Social Worker Denied Qualified Immunity in Lawsuit Over Alleged Fabrication of Confession

From O'Connell v Tuggle, decided yesterday by the Tenth Circuit (Judge Robert Bacharach, joined by Judge Allison Eid):

This appeal stems from notes that a social worker made after interviewing a woman suspected of child abuse. The social worker (Ms. Marcia Tuggle) wrote that the woman (Ms. Krystal O'Connell) had confessed. Ms. O'Connell denied confessing and presented evidence that Ms. Tuggle had lied in her notes about the alleged confession.

Did the law clearly establish Ms. O'Connell's constitutional protection from the social worker's fabrication of a confession in a criminal investigation? The district court answered "yes," as we do….

In 2003, Ms. O'Connell left her young son, Kyran, in the care of Mr. Patrick Ramirez. Doctors soon diagnosed Kyran with serious brain injuries, and he died about two months later.

The police opened an investigation. Sergeant Harry Alejo interviewed Mr. Ramirez, who told the police that he was carrying Kyran when he fell.

Ms. Tuggle also investigated. She interviewed Mr. Ramirez, who repeated what he had told Sergeant Alejo. Two days later, Ms. Tuggle and Sergeant Alejo attended doctors' meetings and interviewed witnesses.

Sergeant Alejo first interviewed Ms. O'Connell without anyone else in the room. Later the same day, Sergeant Alejo and Ms. Tuggle conducted a joint interview of Ms. O'Connell. According to Ms. O'Connell, Sergeant Alejo hurled accusations while Ms. Tuggle watched. Ms. Tuggle noted the responses, stating that Ms. O'Connell had admitted shaking Kyran and slamming him on the bed. Ms. O'Connell denied saying this and presented evidence that Ms. Tuggle had fabricated the confession.

Ms. O'Connell was ultimately convicted of child abuse resulting in Kyran's death. But in 2017, Ms. O'Connell's conviction was overturned. She then sued Ms. Tuggle for a denial of due process. The district court denied Ms. Tuggle's motion for summary judgment, rejecting her argument for qualified immunity….

Given the denial of summary judgment, we credit Ms. O'Connell's allegations as true even if our own review of the record might suggest otherwise…. [One of those allegations is that] Ms. Tuggle had "deliberately falsified information" about Ms. O'Connell's statements." …

Given these allegations, we must consider the obviousness of a constitutional violation when Ms. Tuggle fabricated a confession of child abuse

• while "participating in investigatory interviews"
• as she combined with Sergeant Alejo in the questioning just after he'd accused Ms. O'Connell of child abuse.

"[A] defendant's due process rights are implicated when the state knowingly uses false testimony to obtain a conviction." Ms. O'Connell alleges a denial of due process through the knowing use of false testimony. Under Ms. O'Connell's version of events, Ms. Tuggle could not "have labored under any misapprehension that the knowing or reckless falsification … of evidence was objectively reasonable."

According to Ms. Tuggle, the constitutional violation wasn't obvious because she had investigated "separately" from Sergeant Alejo. But the district court credited the allegations that Ms. Tuggle had participated in the investigation with Sergeant Alejo, had participated in investigatory interviews, and had fabricated reports "subsequently used to arrest and prosecute" Ms. O'Connell.

Ms. Tuggle knew that there was a criminal investigation of Ms. O'Connell….. And Ms. Tuggle knew that in the criminal investigation, her agency would need to share her notes with the sheriff's office….

Judge Mary Briscoe dissented, taking the view that "it was not clearly established in February 2003 that notes fabricated during the course of a social services investigation violate a parent's constitutional rights associated with a separate, but related, criminal investigation":

I am not convinced that the unconstitutionality of the alleged fabrication was "obvious," as the majority contends. As the district court observed, "common sense" should have informed Defendant that "a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation." Yet, neither common sense nor our prior case law would have informed Defendant that she could not do so for constitutional reasons, as opposed to some general, moral reason.

And in determining whether Defendant is entitled to qualified immunity, we must look to the constitutionality of Defendant's actions. I am not condoning the misconduct alleged in this case. Yet I would reverse the district court because the constitutional dimensions of Plaintiff's claim were not clearly established in light of the particular facts presented….