Truman v. Orem City

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 25, 2021

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

CONRAD TRUMAN,

Plaintiff - Appellant,

v. No. 19-4133
(D.C. No. 2:17-CV-00775-TS)
OREM CITY, a Utah municipality; OREM (D. Utah)
CITY POLICE DEPARTMENT, a division
of Orem City; OREM CITY POLICE
OFFICER THOMAS WALLACE, an
individual; OREM CITY POLICE
OFFICER WILLIAM CROOK, an
individual; OREM CITY POLICE
OFFICER ORLANDO RUIZ, an
individual; OREM CITY POLICE
OFFICER ART LOPEZ, an individual;
OREM CITY POLICE OFFICER TODD
FERRE, an individual; UTAH COUNTY
ATTORNEY’S OFFICE, a division of
Utah County; DEPUTY UTAH COUNTY
ATTORNEY CRAIG JOHNSON, an
individual; OFFICER(S) JOHN/JANE
DOE 110, individuals; ATTORNEY(S)
JOHN/JANE DOE 1-5,

Defendants - Appellees.
_________________________________

ORDER
_________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, and CARSON, Circuit Judges.
_________________________________
 This matter is before the court on the Petition for Rehearing filed by Appellee

Craig Johnson.

Pursuant to Fed. R. App. P. 40, the petition for rehearing is granted in part to the

extent of the modifications to footnote 11 in the attached revised opinion. The court’s

June 4, 2021 opinion is withdrawn and replaced by the attached revised opinion, which

shall be filed as of today’s date.

Because the panel’s decision to partially grant rehearing resulted in only non-

substantive changes to the opinion that do not affect the outcome of this appeal, Mr.

Johnson may not file a second or successive petition for rehearing. See 10th Cir. R. 40.3

Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk

by: Jane K. Castro
Chief Deputy Clerk

2
 FILED
United States Court of Appeals
Tenth Circuit

PUBLISH June 25, 2021
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

CONRAD TRUMAN,

Plaintiff - Appellant,

v. No. 19-4133

OREM CITY, a Utah municipality;
OREM CITY POLICE DEPARTMENT, a
division of Orem City; OREM CITY
POLICE OFFICER THOMAS
WALLACE, an individual; OREM CITY
POLICE OFFICER WILLIAM CROOK,
an individual; OREM CITY POLICE
OFFICER ORLANDO RUIZ, an
individual; OREM CITY POLICE
OFFICER ART LOPEZ, an individual;
OREM CITY POLICE OFFICER TODD
FERRE, an individual; UTAH COUNTY
ATTORNEY'S OFFICE, a division of
Utah County; DEPUTY UTAH COUNTY
ATTORNEY CRAIG JOHNSON, an
individual; OFFICER(S) JOHN/JANE
DOE 110, individuals; ATTORNEY(S)
JOHN/JANE DOE 1-5,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:17-CV-00775-TS)
Dick J. Baldwin, Zimmerman Booher (Troy L. Booher and Beth E. Kennedy,
Zimmerman Booher, and Mark R. Moffat and Ann Marie Taliaferro, Brown
Bradshar & Moffat, and Lincoln Hobbs, Hobbs & Olson, with him on the briefs),
Salt Lake City, Utah, for Appellant.

Jefferson W. Gross (S. Ian Hiatt with him on the brief), Gross & Rooney, Salt
Lake City, Utah, for Appellees Orem City, Orem City Police Department, Officers
Thomas Wallace, William Crook, Orlando Ruiz, Art Lopez, and Todd Ferre.

Peter Stirba (Ciera Archuleta with him on the brief), Stirba, P.C., Salt Lake City,
for Appellees Craig Johnson and Utah County Attorney’s Office.

Before TYMKOVICH, Chief Judge, BRISCOE, and CARSON, Circuit Judges.

TYMKOVICH, Chief Judge.

Conrad Truman sued state prosecutor Craig Johnson and various Orem City

police officers for violating his civil rights by fabricating evidence that was used

against him in a murder prosecution. Mr. Truman was prosecuted twice for the

murder of his wife. According to Mr. Truman’s complaint, the prosecution

knowingly falsified measurements of the murder scene to rule out the possibility

of suicide or a self-inflicted accidental wound. As a result, the state medical

examiner deemed Mrs. Truman’s death a homicide and Mr. Truman was indicted

and successfully prosecuted for murder. After his conviction, he learned of the

2
mismeasurements and the state court granted him a new trial. In the second trial

where proper room measurements were admitted into evidence, Mr. Truman was

acquitted.

These events led Mr. Truman to file a 42 U.S.C. § 1983 action against the

prosecutor and the police. The district court found that the prosecutor was

entitled to qualified immunity as a matter of law and the claims against the police

officers were barred by previous holdings in state court.

Exercising jurisdiction under 28 U.S.C. § 1291, we disagree with the

district court that the prosecutor is entitled to qualified immunity at this stage in

the proceedings. At the motion to dismiss stage, the allegations in the amended

complaint plausibly allege the elements of a fabrication of evidence claim. As a

result, dismissal based on qualified immunity was inappropriate. But summary

judgment was appropriate as to the police officers because Mr. Truman forfeited

his argument regarding issue preclusion in state court and did not argue for plain

error review on appeal.

