule 35(c) petition

for post-conviction relief under Colorado law, alleging his trial counsel had been

ineffective and that he was actually innocent of the crimes for which he was

convicted.

      As support, Montoya attached a private investigator’s affidavit casting

doubt on the evidence at trial. The investigator claimed to have interviewed

Nicholas Martinez as well as Martinez’s mother. According to the investigator,

Martinez admitted he had not met Montoya until after he had stolen the Lexus,

during the joy ride. Martinez also allegedly said that Montoya had not been

present during the crime, the details Montoya provided during his interrogation

were all incorrect, and the Broncos jacket—which the prosecutors had argued was

Montoya’s—was in fact his. Martinez’s mother corroborated this last statement,

alleging she had told Montoya’s defense attorney the Broncos jacket was Nick’s

and had even showed him a family picture in which Nick was wearing the jacket.

                                         -7-
      Montoya then requested permission to conduct DNA tests on the physical

evidence presented at trial—among other items, the boots and Broncos jacket

presented to tie Montoya to the scene. The results were not conclusive, but

generally supported Montoya’s allegations. To start with, some of the DNA

samples taken from the Broncos jacket matched Nicholas Martinez and could not

have been Montoya’s. The same is true for the shoes: some samples from the

shoe matched Luke Anaya instead of Montoya. But both items also yielded

samples with mixtures of DNA from multiple persons that could not be

conclusively interpreted one way or the other. Naturally, Montoya could not be

excluded as a possible source for those samples. Nonetheless, Montoya

emphasizes, the report did not conclusively identify him as a source for any of the

samples. 3

      After these results came in, the state and Montoya came to an agreement:

in exchange for Montoya’s guilty plea to a charge of accessory after the fact, the

state would confess error on Montoya’s ineffective assistance of counsel petition

and agree to vacate the convictions for felony murder, aggravated robbery, and

burglary.



      3
        Montoya also tested items that had not been used to tie him to the crime
scene. For instance, he also ran DNA tests on the rock used to murder Ms.
Johnson. The results for this test were similar to those of the jacket and shoes:
some of the DNA samples matched Nicholas Martinez, while some samples
contained DNA mixtures that could not be interpreted.

                                        -8-
      At the hearing on June 16, 2014, the state explained it made the

compromise because the ineffective assistance of counsel challenge would have

been a “horse race.” App. 94–95. The prosecution went on to note the victim’s

family wanted Montoya to be released, so the agreement was “being entered into

in the interest of justice, not so much concession on the 35(c).” App. 94.

Montoya’s counsel, by contrast, maintained that Montoya’s petition would likely

have prevailed, but that Montoya agreed to the deal.

      Montoya then pleaded guilty to the charge of accessory after the

fact—admitting he went for the ride in the Lexus, knew that others in the car had

assaulted and probably murdered a woman, and had not told police. 4 The court

sentenced Montoya to ten years’ imprisonment plus three years of mandatory

parole and ran the sentence nunc pro tunc beginning in 2000. Since he had

already served over thirteen years, Montoya was released.

      D. The § 1983 Suit




      4
         In his brief, Montoya denies that he admitted to knowing of Ms.
Johnson’s murder when he pleaded guilty, Aple. Br. at 10 n.3, 49, but the hearing
transcript shows otherwise:
      THE COURT: . . . Added Count 6 reads that . . . Montoya . . . unlawfully
      and feloniously rendered assistance . . . knowing that person had committed
      the crime of murder . . . To that charge, how do you plead, guilty or not
      guilty?
      THE DEFENDANT: Guilty, Your Honor.
App. 98.

                                        -9-
      Montoya brought this § 1983 action against various defendants, including

Detectives Vigil, Martinez, and Priest. He claimed the Detectives violated his

Fourth Amendment right to be free from malicious prosecution and false arrest, as

well as his Fifth Amendment right against self incrimination.

      Montoya’s complaint insists on his innocence, and calls into question much

of the evidence at trial. As at trial, he alleges he was asleep at his girlfriend’s

house during the murder, and was only picked up for the joy ride in Ms.

Johnson’s Lexus after her murder. As proof, Montoya argues the DNA results,

along with his aunt’s testimony and the investigator’s affidavit, establish that both

the boots and Broncos jacket the prosecution had insisted belonged to Montoya,

belonged, in fact, to others. Montoya also attempts to discredit trial testimony.

Detective Priest’s crime scene testimony was inconsistent with the physical

evidence, he says. And he asserts the testimony by Matthew Hernandez—the

fellow inmate who claimed Montoya confessed to the crime—was untrustworthy.

