## United States Court of Appeals
**For the Eighth Circuit**

___________________________
No. 22

- 2860

___________________________ The Estate of Donald Nash, Theresa Nash as personal representative; Theresa Nash

Plaintiffs - Appellees

v.

Henry James Folsom; Scott Mertens; Ruth Montgomery; Dorothy Taylor

Defendants - Appellants

____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis

____________
Submitted: September 21, 2023 Filed: February 9, 2024

____________ Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.

____________ SMITH, Chief Judge

.

Several Missouri public officials filed this interlocutory appeal from a district

court judgment denying qualified immunity on five claims flowing from a murder prosecution . For the reasons explained below, w e affirm in part, reverse in part , and
dismiss in part for want of jurisdiction

.-2- I. Background In March 1982, the partially nude body of Judy Spencer was found at an abandoned schoolhouse outside of Salem, Missouri. The killer strangled Spencer
with a shoelace taken from her shoe and then shot her with a shotgun. Forensic testing showed that she had a blood alcohol content of 0.18 percent. F resh tire tracks
were found at the scene . The tracks were too wide to belong to vehicles owned by Spencer or her live

- in boyfriend

— Donald Nash

. Police later discovered Spencer’s
vehicle in a ditch

, miles away from the schoolhouse. F inger prints found on the front

side windows of the vehicle identified two men : one was a violent sex offende r, and
the other lived next to the ditch.

The night before Spencer’s body was discovered

, she and Nash argued about
her drinking and driving. The confrontation occurred outside the apartment of Spencer’s friend, Janet Jones

. After the argument

, Nash left Spencer at Jones’ s apartment and returned to t heir home

. Spencer eventually returned home, change d clothes, and then drove back to Jones’ s apartment. At some point that evening

, Spencer washed her hair in Jones’ s kitchen sink. The parties agree Spencer washed her hair there but dispute when the washing occurred. Nash assert s Spencer washed
her hair before she went home to change clothes. D efendants argue Spencer washed
her hair after she changed her clothes and returned to Jones’ s apartment.

Spencer continued drinking after return ing to Jones’ s apartment
, and she later drove by herself to bars in nearby Houston, Missouri

. Nash telephoned Jones multiple times

, worried that Spencer ’s drinking and driving would lead to an
accident or arrest. Nash and Jones split up and spent the night looking for Spencer,
but neither found her.

No direct evidence connected Nash to Spencer’s murder , the crime scene, or the ditch where police found Spencer’s vehicle

. A gunshot residue test conducted on Nash soon after the discovery of Spencer’s body did not find residue

. Also, Nash did not own a shotgun at the time of Spencer’s death. Investigators further observed that
Nash had no scratches, scrapes, marks

, or bruises on his face or hands that would-3- suggest his involvement in a violent struggle. Unfortunately, the case went cold for
over 25 years

.

I n 2007

, Spencer’s sister contacted the Missouri State Highway Patrol requesting that they reopen the investigation . Thereafter, defendant s Henry James
Folsom

, Scott Mertens, and Dorthy Taylor (officers) reopened the investigation

. Folsom pulled the h ighway p atrol’s case file

, which included the findings of the
initial 198 2 investigation . In November 2007, the officers submitted clippings of Spencer’s fingernails , one of which was broken, to the Missouri State Highway
Patrol crime lab for forensic examination. The lab found a mixture of an unidentified
male ’s DNA and Spencer’s DNA under her fingernail s

. Nash voluntarily provided a DNA sample

, and u pon analysis , d efendant Ruth Montgomery —a crime lab employee

— concluded that the male DNA belonged to Nash

.

D uring the investigation

, defendant Taylor suggested that when Spencer
washed her hair, she might have affected the DNA under her fingernail s . This suggestion became known as the “ hair washing theory. ” Folsom called Montgomery
and asked whether hair washing would remove DNA from underneath Spencer’s fingernail s . According to Folsom, Montgomery said hair washing would remove Nash’s DNA from under Spencer’s fingernail s

.

