UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

______________________ ___________________ KRYSTAL O’CONNELL, Pl aintiff - Appellee,

v. MARCIA TUGGLE, former caseworker of the Alamosa Department of Human Services,
De fendant - Appellant, and HARRY ALEJO, former Alamosa County Sheriff’s Office Sergeant; BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ALAMOSA, COLORADO; ROBERT JACKSON, Sheriff of Alamosa County, Colorado, Defendants. No. 20-1148 (D.C. No. 1:18- CV-01359-RBJ) (D. Colo.)

______________________ ____________________ ORDER AND JUDGMENT *

______________________ ____________________ Before BACHARACH , BRISCOE , and EID , Circuit Judges.

______________________ _____________________

* This order and judgment does not co nstitute binding pr ecedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### December 16, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 12 This appeal stems fr om notes that a social worker made after interviewing a woman susp ected of child abuse. Th e social worker (Ms. Marcia Tuggle) wrote that the wo man (Ms. Krystal O’Connell) had confessed. Ms. O’Connell denied confessing and presented evidence that Ms. Tuggle had lied in her notes about the alleged confession. Did the law clearly establish Ms. O’Connell’s cons titutional protection from the social worker’s fabrication of a confession in a criminal investigation? The district court answered “yes,” as we do.
1. Ms. Tuggle allegedly fa bricated a confession by Ms. O’Connell. In 2003, Ms. O’Connell left her young son, Kyran, in the care of Mr. Patrick Ramirez. Doctors soon diagnosed Kyran with serious brain injuries, and he died about two months later. The police opened an investig ation. Sergeant Harry Alejo interviewed Mr. Ramirez, who told the police that he was carrying Kyran when he fell. Ms. Tuggle also investigated. Sh e interviewed Mr . Ramirez, who repeated what he had told Sergeant Alejo. Two days later, Ms. Tuggle and Sergeant Alejo attended doctors’ meetings and in terviewed witnesses. Sergeant Alejo first in terviewed Ms. O’Connel l without anyone else in the room. Later the sa me day, Sergeant Alejo and Ms. Tuggle conducted a joint interview of Ms. O’Connell. According to Ms. O’ Connell, Sergeant Alejo hurled accusations while Ms. Tugg le watched. Ms. Tuggle noted the Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 23 responses, stating that Ms. O’Conn ell had admitted shaking Kyran and slamming him on the bed. Ms. O’Connell denied saying this and presented evidence that Ms. Tuggle had fabricated the confession. Ms. O’Connell was ultimately conv icted of child abuse resulting in Kyran’s death. But in 2017, Ms. O’C onnell’s conviction was overturned. She then sued Ms. Tuggle for a denial of due pro cess. The district court denied Ms. Tuggle’s motion for summar y judgment, reject ing her argument for qualified immunity.
2. We have jurisdiction. Ms. O’Connell moves to dismiss the appeal for lack of jurisdiction. We deny this motion. Appellate jurisdiction ex ists when a district court denies qualified immunity based on an issue of law. Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). The appeal turns on an issue of law because Ms. Tuggle concedes “the most favorable view of the f acts to [Ms.] O’Conn ell.” Appellant’s Opening Br. at 14. Under this view, we follow the district court in crediting allegations that Ms. Tuggle had participat ed in an investigation into Ms. O’Connell, had pa rticipated in an interview with Sergeant Alejo, and had taken notes regarding the in vestigation. Ms. Tuggle has also conceded the use of her notes to depr ive Ms. O’Connell of her liberty. So Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 34 Ms. Tuggle has raised a purely le gal question, triggering appellate jurisdiction. 1
3. To determine whether the constitutional right was clearly established, we condu ct de novo review. In exercising this jurisdiction, we condu ct de novo review. Gutierrez v. Cobos , 841 F.3d 895, 900 (10th Cir. 2016). For this re view, we apply the same standard that governed in dist rict court, which allows summary judgment only if there is no genuine dispute of material fact and the movant is entitle d to judgment as a matter of law. Id. In determining the existence of a dispute of material fa ct, we must view the evidence in the light most favorable to the nonmoving part y, Ms. O’Connell. Id. Ms. Tuggle moved for summary judgment based on qualified immunity. So when viewing the eviden ce favorably to Ms. O’Connell, the district court must deny Ms. Tuggle’s motion for summ ary judgment if

 a factfinder could reasonably fi nd facts showing the violation of a constitutional right and

 the right was clearly established when Ms. Tuggle engaged in misconduct. Id. at 900–01. Ms. Tuggle does not contest the ex istence of facts showing the violation of a constitutional right. Sh e instead argues that the underlying

