* After examining the briefs and appellate record, th is panel has determined

unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 2 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEFFREY TODD PIERCE,

Plaintiff-Appellee,

v. No. 02-6241, 02-6351 JOYCE GILCHRIST and ROBERT H. MACY, Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. CIV-02-509-C)

Submitted on the briefs: * Melvin C. Hall, Riggs, Abney, Neal, Turpen, Oribson & Lewis, Oklahoma City, Oklahoma, for Defendant-Appellant Joyce Gilchrist. John M. Jacobsen, First Assistant District Attorney , Oklahoma City, Oklahoma, for Defendant-Appellant Robert H. Macy. Clark O. Brewster and Guy A. Fortney, Brewster & De Angelis, Tulsa, Oklahoma, for Plaintiff-Appellee Jeffrey Pierce.2

Before McCONNELL , Circuit Judge, BRORBY , Senior Circuit Judge, and TYMKOVICH , Circuit Judge.

McCONNELL , Circuit Judge.

Plaintiff Jeffrey Pierce spent fifteen years in Okl ahoma state prison for a rape he did not commit. Because DNA analysis demon strated that Pierce could not have been the source of the semen found on the rape victim, his conviction was vacated on May 7, 2001, and he was released fro m prison. Mr. Pierce now seeks compensatory and punitive damages from the sy stem and individual actors who deprived him of fifteen years of his life. The gravamen of Mr. Pierce’s complaint is that Ms. Joyce Gilchrist, a forensic chemist for the Oklahoma City Police Department (“OCPD”), fabricated inculpatory evidence and disregarded exculpatory ev idence, which led prosecutors to indict and prosecute Mr. Pierce for the rape. H e further alleges that Oklahoma City District Attorney Robert Macy fostered an envi ronment within his office wherein questionable prosecutorial tactics, includi ng reliance on unfounded forensic analysis, were routinely used to secure co nvictions. Mr. Pierce claims that working in concert, Ms. Gilchrist and Mr. Macyengaged in a pervasive pattern of railroading defendants through the Oklah oma courts and into extended prison sentences. While this system may have provi ded the citizens of Oklahoma3

with a false sense of efficient justice, if the all egations are correct, it deprived criminal defendants of basic constitutional rights and led to at least one unwarranted conviction. This case reaches us at the motion to dismiss stage , and we thus recite the facts largely as detailed by Plaintiff Pierce in hi s complaint before the district court and his filings before this Court. Although Mr. Pierce has named other governmental units as defendants in this action, on ly Defendants Gilchrist and Macy filed motions to dismiss before the district c ourt. For this reason, our recitation of the facts, as well as our holding, ar e limited to the facts and legal issues bearing on the claims against Defendants Gil christ and Macy. Because Defendants raise only issues of law in conn ection with their appeal of the district court’s denial of qualified immunity, this Court has appellate jurisdiction. Ramirez v. Dep’t of Corr. , 222 F.3d 1238, 1240 (10th Cir. 2000). I. Factual Background A. The Rape and Mr. Pierce’s Conviction The events leading to this troubling case began on May 8, 1985, with the rape of Ms. Sandra Burton, a resident of the Woodla ke Apartment Complex in Oklahoma City, Oklahoma. Mr. Pierce was employed a s a landscaper at the Woodlake complex. [Compl. 5, App. 60.] He was 25 years old, married, with twin boys on the way. While police were still on t he scene, Mr. Pierce was taken4

by police to be viewed by the victim. At that time , Ms. Burton stated that Mr. Pierce was not the rapist. Two witnesses testified that he was elsewhere at the time of the rape. In March of 1986, pursuant to an arrest warrant notchallenged in this action, Mr. Pierce was arrested and taken into cust ody. The arrest warrant was supported by an affidavit filed by an OCPD officer stating that Ms. Burton had positively identified Mr. Pierce as the rapist from a photographic lineup. Once in custody, Mr. Pierce waived objections to a search o f his body, and police collected body fluids and head and pubic hairs from his person. As a condition to the waiver, OCPD officers told Mr. Pierce that if t he hairs did not match he would be released. Five minutes later, Mr. Pierce was to ld that a forensic chemist had matched his hairs to evidence collected from the Wo odlake rape scene. The forensic analysis was performed by Defendant Jo yce Gilchrist. Ms. Gilchrist’s forensic analysis identified a total of 33 scalp and pubic hair samples from the crime scene as “microscopically consistent ” with evidence taken from Mr. Pierce’s body, thus concluding that the hairs c ould have come from Mr. Pierce. According to Mr. Pierce’s amended complain t, those findings were false and without any scientific basis. Further, Mr. Pie rce alleges that, with knowledge and deceit, Ms. Gilchrist (i) concealed the fact th at Mr. Pierce’s hair did not match the hairs found at the crime scene, (ii) viol ated the district court’s order to5

deliver the hair samples in a timely manner for rev iew by Mr. Pierce’s forensic expert, and (iii) disregarded her own findings thatMr. Pierce’s blood contained a particular enzyme, PGM-2-1, which conclusively prec luded Mr. Pierce from being the source of the sperm found on the victim. Thereafter, Mr. Pierce was charged with first degre e rape, oral sodomy, second degree burglary, and assault with a dangerou s weapon. Mr. Pierce alleges that Ms. Gilchrist’s fraudulent oral and written re ports “became an inseparable basis” upon which the district attorney filed these charges. At trial, Mr. Pierce was found guilty and sentenced to 65 years in priso n. In April of 2001, the FBI released a report authore d by Special Agent Deedrick reviewing the forensic work performed by M s. Gilchrist between 1982 and 1991. The report examined Ms. Gilchrist’s workin eight investigations, including that of Mr. Pierce. Special Agent Deedri ck found that at least five of the cases involved contrived and erroneous statemen ts by Ms. Gilchrist regarding identification of persons, and that Ms. Gilchrist r epeatedly made statements beyond the limits of forensic science. With regard to Mr. Pierce’s case specifically, Special Agent Deedrick concluded thatnone of the hairs taken from Plaintiff’s body exhibited the same microscopic cha racteristics as those found at the crime scene. Speculation regarding Ms. Gilchrist’s work apparent ly prompted the OCPD6

to send evidence from the Pierce case to the Serological Research Institute (SERI) in Richmond, California, for DNA testing. O n May 7, 2001, the OCPD laboratory received a final report from SERI exoner ating Mr. Pierce on the basis of its DNA analysis. On the same day, the districtcourt for Oklahoma County ordered Mr. Pierce’s conviction and sentence “vacat ed, set aside and held for naught because Petitioner Pierce is factually innoc ent of committing the crimes for which he was charged and convicted.”
B. Defendant Gilchrist Beyond the facts immediately connected to his prose cution, Mr. Pierce alleges that Ms. Gilchrist’s and Mr. Macy’s behavio r reflects a pattern and practice of the OCPD and the district attorney’s of fice in securing convictions on the basis of falsified or misleading evidence. Mr. Pierce points out that Ms. Gilchrist’s forensic analysis and testimony has bee n subject to numerous reprimands by the Oklahoma courts. For example, in McCarty v. State , 765 P.2d 1215, 1222 (Okla. Crim. App. 1988), the Oklahoma Co urt of Criminal Appeals (“OCCA”), Oklahoma’s court of last resort for crimi nal cases, reversed a deathpenalty conviction secured on the basis of Ms. Gilc hrist’s testimony. The OCCA found that Ms. Gilchrist improperly delayed sending her report as well as the raw data to the defense’s expert witness for independen t examination. Id . at 1217. Further, the OCCA found that at multiple points dur ing the trial, Ms. Gilchrist7

testified beyond her professional expertise and bey ond the state of the art of forensic science. Id . at 1218-20. The OCCA reprimanded Ms. Gilchrist on at least one other occasion for testifying to an opinion regarding the defendant’s physical contact with the victim that was not supported by scientific evidence. See Fox v. State , 779 P.2d 562, 571-72 (Okla. Crim. App. 1989). Similarly, in Miller v. State , 809 P.2d 1317, 1319-20 (Okla. Crim. App. 1991), the OCCA granted the defendant, on trial for rape and sodomy charges, a new trial because Ms. Gi lchrist failed to provide the defense expert with her report and evidence in a ti mely manner. More recently, this Court had occasion to assess th e reliability of Ms. Gilchrist’s forensic analysis. In Mitchell v. Gibson , 262 F.3d 1036 (10th Cir. 2001), we reviewed defendant Mitchell’s Oklahoma st ate convictions on a petition for habeas corpus. Mitchell was sentenced to death on charges of premeditated murder, first degree rape, forcible an al sodomy, and certain lesser crimes. In reviewing Ms. Gilchrist’s involvement i n the case we held:

Ms. Gilchrist thus provided the jury with evidence implicating Mr. Mitchell in the sexual assault of the victim wh ich she knew was rendered false and misleading by evidence [which she] withheld from the defense. Compounding this i mproper conduct was that of the prosecutor, whom the distri ct court found “had labored extensively at trial to obscure the true DNA test results and to highlight Gilchrist’s [contrary] test results[.]” Id . at 1064 (internal citations and italics omitted).1 Unless otherwise noted, cites to the Appendix are to Defendant Gilchrist’s

Appendix. 8 During the course of her career, Ms. Gilchrist has been reprimanded by various professional associations. In 1987, the So uthwestern Association of Forensic Scientists disciplined Ms. Gilchrist for violations of its ethical code. Additionally, in October of 2000, Ms. Gilchrist was expelled from the Association of Crime Scene Reconstruction for giving testimony that misrepresented the evidence and was not supported by scientific work.
C. District Attorney Macy Mr. Pierce alleges that as district attorney, Defen dant Robert H. Macy established a policy or practice of employing false evidence and testimony from Defendant Gilchrist in the prosecutions of accused persons, including himself. In the words of Mr. Pierce’s complaint: Under Macy’s administration the Oklahoma County Dis trict Attorney’s office became perverted, seeking convict ions of any targeted accused even when the investigations by th e OCPD and the District Attorney’s Office uncovered exculp atory evidence which clearly demonstrated his or her inno cence. Gilchrist and others were coached, directed and inf luenced . . . to provide reports consistent with the OCPD’s and M acy’s theories of the cases in order to gain a “victory” and conviction regardless of actual guilt. Compl. 19, App. 74. 1

II. Defendant Gilchrist’s Motion to Dismiss9

A. Procedural History In an order dated July 31, 2002, the district courtdismissed Plaintiff’s complaint for failure to state a claim for which re lief could be granted, granting him leave to amend. Plaintiff filed an amended complaint on August 13, 2002. Defendant Gilchrist again filed a motion to dismiss on the grounds that the Plaintiff had failed to correct defects in the orig inal complaint and that she was entitled to qualified immunity. Under the framewor k enunciated by the Supreme Court in Saucier v. Katz , 533 U.S. 194, 201 (2001), courts are to conduct two distinct inquiries when encountering a defense of q ualified immunity. First, the court must determine whether the facts, as pled by the plaintiff, set forth a constitutional violation. Id . Second, assuming that a violation has been prope rly alleged, the court is to determine whether such vio lation was clearly established as of the time of the conduct. Id . Failure to satisfy either of these inquiries wil l result in dismissal in favor of the defendant. Id . at 201-02; see also Smith v. Cochran , 339 F.3d 1205, 1211 (10th Cir. 2003). The district court found that neither inquiry suppo rted Ms. Gilchrist’s motion to dismiss. The court characterized the “ri ght at issue in this case” as “the right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigative capac ity.” Op. 12. The court identified the Fourth Amendment as the source of Mr . Pierce’s right to be free10

from unreasonable seizures ( id . at 6-7), the Fourteenth Amendment Due Process Clause as the source of his right to be free from adeprivation of liberty ( id . at 12), and the manufacture of false evidence as a due process violation (id. ). The court further found that Mr. Pierce’s allegations m ost closely resemble common law claims for malicious prosecution. Id. at 6. Proceeding on this basis, the district court found that the Supreme Court’s intim ations in Albright v. Oliver , 510 U.S. 266 (1994), and Heck v. Humphrey , 512 U.S. 477 (1994), as well as this Court’s explicit holdings in Taylor v. Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996); Wolford v. Lasater , 78 F.3d 484 (10th Cir. 1996); Romero v. Fay , 45 F.3d 1472 (10th Cir. 1995); Cottrell v. Kaysville City , 994 F.2d 730 (10th Cir. 1993); Anthony v. Baker , 955 F.2d 1395 (10th Cir. 1992); and Robinson v. Maruffi , 895 F.2d 649 (10th Cir. 1990), all support the availabi lity of a cause of action for claims analogous to malicious prosecution pursuant to 42 U.S.C. § 1983. Op. 5-6. The court concluded that the amended complaint was based on acts Ms. Gilchrist performed in her investigative capacity, for which she is afforded only qualified immunity. The court also found that Plai ntiff’s “allegations, if proven, lead the Court to believe that a jury may conclude that Defendant’s pretrial acts played an instrumental role in Plaintiff’s continue d post-trial confinement.” Id. at 8-9. Turning to whether Ms. Gilchrist’s alleged miscondu ct violated clearly11

established constitutional rights, the district cou rt noted that the amended complaint alleges “willful and deceitful acts by De fendant, which if proven, support the theory that she knowingly violated Plai ntiff’s constitutional rights.” Id. at 13. The court concluded that “Defendant should have known that her conduct would violate Plaintiff’s constitutional ri ghts, and as such, she is not entitled to qualified immunity.” Id. at 13-14. On appeal, Ms. Gilchrist challenges the district co urt’s holding on each of these points. We evaluate her claims in the order presented.
B. Constitutional Violation The first question is whether the allegations in th e amended complaint state a claim actionable under § 1983. That question req uires us to foray into the much-contested relationship between constitutional torts and the common law. 1. How to Define a Constitutional Tort Section 1983 provides a cause of action for “the de privation of any rights, privileges, or immunities secured by the Constituti on and laws” by any person acting under color of state law. 42 U.S.C. § 1983. Section 1983 does not provide a federal cause of action for every violation of st ate common law, and Plaintiff Pierce has not alleged any such violation. Plainti ff’s amended complaint asserts claims under the Fourth, Fifth, Eighth, and Fourtee nth Amendments of the United States Constitution. Most pertinent are the Fourth Amendment right to be free2 Mr. Pierce alleges that if Ms. Gilchrist had accur ately reported the results

of the hair analysis, he would have been released w ithin five minutes of his arrest. Defendant Gilchrist does not dispute that Mr. Pierc e’s arrest and resulting confinement constituted a “seizure,” though she doe s dispute whether she can be held responsible for it. 12 from unreasonable seizures, Taylor , 82 F.3d at 1560-61, and the Fourteenth Amendment right not to be deprived of liberty witho ut due process of law, or more specifically, as the result of the fabrication of evidence by a government officer acting in an investigative capacity. Anthony v. Baker , 767 F.2d 657, 662- 63 (10th Cir. 1985); Newsome v. McCabe , 256 F.3d 747, 752 (7th Cir. 2001). The initial seizure 2 is governed by the Fourth Amendment, Albright v. Oliver , 510 U.S. 266 (1994), but at some point after arrest, an d certainly by the time of trial, constitutional analysis shifts to the Due Process C lause. Compare Taylor , 82 F.3d at 1561 n.5 (noting that “it is unclear how far the Fourth Amendment’s protection against unreasonable ‘seizures’ can reach in the pr etrial context”); Albright , 510 U.S. at 277-81 (Ginsburg., J., concurring) (suggest ing that Fourth Amendment standards extend throughout pre-trial proceedings), with Castellano v. Fragozo , 352 F.3d 939, 955 (5th Cir. 2003) (en banc) (holdin g that the “manufacturing of evidence and the state’s use of that evidence . . . to obtain [defendant’s] wrongful conviction indisputably denied him rights secured b y the Due Process Clause”); Newsome, 256 F.3d at 752 (holding that the Due Process Clau se is the proper basis for challenging the use of manufactured evide nce at trial). It is not3 Ms. Gilchrist also complains that the amended compl aint did not allege a

claim for malicious prosecution, and that the distr ict court therefore erred when it (continued...) 13 necessary in this case to determine where Fourth Am endment analysis ends and due process analysis begins, because Mr. Pierce rai sed claims under both constitutional provisions, and neither party argues that the difference in standards has any bearing on this appeal of the denial of the motion to dismiss. Since Carey v. Piphus , 435 U.S. 247 (1978), courts have used the common law of torts as a “starting point” for determining the contours of claims of constitutional violations under § 1983. Id . at 257-58; Wolford, 78 F.3d at 489. The Courts of Appeals have taken somewhat inconsist ent positions regarding how close the connection must be between common law tort doctrine and claims under § 1983. See Taylor , 82 F.3d at 1560-61 (recording the different appro aches to the issue taken by the circuit courts); Castellano, 352 F.3d at 949-53 (same). The district court held that the closest common law ana logy to Defendants’ alleged conduct is the tort of malicious prosecution. The question before us is how the constitutional claims and the common law tort fit t ogether. Ms. Gilchrist maintains that the allegations in the amended compl aint do not state a common law cause of action for malicious prosecution as de fined by the Oklahoma courts, and that this is fatal to Plaintiff’s claim for vin dication of Fourth and Fourteenth Amendment rights under § 1983. 33 (...continued)

