Wilkins v. DeReyes

FILED
United States Court of Appeals
Tenth Circuit

June 13, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHAUN WILKINS and ROY
BUCHNER,

Plaintiffs-Appellees,
v. Nos. 06-2245 and 06-2260
JUAN DeREYES, FRANK JACOBY,
and MICHAEL FENNER,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-02-980-JH)

Sheldon Nahmod, Professor of Law, Chicago, Illinois (assisted on the briefs by
Stephen G. French and Robert W. Becker, French & Associates, P.C.,
Albuquerque, New Mexico for Appellants Jacoby and Fenner in 06-2245, and
Emily A. Franke and W. Ann Maggiore, Butt, Thornton & Baehr, P.C.,
Albuquerque, New Mexico for Appellant DeReyes in 06-2260), for Defendants-
Appellants.

Ray Twohig, Albuquerque, New Mexico, for Plaintiffs-Appellees.

Before TACHA, McKAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.
 Shaun Wilkins and Roy Buchner became suspects in the 1996 investigation

of a quadruple murder at a cabin in the wilderness outside of Torreon, New

Mexico. Sergeant Frank Jacoby and Captain Michael Fenner, officers with the

New Mexico State Police, and Detective Juan DeReyes, an officer with the

Albuquerque Police Department Gang Unit, investigated the crime. As a result of

the officers’ investigation, Wilkins and Buchner were arrested and twice

unsuccessfully prosecuted for the crimes.

In this § 1983 malicious prosecution case, Wilkins and Buchner allege the

officers violated their constitutional rights by basing their arrests, and causing

subsequent prosecutions, solely on false statements wrongfully coerced from

fellow gang members. Concluding that factual questions exist regarding whether

the officers fabricated evidence and then relied on it in arresting Plaintiffs as well

as causing their prosecutions, we AFFIRM the district court’s denial of qualified

immunity to the officers on the malicious prosecution claim.

I. Factual Background

Viewed in the light most favorable to Plaintiffs, see Clanton v. Cooper, 129

F.3d 1147, 1153 (10th Cir. 1997), the facts as alleged establish the following.

Murders Connected to Gang Activity

On April 14, 1996, Ben Anaya, Sr. discovered at his cabin the dead bodies

of his son Ben Anaya, Jr., his son’s girlfriend Cassandra Sedillo, and Sedillo’s

two children Matthew and Johnny Garcia, ages two and three. The adults had

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been shot, and the children then starved to death after being locked in the cabin

alone. The resulting investigation revealed the murders had taken place between

December 12 and December 18, 1995.

Anaya, Jr. had been a member of the 18th Street Gang. The officers,

experienced with Albuquerque gang activity, were part of a multi-unit task force

investigating the murders. Their suspicion focused on Anaya’s fellow gang

members. In the course of their investigation, the officers brought in for

questioning gang members Shawn Popeleski, Lawrence Nieto, and Plaintiffs,

among others.

Initial Interviews

During initial interviews in April 1996, Popeleski and Nieto denied

knowing who committed the murders. Disbelieving their stories, the officers

brought the suspects in for further interviews. The officers pushed hard for Nieto

and Popeleski to implicate Wilkins and Buchner in the quadruple homicide.

DeReyes in particular had a personal interest in proving Wilkins committed the

crime because “Wilkins had done a drive by shooting on his (DeReyes’) house,

. . . and his family was threatened by that and had to move.” App. 1920. As a

result of these interviews, both Nieto and Popeleski eventually implicated

Plaintiffs. It is from these interrogations that the claim of fabricated and coerced

testimony arises.

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 Coercive Interrogations and Fabricated Evidence

Plaintiffs contend the officers fabricated evidence by intentionally

extracting matching false statements regarding Nieto’s and Popeleski’s knowledge

of the murders and then used the statements as the sole basis for Plaintiffs’

subsequent arrest and trial. They claim the officers, using threats and promises,

took advantage of Nieto’s and Popeleski’s age (18) and Nieto’s learning

disabilities to persuade them to implicate Wilkins and Buchner. The officers

threatened them and their families with harm, promising leniency and protection

if they cooperated.

Based on these threats and promises, a series of interrogations in May 1996

yielded nearly identical statements from Nieto and Popeleski, both implicating

Plaintiffs Wilkins and Buchner in the quadruple homicide.

(1) The first interrogation of Popeleski took place on May 10, 1996.

Although coerced, Popeleski did not provide any useful information that day. But

the very next day—and allegedly as a result of May 10 coercion—he quickly

implicated Wilkins. He told the officers that Wilkins and Nieto arrived at the

cabin and partied with Anaya, Sedillo, and Popeleski on the afternoon of the

murders. After Wilkins and Nieto had apparently left and Anaya and Sedillo had

gone to bed, Popeleski was outside when two men in ski masks surprised him.

One of them held Popeleski on the ground while the other, whom Popeleski

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recognized as Wilkins, went into the cabin. 1 Popeleski heard gunshots, footsteps,

and the front door being locked. He saw the two men run back toward a car that

looked like the one Wilkins and Nieto had arrived in earlier. Popeleski tried to

chase them in Anaya’s jeep but lost them when the jeep stalled.

(2) After the Popeleski interviews, the officers reinterviewed Nieto on May

11, 1996, and coerced a false statement blaming Wilkins for the murders.