Not only had Hernandez made inconsistent statements and even some statements

that were patently false, but Hernandez never shared a cell with Montoya. All

this, Montoya alleges, shows not only his innocence, but the Detectives’

malicious prosecution.

      The Detectives filed a motion to dismiss, relying, in part, on both qualified

and absolute testimonial immunity. The district court denied the motion, and the

Detectives filed this interlocutory appeal.

                                          -10-
                                   II. Analysis

      The Detectives argue the district court erred by not giving them the benefit

of either qualified or absolute immunity against all of Montoya’s claims. But

before we address the merits, we must consider Montoya’s contention that we

lack jurisdiction to hear several of the Detectives’ arguments.

      A. Jurisdiction

      This court has appellate jurisdiction over “final decisions” of district

courts. 28 U.S.C. § 1291. But when a district court denies government officers

qualified immunity or absolute immunity, we can review that decision even before

the district court has rendered final judgment. Mitchell v. Forsyth, 472 U.S. 511,

525, 530 (1985).

      The Detectives invoke our jurisdiction to review the district court’s denial

of qualified immunity and absolute testimonial immunity. Montoya challenges

their ability to do so. In his view, we lack jurisdiction to consider the Detectives’

assertion of qualified immunity on the malicious prosecution and false arrest

claims, and likewise have no jurisdiction to consider their absolute testimonial

immunity arguments. We address each argument in turn.

             1. Jurisdiction Over Questions of Qualified Immunity on the
             Malicious Prosecution and False Arrest Claims




                                        -11-
      Montoya first argues the Detectives cannot avail themselves of our

jurisdiction to interlocutorily review questions of qualified immunity for the

malicious prosecution and false arrest claims. They cannot do so, Montoya

contends, because the Detectives did not properly raise qualified immunity as to

those claims before the district court. Since “qualified immunity is an affirmative

defense” and “the burden of pleading it rests with the defendant,” Crawford-El v.

Britton, 523 U.S. 574, 586–87 (1998) (quoting Gomez v. Toledo, 446 U.S. 635,

639–641 (1980)), the Detectives cannot assert qualified immunity against those

claims for the first time on appeal. And since we only have jurisdiction to review

questions of immunity at this stage, Montoya argues we should dismiss the

Detectives’ appeal with respect to those claims.

      Before addressing Montoya’s specific contentions about the record, we find

it useful to explain the basis of our jurisdiction over interlocutory qualified

immunity appeals. Montoya’s argument assumes the jurisdictional inquiry turns

on whether or not the defendants adequately raised qualified immunity before the

district court. That is not so. Our jurisdiction is based on district courts’

“decisions,” not on the particular arguments parties make in their briefs below.

28 U.S.C. § 1291 (emphasis added). So the true jurisdictional inquiry is whether

or not the district court decided the qualified immunity question at issue, not

whether the defendants adequately raised the defense. On appeal, the plaintiff

can very well argue the court should affirm because the defendant failed to

                                         -12-
adequately raise the defense below. But such an argument would go to the

defendant’s preservation of a merits argument, not this court’s jurisdiction.

      That being so, we arrive at a simple rule: if the district court explicitly

decided the qualified immunity question, we will usually have jurisdiction over

the interlocutory appeal. There may be, of course, other considerations that

remove our jurisdiction over an interlocutory qualified immunity appeal even

when the district court explicitly decides the question. For example, a particular

denial of qualified immunity may be too intertwined with questions of evidence

sufficiency for our interlocutory review to be appropriate. Johnson v. Jones, 515

U.S. 304, 317 (1995); Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997).

But in general, if the district court decided the qualified immunity question, we

have jurisdiction to review it—regardless of whether or not the defendant

properly raised the defense.

      The reverse of this rule is not true, however. A district court’s failure to

expressly decide the qualified immunity question does not necessarily mean we

lack jurisdiction, because the district court’s silence can operate as an implicit

denial that is immediately appealable. E.g., Lowe v. Town of Fairland, 143 F.3d

1378, 1380 (10th Cir. 1998). In this context, it becomes important to make sure

the defendants explicitly raised the defense. For how could the district court

implicitly decide a question that was not clearly before it? If the defendant did

not expressly raise the defense, we cannot interpret the district court’s silence as

                                         -13-
an implicit denial of qualified immunity at that stage in the litigation. And that

means there is no decision denying qualified immunity for us to review.