We therefore REVERSE the dismissal of the fabrication of evidence claim

against the prosecutor and AFFIRM the entry of summary judgment in favor of

the police officers.

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 I. Background

Heidy Truman suffered a fatal gunshot wound to the head on September 30,

2012. She lived in a small residence with her husband, Conrad Truman, and they

were home alone when the shooting occurred.

At the time of the shooting, according to the amended complaint, Mrs.

Truman was in the area near the bathroom and bedroom and Mr. Truman was in

the kitchen. Mr. Truman alleges he heard a door open, and then a “pop.” He

walked towards the sound and found Mrs. Truman falling to the ground through

the hallway entry to the floor of the kitchen area. Mrs. Truman owned a gun and

it was located on the floor next to her. Mr. Truman tried to perform CPR on his

wife and then called 911. Paramedics and police officers arrived. Mrs. Truman

was transported to the hospital where she ultimately died. At the time, Mr.

Truman told police that she may have shot herself or perhaps a shot came from

outside the home.

After her death, based on what he knew, the medical examiner initially

listed Mrs. Truman’s manner of death as “could not be determined.” But nearly a

year later, Orem City police officers and state prosecutor Craig Johnson met with

the medical examiner and showed him a PowerPoint presentation outlining their

theory of the case—murder. It included a crime scene diagram depicting an

approximately seven-foot distance between Mrs. Truman’s feet and the hallway

4
entrance where Mr. Truman claimed the shot was fired. Another slide stated Mrs.

Truman’s body was found over twelve feet away from the spot where Mr. Truman

said he saw her after he heard the shot. Contrary to these representations, Mrs.

Truman’s feet were actually three-and-one-half feet from the hallway entrance

and she moved only about nine inches from the spot where Mr. Truman said he

first saw her after he heard the shot. Because it is physically impossible for

someone who has been shot in the head to walk more than a step or two before

collapsing, the medical examiner concluded someone else had shot Mrs. Truman.

He then changed her manner of death to homicide. 1

After this meeting, Mr. Truman was charged with his wife’s murder and

with obstruction of justice. Mr. Truman alleges that, at trial, based on inaccurate

information provided by the Orem City police officers and the prosecutor in the

PowerPoint presentation, the medical examiner testified that Mrs. Truman’s

manner of death was homicide because she could not have moved the distance

from the hallway to where her body lay if the wound were self-inflicted. 2

1
The medical examiner testified at the first trial and declared in an
affidavit attached to the amended complaint that someone shot in the head with
Mrs. Truman’s injuries would be able to take only a step or a step and one-half
before collapsing. See Aplt. App. 241.
2
Again, according to the medical examiner’s subsequent scene
reconstruction, Mrs. Truman only traveled approximately nine inches, a distance
that is possible if she shot herself as Mr. Truman maintains.

5
 The prosecution also presented the jury a sketch of the layout of the house

showing the location of the bathroom, kitchen, and body. On the night of the

incident, Detective Thomas Wallace made a hand sketch of the house using a tape

measure. When Detective Wallace later prepared a computer diagram of the

scene, however, Mr. Truman alleges that Detective Wallace made a transcription

error and typed 13.9 feet instead of 139 inches as the length of the hallway in the

Truman home. This caused the diagram to inaccurately depict the length of the

hallway as being about two feet and four inches longer than it really is.

Significantly, the diagram also exaggerated the distance between the location of

Mrs. Truman’s body and the place where Mr. Truman claimed to have heard the

shot. The measurements were used to generate a trial exhibit misrepresenting the

dimensions of the rooms and the exact location of Mrs. Truman’s body. The

exhibit also significantly undermined the possibility of an accident or that Mrs.

Truman committed suicide because the inaccurate diagram depicted Mrs.

Truman’s body as far more than a step or two from the shot location. After

considering this evidence, the jury convicted Mr. Truman.

While imprisoned for his wife’s murder, Mr. Truman and his legal team

discovered the inaccuracies of the evidence used against him. They filed a

motion for a new trial in state court. The medical examiner filed an affidavit in

which he stated that he “concluded that the gunshot wound could not have been

6
self-inflicted . . . based upon the representation by law enforcement that Heidy

Truman traveled 12-feet from the location where the shot was fired to the final

resting place of her body.” Aplt. App. 200. He also explained that “based upon

[the] information I received from the prosecution team, in conjunction with what I

observed during the autopsy, it was my opinion that . . . [t]he wound would have

incapacitated Heidy Truman” and “[d]ue to the nature of the wound, Heidy would

not have been able to travel far after the wound was inflicted.” Id. The medical

examiner concluded that “[b]ased on the information provided in the PowerPoint

as well as the statements and explanations of members of the prosecution team, I

amended my manner of death classification . . . from ‘not determined’ to

‘homicide.’” Id. at 200–01. Upon consideration of the inaccurate diagram used

and the flawed testimony of the medical examiner given at the first trial, the state

court found that the prosecution introduced evidence such that “the incorrect

dimensions presented to the jury in essence removed from its members the issue

of reasonable doubt on the theory of suicide” and “had the accurate dimensions

been presented to the jury[,] a different result may have resulted.” Id. at 120,

608. A new trial was ordered.

Mr. Truman was tried a second time. This time, the medical examiner did

not testify and the prosecution did not use an inaccurate drawing of the scene and

body location. The second jury acquitted Mr. Truman.