1 Ms. O’Connell also argues that we lack jurisdiction because the assertion of qualified immunity is frivolous. Though we reject Ms. Tuggle’s assertion of qualified immun ity, her arguments ar e not frivolous. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 45 right had not been clearly established. A right is clearly es tablished only if a reasonable official wo uld understand that the ch allenged conduct violates that right. Perry v. Durborow , 892 F.3d 1116, 1122–23 (10th Cir. 2018). Generally, a right is clear when it is apparent from controlling precedent or the clear weight of persuasive authorities from other circuits. Id. at 1123. But even without precedent ial or persuasive authorities, a right can be clearly established when it is obvious. See Taylor v. Riojas , 141 S. Ct. 52, 53–54 (2020) (per cu riam). “After all, some things are so obviously unlawful that they don’t require deta iled explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing.” Browder v. City of Albuquerque , 787 F.3d 1076, 1082 (10th Cir. 2015 ) (Gorsuch, J.).
4. Ms. O’Connell had a clea rly established constitutional protection against the fabrication of evidence in a criminal investigation. To decide whether Ms . Tuggle violated a clearly established constitutional right, we must determin e the universe of facts that we can consider. Given the de nial of summary judgm ent, we credit Ms. O’Connell’s allegations as true even if our own review of the record might suggest otherwise. Cox v. Glanz , 800 F.3d 1231, 1242 (10th Cir. 2015). The district court credited five of Ms. O’Connell’s allegations bearing on qualified immunity:
1. Ms. Tuggle had participated in the investigation of Ms. O’Connell and contributed to the deprivation of her liberty. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 56 2. Two interviews of Ms. O’Connell had taken place. In the first one, Sergeant Alejo ha d conducted the quest ioning alone. Then Sergeant Alejo, Ms. O’ Connell, and Ms. Tuggle went to another room. In that room , both Sergeant Al ejo and Ms. Tuggle combined to questio n Ms. O’Connell.
3. Ms. Tuggle had “participated in investigatory in terviews which solicited a confession from [M s. O’Connell].” Appellant’s App’x vol. 5, at 1266.
4. During the second interview, with Ms. T uggle present, Sergeant Alejo had “asked [Ms. O’Connell’s husband] to leave and then began to interrogate he r, accusing her of ly ing and stating that she [had] slammed Kyra n against the wall.” Id . at 1252.
5. In her notes, Ms. Tuggle had “deliberately falsified information” about Ms. O’ Connell’s statements.” Id. at 1268. Given these allegations, we must consider the obviousness of a constitutional violation when Ms. Tugg le fabricated a co nfession of child abuse

 while “participating in in vestigatory interviews”

 as she combined with Sergeant Alejo in the questioning just after he’d accused Ms. O’Connell of child abuse.
See pp. 5–6, above. “[A] defendant’s due pr ocess rights are implic ated when the state knowingly uses false testimony to obtain a conviction.” Pierce v. Gilchrist , 359 F.3d 1279, 1299 (10th Cir. 2004). 2 Ms. O’Connell alle ges a denial of

2 We decided Pierce after Ms. Tuggle’s alleged fabrication of the confession. But in Pierce , we were referring to wh at an official should have known in 1986—roughly seventeen years before Ms. Tuggle’s alleged fabrication of the conf ession. 359 F.3d at 1299. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 67 due process through th e knowing use of false testimony. Under Ms. O’Connell’s version of events, Ms. T uggle could not “h ave labored under any misapprehension that the knowing or reckless falsification . . . of evidence was objectively reasonable.” Id. According to Ms. Tuggle , the constitutional vi olation wasn’t obvious because she had investigated “separatel y” from Sergeant Alejo. Appellant’s Opening Br. at 18. But the district court credited the allegations that Ms. Tuggle had participated in the inve stigation with Sergeant Alejo, had participated in investigatory interviews, and had fabricated reports “subsequently used to a rrest and prosecute” Ms. O’Connell. Appellant’s App’x vol. 5, at 1266. Ms. Tuggle knew that there was a criminal investigation of Ms. O’Connell. 3 After all, Ms. Tuggle had wa tched Sergeant Alejo accuse Ms. O’Connell of child abuse. See pp. 2, 5–6, above. And Ms. Tuggle knew that in the criminal investig ation, her agency would need to share her notes with the sheriff’s office. Appell ant’s App’x vol. 4, at 1083, 1090; see Colo. Stat. Ann. § 19–3–304(1) , (2)(m) (2003) (requiri ng a social worker to report information about child abuse to the coun ty department or local law enforcement agency).

3 The dissent states th at the district court f ound no relevance in Ms. Tuggle’s knowledge and inte nt about the criminal in vestigation. Dissent at 17 n.3. But the district court neve r said that Ms. T uggle’s knowledge and intent were irrelevant. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 78 The dissent states that Ms. Tuggle “wou ld not have been aware that her notes would be used in [the] prosecution.” Dissent at 17. This statement clashes with th e district court’s ruling and even Ms. Tuggle’s own testimony. The district court credited Ms. O’Connell’s allegations that Ms. Tuggle had

 seen Sergeant Alejo accuse Ms. O’Connell of child abuse,

 participated with Sergeant Alej o in questioning Ms. O’Connell, and

 “fabricated reports from those interviews, wh ich included inculpatory statements made by [Ms. O’Connell] that were subsequently used to arre st and prosecute her.”
See pp. 5–6, above; Ap pellant’s App’x vo l. 5, at 1266. After participating in the joint qu estioning with Sergeant Alejo, Ms. Tuggle wrote this in her notes: Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 89 Appellant’s App’x vol. 1, at 112

. Given the supposed ad mission of child abuse during the jo int interview, Ms. Tuggle wo uld obviously expect to share her notes with law enforcement. Ms. Tuggle elsewhere admitted that she had known that a confession would require her offi ce to furnish her notes to law enforcement: Q. If you obtained a statement from so mebody wherein he admitted to taking acts that might be endangering a child or abusing a child, would you have an obligation to give that information to law enforcement? Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 910 A. If it rose to the level that it could be criminal, I would be obligated by law to make that report to law enforcement, yes.

