McFarland v. Childers

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 10 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

AMY JEWEL MCFARLAND,

Plaintiff-Appellee,

v. No. 99-7023

J. REANAE CHILDERS, in her
individual capacity,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. CV-98-107-B)

Submitted on the briefs:*

Wellon P. Poe, Assistant Attorney General, State of Oklahoma, Oklahoma City,
Oklahoma, for Defendant-Appellant.

Gene V. Primomo, Delmar, New York, for Plaintiff-Appellee.

Before ANDERSON, McKAY, and HENRY, Circuit Judges

HENRY, Circuit Judge.

*
On October 27, 1999, after examining the briefs and appellate record, this panel
granted the parties’ joint motion for a decision on the briefs without oral argument. See
Fed. R. App. P. 34(f). The case is therefore submitted without oral argument.
 The defendant J. Reanae Childers, an agent of the Oklahoma State Bureau of

Investigation (“OSBI”), seeks to appeal the district court’s denial of her motion for

summary judgment on qualified immunity grounds. The district court ruled that Agent

Childers was not entitled to qualified immunity on either of plaintiff Amy Jewel

McFarland’s claims: (1) that Agent Childers improperly detained her on October 25,

1996, thereby violating the Fourth Amendment; and (2) that Agent Childers violated the

Fourth Amendment by executing probable cause affidavits wrongfully charging Ms.

McFarland with being an accessory after the fact to first degree murder.

For the reasons set forth below, we conclude that we lack jurisdiction over Agent

Childers’s appeal of the denial of qualified immunity as to the wrongful detention claim.

On the claim arising out of the execution of the probable cause affidavits, we conclude

that Agent Childers is entitled to qualified immunity, and, therefore, reverse the decision

of the district court.

I. BACKGROUND

On October 25, 1996, law enforcement officials discovered Ms. McFarland’s

driver’s license on the body of a murder victim in rural Atoka County, Oklahoma. The

license listed a Coal County address. Agent Childers, who had been assigned to

investigate the murder, contacted the Coal County Sheriff. She asked him to attempt to

contact Ms. McFarland.

2
 The sheriff and his deputy found Ms. McFarland at approximately 4:00 p.m. on

October 25, 1996. They told her that she needed to go the sheriff’s office because

someone wanted to talk to her. They then transported Ms. McFarland there, and Agent

Childers questioned her.

Agent Childers informed Ms. McFarland that she was not under arrest and asked if

Ms. McFarland would voluntarily speak with her. Ms. McFarland agreed. She denied

that she was present at the murder scene and said that the last time she had seen him, the

victim had “walked off.” See Aplt’s App. at 429 (Dist. Ct. Order, filed Feb. 4, 1999).

In the district court proceedings, conflicting testimony was introduced as to

whether Ms. McFarland was free to leave the sheriff’s office after Agent Childers began

to question her. Agent Childers testified that Ms. McFarland was repeatedly informed

that she was not under arrest. See id. In contrast, Ms. McFarland stated that when she

asked Agent Childers for permission to go home, Agent Childers told her “no,” id.,

explaining that Ms. McFarland was a prime suspect in the murder and that she had to stay

and answer her questions.

After approximately one hour, Agent Childers concluded her inquiries. The Atoka

County Sheriff and an investigator from the Atoka County District Attorney’s office

continued the examination and eventually asked Ms. McFarland to submit to a polygraph.

She agreed, and the officials took her to the OSBI office in Antlers, Oklahoma. After

submitting to the polygraph, Ms. McFarland admitted that she had not been truthful

3
regarding her knowledge of the murder. She implicated two other individuals but said

that she had not personally participated in the shooting.

Based on her deceptive responses, an investigator from the Atoka County District

Attorney’s Office and an OSBI agent placed Ms. McFarland under arrest. On the

following day (October 26, 1996), Agent Childers executed a probable cause affidavit

reporting Ms. McFarland’s conflicting responses to the agents’ interrogation. The

affidavit stated that Ms. McFarland had aided the individuals who had committed the

murder by giving untruthful answers to Agent Childers’s questions, with the intent that

these individuals avoid arrest and punishment. See id. at 337-38 (Probable Cause

Affidavit, signed October 26, 1996). On October 28, 1996, the Atoka County District

Attorney’s Office filed an information charging Ms. McFarland with committing the

crime of accessory after the fact, in violation of Okla. Stat. tit. 21, §§ 173, 175. See id. at

339-41. Based on Agent Childers’s affidavit, an Atoka County judge found probable

cause to detain Ms. Childers, and she was confined in the Atoka County jail.