7
 Mr. Truman then brought this § 1983 action against the prosecutor and the

police officers involved in his criminal prosecution. He alleges many claims, but

relevant to his appeal are his fabrication of evidence claims against the prosecutor

and the police officers.

II. Analysis

Mr. Truman contends the district court erred by dismissing his fabrication

of evidence claim against the prosecutor because it found he is entitled to

qualified immunity. Mr. Truman further asserts error in the district court’s grant

of summary judgment to the police officers on his fabrication of evidence claim.

As we explain, we agree as to the prosecutor, but not as to the police officers.

A. Fabrication of Evidence Claim

Mr. Truman appeals the dismissal of his fabrication of evidence claim

against Craig Johnson, the prosecutor in his first state criminal case. The district

court found the prosecutor is entitled to qualified immunity because Mr. Truman

failed to state a claim that the prosecutor violated a constitutional right.

Mr. Truman asserts that the prosecutor violated his constitutional right not

to be deprived of liberty as a result of the fabrication of evidence by a

government officer. As a result, he contends the district court erred in concluding

that the prosecutor is entitled to qualified immunity.

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 1. Applicable Law

We review a dismissal under Federal Rule of Civil Procedure 12(b)(6)

based on qualified immunity de novo. Wilson v. Montano, 715 F.3d 847, 852

(10th Cir. 2013). The Federal Rules require a complaint to contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). In reviewing a Rule 12(b)(6) motion to dismiss for failure to

state a claim, all well-pleaded allegations in the complaint must be accepted as

true and viewed “in the light most favorable to the plaintiff.” Alvarado v.

KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). While a complaint need

not recite “detailed factual allegations,” “a plaintiff’s obligation to provide the

grounds of his entitle[ment] to relief requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and

citations omitted; alteration in original). The pleaded facts must establish that the

claim is plausible. Id.

District courts may grant a motion to dismiss based on qualified immunity,

but “[a]sserting a qualified immunity defense via a Rule 12(b)(6) motion . . .

subjects the defendant to a more challenging standard of review than would apply

on summary judgment.” Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir.

2004). Specifically, the court analyzes “the defendant’s conduct as alleged in the

9
complaint.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal

quotation marks omitted). “In the context of a § 1983 action against multiple

individual governmental actors, it is particularly important . . . that the complaint

make clear exactly who is alleged to have done what to whom, to provide each

individual with fair notice as to the basis of the claims against him or her.”

Wilson, 715 F.3d at 852 (internal quotation marks omitted).

A § 1983 defendant’s assertion of qualified immunity is an “affirmative

defense [that] creates a presumption that the defendant is immune from suit.” Est.

of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020). To

overcome this presumption, the plaintiff must show (1) the defendant’s actions

violated a constitutional or statutory right, and (2) that right was clearly

established at the time of the defendant’s complained-of conduct. Thomas, 765

F.3d at 1194. A right is clearly established “when a Supreme Court or Tenth

Circuit decision is on point, or if the clearly established weight of authority from

other courts shows that the right must be as the plaintiff maintains.” Id. Thus,

“the contours of the right must be sufficiently clear [so] that a reasonable official

would understand that what he is doing violates that right.” Id. But “our analysis

is not a scavenger hunt for prior cases with precisely the same facts, and a prior

case need not be exactly parallel to the conduct here for the officials to have been

on notice of clearly established law.” Reavis v. Frost, 967 F.3d 978, 992 (10th

10
Cir. 2020) (internal quotation marks omitted). There can also be “the rare

obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear

even though existing precedent does not address similar circumstances.” D.C. v.

Wesby, 138 S. Ct. 577, 590 (2018) (internal quotation marks omitted).

The constitutional right at issue in this case is Mr. Truman’s due process

right not to be deprived of liberty as a result of the fabrication of evidence by a

government officer. To rise to the level of a constitutional violation, a plaintiff

must assert a causal connection between the fabrication of evidence and the

deprivation of liberty. 3 See Warnick v. Cooley, 895 F.3d 746, 753 (10th Cir.

2018); see also Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). Thus, to state

a fabrication of evidence claim, a plaintiff must allege (1) the defendant

knowingly fabricated evidence, (2) the fabricated evidence was used against the

3
The parties present the constitutional right at issue to be the right not to
be deprived of liberty as a result of the fabrication of evidence by a government
officer. This has long been recognized as a constitutional right, see Pyle v.
Kansas, 317 U.S. 213, 216 (1942), but it often overlaps with malicious
prosecution claims, sometimes creating confusion about whether it is an
independent constitutional claim. See, e.g., Pierce v. Gilchrist, 359 F.3d 1279
(10th Cir. 2004); Wilkins v. DeReyes, 528 F.3d 790, 795 (10th Cir. 2008). But a
fabrication of evidence claim implicates the Constitution, notwithstanding its
failure to satisfy the elements of a malicious prosecution claim. So, even if that
overlap is present here, we only analyze the constitutional right as a fabrication of
evidence claim. Moreover, even if we analyze this as a malicious prosecution
claim, the record is insufficient to determine whether the elements of malicious
prosecution are met—namely, whether there was a lack of probable cause.