      With these maxims in mind, we turn to the jurisdictional questions here. It

is clear we have jurisdiction over the qualified immunity question regarding

Montoya’s malicious prosecution claim. The district court explicitly decided that

issue, holding Montoya had pleaded facts “show[ing] malicious prosecution”

under “clearly established law.” App. 738. We may review that holding in this

interlocutory appeal. As explained earlier, Montoya may argue the Detectives

forfeited their immunity defense at this stage in the litigation, but this would be a

reason to affirm the district court on other grounds, not to dismiss for lack of

jurisdiction.

      It is equally clear, however, that we lack jurisdiction to review the qualified

immunity question with respect to the false arrest claim. The district court never

mentioned that question. And we cannot conclude this omission was an implicit

denial because the Detectives did not expressly raise the defense below. Having

reviewed the briefing below, we cannot find a single instance in which the




                                         -14-
Detectives raised qualified immunity against Montoya’s false arrest claim. 5

Instead, they only argued Montoya failed to state a claim for false arrest.

      The Detectives resist this result by offering a different reading of the

record—indeed, a different reading of what it means to assert qualified immunity.

As they see it, arguing Montoya failed to state a claim for false arrest under Rule

12(b)(6) is the same as invoking qualified immunity. Since a government official

is entitled to qualified immunity when “the facts that a plaintiff has alleged” fail

to “make out a violation of a constitutional right,” see Pearson v. Callahan, 555

U.S. 223, 232 (2009), the Detectives contend that a failure-to-state-a-claim

argument is really a qualified immunity argument by another name.

      That is not correct. It is true that if the plaintiff failed to state a claim

under Rule 12(b)(6), the government would also be entitled to qualified immunity.

But we have already held that “[a]lthough to a certain extent a qualified immunity

analysis overlaps with a 12(b)(6) analysis, we do not have jurisdiction to review

the merits” of a Rule 12(b)(6) failure-to-state-a-claim argument when the

defendant appeals the district court’s denial of qualified immunity. Tonkovich v.

Kansas Bd. of Regents, 159 F.3d 504, 515–16 (10th Cir. 1998). As the Supreme


      5
          Defendants point to the following statement the district court made
during the motions hearing as evidence they raised qualified immunity with
respect to all their claims: “Well, your position, as I got it, then, is that, first of
all, there is no constitutional violation; and second, there is qualified immunity?”
App. 868–69. Read in context, however, the district court was only referring to
defendants’ arguments regarding the Fifth Amendment claim.

                                         -15-
Court has explained, “a claim of immunity is conceptually distinct from the merits

of the plaintiff’s claim,” and an “appellate court reviewing the denial of the

defendant’s claim of immunity need not . . . even determine whether the plaintiff’s

allegations actually state a claim.” Mitchell v. Forsyth, 472 U.S. 511, 527–28

(1985) (emphasis added).

      Therefore, although the Rule 12(b)(6) and qualified immunity arguments

can be similar—sometimes exceedingly so—they are not the same. And since it

is defendants’ burden to raise a qualified immunity defense, Crawford-El, 523

U.S. at 586–87, a Rule 12(b)(6) failure-to-state-a-claim argument, without more,

is insufficient to raise qualified immunity. Standing alone, a defendant’s Rule

12(b)(6) argument fails to notify either the district court or the plaintiff that the

defendant is invoking qualified immunity—with all its attendant complexity and

possibility for interlocutory appeal.

      In short, the Detectives’ Rule 12(b)(6) argument did not adequately raise a

qualified immunity defense against the false arrest claim, and therefore the

district court’s silence cannot be construed as an implicit denial of immunity.




                                          -16-
      We consequently have no jurisdiction to hear the Detectives’ qualified

immunity arguments against Montoya’s false arrest claim. 6 Before us are the

Detectives’ qualified immunity arguments concerning only two claims: the claim

they maliciously prosecuted Montoya and the claim they violated Montoya’s Fifth

Amendment rights.

             2. Jurisdiction Over Claims of Absolute Immunity

      Montoya also claims we lack jurisdiction to review the Detectives’

assertion of absolute testimonial immunity. He admits the Detectives squarely

raised the defense below, but argues the district court did not squarely address

absolute immunity. We disagree. The district court explained that absolute

testimonial immunity “would apply” under different circumstances, but that in

this case “[t]he plaintiff has shown sufficient facts which, if proven at trial,

negate absolute immunity.” App. 737–38.

      This is an immediately appealable ruling on absolute immunity. See

Mitchell, 472 U.S. at 525; Woodruff v. Covington, 389 F.3d 1117, 1122–23 (10th

Cir. 2004). Indeed, elsewhere in his brief Montoya recognizes the district court

ruled on this issue. See Aplt. Br. at 13, 14, 16. And, as we have explained above,

even if it were not a ruling, a district court’s failure to decide whether absolute

immunity applies after defendants have raised the defense is an “effective denial


      6
         The Detectives do not argue we have pendent appellate jurisdiction over
any of these claims, Aplt. Reply at 4, so we do not consider that question.