. . . . Q. Okay. So when th ere’s a criminal inve stigation, you -- Social Services has to share their notes with the sheriff’s office; is that right?
A. Yes. Q. So you -- and you knew that -- you knew that as a matter of course in your job as a social worker, right? A. Yeah. Id. vol. 4, at 1083, 1090. From Ms. Tuggle’s own testim ony, the existenc e of an ongoing criminal investigation would have been obvious. And Ms. Tuggle’s own notes reflect Ms. O’Connell’ s confession to the crim e of child abuse. From the existence of the crim inal investigation and th e confession of child abuse, Ms. Tuggle recognized that her office would need to share her notes with the sheriff’s office. So under Ms. O’Connell’s version of events, Ms. T uggle obviously knew—when she fabricated the confe ssion—that her fabricated report would go to the sheriff’s office to advance the cr iminal investigation. Given that knowledge, an y reasonable social wo rker in Ms. Tuggle’s position would have known that lying about a conf ession would contribute to the prosecution of Ms. O’Connell for child abuse. See Truman v. Orem Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 1011 City , 1 F.4th 1227, 1240 (10th Cir. 2021) (concluding that a prosecutor’s fabrication of evidence would have co nstituted an “obvious” violation in 2013 “even [if] existing precedent [had] not address[ed] similar circumstances”) (quoting District of Colu mbia v. Wesby , 138 S. Ct. 577, 590 (2018)) (first altera tion in original). Give n that knowledge, Ms. O’Connell’s version of events would create an obvious denial of due process. We thus affirm the denial of summary judgment to Ms. Tuggle. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 11No. 20-1148, O’Connell v. Tuggle, et al. BRISCOE , Circuit Judge, concurring in part and dissenting in part. This is an interlocutor y appeal brought by a social worker, Marcia Tuggle (“Defendant”), from a denial of qualifie d immunity in a § 1983 action filed by Krystal O’Connell (“Plaintiff” ). Only for the purpose of this appeal, Defendant concedes that she included in a social services report, and related interview notes, fabricated statements which she attributed to Plaintiff, who was later convicted of child abuse resulting in th e death of a child. The statements at issue which were in cluded in Defendant’s report and related notes are similar to the statements Plain tiff had made earlier to Sergeant Alejo and which were included in a confession written a nd signed by the Plaintiff. Plaintiff was arrested as a result of th e confession she gave to Serg eant Alejo and long before Defendant’s report and notes were subpoenaed. Defendant asserts that she is entitled to qualified immunity as to Plaintiff’s Fourteenth Amendment due process claim b ecause it was not clearly established in February 2003 that notes fabricated dur ing the course of a social services investigation violate a parent ’s constitutional rights associ ated with a separate, but related, criminal investigati on. I agree. Accordingly, I would conclude Defendant is entitled to qualified immunity, and the district court’s de nial of Defendant’s motion for summary judgment should be reve rsed, and the case remanded. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 122 I
A. Factual Background On January 31, 2003, Plaintiff’s young so n, Kyran, was diagnosed with serious brain injuries and flown by helicopter to a hospital in Denver. That evening, Harry Alejo, a sergeant with the Alamosa County Sherriff’s Office, interviewed Patrick Ramirez, Kyran’s babysitter, about the events leading to Kyran’s injury. According to Ramirez, Kyran was injured when he fell from Ramirez’s s houlders while they were walking outside. In a later interview, Ramirez admitted to smoking marijuana and drinking beer while caring for Kyran. On February 2, Ramirez was arrested for having caused Kyran’s injuries . On February 3, Defenda nt, a caseworker with the Alamosa County Department of Social Services, conducted a social services investigation to address the proper care a nd custody of Kyran going forward. As part of her investigation, Defendant interviewe d Ramirez in jail, at which time Ramirez reiterated his earlier statements. On February 4, Sergeant Alejo interviewe d Plaintiff with no one else present. During that interview, Plaintiff signed a written confession, stating that she “shook [Kyran] 2–3 times, and probably more violen tly than [she] meant to.” Aplt. App., Vol. 5 at 1252. The parties dispute the veracity and voluntariness of the written confession, as well as the substance of Sergeant Alejo’s interv iew with Plaintiff. 1