11
plaintiff, 4 (3) the use of the fabricated evidence deprived the plaintiff of liberty, 5

and (4) if the alleged unlawfulness would render a conviction or sentence invalid,

the defendant’s conviction or sentence has been invalidated or called into doubt. 6

See Warnick, 895 F.3d at 753; Heck v. Humphrey, 512 U.S. 477, 478 (1994).

Although “[t]here is some disagreement . . . over what degree of intent the officer

must have,” Pierce, 359 F.3d at 1293, he necessarily must possess knowledge of

the evidence’s falsity. See Evidence, Black’s Law Dictionary (11th ed. 2019)

4
Where the alleged fabrication of evidence was performed by a member of
the executive branch, like the prosecutor here, the deprivation violates due
process only when it “‘can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.’” Crowson v. Washington Cnty., 983 F.3d
1166, 1190 (10th Cir. 2020) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,
847 (1998)).
5
To satisfy this element where, as here, the plaintiff was allegedly
deprived of a fair trial, the fabricated evidence must be material, meaning there is
a reasonable likelihood that without the use of the fabricated evidence, the
defendant would not have been deprived of a fair trial. Although a plaintiff’s
conviction based in part on the presentation of fabricated evidence at trial is
evidence that he or she was deprived of a fair trial, it is not crucial to a § 1983
fabrication of evidence claim. An acquitted plaintiff may have been deprived of
liberty due to fabricated evidence if there is a reasonable likelihood that without
the fabricated evidence, the plaintiff would not have been criminally charged.
6
More specifically, the Heck Court explained this can be satisfied with
proof “that the [defendant’s] conviction or sentence has been reversed 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.” 512 U.S. 477, 486–87 (1994).

12
(defining “fabricated evidence” as “[f]alse or deceitful evidence that is unlawfully

created . . . in an attempt to achieve or avoid liability or conviction”).

2. Discussion

Mr. Truman’s allegations are sufficient to overcome the prosecutor’s claim

of qualified immunity. He plausibly alleges (1) the prosecutor’s actions violated

his constitutional right not to be deprived of liberty as a result of the fabrication

of evidence by a government officer and (2) the right was clearly established at

the time of the prosecutor’s conduct. As relevant here, Mr. Truman alleges:

< The prosecutor was present in the Truman home during a crime
scene reconstruction walk-through on May 30, 2013. Aplt.
App. 336–37.
< The prosecutor reviewed photographs from the crime scene
reconstruction on May 30, 2013. Id. at 337.
< The prosecutor knew Mrs. Truman’s body was located close to
the hallway entrance just as Mr. Truman explained and
consistent with where she would have fallen from a
self-inflicted shot in that reported area. Id.
< Notwithstanding knowledge of the accurate location and size
of Mrs. Truman’s body, the prosecutor “fabricated, aided,
advised, and/or directed the fabrication of evidence, testimony,
diagrams and/or other depictions in order to corroborate a false
‘distance traveled.’” Id. at 337, 352.
< Notwithstanding knowledge of the accurate location and size
of Mrs. Truman’s body, the prosecutor shared the fabricated
distance-traveled evidence with the medical examiner in order
to influence him to change the manner of Mrs. Truman’s death
to homicide. Id. at 338, 352.
< The prosecutor, among others, met with the medical examiner
on July 17, 2013. Id. at 340.

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< The prosecutor made representations to and answered
questions for the medical examiner in this meeting. Id.
< At the meeting, the medical examiner was presented with a
diagram of the crime scene with inaccurate dimensions. Id. at
341.
< The prosecutor knew the diagram was inaccurate but still
presented it to, or allowed it to be presented to, the medical
examiner. Id. at 342.
< The fabricated diagram was a fundamental basis for the
medical examiner’s change in his manner of death
determination from undetermined to homicide. Id.
< During Mr. Truman’s first trial, state prosecutors presented the
medical examiner as an expert witness and “knowingly
presented his tainted opinion that this death was a homicide.”
Id. at 345.
< The fabricated distance-traveled evidence was presented to the
jury in the first trial and served as one of the foundational
bases for Mr. Truman’s conviction. Id. at 339.
< The prosecutor presented a PowerPoint presentation to the
medical examiner with false information, specifically that Mrs.
Truman traveled over twelve feet after she was shot. Id. at
353.
< The prosecutor knew the diagram in the PowerPoint
presentation was false because he had been to the Truman
residence multiple times, attended a crime scene reconstruction
walk-through, and had seen a more accurate diagram created
by Jason Keller (Mrs. Truman’s brother-in-law). Id. at 354.
< After Mr. Truman’s new counsel presented the medical
examiner with accurate information and after the medical
examiner viewed the scene in person, he corrected his manner
of death opinion from the first trial and concluded he could not
rule out that Mrs. Truman’s death was a suicide. Id.