“unilaterally injected the claim of malicious prose cution” in its order of October 23, 2002. Gilchrist Br. 4. However, as explained more fully below, Plaintiff’s actual cause of action is for a constitutional viol ation under § 1983; the common law tort of malicious prosecution is relevant only as an analogy that is helpful in structuring the legal analysis. Plaintiff’s failur e to plead malicious prosecution as a cause of action is therefore not fatal to his act ion. 14 Ms. Gilchrist’s analysis is based on her interpretation of our opinion in Taylor. As Ms. Gilchrist reads Taylor , satisfying each of the elements of Oklahoma tort law is a prerequisite for pursuing co nstitutional malicious prosecution claims. Proceeding on this assumption, Ms. Gilchrist notes that Oklahoma law mandates that a plaintiff demonstrate: (i) the bringing of the action by the defendant, (ii) its successful termination i n favor of the plaintiff, (iii) want of probable cause to bring the action, (iv) malice, and (v) damages. Gilchrist Br. 6 (citing Parker v. Midwest City , 850 P.2d 1065, 1067 (Okla. 1993)). Ms. Gilchrist further notes that under Oklahoma law, pr obable cause at the initiation of the prosecution acts as a complete defense to a claim of malicious prosecution even if evidence vitiating probable cause subsequen tly emerges. Gilchrist Reply Br. 17 (citing Greenberg v. Wolfberg , 890 P.2d 895, 902 n.25 (Okla. 1994)). From these principles Ms. Gilchrist argues that the amended complaint fails to state a claim. Mr. Pierce was arrested pursuantto a valid arrest warrant supported by an affidavit stating that the rape vic tim identified him from a photo lineup. Because Ms. Gilchrist was not involved in procuring the arrest warrant,4 We recognize that Taylor has been interpreted in various ways by courts

and commentators. Compare Castellano , 352 F.3d at 951 (interpreting Tayloras “requiring proof of all common law elements”), with Lambert v. Williams , 223 F.3d 257, 261 (4th Cir. 2000) (interpreting Tayloras incorporating only “certain elements” of the common law tort into analogous Fou rth Amendment claims), and Jacques L. Schillaci, Note, Unexamined Premises: Towards Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev

. 439, 460-61 (2002) (including the Tenth Circuit in the “majority rule” which does not require a § 1983 plaintiff to prove the common law elements of malicious prosecution), with Joseph G. Yannetti, Note, Who’s on First, What’s on Second, And I Don’t Know About the Sixth Circuit: A § 1983 Malicious Prosecu tion Circuit Split that Would Confuse Even Abbot & Costello , 36 Suffolk U. L. Rev. 513, 524 (2003) (understanding that the Tenth Circuit “requires a p laintiff satisfy the common-law tort elements as well as show the deprivation of a right secured under the Fourth (continued...) 15 and because the arrest was conducted and concluded prior to her involvement in the case, she argues that Mr. Pierce fails to plead the first required element: that she initiated the action against him. Building on this line of reasoning, Ms. Gilchrist maintains that because the warrant establ ished probable cause that Mr. Pierce had committed the rape prior to her involvem ent in the prosecution, he cannot succeed in establishing the third required e lement: the absence of probable cause when the charges were initiated. Therefore, even assuming Ms. Gilchrist deliberately falsified her findings regarding the h air analysis – a claim she vigorously contests – Oklahoma law bars Mr. Pierce’ s claim of malicious prosecution. Ms. Gilchrist’s arguments, however, are premised ona dual misunderstanding of our holding in Taylor

. 4 First, she assumes that the “common4 (...continued)

Amendment”).

5 Because Taylor was exonerated before trial, the ca se involved only the Fourth, and not also the Fourteenth Amendment. We consider the reasoning equally applicable to both. 16 law” to which Taylorrefers is limited to the specific formulation of t he tort in the law of the relevant state; here, Oklahoma. Second, she finds that “starting point” analysis requires satisfaction of each of the commo n law elements as a prerequisite for consideration of the federal const itutional question. Neither of these assumptions is correct. Taylorwas a § 1983 suit by a plaintiff who had been arre sted and held for seven weeks before being exonerated of a crime. He sued the sheriff who arrested him, claiming that the sheriff knowingly m ade false statements in the affidavit used to procure the arrest warrant. As i n the present case, the alleged constitutional violation was of the Fourth Amendment right to be free from unreasonable seizures, and the closest common law a nalogy was to the torts of false arrest and malicious prosecution. Taylor , 82 F.3d at 1560-61. 5 Unlike the present case, however, the Court concluded that the inaccuracies in the affidavit were not significant enough to vitiate probable cau se, id. at 1562, and that there
was “ no evidence which even suggests that [the sheriff] in cluded the false statements, or omitted any facts, knowingly or with reckless disregard for the truth,” id . at 1563 (emphasis in original). In the present c ase, by contrast,17

accepting the allegations in the amended complaint as true for purposes of the motion to dismiss, we cannot say that the false inf ormation supplied by Ms. Gilchrist and the accurate exculpatory information disregarded by Ms. Gilchrist were not significant enough to prejudice Mr. Pierce ’s constitutional rights, or that Plaintiff’s allegations regarding her intent are ba seless. The legal framework employed in Taylorthus points to the opposite result in this case. Nor does Taylor ’s explanation of its legal holding, on which Ms. G ilchrist relies, support her position. After reviewing the division amongst the Courts of Appeals regarding the degree to which the elements of a § 1983 constitutional tort claim correlate with the common law elements of ma licious prosecution, and noting that “[o]ur own circuit has not always writt en consistently on this issue,” Taylorexplained that although the common law elements pr ovide the “starting point” for the analysis of a § 1983 malicious prose cution claim, the ultimate question is whether plaintiff can prove a constitut ional violation. Id. at 1561. Tayloris thus inconsistent with Ms. Gilchrist’s argumentthat proof of each element of the common law tort, as defined by the s tate in which the alleged violation occurred, is a necessary predicate to a c laim under § 1983. That would make the common law tort not a “starting point” foranalysis but the final word. Contrary to Ms. Gilchrist’s first assumption, the t erm “common law,” in this context, refers not to the specific terms of t he tort law of any particular state,6 The framers of the Civil Rights Acts from which § 1 983 derived tended to

assume, in accord with legal theories of the day, t hat there existed a general common law and this general common law was an artic ulation of the civil rights and responsibilities associated with free citizens. In a single speech, Senator Lyman Trumbull, the principal author of the Civil R ights Act of 1866, the precursor of § 1983, defined the term “civil rights ” as “rights pertaining to the citizen as such,” as “general rights that belong to mankind everywhere,” and as “a common law right.” Cong. Globe, 42d Cong., 2d Sess. 3191 (May 8, 1872). It is therefore inconsistent with the spirit of § 1983 to treat “common law” as nothing more than judge-made, state-specific, positive law. 18 but to general principles of common law among the s everal states. Cf. Wyatt v. Cole , 504 U.S. 158, 163-64 (1992) (looking to general c ommon law principles in deciding which common law immunities are applicable to § 1983 actions). It would be odd to interpret a statute, § 1983, which was enacted during Reconstruction to provide a federal remedy for viol ations of civil rights countenanced under state law, as simply incorporati ng the positive law of the states as a standard for evaluating federal constit utional claims. A federal standard was assumed. We have turned to the common law in § 1983 cases not because of its authority as positive law, but becau se, as the Supreme Court has explained, “over the centuries the common law of to rts has developed a set of rules to implement the principle that a person shou ld be compensated fairly for injuries caused by the violation of his legal right s.” Carey , 435 U.S. at 257. Those rules are applicable by analogy – but only by analogy – to constitutional

torts. 619

The Supreme Court’s analysis in Heck serves as an illustration. In Heck, a prisoner of the state of Indiana filed a § 1983 act ion complaining that defendants, under color of state law, “engaged in an ‘unlawful, unreasonable and arbitrary investigation’ leading to petitioner’s arrest; ‘kno wingly destroyed’ evidence ‘which was exculpatory in nature and could have pro ved petitioner’s innocence’; and caused ‘an illegal and unlawful voice identific ation procedure’ to be used at petitioner’s trial.” 512 U.S. at 479 (internal bra ckets omitted). Heck considered whether the common law rule requiring the prior cri minal proceeding to be terminated in favor of the accused before a malicio us prosecution claim can be raised is applicable to federal § 1983 actions. Id . at 484-86. Rather than narrowly focusing on the particular formulation giv en to the tort by the Indiana courts, the Court built its analogy by surveying tr eatises and case law from a variety of jurisdictions. Heck thus teaches that federal courts fashioning constitutional analogues to traditional common law torts should refer to the general common law tradition, rather than to the law as defined by the jurisdiction where the action originated. Ms. Gilchrist’s second and related assumption is th at a § 1983 plaintiff must meet every element of the tort as prescribed b y the common law. But to treat § 1983 claims as strictly defined by, and lim ited to, recognized common law torts would be inconsistent with our approach in Wolford, 73 F.3d at 489, and20