In December 1996, the Atoka County court transferred the case to the District

Court for Coal County, Oklahoma, and a similar series of events occurred in that

jurisdiction: Agent Childers filed a second probable cause affidavit containing the same

allegations against Ms. McFarland, the Coal County District Attorney filed an

information alleging that Ms. McFarland had been an accessory after the fact, and a Coal

County judge found probable cause to detain her.

4
 In March 1997, the Coal County court conducted a preliminary hearing. The court

again found probable cause for Ms. McFarland’s arrest and bound her over for trial. Ms.

McFarland then filed a motion to dismiss the accessory-after-the-fact charge, arguing that

her initial denial of knowledge of a crime was insufficient to establish the crime of

accessory after the fact under Oklahoma law. The Coal County District Court agreed. On

September 15, 1997, it granted Ms. McFarland’s motion to dismiss and released her from

custody. It reasoned that Ms. McFarland “did nothing more than deny knowledge of the

crime when questioned by law officers.” Id. at 422 (Coal County Dist. Ct. Order, filed

Sept. 15, 1997).

In March 1998, Ms. McFarland filed this action pursuant to 42 U.S.C. § 1983. She

asserted two Fourth Amendment claims: (1) that Agent Childers wrongfully detained her

on October 25, 1996; and (2) that, by executing the probable cause affidavits that did not

allege a crime under Oklahoma law, Agent Childers caused Ms. McFarland to be

wrongfully incarcerated for ten and a half months. After the parties conducted discovery,

Agent Childers filed a motion for summary judgment on qualified immunity grounds.

In a February 4, 1999 order, the district court denied Agent Childers’s motion.

The court first rejected Agent Childers’s contention that the doctrine of collateral estoppel

precluded Ms. McFarland from challenging the probable cause findings made by the

Atoka and Coal County district courts in October and December 1996. Citing this court’s

decision in Bell v. Dillard Department Stores, 85 F.3d 1451 (10th Cir. 1996), the district

5
court reasoned that, under Oklahoma law, the doctrine only applied if the party sought to

be estopped had a full and fair opportunity to litigate the issue in question in a prior

proceeding. “[I]n order for a party to have had an opportunity to fully and fairly litigate a

matter, the party must be able to avail himself of the right to appeal.” Aplt’s App. at 436

(Dist. Ct. Order, filed Feb. 4, 1999). Here, Ms. McFarland did not have the right to

appeal the two initial findings of probable cause.

The court then concluded that there was evidence in the record supporting Ms.

McFarland’s claim arising out of her October 25, 1996 detention. The court found the

evidence in dispute as to whether the initial encounter with the Coal County Sheriff was

consensual. It cited Ms. McFarland’s testimony that she believed that she was being

detained and noted the fact that Coal County sheriff was armed and in uniform when he

took her to his office. The court also observed that Ms. McFarland had testified that,

during the interrogation, she had requested to go home, but Agent Childers had not

allowed her to do so. “This action, if it occurred, transforms the investigative detention

into a full-blown arrest, without any basis for doing so at the time[,] given [Agent

Childers’s] testimony that [Ms. McFarland] was not a suspect in the murder under

investigation.” Id. at 440. The court, therefore, concluded that Agent Childers was not

entitled to summary judgment on the claim arising out of the initial detention.

As to Ms. McFarland’s second claim (arising out of Agent Childers’s execution of

the probable cause affidavits in October and December 1996), the district court relied on

6
evidence submitted in Ms. McFarland’s summary judgment papers: the affidavits of two

law enforcement officers. Those affidavits supported Ms. McFarland’s contention that

“making untruthful statements to law enforcement investigators is not something a

reasonable officer would believe constituted a crime.” Id. at 441. According to the

district court, a jury could conclude from those affidavits that Agent Childers had acted

unreasonably in executing the probable cause affidavits supporting Ms. McFarland’s

arrest. Thus, Agent Childers was not entitled to summary judgment on the claim based on

the probable cause affidavits.