Based on the hair washing theory, Folsom prepared a probable cause affidavit

. The affidavit stated that “ a mixture of Judy Spencer’s DNA and [Donald] Nash’s DNA was found under the left hand fingernails of Judy Spencer and this DNA could not have remained present during hair washing . . . . T his mixture of DNA is often normally the result of a physical struggle.” R. Doc. 51 -1, at 2. Folsom testified that
before he wrote the affidavit

, he talked with Montgomery because he wanted to accurately state her words. Folsom, Taylor, and Mertens interview ed no other suspects, including the violent sex offender and the man who resided near the ditch
where police f ound Spencer’s vehicle.-4- Nash was eventually charged with Spencer’s murder. In October 2009, a jury
convicted Nash of capital murder

, and h e spent the next 11 years in prison

. In July 2020, the Missouri Supreme Court set aside his conviction. In October 2020, the
S tate of Missouri dismissed the charges because DNA testing on the shoelace used to strangle Spencer supported Nash’s noninvolvement.

Nash and his wife filed suit against Folsom, Mertens, Taylor

, and Montgomery in 2021. 1 T he Nashes assert ed

, inter alia

, 42 U.S.C. § 198 3 claims for unlawful arrest and detention against the officers (Count I), fabrication of evidence against the officers and Montgomery ( collectively, “ defendants ”) (Count II), failure to investigate against the officers (Count III), violations of rights of access to courts against the d efendants (Count V), and violation of the right to familial and marital associations against the d efendants (Count VII).

The defendants fil ed summary j udgment motion s seeking dismissal based on qualified immunity. The district court denied their motions in a single judgment. The
defendants appea l the denial of qualified immunity on Counts I, II, III, V

, and VII.

The d efendants make two arguments on appeal. First, they argue that they did not violate Nash’s Fourth Amendment rights because (1) they did not deliberately

or recklessly include a false statement in the ir probable cause affidavit

, and (2) a properly reconstructed affidavit

— including omitted information

— would have established probable cause. Second, they conten d that if qualified immunity is granted on Count I , it also entitle s them to qualified immunity on Counts II, III, V,
and VII.

II. Discussion When addressing an interlocutory appeal, we first determine whether we have jurisdiction

.

1 Donald Nash pas s ed away on January 28, 2023, and pursuant to Federal Rule of Civil Procedure 25 (a), Theresa Nash filed an unopposed motion to become the personal representative of his estate

.-5- Ordinarily, we lack jurisdiction to hear an immediate appeal from a district court ’s order denying summary judgment, because such an order is not a final decision. We do, however, have limited authority to review the denial of qualified immunity through an interlocutory appeal under the collateral order doctrine. Our jurisdiction to review the denial of qualified immunity extends only to abstract issues of law, not to determinations that the evidence is sufficient to permit a particular finding of fact after trial. Thus, a defendant entitled to invoke a qualified immunity defense may not a ppeal a district court ’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial. And we typically may not consider any other grounds for granting summary judgment on the merits of the case at this interlocutory stage.

C linton v. Garrett , 49 F.4th 1132, 1138 (8th Cir. 2022) ( quoting Langford v. Norris

, 614 F.3d 445, 45 5 (8 th Cir. 2010))

.

W e review de novo the district court’s denial of defendants’ motion s for summary judgment based on qualified immunity

. Id. “[Q] ualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan , 555 U.S. 223, 23 1 (2009) (internal quotation marks omitted)

. To resolve a qualified

- immunity defense , “[f] irst, a court must decide whether the facts that a plaintiff has

. . . shown

. . . make out a violation of a constitutional right. Second

, . . . the court must decide whether the right at issue was clearly established at the time of defendant ’ s alleged misconduct. ” Id. at 232 (internal quotation marks and citation omitted)

. “Courts have discretion to decide
the order in which to” address each prong of the qualified

- immunity analysis. Tolan

v. Cotton

, 572 U.S. 650, 656 (2014) (per curiam).