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Mr. Truman also attached the declaration of the medical examiner to the amended

complaint, 7 which includes the following assertions:

< The prosecutor attended a meeting regarding Mrs. Truman’s
death with the medical examiner, among others, on July 17,
2013. Id. at 238–39.
< Detective Wallace presented a PowerPoint presentation of
Orem City’s theory of the case. Id. at 239.
< The PowerPoint presentation indicated Mrs. Truman’s body
traveled more than twelve feet from the location where she was
shot to the location where her body was found. Id.
< The medical examiner relied on a PowerPoint slide to conclude
Mrs. Truman’s gunshot wound could not have been
self-inflicted because she could not have traveled over twelve
feet after being shot in the head. Id. at 241.
< The measurements in a PowerPoint slide presented to the
medical examiner and those in an exhibit presented to the jury
at trial are both incorrect and make the dimensions in the
Truman home appear larger than they are. Id. at 245.

a. Violation of a Constitutional Right

Accepting these allegations as plausibly true and viewing them in the light

most favorable to Mr. Truman, they establish the elements of a fabrication of

evidence claim.

First, they plausibly allege the prosecutor fabricated evidence. Mr. Truman

repeatedly asserts the prosecutor knew the PowerPoint slide of the crime scene

7
Courts can consider not only the complaint but also attached exhibits and
documents incorporated into the complaint by reference. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009).

15
diagram presented to the medical examiner was inaccurate, yet it was still

presented to the medical examiner. He supports this with specific facts, like the

prosecutor’s multiple visits to the Truman home, his attendance at a crime scene

reconstruction, and his viewing of photos from the crime scene reconstruction.

These facts of course do not necessarily mean the prosecutor had knowledge that

the dimensions in the PowerPoint slide were inaccurate. But the motion to

dismiss standard requires the panel to draw the inference that these facts indicate

knowledge, an inference favorable to Mr. Truman. It may be that after discovery

these issues will be clarified.

Mr. Truman also supports his claim by specifically asserting the prosecutor

made materially false statements to the medical examiner and presented the

PowerPoint presentation to him with false information that Mrs. Truman traveled

over twelve feet after she was shot. The district court focused on the fact that the

medical examiner’s declaration attached to the amended complaint does not

attribute any specific statement to the prosecutor—but to require such specificity

is unreasonable considering no discovery has occurred at this stage of litigation.

The inferences in favor of Mr. Truman drawn from the specific allegations in the

amended complaint and the medical examiner’s declaration lead to the

conclusions that the prosecutor knew the PowerPoint presentation was inaccurate,

presented it to the medical examiner regardless, and put the medical examiner on

16
the stand in the first trial with knowledge that his opinion was based on fabricated

evidence. Mr. Truman sufficiently alleges the prosecutor fabricated evidence.

Second, the fabricated evidence was used in the criminal case against Mr.

Truman. Mr. Truman alleges, and the medical examiner declares, the fabricated

evidence formed a foundation for the medical examiner’s opinion that Mrs.

Truman’s manner of death was homicide. The prosecutor used the medical

examiner as an expert witness at Mr. Truman’s first trial, and the medical

examiner’s testimony was based on the fabricated evidence.

Third, the use of the fabricated evidence deprived Mr. Truman of a fair

trial. Mr. Truman was convicted in his first trial that included the medical

examiner’s flawed expert testimony but acquitted in his second trial that did not

include the medical examiner’s flawed expert testimony. This shows that the

allegedly fabricated evidence was material, as there was more than a reasonable

likelihood that without the use of the fabricated evidence, the defendant would

not have been deprived of a fair trial.

Fourth, Mr. Truman’s conviction has been invalidated. The state court

vacated his conviction from the first trial, and then he was acquitted in the second

trial.

Mr. Truman’s allegations paint a picture of arbitrary executive action that

shocks the conscience: the prosecutor intentionally presented false information to

17
the medical examiner to get him to change Mrs. Truman’s manner of death to

homicide and then put the medical examiner on the stand to testify based on that

false information in order to secure Mr. Truman’s conviction. Accordingly, Mr.

Truman sufficiently alleges the prosecutor’s actions violated his constitutional

due process right not to be deprived of liberty as a result of the fabrication of

evidence by a government officer, satisfying the first requirement to overcome the

presumption of qualified immunity.

b. Clearly Established Constitutional Right

We also conclude the right not to be deprived of liberty as a result of the

fabrication of evidence by a government officer was clearly established at the

time of the prosecutor’s conduct.

The constitutional violation at issue here was clearly established by our

decision in Pierce in 2004. In Pierce, a plaintiff wrongly convicted of rape sued

a police department forensic chemist under 42 U.S.C. § 1983 for the

constitutional tort of malicious prosecution. 359 F.3d at 1283–84. The complaint

there alleged that the forensic chemist performed a forensic analysis on hair

samples from the crime scene and concluded many were “microscopically

consistent” with the plaintiff. Id. at 1282. It further alleged the forensic

chemist’s findings were knowingly false, without a scientific basis, and led to the

plaintiff’s wrongful conviction. This court held the forensic chemist was not

18
entitled to qualified immunity. Citing Supreme Court precedent, we explained it

was clearly established that a criminal defendant’s due process rights are

implicated when the state knowingly uses false testimony to obtain a conviction.

Id. at 1299 (citing Pyle v. Kansas, 317 U.S. 213, 216 (1942)); see also Mooney v.