1 In her criminal trial, Plaintiff fi led a motion to suppress her February 4 written confession and statemen ts given to Sergeant Alejo, contending they were coerced and involuntary. Th e motion was denied, and Plai ntiff’s written confession and statements were admitted at trial. See Aplt. App., Vol. 5 at 1253. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 133 Later that day, Defendant al so interviewed Plaintiff. Kyran’s father and Sergeant Alejo were also present at th at interview. In Defendant ’s report of her interview, Defendant noted that Plaintiff admitte d to shaking Kyran “really hard” and “slamm[ing] him on the bed.” Id. , Vol. 1 at 112. Plaintiff alleges that during the interview, Sergeant Alejo asked Kyran’s fath er to leave the room, and then Sergeant Alejo also questione d Plaintiff. On February 5, after Ramirez had been in jail for three nights, he recanted his earlier statements. Ramirez then claimed th at he had been covering for Plaintiff, and that Kyran had been hurt before Ramirez arrived at the house. Later that day, Plaintiff was arrested on a warra nt that had been issued pur suant to an affidavit filed by Sergeant Alejo. Kyran later died of his injuries on March 24, 2003. Plaintiff was subsequently charged with, and convicted of, child abuse resulting in death; her conviction was upheld on appeal. In August 2017, after filing a postconvi ction petition, Plaintiff was granted a new trial based on ineffective assistance of counsel. The review ing judge concluded that Plaintiff’s trial counsel failed to pur sue medical evidence th at Kyran’s injuries may have been consistent with his having fallen from Ramirez’s shoulders. The district attorney elected not to re-try Plaintiff, the charges against her were dismissed, and she was released from custody. At that point, Plaintiff had been incarcerated for ten years. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 144 B. Procedural Background In 2018, Plaintiff filed this § 1983 suit against Sergeant Alejo and Defendant, among others. Among her clai ms, Plaintiff alleged that Defendant violated her Fourteenth Amendment due process rights by fabricating evidence against her which led to her prosecution and incarceration. Specifically, Plai ntiff alleged that Defendant fabricated inculpatory statements in a social servic es report and related notes that were later subpoe naed and used in Plaintiff’s criminal case. Defendant filed a motion for summary judgment, asser ting qualified immunity against Plaintiff’s fabrication of evidence claim. The distri ct court concluded th at Defendant was not entitled to qualified immunity and denied summary judgment as to the fabrication of evidence claim. The district cour t stated its ruling in summary: Based on Between [sic] Snell and Franks (and, frankly, common sense), I find that it was clearly established th at a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation. Because [Plaintiff] alleges that [Defendant] deliberately falsified information in her report, I fi nd this alleged viola tion to be clearly established, and that [Defendant] is not entitled to qualified immunity. Id. , Vol. 5 at 1268. The district court granted summary j udgment in favor of Defendant as to Plaintiff’s other claims. De fendant timely appealed the di strict court’s denial of qualified immunity. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 155 II
A. Standard of Review We review a district court’s denial of qualified immunity de novo. Bowling v.
Rector , 584 F.3d 956, 963 (10th Cir. 2009). Ou r review is limited, however, to questions of law. “[I]t is not our province to determine whether the record supports the district court’s factual assumptions; instead, we simply take, as given, the facts that the district court assumed when it de nied summary judgment for a purely legal
reason.” Id. (internal quotations and a lterations omitted). “So . . . if a district court concludes that a reasonable jury could find certain specified fact s in favor of the plaintiff, the Supreme Court has indicated we usually must take them as true—and do so even if our own de novo review of the record might suggest ot herwise as a matter of law.” Lewis v. Tripp , 604 F.3d 1221, 1225 (10th Cir. 2010). “[W]e review summary judgment orde rs deciding qualified immunity questions differently from other summary judgment decisions.” Bowling , 584 F.3d at 964. “Unlike most affirmative defenses . . . the plaintiff woul d bear the ultimate burden of persuasion at trial to overcome qualified immu nity by showing a violation of clearly establis hed federal law.” Estate of Booker v. Gomez , 745 F.3d 405, 411 (10th Cir. 2014). Thus, a de fendant who asserts qualified immunity is entitled to summary judgment, unless th e plaintiff shows that a reasonable factfinder could conclude that “(1) [the de fendant] violated a federal st atutory or constitutional right, and (2) the unlawfulness of [t he defendant’s] conduct was ‘c learly established at the time.’” District of Columbia v. Wesby , 138 S. Ct. 577, 589 (2018) (quoting Reichle Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 166 v. Howards , 566 U.S. 658, 664 (2012)). Courts have discretion “in deciding which of the two prongs of the qualified immunity anal ysis should be addresse d first in light of the circumstances in the pa rticular case at hand.” Pearson v. Callahan , 555 U.S. 223, 236 (2009).
B. This Court Has Jurisdiction Over Defendant’s Interlocutory Appeal I concur in the majority’s denial of Pl aintiff’s motion to dismiss for lack of jurisdiction. Plaintiff asserts that Defenda nt does not appeal a purely legal issue, but instead seeks to “back-door” factual arguments under the guise of legal argument.
See Aple. Mot. Dismiss at 9. As a result, Plaintiff argues, Defendant’s interlocutory appeal should be dismissed be cause we have no jurisdicti on to review the district court’s factual findings or to resolve factual disputes. Federal appellate courts have jurisdicti on to review only “final decisions.” 28 U.S.C. § 1291. “[A] district court’s denial of a claim of qualified immunity, to the extent that it turns on an issu e of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstandi ng the absence of a final judgment.” Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). T hus, jurisdiction is proper “over appeals challenging the denial of a quali fied-immunity-based motion for summary judgment only if a defendant-appellant does not dispute the facts a district court determines a reasonable juror could find but, instead, ‘raises only legal challenges to the denial of qualified immunity based on those facts.’” Ralston v. Cannon , 884 F.3d 1060, 1067 (10th Ci r. 2018) (quoting Henderson v. Glanz , 813 F.3d 938, 948 (10th Cir. 2015)). Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 177 For the purposes of this appeal, De fendant concedes “that [Defendant] knowingly fabricated elements of her notes during the cour se of her Social Services’ child abuse investigation to include inculpatory statements made by Plaintiff.” Aplt. Resp. Mot. Dismiss at 9; see also Aplt. Opening Br. at 14 (conceding “for purposes of this appeal the most favor able view of the facts to [Plaintiff]”). Defendant only challenges the district court’s legal conc lusion that the law guiding her conduct was “clearly established.” Defe ndant does not raise a factua l challenge regarding the conduct at issue, i.e., that she fabricated elements of her notes and report during a social services investigation. Nor does De fendant dispute the fact s that the district court determined a reasona ble juror could find. Ralston , 884 F.3d at 1067 (no interlocutory jurisdiction to review whethe r there is a triable issue of fact). Accordingly, I agree our jurisd iction is proper as we are left with only issues of law. Plaintiff’s jurisdictional argument also appears to misunderstand Defendant’s merits argument on appeal. Plaintiff assert s that Defendant contests the district court’s factual findings by claiming Defendant’s “fabri cation of evidence did not occur in connection with a criminal inve stigation or prosecu tion,” and that her “fabricated notes were not part of the criminal investiga tion.” Aple. Answer Br. at 27 (citing Aplt. Opening Br. at 23, 29). Yet, as Defendant’s argum ents make clear, Defendant does not dispute whether her notes were used in Plaintiff’s prosecution; rather, Defendant only assert s that her notes were not created for use in Plaintiff’s prosecution. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 188 Defendant’s argument on app eal is consistent with the district court’s characterization of the facts. The district court similarly treated Defendant’s notes as being initially created for the purpose of a social services investigation—not a criminal investigation. For example, the district court found th at Defendant “[did] not dispute that she participated in an inves tigation into [Plaintiff] .” Aplt. App., Vol. 5 at 1266. Although Defendant acknowledged that she pa rticipated in a social services investigation, she vigorously disputed any personal involvement in a criminal investigation. See id. , Vol. 1 at 87–88. Similarl y, in addressing whether the law was clearly established, the di strict court relied on language in Snell v. Tunnell indicating that using known false information to obtain a court order to search a home is unconstitutional “even in the context of a child abuse investigation .” Id. , Vol. 5 at 1268 (citing Snell v. Tunnell , 920 F.2d 673, 700 (10t h Cir. 1990)) (emphasis added). Because Defendant raises a purely legal question and does not challenge the district court’s review fo r evidence sufficiency, we have jurisdiction over this interlocutory appeal.
C. Defendant’s Argument Is Preserved Plaintiff’s assertion that Defendant failed to present her argument to the district court is without me rit. Defendant e xpressly presented the same argument to the district court as she presents here . Specifically, in he r motion for summary judgment, under a subsection t itled “There Was A Lack Of Personal Participation By [Defendant],” Defendant distinguished social services investigat ions from criminal investigations: Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 199 Personal participation is an e ssential allegation in a §1983 civil rights action. Bennett v. Passic , 545 F.2d 1260, 1262–63 (10th Cir. 1976). Plaintiff must show that the individual defendant caused the deprivation of a federal right. Kentucky v. Graham , 473 U.S. 159, 166 (1985 ). Plaintiff’s case is based entirely on the criminal charges brought against her, and is not based on any social services child custody proceedings. A social worker does not initiate and prosecute criminal charges. Franz v. Lytle , 997 F.2d 784, 791 (10th Cir. 1993) (while a criminal pros ecution may emanate from the social worker’s activity, that pr ospect is not a part of the social worker’s cachet); Ex. N, Tuggle depo, P24, ln.10–25. Accordingly, Plaintiff’s claims should be dismissed against [Defendant] based on lack of personal participation. App., Vol. 1 at 87–88. In that same motion, Defendant also explained why the distinction between social services investigations and crimin al investigations showed that she was entitled to qualified immunity because the law was not cl early established in 2003: This case does not involve the typical situation in which a social worker is sued for her ac tions or failure to act in the protection of a child. [Defenda nt] is unaware of any legal authority which holds a social worker liable for violation of the constitutional rights of a parent with respect to the criminal prosecution of that parent for causing harm to the child. Because there was no clearly established legal authority in January/February 20 03 to guide [Defendant] in her conduct in this matter, [Def endant] is entitled to qualified immunity. Id. at 91. And, in her reply brief in support of her motion for summary judgment, Defendant distinguished her conduct from Snell on the same grounds she now asserts on appeal: Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2010 Snell v. Tunnel[l] , 920 F.2d 673 (10th Cir. 1990) is factually dissimilar as it involved social services workers along with the police entering and searchi ng the plaintiff’s home without probable cause and a warrant procured with known false allegations. The present matter did not involve [Defendant’s] search of Plaintiff or her home and Plaintiff’s arrest warrant was not predicated on any in formation from [Defendant’s] interview with Plaintiff or [Defendant’s] notes. Id. , Vol. 5 at 1210. The district court addressed, and reject ed, Defendant’s arguments that she did not personally participate in the violation of Plai ntiff’s constitutional rights, and that the law was not clearly established. See id. at 1265 (distinguishing Franz ); id. at 1268 (relying on Snell ). Like her jurisdictional argument, Plai ntiff’s waiver argument stems from her misunderstanding of De fendant’s argument on appeal. Plaintiff complains that “[Defendant] never argued below that he r fabricated notes and report were not used in Plaintiff’s criminal proceedings to depr ive her of liberty without due process.” Aple. Answer Br. at 31 (emphasis added) . Yet, as explained above, Defendant concedes for the purposes of this appeal that her notes were “used” in Plaintiff’s criminal case; Defendant onl y asserts that her notes we re not “created” for the purpose of prosecuting Plaintiff, which is consistent with th e district court’s ruling. Accordingly, Defendant’s argument is preserved.
D. Plaintiff Has Not Shown That th e Law Was Clearly Established “‘Clearly established’ means that, at the time of the officer’s conduct, the law was ‘sufficiently clear’ that every ‘reasonable official woul d understand that what he Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2111 is doing’ is unlawful. In other word s, existing law must have placed the constitutionality of the officer’ s conduct ‘beyond debate.’” Wesby , 138 S. Ct. at 589 (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741 (2011)). Ordinarily, to show that a right was “clearly established” in our circuit, “the plain tiff must point to a Supreme Court or Tenth Circuit decision on point, or the clearly esta blished weight of authority from other courts must have found th e law to be as the pl aintiff maintains.”
Frasier v. Evans , 992 F.3d 1003, 1014 (10th Cir. 2021). “Typically, the precedent must have clearly established the right ‘in light of the speci fic context of the case, not as a broad genera l proposition.’” Id. (quoting Mullenix v. Luna , 577 U.S. 7, 12 (2015)). “It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enou gh that every reasonable offi cial would interpret it to establish the particular rule th e plaintiff seeks to apply. Ot herwise, the rule is not one that ‘every reasonable o fficial’ would know.” Wesby , 138 S. Ct