                                         -17-
of complete immunity” that is immediately appealable. Paine v. City of Lompoc,

265 F.3d 975, 981 (9th Cir. 2001); see Lowe, 143 F.3d at 1380 (district court’s

failure to decide qualified immunity issue is immediately appealable).

      B. Malicious Prosecution

      Turning to the merits, we begin with Montoya’s malicious prosecution

claim. Since the Detectives have asserted qualified immunity, Montoya “bears a

heavy two-part burden to show, first, that the defendant’s actions violated a

constitutional or statutory right, and, second, that the right was clearly established

at the time of the conduct at issue.” See Thomas v. Kaven, 765 F.3d 1183, 1194

(10th Cir. 2014) (internal quotation marks and citations omitted). The Detectives

contend they are entitled to qualified immunity because Montoya has failed to

state a claim for malicious prosecution, and has therefore failed to show their

“actions violated a constitutional or statutory right.” We review this question de

novo, accepting all well-pleaded factual allegations in the complaint as true and

viewing them in the light most favorable to Montoya. Brown v. Montoya, 662

F.3d 1152, 1162 (10th Cir. 2011).

      To state a § 1983 claim for malicious prosecution, a plaintiff must show:

“(1) the defendant caused the plaintiff’s continued confinement or prosecution;

(2) the original action terminated in favor of the plaintiff; (3) no probable cause

supported the original arrest, continued confinement, or prosecution; (4) the



                                        -18-
defendant acted with malice; and (5) the plaintiff sustained damages.” Wilkins v.

DeReyes, 528 F.3d 790, 799 (10th Cir. 2008).

         The Detectives have only challenged the second element. They claim

Montoya cannot show the criminal proceedings terminated in his favor. 7

         To meet this second element, the plaintiff has the “burden to show that the

termination was favorable.” Cordova v. City of Albuquerque, 816 F.3d 645, 650

(10th Cir. 2016). To carry that burden, a plaintiff must allege facts which, if true,

would allow a reasonable jury to find the proceedings terminated “for reasons

indicative of innocence.” See M.G. v. Young, 826 F.3d 1259, 1263 (10th Cir.

2016).

         An acquittal due to innocence is, of course, the gold standard for showing

proceedings terminated in the plaintiff’s favor. And a plaintiff obviously meets

the element if a court vacated the conviction because the plaintiff was “factually

innocent.” Pierce v. Gilchrist, 359 F.3d 1279, 1294 (10th Cir. 2004). But when

criminal proceedings terminate some other way, it is less obvious whether or not



         7
         One note of clarification: there are two termination requirements relevant
to a § 1983 malicious prosecution claim. One is the favorable termination
requirement that is an element of the malicious prosecution claim itself. The
other is the Heck v. Humphrey rule that a litigant cannot bring a § 1983 claim
challenging a conviction’s legitimacy until that conviction has been dismissed.
512 U.S. 477, 486–87 (1994). Only the first termination requirement is at issue
here; Montoya meets the Heck requirement because the conviction he attacks has
been dismissed. See Butler v. Compton, 482 F.3d 1277, 1278–80 (10th Cir.
2007).

                                          -19-
the termination demonstrates innocence. See Cordova, 816 F.3d at 654. In fact,

many times the disposition terminating a criminal proceeding does not on its face

say anything at all about the plaintiff’s guilt. In those cases, we “look to the

stated reasons for the dismissal as well as to the circumstances surrounding it in

an attempt to determine whether the dismissal indicates the accused’s innocence.”

Wilkins, 528 F.3d at 803. If, in view of the circumstances, “the case [was]

disposed of in a manner that leaves the question of the accused’s innocence

unresolved, there generally can be no malicious prosecution claim by the

accused.” Young, 826 F.3d at 1262 (quotation omitted). Put another way, if,

under the circumstances, the termination of proceedings “does not touch the

merits,” the criminal proceedings did not terminate favorably. Cordova, 816 F.3d

at 651 (quoting Dan B. Dobbs et al., Dobb’s Law of Torts § 590 (2d ed.2015)).