The district court expressly rejected Agent Childers’s argument that the probable

cause affidavits properly alleged a crime under Oklahoma law. It stated that Agent

Childers was barred by the doctrine of collateral estoppel from raising that argument.

The court cited the Coal County District Court’s September 15, 1997 ruling dismissing

the accessory-after-the-fact charge against Ms. McFarland and rejecting the prosecution’s

theory that one could be convicted of the offense by merely lying to a law enforcement

officer. Because there was no evidence that that ruling had been appealed, Agent

Childers could not challenge it in the instant case. The district court added that, in its

view, the Coal County District Court’s ruling was “sound and accurate in light of the

current state of Oklahoma law on the subject.” Id. at 443.

Finally, the court rejected Agent Childers’s contention that she was entitled to

qualified immunity. It stated that “[g]iven the explanations provided by [Agent Childers]

7
for the actions that she took and the law governing detention and probable cause for

arrests,” it could not determine on summary judgment that Agent Childers’s actions were

reasonable. Id. at 445.

II. DISCUSSION

On appeal, Agent Childers challenges the district court’s refusal to grant her

qualified immunity. With regard to the claim arising out of Ms. McFarland’s October 25,

1996 detention, she advances alternative arguments. First, she contends that, because Ms.

McFarland consented to the questioning at the Coal County Sheriff’s office, Ms.

McFarland was not subjected to an unreasonable seizure in violation of the Fourth

Amendment. Alternatively, Agent Childers argues that even if Ms. McFarland did not

consent to the questioning, the decision to detain Ms. McFarland was made not by her but

by the Coal County Sheriff. As a result, Agent Childers maintains, she is entitled to

qualified immunity from Ms. McFarland’s wrongful detention claim.

As to the claim arising out of the execution of the probable cause affidavits, Agent

Childers challenges the district court’s reading of Oklahoma law. In particular, she

maintains that the district court erred in applying the doctrine of collateral estoppel to

preclude her from challenging the September 15, 1987 ruling of the Coal County District

Court. She further argues that the district court erred in interpreting Oklahoma law

regarding the elements of an accessory-after-the-fact charge. Finally, Agent Childers

8
argues that she is immune from damages incurred by Ms. McFarland after the decision of

the Atoka County District Attorney to file the accessory-after-the-fact charge against Ms.

McFarland.

We begin our analysis by examining our jurisdiction over appeals involving the

defense of qualified immunity. We conclude that we lack jurisdiction over Agent

Childers’s appeal of the denial of qualified immunity from Ms. McFarland’s wrongful

detention claim. As to Ms. McFarland’s claim arising out of the execution of the

probable cause affidavits, we conclude that Agent Childers is entitled to qualified

immunity.

A. Jurisdiction Over Qualified Immunity Appeals

As a general rule, this court has jurisdiction to review only “final decisions” of the

district courts. See 28 U.S.C. § 1291; Johnson v. Jones, 515 U.S. 304, 309 (1995).

However, in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), the

Supreme Court held that certain collateral orders are appealable. In order to be

appealable under the Cohen collateral order doctrine, a district court decision must: (1)

“conclusively determine the disputed question;” (2) “resolve an important issue

completely separate from the merits of the action;” and (3) “be effectively unreviewable

on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468

(1978).

9
 In Mitchell v. Forsyth, 472 U.S. 511, 528 (1985), the Court applied the collateral

order doctrine to decisions denying public officials’ claims of qualified immunity. It held

that certain decisions could be appealed by public officials—those that determined

whether or not certain given facts showed a violation of “clearly established” law and

whether, as a result, the defendant public official was entitled to qualified immunity.

Johnson, 515 U.S. at 311 (discussing Mitchell).