Go vernment actors may violate the Fourth Amendment by including false information in, or omitting truthful information from, a probable cause affidavit

, and
such action constitutes a Franks 2 violation

. S ee United States v. Reivich , 793 F.2d

2 Franks v. Delaware , 438 U.S. 154, 171

– 72 (1978)

.-6- 957, 960 ( 8th Cir. 1986) (“A facially sufficient affidavit, however, may be challenged on the ground that it includes deliberate or reckless falsehoods, and this rule has been extended to allow challenges to affidavits based on alleged deliberate
omissions .” (citation omitted )); United States v. Jacobs , 986 F.2d 1231, 1233

– 34 (8th Cir. 1993) ( explaining that we have extended Franks ’s “rationale to cover material that has been deliberately or recklessly omitted from a search

- warrant affidavit”) ; Kapinski v. City of Albuquerque , 964 F.3d 900, 905 (10th Cir. 2020) (“ In
Franks , the Supreme Court held that affiants seeking arrest warrants violate the
constitution when they knowingly, or with reckless disregard for the truth, include false statements in a supporting affidavit or omit information which, if included, would prevent the warrant from lawfully issuing. ”).

I ncluding a false statement in a warrant affidavit is a Franks violation when the defendant establishes by a preponderance of the evidence that (1) the affiant “knowingly and intentionally, or with reckless disregard for the truth,” include s a false statement in a warrant affidavit, and (2) the false statement was “necessary to the finding of probable cause.” Franks , 438 U.S. at 1 55

– 56.

Omitting information violate s Franks when “ 1)

. . . facts were omitted with the intent to make, or in reckless disregard of whether they thereby make, the affidavit misleading, and 2)

. . . the affidavit, if supplemented by the omitted information, could not support a finding of probable cause.” Williams v. City of
Alexander , 772 F.3d 1307, 1312 (8th Cir. 2014) (internal quotation marks omitted) ; see also Reivich , 793 F.2d at 960

.

An in nocent mistake or negligence “ will not suffice to demonstrate reckless
or deliberate falsehood .” United States v. Mashek , 606 F.3d 922, 928 (8th Cir. 2010).
“Recklessness

. . . may be inferred from the fact of omission of information from an
affidavit when the material omitted would have been clearly critical to the finding of probable cause.” Id. (emphasis added) ( cleaned up ). Whether the omitted
information is “ clearly critical ” requires reconstructing the probable cause affidavit with the omissions and determining whether an issuing court would find the omitted-7- information “clearly critical” to the probable cause analysis. See , e.g. , Hunter v. Namanny , 219 F.3d 825, 829

– 30 (8th Cir. 2000) (explaining that a reconstructed affidavit contained information clearly critical to a probable cause determination);
see also Jacobs , 986 F.2d at 1235 ( showing that the magistrate judge would not have granted a warrant based on the reconstructed affidavit) ; United States v. Carpenter

, 422 F.3d 738, 745 (8th Cir. 2005) (noting that even if the officer acted recklessly the omitted information did not undermine probable cause and

, therefore , was not clearly critical); Block v. Dupic , 758 F. 3d 1062, 1064

– 65 (8th Cir. 2014) ( highlighting a reconstructed affidavit with omitted facts that were not clearly critical)

.

Wh en defending against such claims “public officials are permitted to claim on appeal that their actions were objectively reasonable in light of their knowledge
at the time of the incident.” Mueller v. Tinkham , 162 F.3d 999, 1002 (8th Cir. 1998).

“ We review the district court ’ s factual findings on a Franks challenge for clear error and its legal determination of probable cause de novo

. ” Mashek

, 606 F.3d at 929

.

A. Count I The officers appeal the district court’s decision that they are not entitled to qualified immunity o n Count I. T he district court determined that a trier of fact must decide whether the inclusion of the hair washing theory in the probable cause
affidavit constitute d recklessness. The court then determined based on evidence
omitted from the affidavit that “ viewed in the light most favorable to [the Nashes]

, the facts sh o w a violation of a constitutional or statutory right . . . .” R. Doc. 73, at
16. The cour t then held that the right was clearly established and proceeded to den y the officers qualified immunity on Count I

. T he officers argue that they did not
violate Nash’s Fourth Amendment right by (1) including the hair washing theory

, or (2) omitting clearly critical evidence from the probable cause affidavit. We address each argument in turn.-8- 1. The Hair Washing Theory
Was the hair washing theory a false statement ? To decide this issue

, we must have jurisdiction. Because this is a disputed fact question, we decline jurisdiction

.

