23-1153

Birch v. Town of New Milford

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 21st day of June, two thousand twenty-four. 

PRESENT: 

PIERRE N. LEVAL, 

RICHARD J. SULLIVAN,

SARAH A. L. MERRIAM,

Circuit Judges.

_____________________________________

RALPH BIRCH, SHAWN HENNING, 

Plaintiffs-Appellees, 

v. No. 23-1153

TOWN OF NEW MILFORD, STEVEN JORDAN,

ROBERT SANTORO, as Administrator of the 

Estate of DAVID SHORTT, 

Defendants-Appellants,
2 

ANDREW OCIF, SCOTT O’MARA, JOHN 

MUCHERINO, JOSEPH QUARTIERO, MICHAEL 

GRAHAM, BRIAN ACKER, HENRY LEE, 

Defendants,

H. PATRICK MCCAFFERTY, PAUL V. LIOON, as 

Administrator of the Estate of H. PATRICK 

MCCAFFERTY, 

Consols Defendants.

_____________________________________

For Defendants-Appellants: ELLIOT B. SPECTOR, Hassett & 

George, P.C., Simsbury, CT. 

For Plaintiff-Appellee Ralph Birch: DAVID A. LEBOWITZ (Douglas E. 

Lieb, on the brief), Kaufman Lieb 

Lebowitz & Frick LLP, New York, 

NY.

For Plaintiff-Appellee Shawn 

Henning: 

Seth R. Klein, Craig A. Raabe, Izard, 

Kindall & Raabe, LLP, West 

Hartford, CT; W. James Cousins, W. 

James Cousins, P.C., Ridgefield, CT; 

Paul Casteleiro, Law Offices of Paul 

Casteleiro, Nyack, NY, on the brief. 

Appeal from an order of the United States District Court for the District of 

Connecticut (Victor A. Bolden, Judge).
3 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the appeal is DISMISSED. 

The Town of New Milford and two of its former police officers1 appeal the 

district court’s July 21, 2023 order denying their motion for summary judgment 

based on qualified immunity as to claims brought by Plaintiffs Ralph Birch and 

Shawn Henning pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity 

with the underlying facts, procedural history, and issues on appeal.

Birch and Henning were convicted of a 1985 murder following what 

prosecutors at the time described as a home burglary gone wrong. In 2019, after 

each man had spent more than thirty years in prison, the Supreme Court of 

Connecticut granted their habeas petitions and overturned their convictions. 2 

Birch and Henning thereafter commenced these actions against the former director 

of the Connecticut State Forensic Laboratory, the Town of New Milford, and 

1 In light of Defendant David Shortt’s death, Robert Santoro, the administrator of his estate, is 

named as a Defendant below and as an Appellant here. 

2 The Connecticut Supreme Court concluded that Birch and Henning were entitled to a new trial 

because the prosecution had failed to correct the false testimony of the then-director of the 

Connecticut State Forensic Laboratory regarding a forensic test that the director purportedly

performed. See Birch v. Comm'r of Corr., 334 Conn. 37, 69 (2019); Henning v. Comm'r of Corr., 334 

Conn. 1, 33 (2019).
4 

various officers of the New Milford Police Department (“NMPD”) and 

Connecticut State Police (“CSP”), whom they allege violated their constitutional 

and state law rights by engaging in a bad-faith investigation that led to their 

wrongful convictions. As relevant here, Birch and Henning assert that officer 

Steven Jordan failed to disclose exculpatory materials discovered at the murder 

crime scene, in violation of their rights under Brady v. Maryland, 373 U.S. 83 (1963). 

In particular, they contend that Jordan suppressed an envelope containing $1,000 

in cash found at the scene, which, in Birch and Henning’s view, undermined the 

prosecution’s theory that the murder was part of a botched burglary and would 

have prompted prosecutors and defense counsel to explore alternative theories, 

such as whether “the real murderer was likely someone with a personal vendetta 

against the victim.” Appellees’ Br. at 28. Birch also asserts that officer David

Shortt failed to intervene when a fellow officer elicited false witness statements 

against him, in violation of his constitutional right to a fair trial. The district court 

denied these Defendants’ motion for summary judgment, concluding, among 

other things, that genuine disputes of material fact precluded their entitlement to 

qualified immunity as a matter of law. This interlocutory appeal followed.
5 

We consider, at the outset, whether we have jurisdiction to hear this appeal. 

“[A]s the part[ies] seeking to invoke this Court’s appellate jurisdiction,” 

Defendants “bear[] the burden of establishing it.” Jok v. City of Burlington, 96 F.4th 

291, 294 (2d Cir. 2024). Generally, an order denying summary judgment is not 

appealable. See 28 U.S.C. § 1291 (limiting appellate review to “final decisions”). 

To be sure, the “collateral order doctrine” permits us to review the denial of 

qualified immunity “to the extent that it turns on an issue of law.” Coollick v. 