According to police affidavits, Nieto confessed that when Wilkins visited him

shortly after the murders appeared on the news, Wilkins told him he had done

“some s***” at the cabin. Nieto did not supply any additional details. An arrest

warrant was issued for Wilkins based on this information.

(3) The officers interviewed Nieto again on May 13, 1996. Unlike his May

11 interrogation, during which Nieto placed suspicion on Wilkins simply by

relaying to the officers Wilkins’s statement of doing “some s***” at the cabin, the

May 13 interview produced a more detailed account. According to Nieto’s

affidavit, “a lot more interrogation took place outside of that which was

videotaped” on May 13. App. 1920.

The officers allegedly forced Nieto to corroborate the story Popeleski had

told them earlier, blaming both Wilkins and Buchner for the murders (although

1
On April 15, 1996, Fenner noticed marks in the dirt outside the cabin
“where it appeared someone had been running, tripped, and fell.” App. 644. The
officers argue this evidence corroborated Popeleski’s statement that he was
surprised from behind and ordered to the ground. Aplt. Br. 67.

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Popeleski had not yet actually mentioned Buchner). Id. (“I [Nieto] didn’t think I

had any choice except to go along with the story [the officers] said they knew and

said Popeleski had told. They went over it in detail, then talked to me on the

videotape, then went over it again, then talked to me again on the videotape.

They put words in my mouth. They supplied the details of the story, then when I

told them something, they pressured me to change it.”). In the end, Nieto gave

two statements, each differing in the details but both implicating Wilkins and

Buchner, whom Nieto placed at the cabin with Wilkins. Buchner was arrested for

the murders on May 13.

(4) On May 15, 1996, Nieto was interviewed by Agent Lucero of the New

Mexico state police, who is not a defendant in this case. Plaintiffs do not contend

Lucero used any coercive tactics in this interview, although they claim the

statements resulted from the earlier coercive interrogations. Moreover, according

to Nieto’s affidavit, right before his May 15 interview the officers “coached

[Nieto] to change the [May 13] story. . . . [He] went along with that because they

pressured [him] to do so.” Id. at 1921.

In the interview, Nieto told Agent Lucero that Wilkins and Buchner came

to his home and asked him to go to the cabin with them to party. Wilkins had a

.22 caliber pistol lying on his lap, and on the way to the cabin Wilkins and

Buchner told Nieto they were going to kill Popeleski. After spending time at the

cabin, Wilkins, Buchner, and Nieto left the cabin, walked back to their car, and

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donned ski masks and gloves. Nieto had a shot gun, Wilkins the pistol, and

Buchner a rifle. After waiting some time, the three went back to the cabin. They

saw Popeleski outside, and Wilkins told Nieto to get him. Nieto surprised

Popeleski and told him to get on the ground while Wilkins and Buchner entered

the cabin. When Nieto heard shots inside, he fired a shot into the air, and

Popeleski ran. Wilkins and Buchner were carrying drugs and guns from the cabin

and Nieto joined them as they returned to the car. Buchner went back to the cabin

to lock the front door, and the three left the area together.

(5) The officers, at that point, had detailed statements from both Nieto and

Popeleski, implicating Wilkins in the murders. One major difference remained,

however, in that Popeleski’s account deviated from Nieto’s by omitting Buchner’s

participation. The officers went back to Popeleski to try and reconcile the two

versions of what they wanted to be the same story. When Popeleski was

reinterviewed on May 15, 1996, he said he had not mentioned Buchner’s presence

at the cabin previously because Buchner was from Corrales, and Popeleski had a

friend in Corrales he was trying to protect from Buchner. The two accounts were

now nearly identical in all relevant respects.

In summary, Plaintiffs contend the officers fabricated evidence by coercing

Nieto and Popeleski into giving matching false statements, implicating both

Wilkins and Buchner in the quadruple homicide.

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 Criminal Prosecutions and Mistrials

As a result of the investigation, Buchner and Wilkins were arrested and

charged with capital murder. At Buchner’s preliminary hearing on May 26, 1996,

and at Wilkins’s preliminary hearing on July 29, 1996, the prosecution called

Popeleski to testify. He testified consistent with his May 11 and 15 statements.

Nieto refused to testify on both occasions and was declared unavailable. Agent

Lucero instead testified as to Nieto’s May 15 statement.

Wilkins went to trial on September 22, 1997, and Buchner went to trial on

November 3, 1997. Nieto and Popeleski both refused to testify at Wilkins’s trial,

but their prior statements were admitted. Nieto testified at Buchner’s trial only to

the extent of telling the jury that the interrogating officers had forced him to lie

about himself and Buchner being at the cabin. Neither jury could reach a verdict

and mistrials were declared. 2

The state initially decided to retry Buchner and Wilkins, but the trial court

determined that Nieto’s statements would be excluded from evidence in the

retrials as inadmissible hearsay. In light of the exclusions, the district attorney

decided to dismiss the charges because insufficient evidence existed to go forward

2
Nieto and Popeleski were also charged with the murders. Nieto testified
in his own defense consistent with his May 15, 1996 statement and was convicted,
receiving four consecutive life sentences. Popeleski did not testify at his trial,
and was convicted of the children’s murders. He received a sixteen-year
sentence.

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with the prosecutions. Accordingly, the district attorney dismissed the criminal

cases in January and March 2001, reserving the right to retry both men.