Holohan, 294 U.S. 103, 112 (1935) (“[P]resentation of testimony known to be

perjured . . . to procure the conviction and imprisonment of a defendant is as

inconsistent with the rudimentary demands of justice as is the obtaining of a like

result by intimidation.”). The Pierce court continued that a government officer’s

knowing or reckless fabrication of evidence is not objectively reasonable.

The alleged facts in this case are obviously not identical to those in Pierce:

prosecutor versus forensic analyst, incorrect dimension evidence versus faulty

hair sample evidence. Even so, there are consistent factual strands running

through these cases that put the prosecutor on notice that his alleged conduct

violated Mr. Truman’s constitutional rights. Just like in Pierce, Mr. Truman

alleges that the prosecutor knowingly used false evidence to convict Mr. Truman

and to deprive him of due process. Such consistency is enough to defeat qualified

immunity.

The same constitutional right at issue in Pierce is at issue in this case.

Accordingly, the right not to be deprived of liberty as a result of the fabrication of

evidence by a government officer was clearly established by Pierce at the time of

19
the prosecutor’s actions in 2013, satisfying the second requirement to overcome

the presumption of qualified immunity.

This is also an “obvious case” of a constitutional violation. See Wesby, 138

S. Ct. at 590; Pierce, 359 F.3d at 1298. Any reasonable prosecutor understands

that providing a medical examiner materially false information that influences his

expert opinion as to whether a homicide occurred and then putting that medical

examiner on the stand to testify based on that false information prevents a fair

trial. See Mooney, 294 U.S. at 112. Such conduct is “obviously egregious,”

Pierce, 359 F.3d at 1298, and so the “unlawfulness of the officer’s conduct is

sufficiently clear even [if] existing precedent does not address similar

circumstances.” Wesby, 138 S. Ct. at 590; Whitlock v. Brueggemann, 682 F.3d

567, 585 (7th Cir. 2012) (“[T]he idea that an investigating prosecutor . . . should

know not to fabricate evidence in order to frame a suspect is . . . elementary[.]”).

A recent Supreme Court case, Taylor v. Riojas, 141 S. Ct. 52 (2020) (per

curium), is instructive. In Taylor, an inmate brought a § 1983 claim alleging

prison officials violated his Eighth Amendment rights by subjecting him to

inhumane conditions of confinement. Id. at 53. For six days he was confined to

“shockingly unsanitary cells,” one covered in feces, and the other “frigidly cold.”

Id. He went four days without eating or drinking because he was fearful anything

he consumed would be contaminated. Id. He also held his bladder for over a day

20
because the cold cell had only a clogged drain to dispose of waste. Id. He

eventually succumbed to his urges and involuntarily relieved himself, causing the

drain to overflow with raw sewage, which he was forced to sleep in naked. Id.

The Fifth Circuit held that even though this constituted a violation of the inmate’s

Eighth Amendment rights, the prison officials were entitled to qualified immunity

because it was not clearly established that “prisoners couldn’t be housed in cells

teeming with human waste for only six days.” Id. (internal quotation marks

omitted).

The Supreme Court rejected the Fifth Circuit’s finding of qualified

immunity. The inmate in Taylor could not identify a case in which a court held

that an inmate confined to extremely unsanitary cells for six days offends the

Constitution. But the Supreme Court made clear that he did not have to. It

explained that “no reasonable correctional officer could have concluded that,

under the extreme circumstances of this case, it was constitutionally permissible

to house Taylor in such deplorably unsanitary conditions for such an extended

period of time.” Id. In support, the Court reasserted its holding in Hope v.

Peltzer, 536 U.S. 730, 741 (2002), for the proposition that “a general

constitutional rule already identified in the decisional law may apply with obvious

clarity to the specific conduct in question.” Id. at 53–54.

21
 This proposition applies with equal force here. The right not to be deprived

of liberty as a result of the fabrication of evidence by a government officer is a

general constitutional rule identified in decisional law prior to the prosecutor’s

conduct. See, e.g., Mooney, 294 U.S. at 112; Whitlock, 682 F.3d at 585 (“[T]he

deliberate manufacture of false evidence contravenes the Due Process Clause.”);

id. at 585–86 (collecting cases); Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th

Cir. 2001) (“[T]he wrongfulness of charging someone on the basis of deliberately

fabricated evidence is sufficiently obvious . . . [so] that the right to be free from

such charges is a constitutional right.”). And it applied with obvious clarity to

the specific conduct in question— the prosecutor’s alleged fabrication of evidence

and use of it against Mr. Truman, resulting in his conviction. See Whitlock, 682

F.3d at 585–86 (denying qualified immunity to prosecutor who allegedly

fabricated evidence by encouraging and bribing witnesses to lie and then using

that perjured testimony at trial to secure a conviction because the

unconstitutionality of such acts was clearly established). Just like any reasonable

correctional officer should understand the inmate in Taylor’s conditions of

confinement offended the Constitution, so too should any reasonable prosecutor

understand that providing a medical examiner fabricated evidence and then

putting him on the stand to testify based on that false information offends the

Constitution.

22
 As a result, Mr. Truman plausibly alleges a fabrication of evidence claim

against the prosecutor. 8

8
The prosecutor asserts he is entitled to qualified immunity because he
reasonably relied on information given to him by Orem City police officers and
there was no reason for him to question the trustworthiness of this information.
This argument fails, however, because it is premised on the assumption that the
prosecutor lacked personal knowledge of the inaccurate evidence. This is
contrary to the allegations in the amended complaint that the prosecutor visited
the crime scene, which must be accepted as true at this stage.