In spite of Mitchell’s authorization of appeals of decisions denying qualified

immunity, the Supreme Court has held that there is still a class of qualified immunity

rulings not immediately appealable. See id. at 319-20. In particular, “a defendant,

entitled to invoke a qualified immunity defense, may not appeal a district court’s

summary judgment order insofar as that order determines whether the pretrial record sets

forth a ‘genuine’ issue of fact for trial.” Id. at 320; see also Foote v. Spiegel, 118 F.3d

1416, 1422 (10th Cir. 1997) (discussing Johnson). When the district court’s summary

judgment ruling merely determines the sufficiency of the evidence offered by the plaintiff

in response to the defendant’s factual assertions, the appeal is unlikely to involve the kind

of abstract legal issues separate from the fact-related issues that will arise at trial. Thus,

many of the justifications for applying the Cohen collateral order doctrine will not be

present. See Johnson, 515 U.S. at 313-20.

This circuit has applied this jurisdictional limitation on qualified immunity

appeals. For example, in Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1259

10
(10th Cir. 1998), we noted that “where 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;” see also Myers v. Oklahoma County

Bd. of County Comm’rs, 80 F.3d 421, 424-25 (10th Cir. 1996) (concluding that the court

lacked jurisdiction to hear an appeal when “the district court denied summary judgment to

the individual defendants on their qualified immunity defense on the sole basis that there

was a genuine issue for trial regarding the reasonableness of defendants’ conduct.”)

(internal quotations and citations omitted).

B. Wrongful Detention Claim

In denying Agent Childers’s motion for summary judgment on the claim arising

out of Ms. McFarland’s October 25, 1996 detention, the district court cited evidence

indicating that Ms. McFarland did not consent to the questioning at the Coal County

Sheriff’s office:

[Ms. McFarland] testifies that during the questioning by [Agent
Childers], she asked to leave to go home and [Agent Childers]
did not permit her to do so, facts which [Agent Childers]
disputes. This action, if it occurred, transforms the investigative
detention into a full-blown arrest, without any basis for doing so
at that time given [Agent Childers’s] testimony that Plaintiff was
not a suspect in the murder under investigation. Taking [Ms.
McFarland’s] version of the facts as true as the non-moving
party, which this Court is compelled to do for purposes of
summary judgment, [Ms. McFarland’s] conduct may rise to the

11
 level of a Fourth Amendment constitutional violation, given her
explanation for the detention in light of the facts. This Court
stresses that this conclusion is largely based upon [Agent
Childers’s] own testimony concerning her motivations for [Ms.
McFarland’s] detention.

Aplt’s App. at 440 (Dist. Ct. Order, filed Feb. 4, 1999).

In her appellate brief, Agent Childers does not specifically address this evidence

that the questioning of Ms. McFarland was not consensual. Instead, she merely identifies

counter evidence: “[a]ll of the officers involved have testified that during that initial

contact, Plaintiff was not under arrest and was advised of such.” Aplt’s Br. at 18. She

further argues that, even if the encounter was not consensual, the Coal County Sheriff

rather than Agent Childers should be held responsible for it. By advancing this argument,

Agent Childers in effect challenges the district court’s finding that there is evidence in the

record supporting the contention that Agent Childers prevented Ms. McFarland from

leaving the Sheriff’s office, thus rendering the encounter nonconsensual and allowing it

to be characterized as an arrest.1

Accordingly, Agent Childers’s appellate argument requests this court to “review

the record to determine if the district court correctly interpreted th[e] facts to find a

genuine dispute” as to whether her encounter with Ms. McFarland was consensual. See

Armijo, 159 F.3d at 1259. We lack jurisdiction over this kind of appeal of the denial of

1
We note that Agent Childers does not argue here that Ms. McFarland’s October
25, 1996 detention was based on reasonable suspicion or probable cause.

12
qualified immunity. See Johnson, 515 U.S. at 311; Armijo, 159 F.3d at 1259. Thus,

Agent Childers’s challenge to the denial of qualified immunity as to Ms McFarland’s

claim that she was wrongfully detained on October 25, 1996 will be dismissed.