II. Discussion

Plaintiffs sued and alleged violations of federal civil rights, claiming the

officers violated their (1) substantive due process rights by coercing matching

statements from Nieto and Popeleski and using those statements against

Plaintiffs, 3 and (2) Fourth Amendment rights by arresting them without probable

cause, which resulted in subsequent prosecutions, a claim Plaintiffs have styled as

malicious prosecution.

The officers moved for summary judgment on two grounds: (1) Plaintiffs’

claims were barred by the statute of limitations, and (2) the officers were entitled

to qualified immunity. In denying the motion, the district court concluded the

statute of limitations did not apply, and Plaintiffs had asserted facts which, if

true, would constitute a violation of a clearly established constitutional right.

A. Statute of Limitations

A statute of limitations defense is ordinarily not appealable as part of an

interlocutory qualified immunity appeal. See Moore v. City of Wynnewood, 57

F.3d 924, 930 (10th Cir. 1995) (limiting pendent appellate jurisdiction to cases

“where the otherwise nonappealable decision is inextricably intertwined with the

appealable decision, or where review of the nonappealable decision is necessary

3
Plaintiffs do not raise a procedural due process claim. Aple. Br. 17.

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to ensure meaningful review of the appealable one” (quotation marks omitted)).

But see Rendall-Speranza v. Nassim, 107 F.3d 913, 917 (D.C. Cir. 1997)

(choosing to exercise pendent appellate jurisdiction over the otherwise

nonappealable statute of limitations issue when, so doing, the “court may be able

to dispose of the entire case and thus to economize on the use of judicial

resources”). In this case, however, we asked the parties to file supplemental

briefing and address how, if at all, the Supreme Court decision in Wallace v.

Kato, 127 S. Ct. 1091 (2007), issued after the district court’s order, affected the

statute of limitations arguments. Following oral argument, we directed a limited

remand for the district court to reconsider the statute of limitations in light of

Wallace.

On remand, the district court concluded Plaintiffs’ substantive due process

claim, filed August 8, 2002, was untimely and dismissed it with prejudice. Thus,

Defendants’ Motion for Exercise of Pendent Appellate Jurisdiction is denied as

moot.

With respect to Plaintiffs’ malicious prosecution claim, however, the

district court relied on the favorable termination requirement (which we discuss

below) and concluded the claim had not accrued until the government dismissed

criminal charges in 2001. Therefore, the district court found the malicious

prosecution claim was timely filed in August 2002.

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 As a result of the district court’s disposition on remand, we need only

address Plaintiffs’ Fourth Amendment malicious prosecution claim in this appeal.

B. Qualified Immunity

Turning to Plaintiffs’ malicious prosecution claim, we agree with the

district court that the officers are not entitled to qualified immunity.

Qualified immunity shields public officials “from undue interference with

their duties and from potentially disabling threats of liability.” Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982). But qualified immunity is unwarranted

when a plaintiff can overcome a two-part burden: plaintiff (1) “must . . .

establish that the defendant violated a constitutional right” and (2) “must then

show that the constitutional right was clearly established,” such that “it would be

clear to a reasonable officer that his conduct was unlawful in the situation.”

Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (en banc).

“Orders denying qualified immunity before trial are appealable to the

extent they resolve abstract issues of law.” Foote v. Spiegel, 118 F.3d 1416, 1422

(10th Cir. 1997) (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996)); accord

Johnson v. Jones, 515 U.S. 304, 312–14 (1995); Mitchell v. Forsyth, 472 U.S.

511, 530 (1985); Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir. 2001). But at

the interlocutory appeal stage, we have no jurisdiction to review the district

court’s rulings based on the sufficiency of the evidence—“which facts a party

may, or may not, be able to prove at trial.” Medina, 252 F.3d at 1130 (quoting

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Johnson, 515 U.S. at 313–18). We may review only whether “under [Plaintiffs’]

version of the facts, [Defendants] violated clearly established law. In making this

determination, we must scrupulously avoid second-guessing the district court’s

determinations regarding whether [Plaintiffs have] presented evidence sufficient

to survive summary judgment.” Clanton v. Cooper, 129 F.3d 1147, 1153 (10th

Cir. 1997). “[W]here the district court makes a legal finding and states specific

facts upon which that finding is based, we do not have jurisdiction to delve

behind the ruling and review the record to determine if the district court correctly

interpreted those facts to find a genuine dispute.” Armijo v. Wagon Mound Pub.

Sch., 159 F.3d 1253, 1259 (10th Cir. 1998).

Under this framework, to establish a constitutional violation Plaintiffs must

assert facts meeting the elements of a § 1983 malicious prosecution claim. In this

case, Plaintiffs argue the officers violated their Fourth Amendment rights by

arresting them without probable cause, which led to lengthy detentions while

Plaintiffs were being prosecuted. If so, they argue any reasonable police officer

would know the law clearly established such conduct as unlawful.

At this stage of the case, construing the facts in favor of Plaintiffs, our

review is limited to two purely legal issues: (1) whether the alleged facts, if true,

amount to a constitutional violation, and (2) whether the alleged constitutional

violation was clearly established at the time of the challenged action. See Cortez,

478 F.3d at 1114. Analyzing these two issues, we conclude the district court

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correctly denied the officers qualified immunity on Plaintiffs’ malicious

prosecution claim.