Taylor , 82 F.3d at 1561. In Taylor , for example, the Court began by briefly reciting the elements of the common law tort of mal icious prosecution. But that was just the starting point of the analysis. It qu ickly turned to constitutional concerns, which for the pre-trial wrongs at issue w ere located in the Fourth Amendment. Restating the standards set forth in Wolford, Taylorrelied on Tenth Circuit and Supreme Court constitutional precedents – not state law – to conclude that the Fourth Amendment would be violate d if police knowingly or with reckless disregard included false statements i n affidavits that formed the basis for the issuance of warrants. Id . at 1562. Indeed, this Court has never interpreted constitutional violations under § 1983 solely in light of common law principles. See Smith v. Plati , 258 F.3d 1167, 1174 (10th Cir. 2001) (“The cases recognize that evaluations of rights and duties und er § 1983 . . . arising as they do under the Fourteenth Amendment to the Constitution of the United States, are often different from counterpart common law actions which arise under state substantive law.”) (quoting Adickes v. S.H. Kress & Co. , 398 U.S. 144, 150 (1970)). Although the common law tort serves as animportant guidepost for defining the constitutional cause of action, the ul timate question is always whether the plaintiff has alleged a constitutional violation. Taylor , 82 F.3d at
1561. These principles find their origin in the Supreme C ourt’s decision in Carey

.21

In discussing how the common law of torts properlyserves as a reference point for interpreting § 1983, the Court held:

It is not clear however, that common-law tort rules of damages will provide a complete solution to the dam ages issue in every § 1983 case. In some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interest protected by a particular cons titutional right. In such cases, it may be appropriate to app ly the tort rules of damages directly to the § 1983 action. In other cases, the interests protected by a particular constitutio nal right may not also be protected by an analogous branch of the common law torts. In those cases, the task will be the mo re difficult one of adapting common-law rules of damages to prov ide fair compensation for injuries caused by deprivation of constitutional right. . . . The purpose of § 1983 would be defeated if i njuries caused by the deprivation of constitutional rights went uncompensated simply because the common law does no t recognize an analogous cause of action. 435 U.S. at 258 (internal citations and quotations omitted). Similarly, in Albright v. Oliver , 510 U.S. 266 (1994), the plaintiff sued under §1983 for constitutional violations stemming from an arrest without probable cause. The plurality noted that “the exte nt to which a claim of malicious prosecution is actionable under § 1983 is one ‘on w hich there is an embarrassing diversity of judicial opinion.’” Id. at 270 n.4 (citation omitted). Rather than focusing on the elements of the malicious prosecuti on tort, however, the Court addressed whether the claim was predicated on a fed eral constitutional violation. Even in the context of 42 U.S.C. § 1988, which the Supreme Court has7 This is not to imply that common law principles are necessarily

incompatible whenever they deny or limit the remedy for an apparent constitutional infraction. See Heck, 511 U.S. at 484-86 (common law rule requiring termination of prior criminal proceeding is applicable to the federal malicious prosecution action). The common law immu nities and limits to liability serve important purposes, and have often been held applicable to § 1983 actions. See, e.g., Newport v. Fact Concerts, Inc. , 453 U.S. 247 (1981); Imbler v. Pachtman , 424 U.S. 409 (1976); Tenney v. Brandhove , 341 U.S. 367 (1951). 22 interpreted as directing federal courts to suppleme nt the civil rights statutes by borrowing from forum state common law, the Court ha s held that “Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizi ng the essential elements of a federal cause of action.” Wilson v. Garcia , 471 U.S. 261, 269 (1985). Thus, for example, although as a general matter federal court s look to state law in fashioning rules regarding whether a § 1983 claim s urvives the plaintiff’s death, Robertson v. Wegmann , 436 U.S. 584 (1978), they will not do so if such a rule would frustrate the very purpose of the § 1983 acti on. See e.g. , Jaco v. Bloechle , 739 F.2d 239, 244 (6th Cir. 1984):

The § 1983 objective of protecting individual civil liberties by providing compensation to the victim for an illegal deprivation of constitutional entitlements by state officers ca nnot be advanced, and is only undermined, by deferring to astate law which decrees abatement under circumstances where, as here, asserted constitutional infringements resulting fro m action taken under color of law caused instant death. Id

. 7 Finally, and most importantly, we have stressed in Taylorand other cases8 See Lambert v. Williams , 223 F.3d 257, 261-62 & n.2 (4th Cir. 2000);

Castellano , 352 F.3d 939; Newsome v. McCabe , 256 F.3d 747, 750 (7th Cir. 2001); Whiting v. Traylor , 85 F.3d 581, 584 (11th Cir. 1996). Other circuit s, however, have taken the opposite view. See Nieves v. McSweeney , 241 F.3d 46, 53 (1st Cir. 2001) (listing the common law elements as part of the federal action); Singer v. Fulton County Sheriff , 63 F.3d 110, 116 (2d Cir. 1995)(“the court must engage in two inquiries: whether the defendant’s co nduct is tortous; and whether plaintiff’s injuries were caused by the deprivation of a liberty guaranteed by the Fourth Amendment.”); Donahue v. Gavin , 280 F.3d 371, 380 n.16 (3d Cir. 2002) (noting that the Third Circuit had remanded a claim because “the district court did not rule on whether [the plaintiff] had satisfied t he common law elements of a malicious prosecution claim”); Poppell v. City of San Diego , 149 F.3d 951, 961- 63 (9th Cir. 1998). 23 that the “ultimate question” is the existence of a constitutional violation. Taylor , 82 F.3d at 1561; Wolford, 78 F.3d at 489. Mr. Pierce has alleged violation s of his constitutional rights, pursuant to § 1983; he has n ot alleged a common law tort. While common law principles are useful in giving st ructure to constitutional claims under § 1983, and thus serve as a “starting point,” we fail to see the logic in a position that would confine constitutional cla ims to the precise rubric of tort law. As Judge Higginbotham recently stated for an en banc Fifth Circuit, “[t]he Fourth Amendment of the United States Constitution cannot be circumscribed by state tort law.” Castellano , 352 F.3d at 955. We thus join the Fourth, Fifth, Seventh, and Eleventh Circuits in rejecting the vie w that a plaintiff does not state a claim actionable under §1983 unless he satisfies the requirements of an analogous common law tort. 8 2. Ms. Gilchrist’s Arguments Based on the Oklahoma C ommon Law of24 Malicious Prosecution
We now turn to Ms. Gilchrist’s specific arguments c oncerning the amended complaint’s failure to state a claim. She frames t hese arguments as attacks on the district court’s holding that the amended complaintsatisfies each of the five elements of the tort of malicious prosecution as de fined by the Oklahoma courts. Some of her arguments are nothing more than a quarr el over what the evidence will show. We can pass by these arguments quickly, since on a motion to dismiss we must accept the plaintiff’s allegations as true. Other arguments are legal in nature, and point to ways in which Plaintiff’s cons titutional claims are not congruent to the analogous common law claims. Thes e we will examine in light of the structural principles set forth in the prece ding pages. Because we treat the tort of malicious prosecution as a starting point, as to each element where the tort and the alleged constitutional claims diverge, we w ill assess whether the district court was correct in finding an actionable claim un der § 1983. a. Initiation of the original action