Hughes, 699 F.3d 211, 217 (2d Cir. 2012) (internal quotation marks omitted). But 

we cannot entertain interlocutory appeals “from denials of qualified immunity if 

resolution of the immunity defense depends upon disputed factual issues.” 

Washington v. Napolitano, 29 F.4th 93, 103 (2d Cir. 2022) (alteration and internal 

quotation marks omitted); see also Doninger v. Niehoff, 642 F.3d 334, 352 (2d Cir. 

2011) (concluding we lack jurisdiction to review a “district court’s finding that 

there is enough evidence in the record to create a genuine issue as to factual 

questions that are, in fact, material to resolution of the qualified immunity claim”). 

As a result, “[d]efendants wishing to obtain immediate review of a denial of 

qualified immunity” must do so by agreeing to stipulated facts or by “accepting, 
6 

for purposes of the appeal only, plaintiff’s version of the disputed facts.” Franco 

v. Gunsalus, 972 F.3d 170, 174 (2d Cir. 2020). 

In denying qualified immunity for Jordan, the district court concluded that 

there were genuine issues of material fact regarding his knowledge of, and reasons 

for, withholding the envelope of cash from the prosecution and thus defense 

counsel. On appeal, Defendants insist that “[t]here is no evidence that Jordan 

knew the [envelope of cash] was exculpatory or that he intentionally suppressed 

evidence, or that he acted in bad faith.” Appellants’ Br. at 39. But as the district 

court recognized, issues of fact relevant to Jordan’s knowledge – including, for 

example, when and where the envelope was discovered at the crime scene – 

remain disputed or undetermined at this time. Moreover, any disputes regarding 

Jordan’s knowledge of the envelope and state of mind in handling it are for the 

factfinder to resolve, after making credibility determinations and considering 

competing inferences that might be drawn from the evidence. See Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the 

weighing of the evidence, and the drawing of legitimate inferences from the facts 

are jury functions, not those of a judge.”). Accordingly, “[t]he question of 

whether [Jordan] is entitled to qualified immunity” is “not a pure question of law 
7 

that can be decided on interlocutory appeal.” Brown v. Halpin, 885 F.3d 111, 117 

(2d Cir. 2018). 

We also lack jurisdiction to resolve Shortt’s challenge to the district court’s 

denial of qualified immunity. As a part of the murder investigation, Shortt and 

CSP detective Andrew Ocif interviewed Todd Cocchia, who became friendly with 

Birch while they were previously incarcerated together, about statements that 

Birch purportedly made regarding his role in the murder. In denying qualified 

immunity for Shortt, the district court concluded, in effect, that a reasonable jury 

could find that Ocif intentionally induced Cocchia to falsely implicate Birch in the 

murder and that Shortt knowingly failed to stop Ocif from doing so. Defendants’ 

arguments on appeal once again rest on the resolution of “disputed facts,” and the 

inferences drawn therefrom, in their favor. Jok, 96 F.4th at 298. Defendants 

continue to contend that Ocif did not act improperly, so Shortt had no reason to 

intervene. For example, they argue that Ocif provided no substantive 

information about the murder to Cocchia during an unrecorded portion of the 

interview, and that Cocchia did not review Ocif’s case file while speaking to the 

officers. But Birch adduced evidence – in the form of Cocchia’s testimony in the 
8 

state habeas proceeding3 – that Ocif told Cocchia at the start of the interview that 

Birch was guilty and that he allowed Cocchia to examine the case file before 

making statements. Based on this testimony, along with the recorded portions of 

the interview in which Ocif provided information to and corrected certain errors 

made by Cocchia, a reasonable jury could find that Ocif improperly coached 

Cocchia to make false statements inculpating Birch, and that Shortt witnessed this 

coaching, precluding a finding of qualified immunity as a matter of law at the 

summary judgment stage. See Zahrey v. Coffey, 221 F.3d 342, 355 (2d Cir. 2000) (“It 

is firmly established that a constitutional right exists not to be deprived of liberty 

on the basis of false evidence fabricated by a government officer.” (citing White v. 

Frank, 855 F.2d 956, 961 (2d Cir. 1988))); O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 

1988) (“A law enforcement officer has an affirmative duty to intercede on the 

behalf of a citizen whose constitutional rights are being violated in his presence by 

other officers.”). 

3 Neither party suggests on appeal that it was improper for the district court to rely on this 

testimony as admissible evidence for purposes of deciding the summary judgment motions. 

Indeed, Defendants likewise offered deposition testimony from the state habeas proceeding in 

support of their motions. 
9 

In sum, the resolution of Defendants’ qualified immunity defenses does not 

turn on any pure questions of law. As a result, Defendants have “failed to satisfy 

[their] burden of establishing appellate jurisdiction over this interlocutory 

appeal.” Jok, 96 F.4th at 298. 

We have considered Defendants’ remaining arguments and find them to be 

without merit. Accordingly, we DISMISS the appeal for lack of appellate 

jurisdiction. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court