We also note that although a prosecutor enjoys “absolute immunity from
suit for activities that are intimately associated with the judicial phase of the
criminal process,” see Bledsoe v. Vanderbilt, 934 F.3d 1112, 1117 (10th Cir.
2019) (internal quotations omitted), this immunity does not extend to “fabricating
evidence during the preliminary investigation of a crime,” as is alleged here.
Buckley v. Fitzsimmons (Buckley I), 509 U.S. 259, 261, 272–76 (1993); see also
Bledsoe, 934 F.3d at 1118. And this rule does not change even if a prosecutor
uses the evidence he or she fabricated during the preliminary investigation of a
crime at trial. See Bledsoe, 934 F.3d at 1118 (“[The prosecutor’s] potential
entitlement to absolute immunity is not tethered to his use of the fabricated
evidence at trial.”); id. at 1120. The Supreme Court has explained:

A prosecutor may not shield his investigative work with
the aegis of absolute immunity merely because, after a
suspect is eventually arrested, indicted, and tried, that
work may be retrospectively described as “preparation” for
a possible trial; every prosecutor might then shield himself
from liability for any constitutional wrong against innocent
citizens by ensuring that they go to trial. When the
functions of prosecutors and detectives are the same, . . .
the immunity that protects them is also the same.

Buckley I, 509 U.S. at 276. Thus, just as a detective who fabricates evidence
during the preliminary investigation of a crime is protected only by qualified
immunity, so too is a prosecutor who fabricates evidence during the preliminary
investigation of a crime. See Bledsoe, 934 F.3d at 1118–19.

23
 B. Claims Against the Police Officers 9

Although the district court granted summary judgment to the police officers

on Mr. Truman’s fabrication of evidence claim against them on three separate

grounds, we need only review the issue preclusion ground to affirm the district

court. 10 The district court found the fabrication of evidence claim was barred

because the state court previously determined the allegedly fabricated evidence

was not intentionally inaccurate. 11

We need not reach the merits of this argument because Mr. Truman

forfeited it by failing to argue in the district court that issue preclusion does not

bar his claim because the state court proceedings did not result in a judgment on

the merits.

9
Although the allegations against the prosecutor are limited to his
fabrication of evidence, those against the police officers include, among other
allegations, the Utah County Attorney’s Office’s failure to train, its insufficient
customs that allowed the prosecutor and unnamed attorneys to deprive Mr.
Truman of his constitutional rights, and its knowledge of constitutional violations
without any remedy.
10
The three separate grounds include (1) issue preclusion barred the claim,
(2) there was not a lack of probable cause, an essential element for a malicious
prosecution claim, and (3) no reasonable jury could find for Mr. Truman based on
the evidence.
11
This finding may have a preclusive effect on the fabrication of evidence
claim against the prosecutor. But that issue was not presented in the prosecutor’s
appellate briefing, and since we do not even reach the merits of it as to the police
officers, we decline to do so as to the prosecutor.

24
 1. Applicable Law

A plaintiff may be precluded from bringing a § 1983 claim by a state

criminal judgment if “the state court . . . has given the parties a full and fair

opportunity to litigate federal claims.” Allen v. McCurry, 449 U.S. 90, 104

(1980). State preclusion rules govern the preclusive effect of a state judgment in

federal court. See Valley View Angus Ranch, Inc. v. Duke Energy Field Servs.,

Inc., 497 F.3d 1096, 1100 (10th Cir. 2007). 12

Under Utah law, issue preclusion “prevents parties or their privies from

relitigating facts and issues in the second suit that were fully litigated in the first

suit.” Oman v. Davis Sch. Dist., 194 P.3d 956, 965 (Utah 2008) (internal

quotation marks omitted). The elements of issue preclusion include:

[1] the party against whom issue preclusion is asserted
must have been a party to or in privity with a party to
the prior adjudication;
[2] the issue decided in the prior adjudication must be
identical to the one presented in the instant action;
[3] the issue in the first action must have been
completely, fully, and fairly litigated; and
[4] the first suit must have resulted in a final judgment
on the merits.
Id.

12
The parties agree that Utah state preclusion rules govern here. See Br.
of Aplt. at 42; Br. of Orem Aples. at 28–29.

25
 Despite some overlap, elements three and four are distinct. An issue is

completely, fully, and fairly litigated when “it is properly raised . . . and is

submitted for determination, and is determined.” State v. Sommerville, 297 P.3d

665, 675 (Utah App. 2013) (internal quotation marks omitted). A final judgment

is “on the merits” when “judgment is rendered only after a court has evaluated the

relevant evidence and the parties’ substantive arguments.” In re D.A., 222 P.3d

1172, 1179 (Utah 2009) (internal quotation omitted). It is thus a matter of

substance over form—“real or substantial grounds of action or defense as

distinguished from matters of practice, procedure, jurisdiction or form.”

Sommerville, 297 P.3d at 674. A judgment on the merits can be made at any point

in litigation as long as it is “based upon a proper application of the relevant law

to the facts of the case.” Miller v. USAA Cas. Ins. Co., 44 P.3d 663, 674 n.6

(Utah 2002).