. at 590 (citations omitted). Accordingly, the Supreme Court ha s “repeatedly told c ourts . . . not to define clearly established law at a high level of generality.” Kisela v. Hughes , 138 S. Ct. 1148, 1152 (2018) (quoting City & Cnty. of S.F. v. Sheehan , 575 U.S. 600, 613 (2015)). That said, “under certain ‘extreme circumstan ces,’ general constitutional principles established in th e caselaw may give reasonabl e government officials fair warning that their conduct is constitu tionally or statutorily unlawful.” Frasier , 992 F.3d at 1015 (citing Taylor v. Riojas , 141 S. Ct. 52, 53 (2020) (per curiam)); see also Hope v. Pelzer , 536 U.S. 730, 741 (2002) (“[T]he sa lient question that the Court of Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2212 Appeals ought to have asked is whether th e state of the law in 1995 gave respondents fair warning that their alleged treatment of [petitioner] was unc onstitutional.”). When considered in the fact ual context of this case, I find no clearly applicable Tenth Circuit or Supreme Court case law that would have alerted Defendant that her actions would violate the constitutional ri ghts Plaintiff now a sserts. Plaintiff primarily relies on three cases: Franks v. Delaware , 438 U.S. 154 (1978); Snell v. Tunnell , 920 F.2d 673 (10th Cir. 1990); and Pierce v. Gilchrist , 359 F.3d 1279 (10th Cir. 2004). Plaintiff asserts that these cases, when read together, show that “government officials—including social wo rkers—could not fabricate false evidence for use in a criminal investigation and prosecution.” Aple. Answer Br. at 37. Defendant asserts that the law was not clea rly established that fabricating a social services report violates const itutional rights associated with criminal investigations. I agree with Defendant that the law was not clearly established. In 1978, Franks established that the Fourth and Fourteenth Amendments entitle a defendant to an evid entiary hearing testing the va lidity of a search warrant, where the defendant offers proof of deliber ate falsehood or reckless disregard for the truth in statements contained in the affi davit presented in support of a warrant request, and where the affidavit would not support a finding of probable cause after setting aside the challenged material. 438 U.S. at 171–72. The Supreme Court recognized an “obvious assumption . . . that there will be a truthful showing” in a warrant affidavit by the affiant. Id. at 164–65 (emphasis in or iginal). The Supreme Court also recognized that the right to an evidentiary hearing and the implicit Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2313 requirement that the government rely on truthful evidence when seeking judicial authorization for a warrant are derived from the warr ant requirement under the Fourth Amendment, as well as the Fourt eenth Amendment and th e exclusionary rule as incorporated ag ainst the states. Id. at 164 (citing Mapp v. Ohio , 367 U.S. 643 (1961)). In 1990, in Snell , this court applied Franks to administrative searches conducted by social workers e ngaged in a social services investigation. 920 F.2d at 699–700. The plaintiffs in Snell alleged that social wo rkers knowingly fabricated evidence of child abuse, pornography, and pr ostitution to procure a “pick-up” order. The “pick-up” order authorized the social workers to enter the plaintiffs’ home, identify the children residing th ere, and separate those ch ildren from the plaintiffs. Id. at 677.
In Snell , we held that the so cial workers were not entitled to qualified immunity because “even in the context of a child a buse investigation, a reasonable public official would have known that us ing known false information to secure an order to justify entry and search of a private home would violate the fourth amendment’s proscription on unreasona ble searches and seizures.” Id. at 700. In reaching that conclusion, we recognized that “[a]lthough developed in the warrant context, the principles of Franks appl[ied] to the informati on used in [that] case.” Id. Specifically, we reasoned that “equally im plicit in the concept of reasonableness [under the Fourth Amendment] is that th e information on which the social worker proceeds upon [to obtain a pick-up order] is not known to be false.” Id. at 699 Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2414 (emphasis in original). We also analogized a social worker’s deliberate reliance on known falsehoods to perjur y, reasoning that “perjury is not objectively reasonable conduct.” Id. at 698 (citing Myers v. Morris , 810 F.2d at 1457). In 2004, in Pierce , we applied Franks to lab reports written by a forensic scientist employed by the Oklahoma City Poli ce Department. In that case, after the plaintiff’s arrest for rape in 1986, officers requested cons ent to collect head and hair samples from the plai ntiff, informing him that “if the hairs did not match [crime scene evidence] he would be released.” 359 F.3d at 128 2. A forensic scientist falsely reported that the crime scene evid ence was “microscopically consistent” with the samples taken from the plaintiff. Id. Contrary to that repor t, subsequent audits showed that the crim e scene evidence was not consistent with the samples taken from the plaintiff, and, in fact, a DNA anal ysis later exonerated the plaintiff. Id. at 1283. The plaintiff then brought a § 1983 clai m against the forensic scientist. We held the forensic scientist was not entitled to qualified immunity. We concluded the law was clearly established in 1986 that “the deliberate or reckless falsification or omission of evidence was a constitutional violati on—even though the arrest had already occurred.” Id. at 1299. We again relied upon the general principle announced in Franks that police cannot knowingly rely on false information to obtain