1. Constitutional Violation

The common law elements of malicious prosecution are the “starting point”

for our analysis of a § 1983 malicious prosecution claims. Pierce v. Gilchrist,

359 F.3d 1279, 1285–86 (10th Cir. 2004). But “the ultimate question” in such a

case “is whether plaintiff has proven the deprivation of a constitutional right.”

Novitsky v. City of Aurora, 491 F.3d 1244, 1257–58 (10th Cir. 2007) (citing

Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)); see also Pierce, 359

F.3d at 1288. Because Plaintiffs premised their § 1983 malicious prosecution

claim on a violation of the Fourth Amendment right to be free from unreasonable

seizures, we analyze the elements of their claim in light of Fourth Amendment

guarantees. 4

4
Our cases suggest a § 1983 malicious prosecution claim need not always
rest on the right to be free from unreasonable searches and seizures under the
Fourth Amendment. As we have previously noted, a plaintiff’s § 1983 malicious
prosecution claim may also encompass procedural due process violations. Pierce,
359 F.3d at 1285–86 (“The initial seizure is governed by the Fourth Amendment,
but at some point after arrest, and certainly by the time of trial, constitutional
analysis shifts to the Due Process Clause.”); see generally 1 Wayne R. LaFave et
al., Criminal Procedure § 2.7(a)–(c) (3d ed. 2007) (describing numerous
procedural due process guarantees that apply during the investigatory, charging,
pretrial, trial, and sentencing stages). But see Mondragon v. Thompson, 519 F.3d
1078, 1083 n.5 (10th Cir. 2008) (“[A]dditional requirements, such as the
[absence] of adequate state law remedies, might apply to a procedural due process
claim.”) (citing Becker v. Kroll, 494 F.3d 904, 917–22 (10th Cir. 2007)); Morgan
v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (“Regardless of any misconduct by
(continued...)

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 Unlike a false arrest or false imprisonment claim, malicious prosecution

concerns detention only “[a]fter the institution of legal process.” Mondragon v.

Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008); see also Wallace v. Kato, 127

S. Ct. 1091, 1096 (2007) (“[A]fter [institution of legal process], unlawful

detention forms part of the damages for the . . . tort of malicious prosecution,

which remedies detention accompanied not by absence of legal process, but by

wrongful institution of legal process.”). In this context, a Fourth Amendment

violation can exist only when a plaintiff alleges the legal process itself to be

wrongful. If a plaintiff challenges merely the confinement after the institution of

legal process, but not the process itself, “[t]he protections offered by the Fourth

Amendment do not apply.” Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir.

2000); see also Taylor v. Waters, 81 F.3d 429, 436 (4th Cir. 1996)

(“[D]etermination of probable cause by detached judicial officer that complies

with Fourth Amendment constitutes all of the process due in order to

4
(...continued)
government agents before or during trial, a defendant who is acquitted cannot be
said to have been deprived of the [procedural due process] right to a fair trial.”).
In this case, Plaintiffs have disavowed any claim they may have based on
procedural due process. Aple. Br. 17.

Other “explicit constitutional right[s]” could also conceivably support a
§ 1983 malicious prosecution cause of action, see Michael Avery et al., Police
Misconduct: Law and Litigation § 2:14 & n.5 (2007 Westlaw; POLICEMISC
database) (collecting cases), although the Supreme Court specifically excluded
substantive due process as the basis for a malicious prosecution claim. Albright
v. Oliver, 510 U.S. 266, 274–75 (1994). Here, Plaintiffs have not alleged any
other constitutional violation in support of their malicious prosecution theory.

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constitutionally detain an accused pending trial.”) (citing Baker v. McCollan, 443

U.S. 137, 142–46 (1979)).

Depending on the circumstances of the arrest, a plaintiff can challenge the

institution of legal process as wrongful in one of two ways. If arrested without a

warrant—and thus triggering “the Fourth Amendment require[ment of] a judicial

determination of probable cause as a prerequisite to extended restraint of liberty

following arrest,” Gerstein v. Pugh, 420 U.S. 103, 114 (1975)—a plaintiff can

challenge the probable cause determination made during the constitutionally-

required probable cause hearing. See, e.g., Reed v. City of Chicago, 77 F.3d

1049, 1053–54 (7th Cir. 1996) (concluding the plaintiff failed to state a malicious

prosecution claim when he challenged only the warrantless arrest, but not the

subsequent institution of legal process). Or, if arrested pursuant to a warrant,

plaintiff can challenge the probable cause determination supporting the warrant’s

issuance. See, e.g., Meacham, 82 F.3d at 1562 (analyzing the Fourth Amendment

malicious prosecution claim “that the affidavit prepared . . . in support of the

arrest warrant contained deliberately false statements and omissions, thereby

misleading the judge into issuing the arrest warrant”). Either way, the allegation

would state a Fourth Amendment violation sufficient to support a § 1983

malicious prosecution cause of action. 5

5
Because a person unlawfully arrested without legal process can bring a
Fourth Amendment claim sounding in false imprisonment, Wallace, 127 S. Ct. at
(continued...)

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 In this case, Plaintiffs were detained pursuant to arrest warrants. At

common law, the issuance of an arrest warrant represents a classic example of the

institution of legal process. See Restatement (Second) of Torts § 654 cmt. c

(1977) (“Criminal proceedings are usually instituted by the issuance of some form

of process, generally a warrant for arrest, the purpose of which is to bring the

accused before a magistrate in order for him to determine whether the accused

shall be bound over for further action by a grand jury or for trial by a court.”