      Even though we look at the totality of the circumstances, our cases have

identified certain kinds of dispositions that usually do not indicate innocence. We

have said, for example, that a plaintiff’s innocence is usually not sufficiently

clear-cut when the prosecution abandons proceedings “pursuant to an agreement

of compromise” or “out of mercy requested or accepted by the accused.” Young,

826 F.3d at 1262; Wilkins, 528 F.3d at 803. So too when a court dismisses a

charge on “technical grounds having little or no relation to the accused’s guilt,”

when the state abandoned proceedings because of the accused’s misconduct, or

when new proceedings for the same offense have not terminated in favor of the

                                         -20-
accused. Young, 826 F.3d at 1262; Wilkins, 528 F.3d at 803 & n.9.

      In this case, the prosecution agreed to vacate Montoya’s conviction as a

compromise after Montoya filed a petition for relief due to ineffective assistance

of counsel and actual innocence. Montoya argues this vacatur sufficiently

demonstrates his innocence, and thus claims the criminal proceedings terminated

in his favor. Looking to the prosecution’s stated reasons, as well as to the

surrounding circumstances, we conclude Montoya has failed to allege a favorable

termination. Accepting the facts Montoya alleges as true and construing them in

his favor, the question of Montoya’s innocence was left “unresolved” by the

vacatur of his prior conviction. See Young, 826 F.3d at 1262 (quotation omitted). 8

      To begin, the prosecution’s stated reasons for the vacatur did not indicate

Montoya’s innocence. At the June 2014 hearing, the government expressly stated

that the primary reason it compromised was it thought Montoya’s ineffective

assistance of counsel claim had some chance of succeeding—that the proceeding

“would have been very close.” App. 94. In addition, the prosecution explained

that in “discussions with police officers, prior DAs, the elected DA, and the

victim’s family, everyone to a person thought that Mr. Montoya should have

taken” a plea deal offered to him before trial. Id. For that reason, the prosecution



      8
         In considering Montoya’s allegations, we may consider the transcripts of
the proceeding in which the prosecution agreed to dismiss his conviction. See
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

                                        -21-
believed the deal was “in the interest of justice.” App. 94.

      These statements are not an admission of Montoya’s innocence. Nor can

they be fairly read as a concession that “the case could not be proven beyond a

reasonable doubt.” Wilkins, 528 F.3d at 803. The prosecution, in fact, could not

have made clearer the limited nature of its concession: “so the fact that I am

conceding that defense counsel was ineffective,” the prosecution explained, “was

only for the purposes of effecting this plea.” App. 94. Indeed, Montoya’s own

complaint explains that even after the compromise, the District Attorney

repeatedly asserted Montoya was actually guilty. App. 768 ¶ 171. And the state

continues to argue Montoya’s guilt before this court. The prosecution’s stated

reasons for vacating Montoya’s conviction therefore do not indicate his

innocence.

      Turning to the surrounding circumstances, these too reveal the vacatur did

not indicate Montoya’s innocence. First, the disposition here falls squarely

within those categories of dispositions that typically fail to show innocence. The

prosecution specified that part of its motivation for vacating the conviction was

the plea for mercy on behalf of the victim’s family. Even more importantly, the

vacatur of Montoya’s conviction was explicitly and unequivocally a compromise:

the prosecution conceded that Montoya’s trial attorney had been ineffective and

agreed to vacate his convictions in exchange for Montoya’s guilty plea to a

charge of accessory after the fact. In the words of Montoya’s own counsel, the

                                        -22-
prosecution made a “concession . . . contingent on the plea.” App. 95. As

already explained, both of these facts make the termination of proceedings in this

case the kind that ordinarily does not constitute a favorable termination. See

Young, 826 F.3d at 1262; Wilkins, 528 F.3d at 802–03. 9

      Second, the state court itself noted “the issue [of] whether or not the Court

would . . . have granted [Montoya relief] was a toss-up or a horse race.” App. 95.

If the state court itself characterized the resolution of Montoya’s petition for

relief as a “toss-up,” it is far less likely the ensuing compromise indicates

Montoya’s innocence.

      Third, as part of the compromise, Montoya admitted wrongdoing. In

exchange for vacating his murder conviction, Montoya pleaded guilty to

“unlawfully and feloniously render[ing] assistance to Nicholas Martinez with

intent to hinder, delay, or prevent the discovery, detection, apprehension,

prosecution, conviction, or punishment of Nicholas Martinez for the commission

of a crime, knowing that person had committed the crime of murder.” App. 98. It



      9
         Indeed, many courts hold compromises can never constitute a favorable
termination. See, e.g., Dan B. Dobbs, et al., The Law of Torts § 590 (2d ed.)
(“When the criminal prosecution is terminated . . . because of a compromise
settlement . . . courts have held that the termination is not favorable to the
accused . . . .”); Restatement (Second) of Torts § 660 (1977) (“termination of
criminal proceedings in favor of the accused other than by acquittal is not a
sufficient termination to meet the requirements of a cause of action for malicious
prosecution if . . . the charge is withdrawn or the prosecution abandoned pursuant
to an agreement of compromise with the accused” (emphasis added)).