In qualified

- im munity cases, w he n the district court determines that disputed
facts remain for a trier of fact to decide , we lack jurisdiction to address the denial of qualified immunity in an interlocutory appeal

. See, e.g.

, Graham v. St. Louis Metro

. Police De p’t

, 933 F.3d 1007, 1009 (8th Cir. 2019) ( “ Because [the officer’s] arguments all rest on his contention that the district court erred in its determination that a genuine dispute of material fact exists as to whether Graham was incapacitated when he tased Graham a second time, we lack jurisdiction over this appeal. ”); Taylor
v. St. Louis C mty

. Coll

. , 2 F.4th 1124, 112 7 (8th Cir. 2021) (“ [F] or us to reach [defendant’s] ‘ legal argument ’ that he responded reasonably and did not violate clearly established law, we would have to exceed our jurisdiction and cast as ide the
district court ’ s factual findings, analyze the factual record, and resolve genuine
factual disputes against the non

- moving party. This we cannot do .”)

.

T he hair washing theory must be reserved for trial because we do not have jurisdiction to address it

. In the district court’s order denying the defendants’ summary judgment motions

, it found “ that whether or not including the [hair washing] statements constituted recklessness is a genuine issue o f material fact that precludes determination as a matter of law that probable cause existed.” Nash v.
Folsom

, No

. 4:21

- cv

- 495

- JCH , 2022 WL 358 5606 , at *7 (E.D. Mo. Aug. 22, 2022)

. Therefore, i f we addressed whether including the hair washing theory in the probable
cause affidavit violated Nash’s Fourth Amendment right, we would be deciding “ a genuine issue of material fact. ” Analyzing this issue requires us to investigate and solve a fact question that the district court left to the tr ier of fact . We lack th at authority

.-9- 2. Omission of Exculpatory Evidence

a. Jurisdiction As previously stated

, a Franks violation may occur when “[a] law
enforcement official deliberately or recklessly include [s] a false statement, or omit[s] a truthful statement from his warrant affidavit. ” Mashek , 606 F.3d at 928 (internal quotation marks omitted)

. To prevail on this issue, the Nashes “must show that the affidavit would not establish probable cause if

. . . the omitted information is supplemented. ” Id. “ Probable cause exists if the totality of facts based on reasonably trustworthy information would justify a prudent person in believing the
individual arrested had committed an offense.” Howe v. Gilpin , 65 F.4th 975, 980 (8th Cir. 2023) (internal quotation marks omitted)

.

Do we have jurisdiction to determine if there was a Franks violation based on
omitted information ? See Williams , 772 F.3d at 1311

– 12 (conducting a false statement analysis and then an omission analysis). Unlike the false statement i ssue , the district court did not find a genuine dispute of material fact surrounding the
information omitted from the probable cause affidavit , and neither party contends
that there is such a dispute

. 3 Upon reviewing the record, we discern no dispute regarding the facts omitted from the affidavit

. The question of “[w]hether probable
cause existed

. . . is an objective question of law.” Bowden v. Meinberg , 807 F.3d 877, 881 (8th Cir. 2015). We have jurisdiction to decide this legal question

.

b. Constitutional Violation Nash contends five critical facts were left out of the probable cause affidavit.
Th ose facts are that (1) Nash did not own a shotgun, (2) a gunshot residue test administered to him a few hours after the murder was negative, (3) there were no markings on hi s body indicating that he had been in a struggle, (4) tire tracks at the abandoned schoolhouse where Spencer’s body was found did not match his or

3 T he officers only argue that the district court erred because it denied summary judgment without find ing the omitted facts “ clearly critical ” to the probable cause determination

. We review de novo whether undisputed facts are clearly critical. See Jacobs , 986 F.2d at 1235

.- 10 - Spencer’s vehicle, and (5) Spencer’s vehicle had fingerprints belonging to two other men while Nash’s fingerprints were not present.