a warrant. Id. We also relied upon the Supreme Court’s holdings that a state may not knowingly rely on false te stimony to obtain a conviction or withhold exculpatory evidence from the defense. Id. (citing Pyle v. Kansas , 317 U.S. 213, 216 (1942) and Brady v. Maryland , 373 U.S. 83 (1963)). Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2515 None of those cases would have provi ded a reasonable social worker in Defendant’s position with fair notice that fabricating a soci al services report violates constitutional rights related to a criminal investigation. Franks and Pierce do not describe similarly situated officials. T hose cases described law enforcement officers or those working for law enfo rcement for the purpose of i nvestigating crimes. Here, Defendant was a social worker responsible for drafting a so cial services report. To be sure, Sergeant Alejo was present during De fendant’s interview with Plaintiff, and Defendant was likely aware of a potential criminal prosecu tion. The mere presence of a law enforcement officer, however, is clearly dissimila r from a forensic scientist investigating crime scene evidence while employed by the poli ce department and knowing full well the evid entiary purpose and impor tance of her report. See Pierce , 359 F.3d at 1281. Thus, Defendant lack ed fair notice that the holdings of Franks or Pierce would apply to a social worker in her position. Plaintiff asserts that “the fact that [Defendant] wa s a caseworker and not a police officer should have no impact on the re sult here.” Aple. Answer Br. at 38. Plaintiff’s argument has some fo rce but is not clearly establ ished in our case law. We have elsewhere recognized that dicta in Snell and Franz “could be construed as drawing distinctions between . . . social workers and law-enfo rcement officers.” Roska ex rel. Roska v. Peterson , 328 F.3d 1230, 1249 (10th Cir. 2003). As we noted
in Roska , this distinction “of course, runs c ontrary to the general principle under which we focus on the function being perform ed by the state actor, rather than her particular job title, in conductin g our immunity analysis.” Id. at 1249 n.18; see also Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2616 Franz , 997 F.2d at 791 (noting that our case law “has looke d to the function the official performs to examine qualif ied immunity claims”). Yet, in Roska , we did not clearly repudiate all distinctions betw een social workers and law enforcement officers, and I would decline to do so here. Th e fact that Defendant was a “social worker”—and not a law enforcement offi cer or a specialist employed by law enforcement to opine on key evidence—is enough to distinguish this case from Franks and Pierce for the purposes of determini ng whether the law was clearly established as to Plaintiff’s fabrication of evidence claim. 2 Further, even if we were to look pa st Defendant’s title, Defendant was not functioning as a law enforcement officer or criminal investigat or. As discussed above, Defendant was primaril y investigating child abuse in the social services