                                        -23-
is true this is not the same as admitting guilt for the earlier crimes of

conviction—namely, felony murder, robbery, and burglary. But Montoya still

admitted guilt for a crime that was related to the earlier crimes of conviction.

This fact makes the termination of proceedings here seem less like a vindication

of Montoya’s innocence, and more like a settlement that says very little about

Montoya’s guilt.

      Together, these circumstances show the vacatur of Montoya’s conviction

did not resolve the question of his guilt or innocence with respect to the crimes of

conviction. To be sure, at the time of the compromise, the prosecution was in

possession of new evidence which increased the likelihood Montoya was not at

the murder scene. And this, in turn, would have made it difficult for the

prosecution to retry him in the event his petition for relief succeeded.

      But the fact the prosecution was aware of new evidence at the time of the

compromise is not enough to show that the compromise resolved the question of

Montoya’s guilt in his favor. None of Montoya’s arguments undermines our

analysis above—namely, the fact the prosecution’s stated reasons for compromise

were unrelated to innocence, the state court’s statement that it thought Montoya’s

petition was a “toss-up,” the government’s continued insistence that Montoya was

actually guilty 10, and Montoya’s admission of guilt for a related crime. Looking


      10
           In addition to general denials of Montoya’s innocence after the
                                                                       (continued...)

                                          -24-
at all the circumstances, the compromise in this case did not resolve the question

of guilt in Montoya’s favor.

      Since Montoya has failed to allege a favorable termination as a matter of

law, Montoya cannot state a claim for malicious prosecution, and the Detectives

are entitled to qualified immunity.

      C. Fifth Amendment Claim

      The Detectives next argue that both absolute testimonial immunity and

qualified immunity bar Montoya’s Fifth Amendment claim. We begin with the

Detectives’ assertion of absolute testimonial immunity. Again, our review is de

novo. Brown, 662 F.3d at 1162; Perez v. Ellington, 421 F.3d 1128, 1133 (10th

Cir. 2005).

              1. Absolute Testimonial Immunity

      As the Supreme Court has interpreted § 1983, various prosecutorial or trial

“functions . . . are absolutely immune from liability for damages under § 1983.”

Rehberg v. Paulk, 566 U.S. 356, 363 (2012). One of these protected functions is

“the giving of testimony by witnesses at trial.” Id. The Supreme Court has

defined this immunity broadly, explaining that “a trial witness has absolute

immunity with respect to any claim based on the witness’ testimony.” Id. at 367



      10
      (...continued)
compromise, Montoya alleges the District Attorney said “they always knew
[Montoya] was the ‘lookout.’” App. 768 ¶ 171–72.

                                        -25-
(emphasis in original). It therefore falls to us to decide whether Montoya’s Fifth

Amendment claim is “based on” trial testimony.

      At first glance, the question appears a simple one. The Fifth Amendment

provides that “No person . . . shall be compelled in any criminal case to be a

witness against himself.” U.S. Const. amend. V. (emphasis added). In line with

the Amendment’s text, courts have held the government only violates the Fifth

Amendment if it uses coerced statements “in a criminal case.” See Chavez v.

Martinez, 538 U.S. 760, 766–67 (2003) (plurality); Koch v. City of Del City, 660

F.3d 1228, 1245 (10th Cir. 2011). To state a claim that the government violated

his Fifth Amendment right, then, Montoya must show his coerced admissions

were actually used against him in a criminal proceeding. That is to say, the use of

incriminating statements in a criminal proceeding is an element of Montoya’s

claim. And since Montoya alleges the government used his coerced statements

against him through Detective Vigil’s trial testimony, it seems obvious his claim

is “based on” testimony.

      Indeed, some circuits would hold as much. In their view, if the plaintiff

must use trial testimony to prove any element of his or her claim, the claim is

surely “based on” testimony under the meaning of Rehberg. 11 This approach is


      11
          See Sanders v. Jones, 845 F.3d 721, 730 (6th Cir. 2017), as amended on
denial of reh’g (Mar. 20, 2017), cert. granted, judgment vacated on other
grounds, 138 S. Ct. 640 (2018) (“[T]he question is whether false grand jury
                                                                      (continued...)