C. Claim Arising Out of Probable Cause Affidavits

In contrast to the wrongful detention claim, Agent Childers’s appeal of the denial

of qualified immunity as to the claim arising out of her execution of the probable cause

affidavits does involve “the kind of abstract legal issues separate from the fact-related

issues that will arise at trial.” Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir. 1999);

see also Foote, 118 F.3d at 1422 (concluding that appellate jurisdiction exists when a

defendant challenges on appeal the district court’s “determination that under either party’s

version of the facts the defendant violated clearly established law”). In particular, Agent

Childers argues that a public official could reasonably conclude that, under Oklahoma

law, evidence that one has lied to a police officer may be sufficient to support a charge of

being an accessory after the fact to the commission of a felony. As a result, she

maintains, she is entitled to qualified immunity from the claims arising out of her

execution of the probable cause affidavits.

1. Collateral Estoppel

In considering Agent Childers’s qualified immunity argument, we must first assess

13
the district court’s conclusion that the doctrine of collateral estoppel bars her from

challenging the September 15, 1997 finding of the Coal County District Court. That court

found that the probable cause affidavits were legally insufficient to support the accessory-

after-the-fact charge. As noted, the district court reasoned that the Coal County ruling

was a final appealable decision, that there was no indication that the decision had been

appealed, and that as a result, Agent Childers could not challenge it in the instant § 1983

case.

In determining the preclusive effect of the Coal County ruling, we apply Oklahoma

law. See 28 U.S.C. § 1738; Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75,

81 (1984). “Under Oklahoma law, ‘once a court has decided an issue of fact or law

necessary to its judgment, the same parties or their privies may not relitigate the issue in a

suit brought upon a different claim.’” Kinslow v. Ratzlaff, 158 F.3d 1104, 1105 (10th

Cir. 1998) (quoting Fent v. Oklahoma Natural Gas Co., 898 P.2d 126, 133 (Okla. 1994)).

A party is precluded from litigating an issue only if he or she has had “‘a full and fair

opportunity’ to litigate the issue in the prior action.” Fent, 898 P.2d at 133 (quoting

Underside v. Lathrop, 645 P.2d 514, 516 n.6 (Okla. 1982)). We have considered the

application of collateral estoppel (or “issue preclusion”) in circumstances analogous to

the instant case. See Kinslow, 158 F.3d at 1105-07. In Kinslow, a plaintiff filed a civil

rights action against two police officers who had arrested him for various traffic

violations. Prior to the filing of the civil rights action, an Oklahoma court had found no

14
probable cause to prosecute the plaintiff and had dismissed the charges against him. In

the civil rights case, the plaintiff argued that the Oklahoma court’s dismissal precluded

the federal district court from granting the officers qualified immunity.

We rejected that argument. Noting that “[i]n order for issue preclusion to apply . .

. [the police officers] must have been parties to that criminal proceeding or in privity with

the parties in that action,” id. at 1106, we observed that the officers were not parties to the

state court criminal case. As to the question of privity, we reasoned that “under

Oklahoma’s definition of privity, the officers were not in privity with the State of

Oklahoma. The officers are being sued in their individual capacity in this action and their

personal interests, which were not at stake in the criminal proceeding, differ from

Oklahoma’s interests.” Id.; see also id. at n.3 (“While a government official sued in his

official capacity may be in privity with the government, we are aware of no case in which

a person, sued individually, has been precluded from litigating an issue because of a

ruling adverse to the state in a prior criminal proceeding.”) (citation omitted).

Kinslow is applicable here. Like the police officer defendants in that case, Agent

Childers has been sued in her individual capacity. Like the defendants in Kinslow, Agent

Childers was not a party to the prior criminal case. Because she has been sued in her

individual capacity, she is not in privity with the parties in that case. We therefore

conclude that Agent Childers is not precluded in the instant case from challenging the

15
Coal County District Court’s September 15, 1987 ruling.2

2. Qualified Immunity

Because the Coal County ruling is not preclusive, we proceed to the merits of

Agent Childers’s argument that she is entitled to qualified immunity from Ms.

McFarland’s claim arising out of the execution of the probable cause affidavits. That

claim is based on the allegation that Agent Childers’s execution of the affidavits caused

Ms. McFarland to be arrested without probable cause, thereby violating the Fourth

Amendment.