If an appellant fails to raise an argument before the district court it is

generally forfeited on appeal absent extraordinary circumstances. Singleton v.

Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . . that a federal appellate

court does not consider an issue not passed upon below.”). Filings below are

“given a liberal reading,” but the appellate court will “not address bald-faced new

issues, theories that were discussed in a vague or ambiguous way, or issues that

were raised and then abandoned pre-trial.” In re Rumsey Land Co., LLC, 944

26
F.3d 1259, 1271 (10th Cir. 2019) (internal quotation marks omitted; alterations

incorporated). Moreover, fleeting and underdeveloped references to an argument

are also not preserved for appeal. Id.

“[A]n appellant must argue plain error” in order “[t]o urge reversal of an

issue that was forfeited in district court.” Id. 13 “If an appellant does not explain

how [his] forfeited arguments survive the plain error standard, [he] effectively

waives those arguments on appeal.” Id.

2. Discussion

The district court held summary judgment was appropriate on Mr. Truman’s

fabrication of evidence claim against the police officers because it is barred by

issue preclusion. The district court addressed many points raised by Mr. Truman,

but as relevant here, it noted state court findings that the incorrect measurements

used throughout the case were due to the police officers’ ineptitude and

carelessness. It further noted that the medical examiner’s testimony was not

intentionally falsified. Mr. Truman focuses on the state court’s decision on his

motion to dismiss based upon outrageous misconduct that explains that the state

13
The party seeking relief under the plain error standard must show
“(1) error (2) that is plain, which (3) affects substantial rights, and which
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Stender v. Archstone-Smith Operating Tr., 958 F.3d 938, 948 (10th
Cir. 2020) (internal quotation marks omitted).

27
court’s findings will not have a preclusive effect on other civil remedies. He

asserts this statement shows the state court’s intent for this and its previous

decisions not to have a preclusive effect on subsequent civil litigation and thus

they are not “on the merits.”

The police officers contend this argument was not preserved. In their view,

Mr. Truman only preserved for appeal a challenge to the district court’s

disposition of the third element of issue preclusion, whether the issue in the first

action was completely, fully, and fairly litigated. The district court agreed with

this assessment, see Aplt. App. 3107, and in fact Mr. Truman’s brief in opposition

to summary judgment only cited the third element and discussed the specific issue

of probable cause at any length. Id. at 1407–09. 14

14
The exact language from Mr. Truman’s relevant lower court briefing is
as follows:

First, Truman’s claims were never competently, fully, and fairly
litigated during the criminal proceedings as required. See Carpenter
v. Nova Casualty Co., 403 F. Supp.2d 1068, 1071 (D. Utah 2005). It
is true that Truman filed a number of motions. The state court
refused an evidentiary hearing and argument, and relied on the
previous testimony which Truman claimed to be faulty. In most
cases, the court denied the motion either claiming it was an issue for
the jury or denied the motion without prejudice in order for Truman
to have the opportunity to pose further questions at the
then-upcoming trial. See Plaintiff’s Collective Response to Def.
Statements of Fact 40[–]44, supra.

Aplt. App. 1407–08. And:
(continued...)

28
 Mr. Truman disagrees, but his argument is unpersuasive. He says he makes

the same argument and cites the same facts and court language on appeal as he

did below, but he essentially contends elements three and four are the same.

Indeed, Mr. Truman asserts a different but related argument on appeal—whether

the first suit resulted in a final judgment on the merits—that is improper. We

explained this concept thoroughly in Okland Oil Co. v. Conoco Inc.:

We have consistently rejected the argument that raising
a related theory below is sufficient to preserve an issue
for appeal. Changing to a new theory on appeal that
falls under the same general category as an argument
presented at trial or discussing a theory only in a vague
and ambiguous way below is not adequate to preserve
issues for appeal. Indeed, the Court of Appeals is not a
second shot forum where secondary, back-up theories
may be mounted for the first time.

144 F.3d 1308, 1314 n.4 (10th Cir. 1998) (internal quotation marks and citations

omitted).

14
(...continued)
[T]he court denied several of the motions without prejudice, allowing
Truman to further question officers at retrial, and often concluded the
jury could assess the facts of the officers’ intent and determine
whether the evidence was faulty or false. . . . [I]n denying Truman’s
Motion to Dismiss Based upon Outrageous Misconduct, the court
noted: “If defendant is exonerated, he will have administrative and
civil remedies rather than a remedy dismissal of this matter.”

Id. at 1375.

29
 Even giving Mr. Truman’s lower court arguments a liberal reading, his

argument regarding the fourth element is fleeting and underdeveloped, which is

insufficient to preserve an issue for appeal. See In re Rumsey, 944 F.3d at 1271.

The same can also be said for the third element, as he barely touches on it below.

See supra n.14. Mr. Truman thus forfeited his issue preclusion argument, and

because he waived any argument regarding plain error review by failing to assert

it on appeal, we affirm the entry of summary judgment against the police officers.

III. Conclusion

We REVERSE the dismissal of the claim against the prosecutor and

AFFIRM the district court’s grant of summary judgment to the police officers.

30