                                       -26-
consistent with the Supreme Court’s broad definition of absolute testimonial

immunity in Rehberg. 12

      Yet Montoya is not necessarily seeking to hold Detective Vigil liable for

his testimony, but rather for the unconstitutionally coercive interrogation that

happened much before. Had his coerced statements been introduced in some

other way—say, through a videotape—Montoya would make exactly the same

claim against the Detectives. And, Montoya emphasizes, as broad as Rehberg’s

language was, the Supreme Court disclaimed any approach that would allow

absolute testimonial immunity too broad a reach: “we do not suggest,” the Court


      11
        (...continued)
testimony is a prerequisite for any element of [the plaintiff’s] claim.”); Coggins v.
Buonora, 776 F.3d 108, 113 (2d Cir. 2015) (“When a police officer claims
absolute immunity for his grand jury testimony under Rehberg, the court should
determine whether the plaintiff can make out the elements of his § 1983 claim
without resorting to the grand jury testimony.”).
      12
          Other circuits follow similar approaches, but not without some confusion
and inconsistency. The Ninth Circuit looks to whether a claim is “inextricably
tied” to testimony, but has held that immunity for testimony introducing
fabricated evidence does not extend to the act of fabrication. Lisker v. City of Los
Angeles, 780 F.3d 1237, 1241, 1243 (9th Cir. 2015). The Eleventh Circuit asks if
the plaintiff’s claims are “supportable . . . only by consideration of the actual
contents of [the officer’s] allegedly perjured testimony.” Mastroianni v. Bowers,
173 F.3d 1363, 1367 (11th Cir. 1999). The Seventh Circuit’s take is somewhat
more difficult to decipher. It has suggested absolute testimonial immunity would
bar claims for the use of coerced statements at trial, see Whitlock v.
Brueggemann, 682 F.3d 567, 584 (7th Cir. 2012); Buckley v. Fitzsimmons, 20
F.3d 789, 795 (7th Cir. 1994), but that evidence fabrication would not be so
barred, Whitlock, 682 F.3d at 584–85; Manning v. Miller, 355 F.3d 1028, 1031–33
(7th Cir. 2004).


                                        -27-
there said, “that absolute immunity extends to all activity that a witness conducts

outside of [trial].” 566 U.S. at 370 n.1 (emphasis in original). Indeed, the Court

noted, “law enforcement officials who falsify affidavits and fabricate evidence”

receive only qualified immunity—even if they are also witnesses. Id. (citations

omitted).

      Montoya thus suggests a claim is only “based on” testimony when it

depends on the wrongfulness of the testimony at trial, and not simply on the fact

the testimony existed. After all, the Supreme Court has admonished that absolute

immunity should apply sparingly. See Burns v. Reed, 500 U.S. 478, 486–87

(1991); Buckley v. Fitzsimmons, 509 U.S. 259, 278 (1993). And it would be

bizarre to allow officers to immunize their prior misdeeds by testifying. See

Avery v. City of Milwaukee, 847 F.3d 433, 441 (7th Cir.), cert. denied sub nom.

Hernandez v. Avery, 137 S. Ct. 2249 (2017).

      We have suggested the same once before. In Vogt v. City of Hays, 844 F.3d

1235 (10th Cir. 2017), 13 Matthew Vogt voluntarily disclosed to a prospective

employer that he had kept a knife obtained in the course of his work as a police

officer for the City of Hays. Id. at 1238. At the prospective employer’s

insistence, Vogt reported this to the Hays police department, and the Hays police



      13
         The Supreme Court granted certiorari on Vogt, see City of Hays v. Vogt,
138 S. Ct. 55 (2017), but ultimately dismissed the case as improvidently granted,
see City of Hays v. Vogt, No. 16-1495, 2018 WL 2402553 (U.S. May 29, 2018).

                                        -28-
chief ordered Vogt to submit a written report explaining the incident. Id.

Eventually, the Hays police department’s investigation led the State of Kansas to

bring charges against Vogt, and the state used Vogt’s statements against him at

the probable cause hearing. Id. Vogt sued a number of individuals and entities,

including the City of Hays. He claimed the Hays police chief had coerced him

into making incriminating statements, and so the prosecution’s use of those

statements at the probable cause hearing violated his Fifth Amendment rights. Id.

      This court held Vogt had stated a valid Fifth Amendment claim against the

City of Hays. Id. at 1249–50. In so deciding, we rejected a number of Hays’s

defenses, including—as relevant here—its invocation of absolute testimonial

immunity. In a footnote, we explained: “Hays also argues that . . . witnesses in

criminal proceedings enjoy absolute immunity from civil liability arising out of

their testimony.” Id. at 1250 n.11. “But,” we continued, “Mr. Vogt [did] not

allege that the defendants acted unlawfully by testifying,” but rather that “Hays

unconstitutionally compelled him to incriminate himself.” Id. (emphasis added).