“Under the doctrine of qualified immunity, ‘government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Ramirez v. Oklahoma Dept. of Mental

Health, 41 F.3d 584, 592-93 (10th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)); see also Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.1992) (“If

[defendants’] actions are those that a reasonable person could have believed were lawful,

defendants are entitled to dismissal before discovery.”). In order for a right to be “clearly

2
We also note that the issue raised in this appeal differs from the issue resolved in
the Coal County case. As discussed below, the issue here is whether a reasonable officer
could have concluded that there was probable cause to pursue the accessory-after-the-fact
charge against Ms. McFarland. In contrast, the issue of what an officer could reasonably
believe was not resolved in the Coal County case.

16
established” for purposes of assessing entitlement to qualified immunity:

The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that
in the light of pre-existing law, the unlawfulness must be
apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).

The right at issue here is Ms. McFarland’s right not be seized, detained, and

prosecuted without probable cause. See generally Taylor v. Meacham, 82 F.3d 1556,

1559-61 (10th Cir. 1996) (discussing Fourth Amendment protections against baseless

seizures and prosecutions). Probable cause to make an arrest exists “if facts and

circumstances within the arresting officer’s knowledge and of which he or she has

reasonably trustworthy information are sufficient to lead a prudent person to believe that

the arrestee has committed or is committing an offense.” Jones v. City & County of

Denver, 854 F.2d 1206, 1210 (10th Cir. 1988). Accordingly, Agent Childers is entitled to

qualified immunity “if a reasonable police officer could have believed that probable

caused existed to arrest [the plaintiff].” See Hunter v. Bryant, 502 U.S. 224, 228 (1991).

In rejecting Agent Childers’s qualified immunity defense, the district court

observed that the Coal County District Court “specifically, and correctly, found that no

crime exists in Oklahoma for lying to a police officer or investigator of a crime.” Aplt’s

App. at 443 (Dist. Ct. Order, filed Feb. 4, 1999). The district court also observed that Ms.

17
McFarland had submitted affidavits from two police officers stating that nothing in their

training or experience “would lead to the conclusion that lying to a police officer is a

crime and that they have made no such arrests themselves.” Id. at 442. The court added

that Agent Childers herself had acknowledged that “she knows of no instance where a

crime has been charged as a result of lying to a police officer.” Id. As a result, “[t]his

calls into question whether a reasonably competent law enforcement officer would know

that the crime for which [Agent Childers] was executing probable cause affidavits did not

exist.” Id.

The district court’s reading of Oklahoma law is based on Farmer v. State, 40 P.2d

693 (Okla. Crim. App. 1935) (per curiam). In that case, the defendant appealed a

conviction under Oklahoma’s accessory-after-the-fact statute, which provided:

All persons, who after the commission of any felony, conceal or
aid the offender, with knowledge that he has committed a
felony, and with intent that he may avoid or escape from arrest,
trial, conviction, or punishment, are accessories.

Id. at 693 (citing 1931 Okla. Sess. Laws § 1809) (now codified at Okla. Stat. tit. 21, §

173). The evidence presented by the prosecution at trial established that the defendant

had falsely told the sheriff investigating an assault that he did not know who the guilty

parties were and that the defendant had done so “with the intent that such parties might

escape from the arrest, trial and conviction for such offense.” Id. at 694.

In response to the defendant’s appeal in Farmer, the Oklahoma Attorney General

filed a confession of error, stating that he “believe[d] that the mere fact of the telling the

18
sheriff a falsehood under such circumstances does not amount to a violation of the

[accessory-after-the-fact] statute.” Id. The Oklahoma Court of Criminal Appeals

approved the confession of error. It cited cases from Virginia, Texas, and Nevada

discussing the elements of an accessory charge. See id. (citing Wren v. Commonwealth,

67 Va. (26 Gratt.) 952, 1875 WL 5715 (Va. Apr. 22, 1875); Chenault v. State, 81 S.W.

971 (Tex. Crim App. 1904); Ex parte Overfield, 152 P. 568 (Nev. 1915)). Those

decisions held that the following acts were not sufficient to establish an accessory after

the fact charge: “merely suffering the principal to escape” and “knowing of a felony

[and] fail[ing] to make it known to the proper authorities;” id. at 694 (quoting Wren, 1875

WL 5715, at *1); and “failure to disclose the whereabouts of a felon by one who had

knowledge,” id. at 694 (discussing Overfield). According to the Oklahoma Court of

Criminal Appeals, the Texas decision (Chenault) held that “in order to make one an

accessory after the fact some overt active assistance rendered to the felon personally was

necessary.” Id. (discussing Chenault).