. Ms. Gilchrist first argues that the amended complai nt is insufficient because it does not allege that she initiated the o riginal action against Mr. Pierce. Citing Parker v. Midwest City , 850 P.2d 1065, 1067 (Okla. 1993), she argues that an action for malicious prosecution may be brought under Oklahoma law only against a person or persons responsible for bringin g the original action. Since she25

was not involved in Mr. Pierce’s arrest nor was she responsible for filing charges, she infers that, as a matter of law, she is not lia ble for her alleged fabrication of evidence and failure to disclose exculpatory eviden ce. The district court held that Ms. Gilchrist’s lack o f responsibility for initiating the action “does not absolve Defendant f rom total liability.” Op. 7-8. The court held that “[i]f Defendant was instrumenta l in Plaintiff’s continued confinement or prosecution, she cannot escape liabi lity.” Id. at 8. The amended complaint alleges that Ms. Gilchrist “with deliberate indifference . . . contrived evidence to secure a fraudulent conviction.” It further alleges that Ms. Gilchrist repeatedly communicated these false and fraudulent findings to police and the district attorney, providing the basis upon which t he district attorney filed charges against him. Specifically, Mr. Pierce claims that after his arrest, he was assured that he would be released if a comparison of his ha ir samples did not match those found at the crime scene. Ms. Gilchrist falsely re ported that the hairs were consistent; had she truthfully reported that they w ere not consistent, Mr. Pierce would have been released within hours of his arrest , and never tried. This was aggravated by Ms. Gilchrist’s failure to deliver th e hair samples for review by an independent forensic examiner hired by the defense, as required by law. Moreover, as alleged in the amended complaint, when preparing her forensic report on the case, Ms. Gilchrist performed an enzy me test that conclusively26

demonstrated that Mr. Pierce could not have been th e source of the semen found on the rape victim, but Ms. Gilchrist disregarded a nd disputed the significance of this evidence in her report. Accepting these alleg ations as true, the district court concluded that a jury could find her actions “playe d an instrumental role” in Mr. Pierce’s confinement. Op. 8-9. We agree with the district court. Examining the ge neral common law as a “starting point,” we find that Ms. Gilchrist’s argu ment assumes too narrow an understanding of the tort of malicious prosecution. As the Restatement indicates, “[a] private person who takes an active part in continuing or procuring the
continuation of criminal proceedings initiated by himself or by anotheris subject to the same liability for malicious prosecution as if he had then initiated the proceedings.” Restatement (Second) Torts § 655 (emphasis added). The comments to this section note that it “applies . . . when the proceedings are initiated by a third person, and the defendant, kno wing that there is no probable cause for them, thereafter takes an active part in procuring their continuation.” Id. , cmt. b. The allegations in Mr. Pierce’s amended complaint meet these standards. Mr. Pierce alleges that Ms. Gilchrist provided several false oral and written reports and withheld exculpatory evidence f rom the OCPD and the District Attorney’s Office. According to Mr. Pierc e, these reports “became an inseparable basis” for the charges against Pierce a nd the District Attorney’s27

decision to proceed to trial.

Turning to federal standards, § 1983, by its terms, applies not only to a person who “subjects,” but also to any person who “ causes to be subjected

. . . any citizen of the United States . . . to the depri vation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983 (emphasis added). This suggests that Congress was concerned not just with the officer who formally initiates the process that leads to an unc onstitutional seizure, but to all those who were the “cause” of deprivations of const itutional rights. This Court has previously held that officers who co nceal and misrepresent material facts to the district attorney are not ins ulated from a § 1983 claim for malicious prosecution simply because the prosecutor , grand jury, trial court, and appellate court all act independently to facilitate erroneous convictions. Robinson v. Maruffi , 895 F.2d 649, 655-66 (10th Cir. 1990). Robinson , in turn, relied on the Seventh Circuit’s decision in Jones v. City of Chicago , 856 F.2d 985 (7th Cir. 1988), which, in light of the issues presented here , bears recounting.
Jones was a § 1983 action for malicious prosecution agai nst several members of the Chicago police force who conspired t o frame an innocent George Jones for murder and rape. Id. at 988-92. Among the numerous defendants was a lab technician who concealed exculpatory blood, sem en, and hair evidence from28

the relevant file. Id. at 991. The jury returned a verdict of more than $ 800,000 against the police defendants. Thereafter, the def endants challenged the verdict on the basis that the intervening acts by the state prosecutor to charge and prosecute Jones shielded them from liability for ma licious prosecution. Id. Rejecting this contention, the Seventh Circuit, perJudge Posner, held:

[A] prosecutor’s decision to charge, a grand jury’s decision to indict, a prosecutor’s decision not to drop charges but to proceed to trial – none of these decisions will shi eld a police officer who deliberately supplied misleading inform ation that influenced the decision. . . . If police officers have been instrumental in the plaintiff’s continued confinement or prosecution, they cannot escape liability by pointing to the decisions of pr osecutors or grand jurors, or magistrates to confine or prosecute him. They cannot hide behind the officials whom they have def rauded. Id . at 994 (emphasis in original) (cited with approva l in Robinson , 895 F.2d at 656). Accordingly, Ms. Gilchrist cannot “hide behind” the fact that she neither initiated nor filed the charges against Mr. Pierce. The actions of a police forensic analyst who prevaricates and distorts evidence to c onvince the prosecuting authorities to press charges is no less reprehensib le than an officer who, through false statements, prevails upon a magistrate to iss ue a warrant. In each case the government official maliciously abuses a position o f trust to induce the criminal justice system to confine and then to prosecute an innocent defendant. We view both types of conduct as equally repugnant to the C onstitution.29

Ms. Gilchrist also maintains, as a factual matter, that she “was not instrumental in the Plaintiff’s continued confineme nt or prosecution.” Gilchrist Br. 7 (emphasis in original). She places great wei ght on the fact that she reported only that the hairs found at the crime scene “ could have come from Plaintiff,” id. at 8 (emphasis in original) and never claimed that the hair comparison constituted a positive identification. However, if Ms. Gilchri st had correctly reported that the hairs could not have come from Mr. Pierce – which the amended complaint alleges was the true result of her examination – Mr . Pierce argues that he would have been exonerated. The same is true if she had submitted a proper report of her enzyme comparison of Mr. Pierce’s blood to the perpetrator’s semen. In the case of a Fourth Amendment claim of falsifie d evidence, the existence of probable cause is determined by settin g aside the false information and reviewing the remaining contents of the affidav it. Wolford, 78 F.3d at 489 (citing Franks v. Delaware , 438 U.S. 154, 155-56 (1978)). In a case involvin g the withholding of exculpatory evidence, the existe nce of probable cause is determined by examining the evidence “as if the omi tted information had been included” and inquiring whether probable cause exis ted in light of all the evidence, including the omitted information. Wolford, 78 F.3d at 489 (quoting Stewart v. Donges , 915 F.2d 572, 582 n.13 (10th Cir. 1990)). See also Taylor , 82 F.3d at 1562.30

To the extent that Ms. Gilchrist’s alleged actions are more appropriately viewed as due process violations, several courts have recognized that police officers can be liable under the Due Process Clause , pursuant to § 1983, for withholding exculpatory evidence. See Newsome , 256 F.3d 747; Jean v. Collins , 221 F.3d 656 (4th Cir. 2000) (en banc); Brady v. Dill , 187 F.3d 104, 114 (1st Cir. 1999); see also Buckley v. Fitzsimmons , 509 U.S. 259, 275 (1993) (prosecutor’s fabrication of false evidence during preliminary in vestigation of crime is not entitled to absolute immunity); Spurlock v. Satterfield, 167 F.3d 995 (6th Cir. 1999) (officer not entitled to absolute immunity on claims that he manufactured probable cause and fabricated evidence). There is some disagreement in these cases over what degree of intent the officer must h ave, but if it is true that Ms. Gilchrist maliciously withheld exculpatory evidence and fabricated inculpatory evidence, as alleged, her actions would satisfy eve n the most demanding standards put forth by the courts. Applying these principles, we conclude that Mr. Pie rce has met his pleading requirements. He alleges that Ms. Gilchrist, with knowing and reckless disregard for the truth, informed the police and prosecutoria l authorities that hair analysis supported Pierce’s involvement in the rape – even t hough in fact, far from implicating him in the rape, the hair analysis tend ed to exonerate him – and disregarded findings that Mr. Pierce’s blood contai ned an enzyme that exonerated31