The district court determined that once the omitted facts were included in the reconstructed affidavit, the affidavit no longer supported probable cause. The court
concluded that the inculpatory evidence was “ largely cancelled by evidence of [Nash’s] innocence. ” Nash

, 2022 WL 3585606

, at *9

. The district court specifically
noted that Nash did not own or fire a shotgun at the time of Spencer’s death , his
vehicle ’s tire tracks did not match the ones found at the scene, Nash’s fight with Spencer was verbal and not physical , and the fingerprints on Spencer’s vehicle indicated that two other men may have been involved in the crime. Inserting the
omitted facts into the affidavit , the court was “unable to say as a matter of law th at probable cause existed such that [ the officers] did not violate Nash’s Fourth
Amendment r ights. ” Id. The district court did not clearly err in using these facts in
the reconstructed probable cause affidavit.

I n reconstructing the officers ’ probable cause affidavit for de novo review , we keep the statement about the hair washing theory but include the omitted facts from the 1982 investigation . Such an affidavit says that Spencer and Nash engaged in a verbal argument before he left in his vehicle and that sometime later Spencer went to the residence she shared with Nash to change clothes . S he then returned to Jones’ s residence and

— either before or after going to her shared residence with Nash

— she washed and resty led her hair . Then

, she drove her vehicle from Jones’ s apartment to a nearby city to drink

. Nash said that he searched for Spencer until about 9:30 p.m. , but witnesses sa id he was gone until about 12 :3 0 a.m. The next day, Spencer ’s body was found partially nude near an abandoned schoolhouse

, along with some of her clothing

. Spencer was strangled with a shoelace and shot with a shotgun

. Nash

, however, did not own a shotgun and failed a gunshot residue test administered a few
hours after her murder . P olice discovered a set of fresh tire tracks at the murder

scene , but they did not match Nash’s or Spencer’s vehicle . W hen investigators
discovered Spencer’s vehicle

, they found the fingerprints of two unidentified men
but not Nash’s . F orensic analysis showed a mixture of Nash’s and Spencer’s DNA- 11 - under Spencer’s fingernails , one of which was jagged . S uch DNA could not have remained during hair washing

, could not be transferred via casual contact, and is
indic a tive of a physical struggle . B ut when examined by officers a few hours after
the murder

, Nash did not have any markings of being in a physical struggle.

The reconstructed probable cause affidavit, even when the hair washing theory is included , does not enable a reasonably prudent person to conclude that Nash murdered Spencer. The e vidence indicate s that Spencer fought her attacker

, tearing her fingernail. Her fingernail s contained a mixture of her and Nash ’s DNA

, which gave rise to the hair washing theory. But Nash did not show any signs of a physical altercation when examined by investigators shortly after they discovered Spencer

. Moreover, Nash’s fingerprints were not on Spencer’s vehicle , but two sets of fingerprints from other men were present. O ne man was a violent sex offender

, and the other man resided near the ditch where Spencer’s vehicle wa s discovered

. Finally

, neither Spencer’s nor Nash’s vehicle could have made the fresh tire tracks
at the scene

, suggesting that someone else’s vehicle transport ed Spencer to the
abandoned schoolhouse. When the omitted facts are added to the affidavit

, they negate probable cause.

Because these omitted facts “would have been clearly critical to the probable cause determination, recklessness may be inferred.” Hunter

, 219 F.3d at 8 30.

Thus, we find no error in the district court ’s holding that a reasonable juror
could conclude that the reconstructed affidavit does not support probable cause

. Lambert v. City of Dumas , 187 F.3d 931, 935 (8th Cir. 1999) (“Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party.”).

c. Clearly E stablished “Q ua lified immunity shields public officials from liability for civil damages
if their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Thurmond v. Andrews

, 972 F.3d- 12 - 1007, 1011 (8th Cir. 2020) (internal quotation marks omitted)

. “A clearly established right is one that is sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Id. at 1012 (internal quotation marks omitted) . Clearly established law is not defined “ at a high level of generality ”; instead “we look for a controlling case or a robust consensus of cases of persuasive authority. There need not be a prior case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. ” Id. (internal quotation marks omitted). W e can answer the legal question of whether it

was a clearly established constitu tional violation in 2008 for a law enforcement
officer to omit truthful exculpatory information from a probable cause affidavit. See Wright v. U nited S tates , 813 F.3d 689, 69 5–9 6 (8th Cir. 2015).