(emphasis added)). Plaintiffs’ detention was thus preceded by the institution of

legal process, triggering the malicious prosecution cause of action. See Michael

Avery et al., Police Misconduct: Law and Litigation § 2:10 (2007 Westlaw;

POLICEMISC database) (“The Supreme Court’s analysis in Wallace . . . indicates

that such claims should not be characterized as false arrest or false imprisonment,

because detention of the subject is pursuant to legal process.”). In challenging

that process by alleging the officers knowingly supplied false information in

affidavits for the warrants, Plaintiffs based their malicious prosecution claim on

the Fourth Amendment right against unreasonable seizures.

5
(...continued)
1095, the malicious prosecution framework in a sense allows a second Fourth
Amendment claim to come on the heels of the first one. Mondragon, 519 F.3d at
1083 n.4 (noting, in a case dealing with a forged arrest warrant, “[w]e do not
foreclose the additional, though unlikely, possibility of a second Fourth
Amendment claim, arising after the first one ends” (citing Wallace, 127 S. Ct. at
1096 n.2)). But because the institution of legal process separates the two
claims—and thus makes them legally distinct—we think the two claims, though
grounded in the same constitutional provision, can coexist.

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 Under our cases, a § 1983 malicious prosecution claim includes the

following elements: (1) the defendant caused the plaintiff’s continued

confinement or prosecution; (2) the original action terminated in favor of the

plaintiff; (3) no probable cause supported the original arrest, continued

confinement, or prosecution; (4) the defendant acted with malice; and (5) the

plaintiff sustained damages. Novitsky, 491 F.3d at 1258 (citing Pierce, 359 F.3d

at 1291–97). In Plaintiffs’ case, the third element deals only with the probable

cause determination during the institution of legal process—in other words, with

the applications for arrest warrants. This link supplies the necessary connection

between the malicious prosecution cause of action and Plaintiffs’ Fourth

Amendment allegations.

With the above in mind, we first examine whether fact questions limit our

review of the alleged constitutional violation, see Sevier v. City of Lawrence, 60

F.3d 695, 701 (10th Cir. 1995), and then turn to whether the officers are entitled

to qualified immunity as a matter of law.

a. Existence of Fact Questions as to Malice

Reviewing the officers’ motion for summary judgment, the district court

determined Plaintiffs presented sufficient evidence to create a fact question as to

whether the officers fabricated evidence to arrest and prosecute them. In finding

a factual basis for the theory that the officers coerced false testimony, the court

pointed to the following evidence: Nieto’s and Popeleski’s susceptibility to the

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tactics employed in the interrogations because of their age and lack of education;

other circumstances of the interrogations; and numerous statements by the

officers, at times threatening harm to Nieto and Popeleski or their families and at

other times promising help and safety.

Taking these allegations as a whole, the district court found the evidence

“viewed in the light most favorable to the Plaintiffs, implied [DeReyes] wanted to

pin the murders on Wilkins . . . and that the only way for Nieto to help himself

was to say that Wilkins was involved.” App. 2902. The district court also found

the evidence in the light most favorable to Plaintiffs established Popeleski’s

statements were similarly coerced by “egregious . . . promises of help and safety,

as well as the threats of harm.” Id. at 2906. Finally, the district court found a

factual dispute regarding whether the officers acted recklessly or intentionally in

coercing false statements.

The officers responded that even under the totality of the circumstances,

they never made threats or promises “sufficiently compelling and linked to the

confession so that it could be said that [Nieto’s and Popeleski’s] will[s were]

overcome by the offer[s].” Clanton, 129 F.3d at 1159. But the district court

found “a fact issue exists as to whether Defendants coerced statements from Nieto

and Popeleski,” App. 2915, and here we must defer to the district court’s

expertise in determining “the existence, or nonexistence, of a triable issue of

fact.” Johnson, 515 U.S. at 316.

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 We thus will not review the district court’s conclusion that on this record

coercion presents a disputed factual issue. We took the same approach in Clanton

where we determined “coercion is a factual issue that must be evaluated on the

entire record” and decided the district court’s determination that the plaintiff had

presented evidence of coercion was “sufficient to preclude our review on

interlocutory appeal.” 129 F.3d at 1159; see also Johnson, 515 U.S. at 316

(noting that reviewing factual disputes on interlocutory appeal would “require

reading a vast pretrial record” and cause undue delay). The issues Plaintiffs

present with regard to the allegedly coerced statements are sufficiently fact-

oriented—requiring an analysis of the meaning and purpose of the officers’

statements to Nieto and Popeleski—to prevent us from exercising jurisdiction

over the district court’s sufficiency of evidence determination on interlocutory

appeal.

In addition, whether Plaintiffs have presented sufficient evidence of

fabricated testimony bears on Plaintiffs’ malicious prosecution claim because, as

the district court explained,

If those statements were indeed involuntary, then the officers who
carried out the alleged coercion could not reasonably rest their
determination of probable cause upon those statements. On the other
hand, if Defendants did not coerce the statements from the witnesses,
then it would be proper for Defendants to . . . base their
determination of probable cause on those statements.

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App. 2915. For purposes of the malicious prosecution claim, then, disputed

factual issues remain not only whether Nieto’s and Popeleski’s statements were

involuntary and false, but also whether a reasonable officer would have known so.

