Submitted: September 21, 2016
from United States District Court for the Western District of
WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
ARNOLD, Circuit Judge.
case is about an allegedly improper investigation into the
murder of Kent Heitholt. The murder went unsolved for two
years until Charles Erickson caught the attention of the
detectives working the case. After implicating himself and
Ryan Ferguson in the killing, Erickson pleaded guilty to
second-degree murder and first-degree robbery and agreed to
testify against Ferguson at Ferguson's murder trial. A
jury convicted Ferguson of second-degree murder and
first-degree robbery based largely on Erickson's
testimony. More than five years later, the Missouri Court of
Appeals vacated Ferguson's convictions because the
government had withheld exculpatory evidence from him,
undermining the outcome of his criminal trial. See
Ferguson v. Dormire, 413 S.W.3d 40, 73 (Mo.Ct.App.
now sues several detectives who investigated the murder. He
contends that they destroyed or suppressed exculpatory
evidence, in violation of his right to procedural due process
under the Fourteenth Amendment; fabricated evidence and
recklessly or intentionally failed to investigate the murder,
in violation of his right to substantive due process under
the Fourteenth Amendment; and conspired to deprive him of his
constitutional rights. He also asserts state-law claims for
malicious prosecution and false arrest.
detectives moved for summary judgment, which the district
court granted in part and denied in part. The district court
granted summary judgment for the detectives on Ferguson's
procedural due-process claim and on one aspect of his
substantive due-process claim based on the fabrication of
evidence. Ferguson does not challenge these determinations
here; rather, the detectives filed this interlocutory appeal,
challenging the district court's denial of their motion
for summary judgment.
moves to dismiss this appeal for lack of jurisdiction. We
ordinarily lack jurisdiction over an interlocutory appeal
challenging the denial of a motion for summary judgment,
Van Wyhe v. Reisch, 581 F.3d 639, 647 (8th Cir.
2009), but we have jurisdiction when summary judgment is
denied on the issue of qualified immunity. Mallak v. City
of Baxter, 823 F.3d 441, 445 (8th Cir. 2016). Qualified
immunity shields government officials from liability unless
their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would
know. Id. Jurisdiction over these interlocutory
appeals reaches only to issues of law, Aaron v.
Shelley, 624 F.3d 882, 883 (8th Cir. 2010); where the
order below turns on issues of fact rather than abstract
issues of law, we lack jurisdiction. For example, we lack
jurisdiction to review the denial of summary judgment based
on the pretrial record showing a genuine dispute of material
fact on a qualified-immunity issue. Johnson v.
Jones, 515 U.S. 304, 307 (1995).
must resolve the matter of qualified immunity as soon as
possible or the party claiming it will be deprived of its
benefit-immunity from suit. Payne v. Britten, 749
F.3d 697, 700 (8th Cir. 2014). Government officials claiming
qualified immunity are entitled to a thorough examination of
their defense. We therefore have jurisdiction to review
reasoned denials of qualified immunity and failures or
refusals to rule on qualified immunity. When the district
court fails to rule on qualified immunity, we will remand the
case to the district court to decide the qualified-immunity
question. Id. at 701.
parties dispute whether the detectives' appeal involves
qualified immunity. Indeed some of the 19 points that the
detectives raise on appeal involve issues unrelated to
qualified immunity, which we cannot review. For example, we
lack jurisdiction under Johnson to review whether
"Ferguson failed to present sufficient evidence to show
he was deprived of a constitutional right or that [the
detectives] reached an agreement to deprive him of his
constitutional rights." But we usually do not throw the
baby out with the bathwater when an interlocutory appeal
raises both reviewable qualified-immunity questions and
unreviewable ones. See, e.g., White v.
McKinley, 519 F.3d 806, 812-13 (8th Cir. 2008). Some of
the points raised here do, at least on their surface, raise
is correct that the detectives cannot save their
interlocutory appeal simply by framing their arguments in
terms of qualified immunity. Austin v. Long, 779
F.3d 522, 524 (8th Cir. 2015). But instead of classifying the
multiple points on appeal as either wheat or chaff, we
resolve this case on the ground that we simply lack an order
denying a motion for summary judgment on qualified-immunity
grounds. The district court issued a thorough 62-page opinion
resolving the motion for summary judgment, but qualified
immunity made only a brief cameo appearance in one paragraph
at the beginning of the opinion's discussion section. In
that paragraph, the district court set out the broad
principles of qualified immunity; nowhere were these
principles, in this paragraph or elsewhere in the opinion,
applied to the facts. The opinion reads like an ordinary
summary-judgment ruling, determining if there are factual
disputes and resolving legal points unrelated to qualified
immunity. We are therefore unable to construe this order as
one from which an interlocutory appeal can lie.
asks us simply to dismiss this appeal, arguing that the
detectives failed to raise and preserve the
qualified-immunity issue in the district court altogether and
only now couch their appeal in terms of qualified immunity to
ensure our jurisdiction. We are unwilling to go that far.
References to qualified immunity are peppered throughout the
detectives' suggestions in support of their motion for
summary judgment. In fact, the first numbered paragraph in
the detectives' two-page motion for summary judgment
says, "Summary Judgment is also appropriate on the basis
of qualified immunity." So this is not a situation where
the detectives raise an argument only in an inconspicuous
footnote. Cf. Equip. Mfrs. Inst. v. Janklow, 300
F.3d 842, 848 n.2 (8th Cir. 2002).
we conclude that the detectives raised the qualified-immunity
issue on the face of the papers, we remand the case to the
district court for consideration of the motion for summary
judgment on the basis of qualified immunity. In considering
that motion, the district court of course can decide as a
preliminary matter whether the detectives discussed the issue
of qualified immunity in sufficient detail and with
sufficient citations to undisputed record evidence to enable
the district court to rule on the matter. See Jones v.
United Parcel Serv., Inc., 461 F.3d 982, 990 (8th Cir.
2006). If it determines that the detectives did so, the
district court can then enter an explicit order and judgment
on the matter one way or the other. If it determines that the
detectives did not do ...