him of being the source of the sperm found on the r ape victim. Although at this stage of the litigation it is too early to judge th e facts of the matter, these allegations are sufficient to survive a motion to d ismiss. b. Termination of the original action in favor of t he Plaintiff. The second element in the tort of malicious prosecu tion is that the original action must have been terminated in favor of the pl aintiff. The Supreme Court has recognized this element as part of a § 1983 cla im for unconstitutional conviction or imprisonment. Heck, 512 U.S. at 486-87. Citing Young v. First State Bank, 628 P.2d 707, 709-10 (Okla. 1981), Ms. Gilchrist argues that under Oklahoma law, dismissal of an action cannot supportthe successful termination requirement when the dismissal is “procured by the defendant of the original action, or done pursuant to a compromise or agreeme nt of the parties.” Gilchrist
Br. 11. We conclude the exception is inapplicable. In Young, the plaintiff in the original action settled a civil lawsuit after recei ving full monetary satisfaction from one of the defendants. In a subsequent lawsui t for malicious prosecution, the plaintiff (the defendant in the original action ) pointed to dismissal of the first action after settlement as “successful termination. ” The Oklahoma Supreme Court noted a general rule that a settlement is nota successful termination “because either the settlement is an admission of p robable cause for the initiation32

of the prosecution, or because it would be unfair t o allow a person to consent to a termination and then take advantage of it.” Id. at 710 (citing 52 Am. Jur. 2d § 44, Malicious Prosecution). But the court rejected the contention that one defendant’s settlement claim barred the malicious p rosecution claim of another defendant who entered no such agreement. Here, dis missal of the criminal proceeding against Mr. Pierce was not pursuant to a ny agreement between Mr. Pierce and the state. In any event, such a narrow construction of state c ommon law would be inconsistent with federal constitutional standards. See Heck, 510 U.S. at 487 (allowing a § 1983 plaintiff to sue on analogy to m alicious prosecution when he proves “that the conviction or sentence has been re versed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus”). The district court for Ok lahoma county in Mr. Pierce's case “vacated, set aside and held for naught” his c onviction and sentence “because Petitioner Pierce is factually innocent of committing the crimes for which he was charged and convicted.” It is hard to imagine a more successful – albeit belated – termination than the exoneration M r. Pierce received from the Oklahoma County district court after it examined th e DNA evidence.

c. Probable cause for the arrest

.9 Ms. Gilchrist’s opening and reply briefs assert that “Plaintiff’s entire

lawsuit is based on the illogical premise that beca use modern 2001 DNA technology freed him from prison, ipso facto , his 1986 arrest, prosecution, and conviction must have resulted from a violation of P laintiff’s constitutional rights.” Gilchrist Br. 12-13; Reply Br. 18. This is a most unfair characterization of Plaintiff’s position. Plaintiff’s lawsuit is ba sed on allegations that Ms. Gilchrist intentionally and knowingly falsified evi dence that should have exonerated him back in 1986, wholly apart from the DNA evidence, which was not available at that time. 33 The third element in the tort of malicious prosecut ion is that there was no probable cause to support the original arrest, cont inued confinement, or prosecution. The probable cause requirement is cen tral to the common law tort, because not every arrest, prosecution, confinement, or conviction that turns out to have involved an innocent person should be actionab le. Neither Ms. Gilchrist nor Mr. Pierce disputes that the constitutional tort of malicious prosecution also requires an absence of probable cause, and so we may assume that it does. Probable cause must be evaluated as of the events i n question. Thus, the mere fact that DNA evidence conclusively exonerated Mr. Pierc e is insufficient to support his claim. 9 On remand, he will bear the heavy burden of showin g that Ms. Gilchrist’s falsification of inculpatory evidence o r suppression of exculpatory evidence was necessary to the finding of probable c ause: that without the falsified inculpatory evidence, or with the withheld exculpat ory evidence, there would have been no probable cause for his continued confinemen t or prosecution. Stewart , 915 F.2d at 582 n.13; Wolford, 78 F.3d at 489; Taylor , 82 F.3d at 1562.10 Indeed, we are not convinced that Ms. Gilchrist’s interpretation even of

Oklahoma law is correct. The case on which she rel ies, Greenberg, was decided in a markedly different factual context and does no t obviously support her legal argument. There, the defendant Wolfberg had initiated several successive and (continued...) 34 The dispute that we must resolve in this case conce rns only when the absence of probable cause must be shown. Ms. Gilch rist argues that under Oklahoma law, existence of probable cause at the time of the arrest, is a complete defense to malicious prosecution. Gilchrist Reply Br. 17 (citing Greenberg , 890 P.2d at 902 n.25). The district court, however, he ld that “[e]ven when probable cause is present at the time of the arrest, evidenc e could later surface which would eliminate that probable cause.” Op. 8. We agree w ith the district court for two

reasons. First, as already discussed, we do not share Ms. Gi lchrist’s view regarding the relevance of a particular state’s tort law in a ssessing the presence of a constitutional violation. The consensus of the com mon law extends liability to those who continue prosecutions against criminal su spects upon knowledge that there is no probable cause to proceed against the a ccused. See Restatement (Second) of Torts § 655 & cmt. b; W. Keeton, D. Dobbs, R. Keeton & D . Owen, Prosser & Keeton on the Law of Torts § 119 (5th ed. 1984) (“The defendant may be liable either for initiating or continuing a cri minal prosecution without probable cause.”). 10 Accordingly, the allegation that Ms. Gilchrist’s “false reports became10 (...continued)

apparently meritless lawsuits against Greenberg, ba sed on the same cause of action. Greenberg then filed tort claims in federa l court against Wolfberg for malicious prosecution and abuse of process in filin g the unfounded actions. The appeal reached the Tenth Circuit, which certified t o the Oklahoma Supreme Court the question of whether under Oklahoma law each of these lawsuits filed against Greenberg could be combined into one “process” for purposes of the malicious prosecution claim. The Oklahoma Supreme Court stat ed that ordinarily, to qualify as a suit for purposes of the malicious prosecutionclaim, each individual suit must satisfy all the elements of the tort, includin g the lack of probable cause. However, where an earlier action, brought upon prob able cause, had been decided in favor of the malicious-prosecution plaintiff, ma licious prosecution actions based on the successive cases could make use of the decision in the first case to demonstrate the lack of probable cause in the succe ssive actions. Viewed in its context, the Oklahoma court’s stateme nts in Greenberghave little bearing on the issues presented in this case

. Greenberg was not a case in which subsequent evidence arises which eliminates t he factual basis for the action. Although we will not speculate as to how an Oklahoma court would decide this case, we note that Ms. Gilchrist fails to point to any source of Oklahoma law that forecloses recovery against a party who proceeds with a prosecution despite finding evidence through its ow n investigation vitiating probable cause. 35 one of the inseparable bases for the charges agains t Pierce and the District Attorney’s decision to proceed to trial,” Compl. 12 , App. 67, states a valid cause of action under general common law principles and p rovides an appropriate analogy for the constitutional claim. Because the common law provides only an analogy to the constitutional claim, moreover, federal standards are ultimately d ispositive. Ms. Gilchrist argues, in effect, that if probable cause existed f or the arrest, the Fourth Amendment is not violated if an official falsifies or withholds evidence that, if11 Ms. Gilchrist relies on the Fifth Circuit’s holding in Jones v. City of

Jackson , 203 F.3d 875, 880 (5th Cir. 2000), to claim that Mr. Pierce is foreclosed from bringing Fourth Amendment challenges to his co ntinued confinement. Specifically, she points to Jones ’s holding that “Fourth Amendment claims are appropriate [only] when the complaint contests the method or basis of the arrest and seizure of the person. The protections of the Fourth Amendment do not apply if plaintiff challenges only continued incarceratio n.” Id. (quoting Brooks v. George County, 84 F.3d 157, 166 (5th Cir. 1996)) (brackets in orig inal; citations omitted). Plaintiff, however, also alleges Fourtee nth Amendment violations, which the same circuit, sitting en banc, has held t o be independently actionable. See Castellano , 352 F.3d at 958. Gilchrist cites no precedent f rom this Court distinguishing the standards applicable to constitutional malicious prosecution claims grounded in the Fourth Amendment from those applicable to claims based on the Due Process Clause. Instead, her defense to the Due Process claim is to deny causation: “Plaintiff has failed to allege how any deprivation of life, liberty or property flowed from Defendant Gilchrist’s actio ns.” Gilchrist Br. 20-21. On (continued...) 36 accurately reported, would vitiate that probable ca use and lead to immediate release and exoneration. That argument is inconsis tent with this Court’s holding in Wolford

that it is a violation of the Fourth Amendment notonly for an arrest warrant affiant to include false statements in the affidavit, but to “knowingly or recklessly omit from the affidavit information whic h, if included, would have vitiated probable cause .” 78 F.3d at 489 (emphasis added) (citing Stewart v. Donges , 915 F.2d 572, 581-83 (10th Cir. 1990)); see also Taylor , 82 F.3d at 1562. From a constitutional perspective, Ms. Gilchrist ha s not suggested any reason to distinguish between falsifying evidence t o facilitate a wrongful arrest and engaging in the same conduct several days laterto induce prosecutors to initiate an unwarranted prosecution. 11 Either way, the government official’s11 (...continued)

that point we agree with Judge Posner’s observationin Jones v. City of Chicago that whether the action is properly brought pursuant to the Fourth Amendment, the Due Process Clause, or the Eighth Amendment, “t he causal inquiry is unchanged. If police officers have been instrument al in the plaintiff’s continued confinement or prosecution . . . [t]hey cannot hide behind the officials whom they have defrauded.” 856 F.2d at 994.