2 We should be careful not to confla te “probable cause and a warrant or exigent circumstances” with “something approach ing probable cause.” Roska , 328 F.3d at 1249–50 & n.23. The Roska court expressly dis tinguished these two standards. The former is the standard established in Roska itself. See id. at 1250 n.23 (“the law is now clearly established”) (emphasis added). The latter is the standard clearly established by Franz and Snell . And, because the social workers in Roska had “substantial cause” to believe the child was in substa ntial, non-exigent danger, we held that their “w arrantless entry and seizure did not violate clearly established law under the Fourth Amendm ent as it stood [at the time of the violation].” Id. at 1250 (emphasis added). The light between these two standards illustrates the diffe ring constitutional restrictions on social workers and poli ce officers. Indeed, we recognized in Roska that “ Franz and Snell injected a degree of uncerta inty” into how the warrant requirement applies to social workers. Id. at 1249. And, although we held that the warrant requirement applied to the social workers in that case, we d eclined to address other possible distinctions between social workers and police officers, such as entering a home “to assure the safe ty of the child’s conditions,” id. at 1242 n.9, or an inspection of the child himself, id. at 1249 n.21. Thus, I would disagree with any implication that the Fourth Amendment restrictions on social worker s are clearly congruent with those on police officers. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2717 context. There is no indication that De fendant prepared her report for use in a criminal investigation or intended for her repor t to be used in a criminal prosecution. And although Sergeant Alejo’s presence may have alerted Defendant to the possibility of a criminal prosecution, Defenda nt would not have been aware that her notes would be used in that prosecution. Indeed, Defendant ’s notes were not subpoenaed until over a year after Plaintiff’ s arrest. Aplt. App ., Vol. 4 at 1090. 3
Unlike Franks and Pierce , Snell expressly addressed the immunity of social service workers “in the contex t of a child abuse investiga tion.” 920 F.2d at 700. Yet, Snell is distinguishable on other grounds. In Snell , we addressed search and seizure rights under the Fourth Amendment. Id. at 698. Here, however, Plaintiff does not allege an unconstitutional search or seizure. Instead, Plaintiff only asserts Fourteenth Amendment Due Process right s related to her cr iminal prosecution—