In this appeal, Agent Childers argues that a case decided by the Oklahoma Court of

Criminal Appeals more than forty years after Farmer—Wilson v. State, 552 P.2d 1404

(Okla. Crim. App. 1976)—supports her defense of qualified immunity. In Wilson, the

prosecution charged the defendant with second degree murder, but the trial court allowed

the jury to be instructed on the offense of accessory to a felony pursuant to Okla. Stat. tit.

21 § 173. Wilson, 552 P.2d at 1406. After the jury returned a guilty verdict on the

19
accessory charge, the defendant appealed. In reversing the conviction, the Court of

Criminal Appeals held that the trial court had erred in giving a lesser included offense

instruction. See id. (“[I]t is a necessary concomitant that a felony must already have been

committed in order for a person to be an accessory to the crime. . . . It necessarily follows

that the offense of accessory to a felony is a separate and distinct substantive crime, and is

not a lesser included offense of the principal crime.”).

Importantly, the Court of Criminal Appeals also concluded that “there is sufficient

evidence to justify the filing of a new information charging [the defendant] with the

offense of Accessory to a Felony if the District Attorney, in his discretion, so desires.”

Id. at 1407. The Wilson court set forth the testimony upon which it based this conclusion

about the evidence supporting an accessory charge, observing that, during cross-

examination, the defendant had testified as follows:

Q. Now, is it your story that all this was made up, that the story
you gave the Sheriff that night was made up in order to protect
the people that had actually committed the shooting?

A. Yes.

Q. You knew a crime had been committed. You knew a person
had been shot?

A. After they picked us up, yes.

Q. At the time you gave the story to the Sheriff, the one you say
was made up, you knew that a man had been killed . . . or a
person had been killed?

A. Yes.

20
 Q. You say you knew who had done it?

Q. Sir?

Q. You knew who had committed it?

A. No, I didn’t know who.

Q. You were making up this story in order to protect the person
that actually pulled the trigger, is that correct?

A. Yes.

Q. All of you agreed, to protect one another.

A. I don’t understand the question.

Q. All of you agreed to make up the story to protect one
another?

A. We agreed that . . .

Q. Protect everybody but Charlie is that what you’re telling us?

A. Yes.

Id. n.16. (quoting Trial Tr. at 255).

In our view, Wilson supports Agent Childers’s argument that her probable cause

affidavits sufficiently alleged an accessory offense under Oklahoma law. The testimony

that the Wilson court deemed sufficient to support an accessory charge consisted of no

more that the defendant’s admission that he had lied to a sheriff about who had

committed a murder (i.e., had “ma[de] up this story in order to protect the person that

actually pulled the trigger,” id.). There is no discussion in the Wilson opinion of any

21
additional elements required to support an accessory charge. The element that the Farmer

court had required forty years earlier—“active assistance personally to the party charged

with the felony,” Farmer, 40 P.2d at 694—is not mentioned.

Our research has revealed no case decided after Wilson that has addressed the

issue of whether the act of lying to a police officer is sufficient to support an accessory

after the fact charge in Oklahoma. We note in passing that courts in other jurisdictions

have resolved the issue in various ways. See United States v. Osborn, 120 F.3d 59, 64

(7th Cir. 1997) (noting uncertainty regarding the question of whether “something more

than a simple lie may be required in order to establish a violation of [18 U.S.C. § 3, the

federal accessory statute],” and that, “at the time of the events in question here, it was not

clear that [the defendant’s] lie to authorities fell outside the scope of 18 U.S.C. § 3”);

People v. Duty, 74 Cal. Rptr. 606, 609 (Cal. Ct. App. 1969) (concluding that evidence of

“supplying an affirmative and deliberate falsehood to the public authorities” was

sufficient to support an accessory charge and noting contrasting conclusions reached by

courts in other jurisdictions). In any event, the Oklahoma Court of Criminal Appeals

decision in Wilson reveals uncertainty regarding the application of the accessory statute to

allegations of lying to law enforcement officers.3

3
That uncertainty is reflected in the varying judicial opinions in the criminal case
againt Ms. McFarland. As Agent Childers has observed, two Oklahoma judges
concluded that the evidence was sufficient to support an accessory-after-the-fact charge,
and one judge concluded that the evidence was insufficient. See Aplt’s Br. at 22.