12Neither party has questioned the applicability of m alice as an element of a (continued...) 37 serious abuse of power leads to the prosecution of innocent defendants. Our holding in Robinson , 895 F.2d at 656, makes clear that when the fabric ation of evidence results in a constitutional deprivation, t he official’s responsibility for that deprivation does not hinge on the exact stage of in vestigatory or prosecutorial process at which the fabrication occurred. To the extent that Oklahoma law would erect such distinctions, we decline to adopt them a s a matter of federal law. d. Malice. Ms. Gilchrist’s objections regarding the malice req uirement appear to be based on denial of the veracity of the allegations in the amended complaint. See Gilchrist Br. 17 (“There is absolutely nothing abou t Defendant Gilchrist’s performance of her discretionary duties that would support a finding of malice regarding her out of court duties.”); id . (“Defendant Gilchrist did nothing wrong regarding the preparation of her report.”). We see no reason to dispute the district court’s conclusion that “the allegations, if proven , would support that Defendant possessed malice in the performance of her out-of-c ourt duties.” 1212 (...continued)

§ 1983 claim, and we therefore have no occasion to address the issue. See Franks , 438 U.S. at 155-56 (employing a standard of “know ingly and intentionally, or with reckless disregard for the t ruth,” falsifying or omitting evidence, in the context of Fourth Amendment challe nges); Arizona v. Youngblood, 488 U.S. 51, 55 (1988) (requiring a showing of “b ad faith” in the context of due process challenge to failure to pres erve evidence); see also Stewart , 915 F.2d at 581-83; Wolford, 78 F.3d at 489; cf. Jean v. Collins , 221 F.3d 656 (4th Cir. 2000) (en banc) (equally divided court) (considering whether the failure of police to provide exculpatory eviden ce is actionable under § 1983 in the absence of specific intent). 38 e. Damages. Similarly, Ms. Gilchrist’s argument on the requirem ent of damages is based on a factual denial that she did anything wrong, Gi lchrist Br. 18 (“There is absolutely no evidence or factual allegations to in dicate that Defendant Gilchrist acted inappropriately.”), or a repetition of her ar gument regarding probable cause, which has already been addressed. Reply Br. 23 (“P laintiff has failed to prove damages because probable cause existed for his arre st, prosecution and conviction.”).

C. Clearly Established Law When evaluating a qualified immunity defense, afteridentifying the constitutional right allegedly violated, courts mus t determine whether the conduct was objectively reasonable in light of clearly esta blished law at the time it took place. See Anderson v. Creighton , 483 U.S. 635, 639-40 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We take March 1, 1986, the date of Ms.39

Gilchrist’s first interaction with Mr. Pierce, as t he relevant date for purposes of determining whether Mr. Pierce’s rights were clearl y established. The district court defined the right at issue in this case as “t he right not to be deprived of liberty as a result of the fabrication of evidence by a government official.” Op. 12. In finding that right clearly established at t he time of the conduct, the district court looked to Anthony , which found a constitutional violation when state officials “conspire to procure groundless state ind ictments and charges against a citizen based upon fabricated evidence or false, di storted, perjurious testimony presented to official bodies in order to maliciousl y bring about a citizen’s trial or conviction.” 767 F.2d at 662. The court also reli ed on Norton v. Liddel , 620 F.2d 1375 (10th Cir. 1980), which found an actionable constitutional violation when t he sheriff and prosecutor conspired to cause a false i nformation to issue, charging the plaintiff with inciting a riot. In response to the district court’s denial of qual ified immunity, Ms. Gilchrist argues that there are no “actual specific details o f concrete cases which indicate” that her alleged conduct violated clearly establish ed law. Gilchrist Br. 26. Ms. Gilchrist points to factual differences between heralleged conduct and the facts of the cases cited by the district court and concludes that these distinctions prevent those cases from clearly establishing the law as ap plied to her conduct. Specifically, Ms. Gilchrist claims that unlike the criminal suspect in Anthony , Mr.40

Pierce was arrested pursuant to a valid arrest warr ant issued upon probable cause. Similarly, Ms. Gilchrist finds Norton distinguishable because, unlike the Norton defendant, Mr. Pierce was already in custody pursua nt to legal process when the alleged false statements and material omissions wer e made. She also argues that
Norton is distinguishable because it involves a conspirac y whereas she did not conspire. Ms. Gilchrist overemphasizes the degree of specific ity required of prior cases to clearly establish the law. In Hope v. Pelzer , the Supreme Court emphasized: For a constitutional right to be clearly establishe d, its contours

must be sufficiently clear that a reasonable offici al would understand that what he is doing violates that righ t. This is not to say that an official action is protected by qual ified immunity unless the very action in question has been held un lawful, but it is to say that in light of pre-existing law the unl awfulness must be apparent. 536 U.S. 730, 739 (2002) (internal quotation marks and citations omitted). The Court proceeded to discuss United States v. Lanier , 520 U.S. 259 (1997), which held that the “clearly established” prong of the qu alified immunity analysis is identical to the “fair warning” standard given to o fficials facing criminal charges pursuant to 18 U.S.C. § 242 (criminalizing the depr ivation of a citizen’s constitutional rights under color of state law). Id . at 270-71. In an effort to summarize and synthesize the Court’s approach towar ds clearly established law,41

Hope concluded:

[O]fficials can still be on notice that their condu ct violates established law even in novel factual circumstances . Indeed, in Lanier , we expressly rejected a requirement that previous cases be “fundamentally similar.” Although earlier cases involving “fundamentally similar” facts can provide especiall y strong support for a conclusion that the law is clearly es tablished, they are not necessary to such a finding. . . . [T]he sa lient question . . . is whether the state of the law [at the time of the conduct] gave respondents fair warning that their alleged tr eatment of [plaintiff] was unconstitutional.
536 U.S. at 741. Hope thus shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward th e more relevant inquiry of whether the law put officials on fair notice that t he described conduct was unconstitutional. As this Court held even prior t o Hope , qualified immunity will not be granted if government defendants fail to mak e “reasonable applications of the prevailing law to their own circumstances.” Currier v. Doran , 242 F.3d 905, 923 (10th Cir. 2001) (quoting Murrell v. Sch. Dist. No. 1 , 186 F.3d 1238, 1251 (10th Cir. 1999)). The degree of specificity required from prior case law depends in part on the character of the challenged conduct. The more obvi ously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation. See Vinyard v. Wilson , 311 F.3d 1340 (11th Cir. 2002) (noting that the “constitutio nal provision may be so clear42

and the conduct so bad that case law is not needed to establish that this conduct cannot be lawful”); cf. Austin v. Hamilton , 945 F.2d 1155, 1158 (10th Cir. 1991) (“It is only by ignoring the particularized allegat ions of deplorable violence and humiliation advanced by plaintiffs that defendants are able to argue for qualified immunity.”). No one could doubt that the prohibition on falsific ation or omission of evidence, knowingly or with reckless disregard for the truth, was firmly established as of 1986, in the context of informati on supplied to support a warrant for arrest. In Stewart , 915 F.2d at 581-83, the plaintiff alleged violati ons of his Fourth and Fourteenth Amendment rights arising froman investigation of a reported larceny. According to the plaintiff, the defendant, a detective with the local police force, conducted an inadequate investi gation, made material misrepresentations and omissions in his affidavit i n support of the warrant application, and then arrested plaintiff without pr obable cause. In response to defendant’s claim of qualified immunity, the court analyzed whether the law prohibiting such conduct was clearly established as of January 8, 1986, the day of the alleged arrest. Id. at 581. Stewartnoted that the Supreme Court’s ruling in Franks v. Delaware , 438 U.S. 154 (1978), clearly established that kno wingly, or with reckless disregard for the truth, including fa lse information in the affidavit supporting the arrest warrant constituted a Fourth Amendment violation. Id. at43