O ur cases show that omitting truthful evidence from a probable cause affidavit
violated a clearly established constitutional right in 2008 , placing the constitutional question beyond debate

. See, e.g.

, Reivich , 793 F.2d at 960 (“ A facially sufficient
affidavit , however, may be challenged on the ground that it includes deliberate or
reckless falsehoods

, and this rule has been extended to allow challenges to affidavits based on alleged deliberate omissions. ” (citation omitted) ); Turpin v. Cnty. of Rock

, 262 F.3d 779, 783 (8th Cir. 2001) (“The law was clearly established at the time in question in this case that an affidavit for a search warrant containing materially false statements or omissions knowingly or recklessly made in conscious disregard for the
truth violates the Fourth Amendment

. ” (citing Franks , 438 U.S. at 171

– 72) ) ; Hunter

, 219 F.3d at 82 9– 31 ( hold ing that a witness’ s statement that she did not receive cocaine from the suspect was clearly critical and that, absent the omission of that

statement
, a court would not have found the affidavit sufficient for probable cause).

Jacobs , a 1993 case involving a similar fact pattern to Nash’s case, held that omitting exculpatory information from a probable cause affidavit clearly violated
the Fourth Amendment

. 986 F.2d at 1235. In that case , an officer included in h is probable cause affidavit that a search dog showed “ interest ” in a package suspected of containing drugs , b ut the officer omitted the fact that the dog did not “alert” to the package

. Id. at 1234

– 35. We found “the warrant deficient under Franks

, ” noting that- 13 - the “ information should have alerted the officers that they lacked probable cause to examine the package.” Id. at 1235. We were “confident that if the magistrate judge had been aware of the full scope of the investigation, the application for a warrant would not have been granted.” Id.

The Nash es ’ c ase is stronger than that presented in Jacobs

. Like Jacobs

, the
omitted facts should have alerted the officers that they lacked probable cause for
Nash’s warrant

. Given the quantity and gravity of information omitted from the affidavit, a reasonable officer would have understood that omitting this truthful
information violated Nash’s constitutional right. Thus, like Jacobs

, the magistrate examining the affidavit would not have granted a warrant if aware of the investigation ’s full scope . In Jacobs , we found the warrant deficient because one clearly critical fact was omitted ; here

, the o fficers omitted five.

The d efendants argue that our decision in Hartman v. Bowles shows that their
behavior did not violate a clearly established constitutional right. 39 F.4th 544 (8th Cir. 2022) (per curiam). W e disagree. In Hartman , a detective submitted a warrant application to arrest two white men that he believed were involved in the shooting of a fire captain. Id. at 545. But the warrant application omitted a fact unbeknownst
to the detective

— the fire captain described his assailant as a black male. Id. W e held
th at th e detective was entitled to qualified immunity becaus e— although his probable

cause affidavit omitted critical information

—he did not know t hat t he information
existed

. Id. For Hartman to apply

, the officers must not have known the information
from the 198 2 investigation when they submitted the probable cause affidavit. But
the officers did know about the 1982 investigation

, making Hartman distinguishable

.

T he district court did not err in denying qualified immunity for Count I.

B. Qualified Immunity on Count s II, III, V, and VII
The Nashes assert that the d efendants forfeited their right to appeal the denial
of qualified immunity on these counts because they did not adequately brief the issue
before the district court

. We reject this argument . T he first point heading in the- 14 - d efendants’ memorandums supporting their summary judgment motions reads

“ Qualified Immunity Bars the Federal Claims (Counts I– III and V–VII).” R. Doc

. 50, at 6; R. Doc. 53, at 6. The d efendants’ memorandums sufficiently argue that qualified immunity bars these counts. See, e.g. , Ferguson v. Short

, 840 F.3d 508,
511 (8th Cir. 2016 ) (“[ P laintiff] asks us simply to dismiss this appeal, arguing that
the detectives failed to raise and preserve the qualified

- immunity issue in the district

court

. . . . 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. ”).