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 We acknowledge that the expansive interpretation of the Oklahoma accessory

statute advanced by the prosecution in the case against Ms. McFarland raises serious

concerns. The statute refers to persons who “conceal or aid” the offender. See Okla Stat.

tit. 21, § 173. Although there are arguably some false statements that may conceal or aid

offenders, there may be instances in which the prosecution is unable to demonstrate that a

false statement provided such assistance to the offender. As this court has observed in

applying the federal accessory statute, 18 U.S.C. § 3, it is doubtful that anyone who

engages in “less than enthusiastic cooperation with investigating authorities” should be

subject to prosecution as an accessory. United States v. Lepanto, 817 F.2d 1463, 1468

(10th Cir. 1987). Here, it is unclear from the record before us how Ms. McFarland’s

initial false statements concealed or aided the offenders.

Unfortunately, aside from the conflicting reasoning in Farmer and Wilson, the

Oklahoma courts have provided little guidance on the question of whether some false

statements may support an accessory charge and, if so, how one can distinguish false

statements that conceal or aid offenders from false statements that do no so conceal or

aid. In light of the uncertainty in Oklahoma law, we conclude that it was not clearly

established when Agent Childers executed the challenged probable cause affidavits in

1996 that Ms. McFarland’s false statements to law enforcement officers were not

sufficient to support an accessory-after-the-fact charge. Agent Childers is therefore

entitled to qualified immunity as to the claim arising out of the execution of the probable

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cause affidavits.4

III. CONCLUSION

For the reasons set forth above, we conclude that we lack jurisdiction over Agent

Childers’s appeal of the denial of qualified immunity on Ms. McFarland’s wrongful

detention claim. With regard to Agent Childers’s appeal of the denial of qualified

immunity on Ms. McFarland’s claims arising out of the execution of the probable cause

affidavits, we exercise jurisdiction and conclude that Agent Childers is entitled to

qualified immunity.

This appeal is therefore DISMISSED in part. The district court’s order denying

Agent Childers’s motion for summary judgment on qualified immunity grounds is

REVERSED in part. We REMAND the case to the district court for further proceedings

4
We note that in response to Agent Childers’s motion for summary judgment on
qualified immunity grounds, Ms. McFarland submitted affidavits from two police officers
stating that nothing in their training or experience indicated that lying to a police officer
was a crime and that they have made no such arrests themselves. Although the
experience of other officers may be relevant to certain determinations of reasonableness,
these particular affidavits are not relevant here. Neither affidavit mentions the Wilson
decision, and the officers’ discussion of their own experience does not resolve the conflict
between Wilson and Farmer. The question of whether a rule of law is clearly established
for qualified immunity purposes is a legal one for this court to determine by examining
applicable precedent rather than the experience of individual officers. See Barts v.
Joyner, 865 F.2d 1187, 1193 (11th Cir. 1989) (“But on the issue of whether the pertinent
law was clearly established, the opinion and decision of the state court do count. We
cannot realistically expect that reasonable police officers know more than reasonable
judges about the law.”).

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consistent with this opinion.5

5
As noted above, Agent Childers has also raised an issue regarding the proper
measure of damages, arguing that Ms. McFarland is not entitled to recover damages
incurred after the state prosecutor’s decision to file the accessory charge against her.
Agent Childers cites no authority allowing the consideration of the proper measure of
damages in an interlocutory appeal concerning the denial of qualified immunity.
Accordingly, we do not consider Agent Childers’s damages argument in this appeal.
In any event, Ms. McFarland’s only remaining claim involves her allegedly
wrongful detention on October 25, 1996. We leave it for the district upon remand to
determine how to instruct the jury on the proper measure of damages if a trial is held on
this claim.

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