581-82 (quoting Franks , 438 U.S. at 155-56). Stewartwent on to consider whether the same principles applied to knowing or r eckless omissions of material facts which would have vitiated probable cause. Al though Stewartfound no Tenth Circuit decisions on point, after reviewing case law from other circuits, the court concluded, “we hold that at the time defendant subm itted his affidavit and arrested plaintiff [early January of 1986], it was a clearly established violation of plaintiff’s Fourth and Fourteenth Amendment rights to knowingly or recklessly omit from an arrest affidavit information which, if included, would have vitiated probable cause.” Id. at 582-83. A similar analysis applies under the Due Process Cl ause. Long before the events in question, the Supreme Court held that a d efendant’s due process rights are implicated when the state knowingly uses false testimony to obtain a conviction, Pyle v. Kansas, 317 U.S. 213, 216 (1942), or withholds exculpatory evidence from the defense, Brady v. Maryland, 373 U.S. 83 (1963). See Spurlock v. Satterfield, 167 F.3d 995, 1005-06 (6th Cir. 1999) (rejecting qualified immunity where officers allegedly fabricated evidence and ma nufactured probable cause; holding that on the basis of Bradyand Pyle “[the defendant] cannot seriously contend that a reasonable police officer would not know that such actions were inappropriate and performed in violation of an indi vidual’s constitutional and/or statutory rights.”); Newsome , 256 F.3d at 752-53 (finding that Bradyclearly44

established that officers could not withhold inform ation that plaintiff’s fingerprints did not match those found at the crime scene or that officers influenced witnesses to pick plaintiff out of police lineup). We have no doubt that, in light of these holdings, an official in Ms. Gilchrist’s position in 1986 had “fair warning” that the deliberate or reckless falsification or omission of evidence was a constit utional violation – even though the arrest had already occurred. There is no moral , constitutional, common law, or common sense difference between providing phony evi dence in support of an arrest and providing phony evidence in support of c ontinued confinement and prosecution. Even if there were no case directly o n point imposing liability on officials whose falsification of evidence occurred at the post-arrest stage, an official in Ms. Gilchrist’s position could not have labored under any misapprehension that the knowing or reckless falsif ication and omission of evidence was objectively reasonable. Qualified immunity is designed to protect public of ficials who act in good faith, on the basis of objectively reasonable under standings of the law at the time of their actions, from personal liability on accoun t of later-announced, evolving constitutional norms. Ms. Gilchrist’s alleged misc onduct did not stem from a miscalculation of her constitutional duties, nor wa s it undertaken in furtherance of legitimate public purposes that went awry. Rather, as alleged, Ms. Gilchrist45

engaged in a deliberate attempt to ensure the prose cution and conviction of an innocent man. Such conduct, if it can be proven attrial, violated Mr. Pierce’s constitutional rights with “obvious clarity.” For these reasons the district court’s denial of qu alified immunity to Defendant Gilchrist is affirmed.

III

. Defendant Macy’s Motion to Dismiss In ruling on Mr. Macy’s motion to dismiss, the district court held that he was entitled to Eleventh Amendment immunity on the claims pending against him in his official capacity. Regarding claims pursued in Mr. Macy’s individual capacity, the district court’s ruling was split. T he district court dismissed claims that Mr. Macy (i) encouraged, aided, and abetted Ms . Gilchrist’s false testimony, (ii) coached, directed, and encouraged Ms. Gilchris t to provide investigative reports consistent with the district attorney’s the ory of the case, and (iii) failed to investigate Ms. Gilchrist’s practices and ignored e vidence that she violated Mr. Pierce’s constitutional rights, on the grounds thatthese claims were all barred by absolute prosecutorial immunity under Buckley v. Fitzsimmons , 509 U.S. 259, 272 (1993), and Imbler v. Pachtman , 424 U.S. 409, 430-31 (1976). Mr. Macy, however, was denied qualified immunity on two claim s in his individual capacity. The first of these claims charged Mr. Macy with est ablishing a policy or custom in his office of using false evidence at trial; the se cond alleged that Mr. Macy acted46

with deliberate indifference to the risk that his s ubordinates would introduce false evidence at Mr. Pierce’s trial. The district courtfound that Mr. Pierce had properly stated a violation of constitutional right s, and that such rights were clearly established before 1986, the time of the co nduct in question. In his filings on appeal, Mr. Macy does not challen ge any of the district court’s legal conclusions. Rather Mr. Macy present s two arguments premised on a fundamental (and surprising) misunderstanding of wh at is at stake in the motion to dismiss phase of a lawsuit. The first line of argu ment is simply a general denial of the factual allegations set forth in Plaintiff’s co mplaint. This argument amounts to little more than conclusory statements charging that Plaintiff has failed to offer any proof to support his allegations. The second c laim is an attempt to convert the district court’s holding that certain of the allegations in Plaintiff's complaint, even if true, fail to state a claim as a matter of law i nto a factual ruling that the alleged events did not occur. Neither of these contentions is availing. We briefly elaborate. First, Mr. Macy asserts that Plaintiff has failed t o show the facts required to support his allegations. At various points in his brief, Mr. Macy claims that Mr. Pierce has “no proof for [his] claim,” Macy Br. 10, “there [is] no evidence showing that Macy or his office” violated Plaintiff’s constitutional rights, id. at 9, and that Mr. Pierce’s “assertion[s] lack[] merit an d cannot be supported.” Id. at 6.47

Simply put, neither the facts nor the reasonable in ferences to be drawn from them are at issue at this stage of the litigation. See Ramirez , 222 F.3d at 1240. Rather, in reviewing a motion to dismiss we accept all Plaintiff’s allegations as true and determine only whether these allegations s tate a claim recognized at law. Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). For this reason, Mr. Macy’s protestations r egarding the lack of evidentiary basis for Plaintiff’s claims are to no avail; on a motion to dismiss we evaluate the legal, not the factual, basis of the complaint. Mr. Macy’s second line of argument misconstrues the effect of the district court’s grant of Mr. Macy’s motion to dismiss sever al of Mr. Pierce’s claims on immunity grounds. Mr. Macy contends that the undis missed claims should have been dismissed because the district court found that he did not engage in the alleged conduct. Typical of Mr. Macy’s argument is: Judge Cauthron ruled Macy did not encourage, aid orabet Defendant Gilchrist in giving false testimony. (App . 13, Order of July 18th). Further, Judge Cauthron ruled Macy did not fail to investigate Gilchrist’s practices nor did he ign ore evidence that she had violated Plaintiff’s rights in an atte mpt to secure his conviction. Id . Having so found, it begs the question of what “clearly established law” did Macy violate? Macy Br. 6. Similarly:48 In the present case, the Court found Macy was not g uilty of failure to investigate Gilchrist’s practices and th ere was no proof Macy or his staff encouraged, aided or abette d Gilchrist into giving false testimony. (App. 13, Order of Jul y 18th). It is incongruous to have the District Court declare Macyand his staff did not participate in any manner towards Gil christ’s alleged false testimony yet to hold him and his sta ff liable for employing false evidence and testimony. Id . at 8. Mr. Macy’s characterizations of the district court’ s holdings are, at their very best, misleading. Even cursory examination of the district court’s opinion reveals that the dismissals were premised solely ongrounds of immunity. The district court granted Mr. Macy’s motion to dismiss as to claims for aiding and abetting false testimony, coaching and directing th e production of false reports, and failure to investigate Ms. Gilchrist’s allegedl y questionable practices because “they seek to impose liability for prosecutorial ac tions in obtaining, reviewing and evaluating evidence and witness testimony, all of w hich are ‘intimately associated with the judicial phase of the criminal process.’” Op. 12-13, Macy App. 12-13. (quoting Imbler , 424 U.S. at 430). No determination was made (norcould one have been made at this stage of the litigation) as to the factual question of whether Mr. Macy engaged in the alleged conduct. Mr. Macy’s argument thus amounts to an attempt to c onvert a legal finding of immunity into a factual determination that he di d not commit the acts alleged in Plaintiff’s complaint. But a court’s declaration t hat the allegations, even if taken49

as true, do not state a legal cause of action is no t at all equivalent to a finding that the alleged behavior did not occur. The district court correctly stayed within the narrow confines of a motion to dismiss and in lightof the standards set forth in Buckleyand Imbler granted immunity as a matter of law. This finding had no bearing on the truth of the allegations asserted, a nd Mr. Macy’s contentions to the contrary are unavailing.

IV

. Conclusion For the foregoing reasons we AFFIRM the district co urt’s denial of Defendant Gilchrist’s and Defendant Macy’s motions to dismiss.