As to Counts II, III, V, and VII, we will first address whether

, in 2008, our

case law clearly established that a constitutional violation occurred

. See Tolan

, 572
U.S. at 656 (affording us the discretion to decide the order in which to address the qualified

- immunity prongs ). Next, we will determine whether we have jurisdiction

to address the defendants’ arguments that they are entitled to qualified immunity on these c ounts

.

1. Clearly Established
Do the Nashes assert clearly established constitutional rights? Count II alleges
that the defendants fabricated evidence in violation of the Fourteenth Amendment.
“I t was clearly established by 2006 that the Fourteenth Amendment ’ s guarantee of due process is violated by the manufacture of false evidence in order to falsely formulate a pretense of probable cause. ” Livers v. Schenck

, 700 F.3d 340, 354 (8 th Cir. 2012) ( cleaned up ).

Count III alleges that the defendants’ failure to investigate violated the
Fourteenth Amendment. We have previously held that in the absence of exigent circumstances, an officer who intentionally or recklessly fails to sufficiently investigate an incident before arresting a suspect is not entitled to qualified immunity. Wilson v. Lawrence Cnty

. , 260 F.3d 946, 955

– 57 (8th Cir. 2001)

.- 15 - Count V alleges a Fourth, Fifth, and Fourteenth Amendment right of access
to courts claim . I n 2005, we recognized that “[ t] he right of access to the courts is
well

- established. ” Scheeler v. City of St. Cloud

, 402 F.3d 826, 830 (8th Cir. 2005).

Count VII alleges a claim under the First and Fourteenth Amendment s for government interference with familial and marital relationship s. However, “[n]either the Supreme Court nor this court has clearly held wrongful prosecution and incarceration of a family member violates a right to familial association.” Reasonover v. St. Louis Cnty

. , 447 F.3d 569, 585 (8 th Cir. 2006).

Based on controlling precedent

, Counts II, III, and V allege clearly established constitutional rights as of 2008

. But Count VII does not allege a constitutional right
that was clearly established in 2008. Consequently, we reverse the district court’s denial of qualified immunity on Count VII.

2. Constitutional Violation
Did the defendants’ conduct violate the Nashes ’ clearly established constitutional rights as alleged in Counts II, III, and V ? The district court concluded
that the defendants ’ pleadings failed to contest the alleg ed violation of constitutional rights

. The court stated in a footnote that

i n t heir o pening memoranda in support of summary judgment [d] efendants fail [ed] to address, much less establish, their entitlement to judgment as a matter of law or qualified immunity on Counts II

– VII of [p] laintiffs’ Amended Complaint. Defendants’ limited discussion of these claims in their reply briefs fails to overcome this deficiency, and so their Motions for Summary Judgment on Counts II

– VII will be denied.

Nash , 2022 WL 3585606 , at *9 n .20.

Seeking reversal of this denial of qualified immunity, the defendants argue that “the hair washing theory and what each official knew about it

. . . is integral to- 16 - the other counts.” Appellants ’ Br. at 4 1. But as already discussed, the hair washing theory involves a genuine dispute of material fact for the jury to resolve. See supra
Part II. A.1. As a result , we dismiss the defendants’ appeal as to Counts II, III, and V for lack of jurisdiction

. See Graham , 933 F.3d at 1009 ( “ Because [ the defendant’s] arguments all rest on his contention that the district court erred in its determination that a genuine dispute of material fact exists

. . . we lack jurisdiction over [the] appeal.”); Taylor , 2 F.4th at 1127 (“ [F] or us to reach [ the defendant’s] ‘ legal argument’ that he responded reasonably and did not violate clearly established law, we would have to exceed our jurisdiction and cast aside the district court ’ s factual findings, analyze the factual record, and resolve genuine factual disputes against the

non

- moving party. This we cannot do

. ”)

.

III. C onclusion Accordingly, we affirm the denial of qualified immunity on Count I, reverse the denial of qualified immunity on Count VII, and dismiss the defendants ’ appeal on Counts II, III, and V for want of jurisdiction

. We remand this case to the district
court for further proceedings.

______________________________