*

 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and

judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 10th Cir.

R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 1/23/96

FOR THE TENTH CIRCUIT

________________________

STANLEY A. TURNER, )

)

Plaintiff-Appellee, )

)

v. ) No. 95-1063

) (D.C. No. 93-N-2511)

GREG LOTSPEICH, individually and in his ) (D. Colo.)

official capacity, )

)

Defendant-Cross-Claimant-Appellant, )

)

v. )

)

CITY AND COUNTY OF DENVER, )

)

Defendant-Cross-Claimant-Defendant. )

__________________________

ORDER AND JUDGMENT*

_________________________

Before BRORBY, EBEL and HENRY, Circuit Judges.

__________________________

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal.
2

See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted

without oral argument.

Defendant Greg Lotspeich, a city detective, appeals the district court’s denial of his

motion for summary judgment asserting qualified immunity as a defense to plaintiff Stanley

Turner’s 42 U.S.C.§ 1983 action alleging Mr. Lotspeich caused him to be falsely arrested and

maliciously prosecuted by deliberately filing false affidavits in support of an arrest warrant

and a search warrant and that Mr. Lotspeich deliberately misrepresented plaintiff’s criminal

history for purposes of obtaining a high bond.

In its fourteen-page Order and Memorandum of Decision, the district court stated:

[Plaintiff] is not attacking the facial validity of [the search and arrest] warrants

with respect to Defendant Lotspeich. Instead, plaintiff’s section 1983 claim

against Lotspeich is based on allegations that defendant deliberately falsified

or recklessly disregarded the truth when he prepared affidavits in support of

the arrest and search warrants.... Thus, defendant’s state of mind is an element

of plaintiff’s claim.

... At the time Lotspeich drafted the affidavits at issue, the law was

clearly established that "an officer would violate a plaintiff’s Fourth

Amendment rights by knowingly or recklessly making a false statement in an

affidavit in support of an arrest or search warrant, if the false statements were

material to the finding of probable cause." ....

....

... I conclude that the evidence presented creates a genuine issue of

material fact as to the objective reasonableness of Lotspeich’s actions,

specifically relating to false statements or reckless disregard for the truth in the
3

completion of the affidavits for an arrest and search warrant.

Although we have jurisdiction over interlocutory appeals challenging a district court’s

denial of a motion for summary judgment asserting qualified immunity, "the scope of such

appeals is limited to 'purely legal' challenges to the district court’s ruling on whether a

plaintiff’s legal rights were clearly established, and cannot include attacks on the court’s

'evidence sufficiency' determinations about whether there are genuine disputes of fact." 

Sevier v. City of Lawrence, 60 F.3d 695, 700 (10th Cir. 1995) (citing Johnson v. Jones, ___

U.S. ___, 115 S. Ct. 2151, 2156 (1995)). We can only review whether the district court

"mistakenly identified clearly established law [given] the facts that the district court assumed

when it denied summary judgment for that (purely legal) reason." Johnson, 115 S. Ct. at

2159. To the extent Mr. Lotspeich now contends it was error for the district court to

conclude the evidence set forth a genuine issue of material fact whether he was qualifiedly

immune, we lack jurisdiction over his appeal, and therefore express no opinion on the matter.

Mr. Lotspeich also contends the district court misconstrued the applicable law when

it concluded his state of mind is an element of Mr. Stanley’s claim he falsified affidavits in

order to obtain the arrest and search warrants. We disagree. "[T]he law [is] clearly

established that an officer would violate a plaintiff’s Fourth and Fourteenth Amendment

rights by knowingly or recklessly making a false statement in an affidavit in support of an
4

arrest or search warrant, if the false statement were material to the finding of probable

cause." Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991) (citing Franks v. Delaware,

438 U.S. 154, 155-156 (1978) (additional citation omitted)), cert. denied, 504 U.S. 911

(1992). In such a case, "the state of mind with which [d]efendants allegedly acted [is] an

element of [p]laintiff’s claim." Bruning, 949 F.2d at 357.

Finally, Mr. Lotspeich argues that the allegedly false facts contained in the search

warrant are irrelevant to the issues. We lack jurisdiction to review this issue.

We AFFIRM the district court’s interpretation of the applicable law, DISMISS the

remaining contentions on appeal for lack of jurisdiction, and REMAND the case to the

district court for further proceedings consistent with this decision.

Entered for the Court:

____________________

WADE BRORBY

United States Circuit Judge