We concluded that “[t]hough the use of those statements . . . would complete the

alleged Fifth Amendment violation, the act of testifying does not serve as the

basis of Mr. Vogt’s claims.” Id. (emphasis added). In other words, Vogt supports

Montoya’s distinction between testimony that merely completes a violation and

testimony that forms the basis of the wrongful conduct complained of.



                                        -29-
         But even if Montoya is correct about this distinction, we conclude absolute

testimonial immunity bars his claim. Unlike Vogt, who did “not allege that the

defendants acted unlawfully by testifying,” id., Montoya’s claim depends on

showing Detective Vigil did act unlawfully by testifying. There is a simple

reason for this: the trial court suppressed all testimony about the part of the

interrogation Montoya claims was unconstitutionally coercive. Thus, in order to

show Detective Vigil introduced his coerced statements at trial, Montoya must

show Detective Vigil violated the suppression order—that he acted wrongfully by

testifying. Put differently, Montoya is not complaining the Detectives coerced his

confession and that his statements happened to be used against him through trial

testimony as opposed to some other means; he is claiming both that they coerced

his confession and that Detective Vigil unlawfully introduced his statements by

disobeying the suppression order. Shielding witnesses from claims their

testimony was unlawful is precisely what absolute testimonial immunity is meant

to do.

         We conclude, then, that Montoya’s Fifth Amendment claim is “based on”

trial testimony and is barred by absolute immunity. 14


         14
          Although Montoya also alleged his statements were used at other points
in the proceedings against him, he only argues the statements’ use at trial violated
his clearly established Fifth Amendment rights. Even if he had argued that other
uses of his statements violated the Fifth Amendment, though, he likely would not
have prevailed. We recently held that in 2013, it was not clearly established that
                                                                      (continued...)

                                          -30-
             2. Qualified Immunity

      Even if absolute immunity did not apply, the Detectives are also entitled to

qualified immunity on Montoya’s Fifth Amendment claim. Once again, the

Detectives argue they are entitled to qualified immunity because Montoya cannot

state a claim, and therefore cannot show they violated a constitutional right. See

Thomas, 765 F.3d at 1194.

      As already mentioned, to state a Fifth Amendment claim, Montoya must

allege the government used his coerced statements against him in a criminal

proceeding. See Chavez, 538 U.S. at 766–67. Accordingly, Montoya’s complaint

states that his “coerced statements were the contributing factor to his conviction

at trial.” App. 788 ¶ 281.

      After carefully reviewing Montoya’s complaint, however, we conclude

Montoya’s allegations fail to state a Fifth Amendment claim. Put most simply,

Montoya himself alleges the statements Detective Vigil recounted at trial were not

in fact what Montoya said during his interrogation. Montoya’s amended

complaint states that “Vigil testified at trial about [his] interrogation” and that

“Vigil referenced parts of [his] interrogation that were suppressed by the Court.”

App. 765 ¶¶ 149, 151. And after this, Montoya lists two excerpts from Detective



      14
        (...continued)
using coerced statements at a probable cause hearing would violate the Fifth
Amendment. Vogt, 844 F.3d at 1248. The same would clearly be true in 2000.

                                          -31-
Vigil’s testimony—presumably the statements he just referred to. But then

Montoya claims that this “testimony was false” because Montoya “never said”

those things “during his interrogation.” Id. at 765–66 ¶¶ 150, 153, 155. “Vigil’s

testimony,” Montoya alleges, “contained false and misleading statements about

the substance of the interrogation.” Id. ¶ 150. In fact, “[n]one of these statements

that Vigil attributed to [Montoya] actually came from the interrogation itself.” Id.

¶ 155 (emphasis added).

       If “none” of the statements Detective Vigil attributed to Montoya came

from the interrogation, then Montoya’s allegedly coerced statements were not

used against him. Montoya is instead complaining of perjury.

       Because Montoya has not adequately alleged the government used his

coerced statements against him in his criminal proceeding, he cannot state a Fifth

Amendment claim. As a result, qualified immunity immunizes the Detectives

from this claim. 15

                                III. Conclusion

       We therefore DISMISS the Detectives’ appeal on the false arrest claim for

lack of jurisdiction, REVERSE the district court’s denial of qualified immunity




       15
         Given our resolution of these issues, we find it unnecessary to address
whether the Detectives’ interrogation tactics were actually coercive under clearly
established law.

                                        -32-
on Montoya’s malicious prosecution, and REVERSE the district court’s denial of

both absolute and qualified immunity on the Fifth Amendment claim.




                                     -33-