3 The majority overstates Defe ndant’s knowledge and intent. See, e.g. , Maj. at 7–10 (“[Defendant] knew that in the criminal i nvestigation, her agency would need to share her notes with the sherif f’s office.”) (emphases added), id. at 7; (“[A]ny reasonable social worker in [D efendant]’s position would have known that lying about a confession would contribute to the prosecution of [Plaintiff] for child abuse.”) (emphases added), id. at 10. In her deposition, Defendant only indicated that she was vaguely aware that her notes “m ight” be used as ev idence in a criminal case. Aplt. App., Vol. 4 at 1090. Accordi ngly, the district cour t did not find an issue of material fact that Defenda nt “knew” her notes “would” be used in such a manner. Rather, the district court he ld that Defendant’s knowledge and intent regarding the criminal investigation was i rrelevant because her particip ation in a separate, social services investigation still “c ontributed to [Plaintiff]’s depr ivation of liberty.” Aplt. App., Vol. 5 at 1266. But, absent such knowledge and intent, Defendant’s conduct falls outside the ambit of Pierce . And, if I were to constr ue the district court’s order as the majority does, then I would also have to constr ue Defendant’s appeal as a challenge to evidence sufficien cy and dismiss the appeal fo r lack of jurisdiction. Johnson , 515 U.S. at 313. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2818 rights that were not addressed in Snell . Thus, the constitutional violation that Plaintiff now asserts could not ha ve been clearly established in Snell

. I do not read Snell as holding that it is categori cally unconstitutional for social workers to fabricate evidence of ch ild abuse. Such a reading of Snell would impermissibly “define clearl y established law at a high level of generality.” Kisela , 138 S. Ct. at 1152. In addition to cons idering the circumstances leading to the alleged fabrication of eviden ce, our immunity analysis mu st also consider the manner in which that evidence was used. See Warnick v. Cooley , 895 F.3d 746, 753 (10th Cir. 2018) (“We are aware of no author ity for the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise harms him, violates the Cons titution.”) (internal quotations and c itations omitted). Because the eviden ce at issue here was not used to support an unconstitutional search, Snell is inapposite. 4 Nor does “the clearly established wei ght of authority from other courts” support Plaintiff’s position. Frasier , 992 F.3d at 1014. The out-of-circuit cases cited by Plaintiff are distinguishab le on similar grounds as Franks and Pierce —namely,

4 Although not dispositive, the absence of an oath also dis tinguishes this case from Snell , and by extension Franks

. In Snell , we analogized the social workers’ fabrications to perjury and cl aims of judicial deception, as the false, sworn statements were presented to a court to obtain a court order. 920 F.2d at 698 (citing Myers , 810 F.2d at 1457). And in Franks , the Supreme Court addresse d a criminal defendant’s right to challenge sworn stat ements made in an affidav it supporting a search warrant. 438 U.S. at 155–56. In contrast to th e fabrications in Snell and Franks , Defendant’s social services report was not submitted fo r the purposes of obtai ning a court order; nor was her report made under oath. See Aplt. App., Vol. 1 at 111–12. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 2919 that they involved officials more clos ely involved in a criminal investigation, who fabricated evidence for the purpo se of avoiding or obtaining a criminal conviction. See, e.g. , Limone v. Condon , 372 F.3d 39, 43 (1st Cir. 2004) (denying qualified immunity to a former FBI agent and a former Boston detective alleged to have “framed” the plaintiffs); Whitlock v. Brueggemann , 682 F.3d 567, 580–82 (7th Cir. 2012) (denying qualified immunity to a prosecutor alleged to have manufactured evidence while acting in an investigatory role); Moran v. Clark , 359 F.3d 1058, 1061 (8th Cir. 2004) (denying qualified immunity to police officers alleged to have “scapegoat[ed] an innocent officer fo r acts of police brutality”). The majority expends no effort in parsi ng our case law in this area, but rather concludes the constitutional violation is “obvious.” Noteworthy here is the majority’s reliance on two cases, both of wh ich involve the fabrication of evidence by law enforcement: Truman v. Orem City , 1 F.4th 1227 (10th Cir. 2021), addressed a Fourth Amendment claim against a prosec utor for fabrication of evidence; and District of Columbia v. Wesby , 138 S. Ct. 577 (2018) , addressed a Fourth Amendment claim against five police office rs for false arrest . Reliance on these cases elides the distinction made in our case law when Fourth Amendment or Fourteenth Amendment claims are brought against social workers versus when similar claims are brought against law enforcement, including prosecutors. Supra , the discussion of Roska , at p. 16, footnote 3. I am not convinced that the unconstituti onality of the alleged fabrication was “obvious,” as the majority contends. See Hope , 536 U.S. at 738 (denying qualified Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 3020 immunity where Eighth Amendmen t violation was “obvious”). As the district court observed, “common sense” shoul d have informed Defendant that “a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation.” Aplt. App., Vol. 5 at 1268. Yet, neither common sense nor our prior case law would have in formed Defendant that she could not do so for constitutional reasons, as opposed to some ge neral, moral reason. And in determining whether Defendant is entitled to qualified immun ity, we must look to the constitutionality of De fendant’s actions. See Sheehan , 575 U.S. at 616 (noting that qualified immunity cannot be overcome mere ly by showing that an officer’s conduct was “imprudent, inappropria te, or even reckless”); Frasier , 992 F.3d at 1018 (“[T]he district court was wrong to deny the o fficers qualified imm unity based on their knowledge of [the plaintif f’s] purported First Amendmen t rights that they gained from their training.”). I am not condoning the misconduct alle ged in this case. Yet I would reverse the district c ourt because the constitutional dimensions of Plaintiff’s claim were not clearly established in light of the particular facts presented. Because I would conclude th at the law was not clearly established, I need not address whether Defendant violated Plaintiff’s constitutional rights. See Pearson , 555 U.S. at 236.
III I concur in the denial of Plaintiff’s motion to dismiss, and dissent from the denial of qualified immunity. Appellate Case: 20-1148 Document: 010110620035 Date Filed: 12/16/2021 Page: 31