We acknowledge the officers’ contention that, even if Nieto’s and

Popeleski’s statements were in fact coerced, the officers could reasonably, though

mistakenly, have concluded those confessions constituted reliable evidence for

purposes of probable cause. Qualified immunity of course “operates to grant

officers immunity for reasonable mistakes as to the legality of their actions.”

Saucier v. Katz, 533 U.S. 194, 206 (2001). The district court, however,

specifically found Plaintiffs had presented sufficient evidence to show the officers

recklessly or intentionally coerced false statements, and we cannot review this

evidentiary conclusion on appeal. If the officers acted intentionally or recklessly

to fabricate evidence, they plainly are not entitled to a qualified immunity defense

based on a reasonable mistake.

Because we may not review the district court’s evaluation of the factual

issues surrounding coercion, we accept for purposes of this appeal that Nieto’s

and Popeleski’s statements were involuntary and false and that the officers knew

so.

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 b. Questions of Law Regarding the Elements of Malicious Prosecution

We have already concluded that fact issues remain regarding whether the

officers knowingly relied on false evidence, and, accordingly, we must assume

Plaintiffs can meet the malice element of their malicious prosecution claim. The

only other arguments the officers raise are (1) whether, as a matter of law,

excluding the fabricated testimony would vitiate probable cause, and (2) whether

the prosecution was favorably terminated as to Plaintiffs. 6 We agree with the

district court that without the coerced statements, the officers lacked probable

cause to arrest Plaintiffs and cause their subsequent detentions and prosecutions.

We also agree the prosecutions were favorably terminated.

6
Plaintiffs argue we need not consider the favorable termination element
on appeal. They argue we instead need focus only on whether Plaintiffs have
shown an absence of probable cause. We disagree. The Supreme Court in Heck
v. Humphrey, 512 U.S. 477, 484–86 (1994), described favorable termination as an
essential element of a malicious prosecution action under § 1983, since the
common law immunities and limits serve important purposes inherent in § 1983
actions, namely to prevent conflicting resolution of the probable cause
assessment. And although the Court later clarified that the Heck favorable
termination requirement does not apply to false arrest claims in the absence of an
existing conviction, Wallace, 127 S. Ct. at 1097–98, the requirement remains an
essential element of a § 1983 claim sounding in malicious prosecution. Thus, the
Supreme Court continues to instruct that to survive qualified immunity, a plaintiff
must allege a constitutional violation, including, in a malicious prosecution case,
favorable termination.

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 The Absence of Probable Cause

“Probable cause for an arrest warrant is established by demonstrating a

substantial probability that a crime has been committed and that a specific

individual committed the crime.” Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir.

1996). In the affidavits supporting warrants to arrest Plaintiffs, the officers relied

entirely on the allegedly coerced false statements of Nieto and Popeleski. App.

600–03 (Wilkins), 610–13 (Buchner). Thus, if we set aside, as we must, the false

information, Pierce, 359 F.3d at 1294–95, nothing is left in the affidavits to

support probable cause for Plaintiffs’ arrests.

The officers argue they had probable cause even without the allegedly

coerced confessions. In support, they point to the following additional evidence:

(1) Wilkins owned a .22 caliber handgun, the same caliber used in the murders;

(2) Buchner made callous remarks about the victims, specifically that he “did not

give a f*** about the kids,” App. 429; (3) a polygraph of Popeleski indicated he

was deceptive when he said he was not present at the killings and did not know

who the killer was; (4) a polygraph of Nieto indicated he was truthful when he

denied shooting the victims; (5) a polygraph of Wilkins indicated he was

deceptive when he said he did not shoot Anaya; and (6) the interview conducted

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by Lucero after the allegedly coercive interrogations confirmed Nieto’s and

Popeleski’s earlier statements implicating Plaintiffs. 7

But because the officers revealed none of the additional information during

the institution of legal process—in this case, during the arrest warrant

applications—the officers cannot use this information to escape liability. If

institution of legal process is required to trigger a malicious prosecution claim,

we ought not search for probable cause in a pile of unrevealed information. The

Fourth Amendment in the context of a malicious prosecution claim deals with

judicial determinations of probable cause, either at the warrant application stage

or during a Gerstein hearing following a warrantless arrest. Judicial

determination becomes a misnomer if information required to support probable

cause remains at all times firmly lodged in the officer’s head. See Whiteley v.

Warden, Wyo. State Penitentiary, 401 U.S. 560, 565 n.8 (1971) (“[A]n otherwise

insufficient affidavit cannot be rehabilitated by testimony concerning information

possessed by the affiant when he sought the warrant but not disclosed to the

issuing magistrate. . . . A contrary rule would, of course, render the [legal

process] requirements of the Fourth Amendment meaningless.”).

7
Evidence that Nieto’s and Popeleski’s statements were consistent with
each other’s statements and their polygraphs does not contribute to probable cause
if, as Plaintiffs allege, the officers coerced Nieto and Popeleski into giving
matching false statements. Similarly, marks in the dirt outside the cabin
corroborating the allegedly coerced statements do not contribute to probable
cause because the marks have no meaning without the statements.

