United States Court of Appeals

For the Eighth Circuit 

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No. 22-2860

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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

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________ 

Submitted: September 21, 2023

Filed: February 9, 2024

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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, we affirm in part, reverse in part, and 

dismiss in part for want of jurisdiction. 
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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. Fresh 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. Fingerprints found on the frontside windows of the vehicle identified two men: one was a violent sex offender, 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 their home. Spencer eventually returned home, changed 

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 asserts Spencer washed 

her hair before she went home to change clothes. Defendants argue Spencer washed 

her hair after she changed her clothes and returned to Jones’s apartment. 

Spencer continued drinking after returning 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 
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suggest his involvement in a violent struggle. Unfortunately, the case went cold for 

over 25 years. 

In 2007, Spencer’s sister contacted the Missouri State Highway Patrol

requesting that they reopen the investigation. Thereafter, defendants Henry James 

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

Folsom pulled the highway patrol’s case file, which included the findings of the 

initial 1982 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 fingernails. Nash voluntarily provided a 

DNA sample, and upon analysis, defendant Ruth Montgomery—a crime lab

employee—concluded that the male DNA belonged to Nash. 

During the investigation, defendant Taylor suggested that when Spencer

washed her hair, she might have affected the DNA under her fingernails. This 

suggestion became known as the “hair washing theory.” Folsom called Montgomery

and asked whether hair washing would remove DNA from underneath Spencer’s 

fingernails. According to Folsom, Montgomery said hair washing would remove

Nash’s DNA from under Spencer’s fingernails. 

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 . . . . This 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 interviewed no other 

suspects, including the violent sex offender and the man who resided near the ditch 

where police found Spencer’s vehicle. 
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Nash was eventually charged with Spencer’s murder. In October 2009, a jury 

convicted Nash of capital murder, and he spent the next 11 years in prison. In July 

2020, the Missouri Supreme Court set aside his conviction. In October 2020, the 

State 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

 The Nashes asserted, inter alia, 42 U.S.C. § 1983 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 defendants (Count V), and violation of the right to familial and marital 

associations against the defendants (Count VII). 

The defendants filed summary judgment motions seeking dismissal based on 

qualified immunity. The district court denied their motions in a single judgment. The 

defendants appeal the denial of qualified immunity on Counts I, II, III, V, and VII.

The defendants 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 their probable cause affidavit, and (2) a 

properly reconstructed affidavit—including omitted information—would have 

established probable cause. Second, they contend that if qualified immunity is

granted on Count I, it also entitles 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 passed 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. 
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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 appeal 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.

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

614 F.3d 445, 455 (8th Cir. 2010)). 

We review de novo the district court’s denial of defendants’ motions 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, 231 (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). 

Government 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 Franks2 violation. See United States v. Reivich, 793 F.2d 

2

Franks v. Delaware, 438 U.S. 154, 171–72 (1978).
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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.”). 

Including 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,” includes 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 155–56. 

Omitting information violates 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 innocent 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 
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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). 

When 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 on Count I. The district court determined that a trier of fact must

decide whether the inclusion of the hair washing theory in the probable cause 

affidavit constituted recklessness. The court then determined based on evidence 

omitted from the affidavit that “viewed in the light most favorable to [the Nashes], 

the facts show a violation of a constitutional or statutory right . . . .” R. Doc. 73, at 

16. The court then held that the right was clearly established and proceeded to deny 

the officers qualified immunity on Count I. The 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.
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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-immunity cases, when 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 Dep’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 Cmty. Coll., 2 F.4th 1124, 1127 (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 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.”). 

The 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 of 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 3585606, at *7 (E.D. Mo. Aug. 22, 2022). 

Therefore, if 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 trier of fact. We lack that

authority. 
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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 falsestatement analysis and then an omission analysis). Unlike the false statement issue, 

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. 

Those 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 his 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

The officers only argue that the district court erred because it denied 

summary judgment without finding 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.
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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 that

probable cause existed such that [the officers] did not violate Nash’s Fourth 

Amendment rights.” Id. The district court did not clearly err in using these facts in 

the reconstructed probable cause affidavit.

In 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. She then returned to Jones’s 

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

washed and restyled 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 said he was gone until about 12:30 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. Police discovered a set of fresh tire tracks at the murder

scene, but they did not match Nash’s or Spencer’s vehicle. When investigators 

discovered Spencer’s vehicle, they found the fingerprints of two unidentified men 

but not Nash’s. Forensic analysis showed a mixture of Nash’s and Spencer’s DNA 
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under Spencer’s fingernails, one of which was jagged. Such DNA could not have 

remained during hair washing, could not be transferred via casual contact, and is 

indicative of a physical struggle. But 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 evidence indicates that Spencer fought her attacker, 

tearing her fingernail. Her fingernails 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. One man was a violent sex offender, 

and the other man resided near the ditch where Spencer’s vehicle was 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 transported 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 830.

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 Established

“Qualified 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 
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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). We can answer the legal question of whether it 

was a clearly established constitutional violation in 2008 for a law enforcement 

officer to omit truthful exculpatory information from a probable cause affidavit. See 

Wright v. United States, 813 F.3d 689, 695–96 (8th Cir. 2015).

Our 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 829–31 (holding 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 his 

probable cause affidavit that a search dog showed “interest” in a package suspected 

of containing drugs, but 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 
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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 Nashes’ case 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 officers omitted five. 

The defendants 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). We 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. We held

that the detective was entitled to qualified immunity because—although his probable 

cause affidavit omitted critical information—he did not know that the information 

existed. Id. For Hartman to apply, the officers must not have known the information 

from the 1982 investigation when they submitted the probable cause affidavit. But 

the officers did know about the 1982 investigation, making Hartman distinguishable. 

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

B. Qualified Immunity on Counts II, III, V, and VII

The Nashes assert that the defendants 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. The first point heading in the
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defendants’ 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 defendants’ memorandums sufficiently argue that

qualified immunity bars these counts. See, e.g., Ferguson v. Short, 840 F.3d 508,

511 (8th Cir. 2016) (“[Plaintiff] 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 counts. 

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. 

“It 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 (8th

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). 
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Count V alleges a Fourth, Fifth, and Fourteenth Amendment right of access 

to courts claim. In 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 Amendments for

government interference with familial and marital relationships. 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 (8th 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 alleged violation of constitutional 

rights. The court stated in a footnote that

in their opening 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 
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the other counts.” Appellants’ Br. at 41. 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. Conclusion

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. 

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