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 To be sure, Agent Lucero did testify weeks later at Plaintiffs’ preliminary

hearings consistent with his May 15 interview of Nieto. But even if this

interview were sufficiently attenuated from the allegedly coercive interrogations a

couple of days earlier (which we doubt), Lucero’s testimony would at most limit

Plaintiffs’ damages by breaking the chain of causation between the Fourth

Amendment violations and subsequent confinements. See Meacham, 82 F.3d at

1564 (citing Reed, 77 F.3d at 1049, to explain that a preliminary hearing

conducted after the institution of legal process can break the causal chain). And

in any event, deciding this case at the qualified immunity stage, we have no

jurisdiction to address any causation issues.

Thus, Plaintiffs’ allegations, if proven, satisfy the absence of probable

cause element of their malicious prosecution claim.

Favorable Termination

The district attorney dismissed charges against Wilkins and Buchner by

filing nolle proseques in early 2001. 8 “Criminal proceedings are terminated in

favor of the accused by the formal abandonment of the proceedings by the public

prosecutor.” Restatement (Second) of Torts § 659(c) (1977). But abandonment

of the proceedings is ordinarily insufficient to constitute a favorable termination

8
A nolle prosequi represents a “legal notice that a . . . prosecution has
been abandoned.” Black’s Law Dictionary 1074 (8th ed. 2004); see also
Washington v. Summerville, 127 F.3d 552, 557 (7th Cir. 1997) (“A nolle prosequi
is not a final disposition of a case but is a procedure which restores the matter to
the same state which existed before the Government initiated the prosecution.”).

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if “the prosecution [is] abandoned pursuant to an agreement of compromise with

the accused; . . . because of misconduct on the part of the accused . . . ; [or] out of

mercy requested or accepted by the accused.” Id. § 660. 9 These reasons for

withdrawal of a charge do not necessarily constitute favorable terminations

because they do not “indicate the innocence of the accused” or are at least

“consistent with guilt.” Id. cmt. a.

On the other hand, the inability of a prosecutor to prove a case beyond a

reasonable doubt at trial can be consistent with the innocence of the accused and

can be deemed a favorable termination in favor of the accused. Id. cmt. d.

Concluding a case cannot be proven beyond a reasonable doubt, a prosecutor

might withdraw a criminal charge. One way to do this is to abandon or suspend a

prosecution by “enter[ing] a nolle prosequi after an indictment has been found.”

Id. cmt. b.

9
In full, Section 660 reads:

A termination of criminal proceedings in favor of the accused
other than by acquittal is not a sufficient termination to meet the
requirements of a cause of action for malicious prosecution if
(a) the charge is withdrawn or the prosecution abandoned
pursuant to an agreement of compromise with the accused; or
(b) the charge is withdrawn or the prosecution abandoned
because of misconduct on the part of the accused or in his behalf for
the purpose of preventing proper trial; or
(c) the charge is withdrawn or the proceeding abandoned out of
mercy requested or accepted by the accused; or
(d) new proceedings for the same offense have been properly
instituted and have not been terminated in favor of the accused.

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 To decide whether a nolle prosequi constitutes a favorable termination, we

look to the stated reasons for the dismissal as well as to the circumstances

surrounding it in an attempt to determine whether the dismissal indicates the

accused’s innocence. Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir.

2001) (“To determine whether the proceedings against [the defendant] were

terminated in his favor, we must look past the form or title of the disposition and

examine the circumstances surrounding the entry of the nolle prosequi.”). “The

plaintiff has the burden of proving a favorable termination.” Washington v.

Summerville, 127 F.3d 552, 557 (7th Cir. 1997). To that end, a “bare nolle prosse

without more is not indicative of innocence.” Id. at 558. The “dispositive inquiry

is whether the failure to proceed implies a lack of reasonable grounds for the

prosecution.” Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997) (internal

quotations and brackets omitted). 10

In the circumstances here, the nolle proseques should be considered

terminations in favor of Plaintiffs. The dismissals were not entered due to any

compromise or plea for mercy by either Wilkins or Buchner. Rather, they were

the result of a judgment by the prosecutor that the case could not be proven

beyond a reasonable doubt. App. 1053 (Buchner), 1056 (Wilkins) (“[I]t is the

10
In one case, a court has concluded the stated reasons for the nolle
proseques precluded an inference of a favorable termination. See Donahue v.
Gavin, 280 F.3d 371, 384 (3d Cir. 2002) (concluding the nolle proseques did not
indicate innocence when the “prosecutor simply reasoned that Donahue was not
likely to receive any additional jail time if convicted in a retrial”).

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State’s opinion that currently there is insufficient evidence upon which to retry

the defendant[s] for these crimes.”).

Nor can we conclude Wilkins and Buchner engaged in prohibited

misconduct when they successfully moved to exclude Nieto’s May 15 interview

as hearsay. To be sure, “[a]mong the types of misconduct on the part of the

accused” that turn the resultant nolle proseques into unfavorable terminations is

“the suppression of evidence . . . that prevents a fair hearing of the cause.”

Restatement § 660 cmt. d. “Since lumped together with other ‘misconduct’ of the

accused, this reference to suppression of evidence apparently refers to the hiding

of evidence by the accused, not suppression of evidence in accordance with an

evidentiary ruling.” Dobiecki v. Palacios, 829 F. Supp. 229, 235 (N.D. Ill. 1993)

(emphasis added).

Such an understanding takes into account the Restatement’s clarification

that “[n]ot included [in the definition of misconduct] are claims of constitutional

or other privilege . . . and similar conduct that merely forces the state to prove its

case beyond a reasonable doubt in a trial otherwise fair and proper.” Restatement

§ 660 cmt. d; Dobiecki, 829 F. Supp. at 235. Under this formulation, “[i]f the

circumstances show that unreliable evidence has been suppressed and the

prosecution then abandons the case because of lack of sufficient reliable

evidence, that would be a circumstance where the dismissal is indicative of

innocence.” Dobiecki, 829 F. Supp. at 235. But “if the evidence was only

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suppressed on ‘technical’ grounds having no or little relation to the evidence’s

trustworthiness, then the fact that there was not other sufficient evidence would

not be indicative of innocence.” Id. at 235–36.

The suppressions in Wilkins’s and Buchner’s criminal cases excluded

unreliable evidence not falling within any of the exceptions. App. 1002–32.

These were not instances of hiding otherwise perfectly reliable evidence. See

Dobiecki, 829 F. Supp. at 235–36 (concluding the termination not favorable when

defendant moved to suppress “a custodial confession . . . obtained without the

benefit of Miranda warnings,” a purely “prophylactic [dismissal] on ‘technical’

grounds having no or little relation to the evidence’s trustworthiness”); Miller v.

Cuccia, 201 F.3d 431, 431 (2d Cir. 1999) (unpublished disposition) (“The

suppression of the inculpatory evidence does not establish or imply appellant’s

innocence because it was not related to or based upon the reliability or

unreliability of the evidence.”). To the contrary, far from moving to exclude

evidence on a mere technicality unrelated to the evidence’s reliability, Wilkins

and Buchner forced the district attorney to prove their guilt without using

unreliable evidence. The district attorney, having concluded that without the

excluded testimony he could not prove the charged crimes beyond a reasonable

doubt, dismissed the charges.

In this case, therefore, insufficient evidence to convict Plaintiffs is

consistent with favorable termination. In other words, we can infer innocence

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from both the stated reasons for the nolle proseques and the surrounding

circumstances. Accordingly, we agree with the district court that Plaintiffs

satisfied the favorable termination requirement of their malicious prosecution

claim.

* * *

In sum, the alleged facts establish the elements of the constitutional tort of

malicious prosecution.

2. Clearly Established

We now turn to whether the law regarding the alleged constitutional

violation was clearly established. If it was not, qualified immunity applies.

The constitutional right Plaintiffs allege was violated was clearly

established if the “contours of the right [were] sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Saucier v.

Katz, 533 U.S. 194, 202 (2001) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). “The relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Id. “For the law to be

clearly established, there must be a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from other courts must be as

plaintiff maintains.” Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir. 1997).

“[T]he salient question . . . is whether the state of the law [at the time of the

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conduct] gave [Defendants] fair warning that their alleged treatment of

[Plaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

If the officers intentionally coerced false statements from Nieto and

Popeleski, the law clearly prohibited the use of those statements to seek warrants

for Plaintiffs’ arrests. Thus, if the officers acted as Plaintiffs allege, they had fair

warning their treatment of Plaintiffs beginning in May 1996 was unconstitutional.

First, it was clearly established that false evidence cannot contribute to a

finding of probable cause. Probable cause depends on “reasonably trustworthy

information.” Beck v. Ohio, 379 U.S. 89, 91 (1964). The Supreme Court has held

it is a violation of the Fourth Amendment to “‘knowingly, or with reckless

disregard for the truth,’ include false statements in the affidavit” outlining

probable cause for an arrest. Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir.

1996) (quoting Franks v. Delaware, 438 U.S. 154, 155–56 (1978)); accord

Stewart v. Donges, 915 F.2d 572, 581–82 (10th Cir. 1990).

Where false statements have been relied on to establish probable cause,

“the existence of probable cause [for § 1983 purposes] is determined by setting

aside the false information.” Wolford, 78 F.3d at 489; accord Pierce, 359 F.3d at

1294–95. Thus, if Plaintiffs’ allegations are true, the officers obviously could not

rely on fabricated evidence in evaluating whether probable cause existed to arrest

and prosecute Plaintiffs. And as we have already explained, without the coerced

confessions, the officers lacked probable cause.

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 Second, it of course has long been clearly established that knowingly

arresting a defendant without probable cause, leading to the defendant’s

subsequent confinement and prosecution, violates the Fourth Amendment’s

proscription against unreasonable searches and seizures. E.g. Meacham, 82 F.3d

at 1561 (citing Albright v. Oliver, 510 U.S. 266 (1994), and holding one

constitutional right protected by § 1983 malicious prosecution claims “is the

Fourth Amendment’s right to be free from unreasonable seizures”); see also, e.g.,

Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (“[T]he Fourth Amendment requires a

judicial determination of probable cause as a prerequisite to extended restraint of

liberty following arrest.”).

* * *

Thus, Plaintiffs have presented facts that, if true, constitute a violation of

the Fourth Amendment. Without the allegedly fabricated statements, the officers

did not present information from which a detached magistrate could conclude

probable cause existed to justify continued detention. Under the version of facts

presented by Plaintiffs and accepted by the district court on summary judgment,

the officers intentionally coerced matching false statements, and a reasonable

officer should have known no probable cause existed without the statements.

The officers are therefore not entitled to qualified immunity on the

malicious prosecution claim.

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 III. Conclusion

For the foregoing reasons, we AFFIRM the decision of the district court

denying the officers qualified immunity for Plaintiffs’ malicious prosecution

claim.

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