Coones v. Board of County Commissioners

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 21, 2026
• Docket: 24-3147
• Status: Published

Opinion

Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 21, 2026

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

DEIRDRE COONES, as Executor of the Estate of Olin Coones,

Plaintiff - Appellee,

v. No. 24-3147

BOARD OF COUNTY COMMISSIONERS OF THE UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS; UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS; WILLIAM MICHAEL; ANGELA GARRISON; BRYAN BLOCK; SUSAN BROWN,

Defendants - Appellants. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:22-CV-02447-JAR) _________________________________

David R. Cooper (Charles E. Branson with him on the briefs), Fisher, Patterson, Sayler & Smith, LLP, Topeka, Kansas, for Defendants-Appellants.

Russell Ainsworth, Loevy & Loevy, Chicago, Illinois, for Plaintiff-Appellee. _________________________________

Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

McHUGH, Circuit Judge. _________________________________ Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 2

In 2009, Olin “Pete” Coones was convicted of murdering Kathleen Schroll and

acquitted of murdering Kathleen’s husband, Carl Schroll. 1 After twelve years in

prison, Mr. Coones was exonerated based on evidence that Kathleen had killed both

herself and her husband, framing Mr. Coones for their deaths.

Mr. Coones died shortly after his release from prison. Plaintiff-Appellee

Deirdre Coones, Mr. Coones’s widow and the executor of his estate (“the Estate”),

subsequently filed this lawsuit under 42 U.S.C. § 1983, alleging that several aspects

of the police investigation into the Schrolls’ deaths violated Mr. Coones’s

constitutional rights.

This interlocutory appeal involves claims against the two lead investigators in

the Schroll death investigation, Detectives William Michael and Angela Garrison

(collectively, “the Detectives”). The Detectives appeal from the district court’s

holding on summary judgment that they are not entitled to qualified immunity on two

counts of the Estate’s complaint: Count I, which alleged a due process violation

based on the Detectives’ alleged fabrication and suppression of evidence; and

Count II, which alleged malicious prosecution.

The Detectives’ employer, the Unified Government of Wyandotte County and

Kansas City, Kansas (“the Unified Government”), conditionally appeals the district

court’s denial of summary judgment on the Estate’s municipal liability claims,

1 Because the Schrolls have the same last name, this opinion uses their first names to differentiate between them. Other individuals with shared last names are also generally referred to by their first names to better differentiate between them. 2 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 3

arguing that it is entitled to relief because the Estate’s claims against the Unified

Government are premised on the Detectives’ allegedly unconstitutional actions and a

reasonable jury could not find that the Detectives violated Mr. Coones’s

We affirm the district court’s denial of qualified immunity. To the extent the

Detectives’ arguments are properly before us in this interlocutory appeal, they fail on

the merits. And because we affirm the district court’s decision on the merits of the

Estate’s claims against the Detectives, we dismiss the Unified Government’s pendent

appeal for lack of appellate jurisdiction.

I. BACKGROUND 2

Mr. Coones was a retired mail carrier who lived with his wife and children in

Kansas City, Kansas. At the time of the Schrolls’ deaths in April 2008, he was fifty

years old. 3

2 As elaborated on in Part II of this opinion, our review in an interlocutory appeal from the denial of qualified immunity must be based on “[t]hose facts explicitly found by the district court, combined with those that it likely assumed.” Fogarty v. Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008). The following description of the facts is therefore taken almost entirely from the facts outlined in the district court’s Memorandum and Order. 3 Although the district court did not discuss Mr. Coones’s physical condition in its Memorandum and Order, the evidence in the record indicates that Mr. Coones retired from the postal service for health reasons, having suffered from two heart attacks and a stroke. When he was taken into custody on the day of the Schrolls’ deaths, he was in very poor physical health and could not even walk across a room without becoming red and winded.

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At some point before 2004, Kathleen Schroll began working as a housekeeper

for Mr. Coones’s elderly relative, 4 Olin Coones (“Senior”), 5 and Senior’s daughter

Patsy. Patsy reported her gun stolen while she was living with Senior. Kathleen was

later known to carry a gun in her purse that she referred to as “Pat’s gun.” App.

Vol. XIV at 3805.

Before Senior passed away in 2007, Senior and Mr. Coones reported to the

police that they suspected Kathleen was committing elder abuse of Senior. Detective

Bryan Block, who worked on financial crimes, investigated Kathleen and found that

she had used Senior’s credit card to buy women’s shoes and purses and to pay her

own bills. Detective Block further discovered that Kathleen had written herself a

check for her birthday from Senior’s bank account “for something like $1,000.” Id.

at 3806. Moreover, she had converted Senior’s vehicle to her own ownership.

When Senior died, Kathleen and Mr. Coones became involved in litigation

over Senior’s life insurance proceeds.

As part of his investigation into the alleged elder abuse, Detective Block sent

copies of 120 checks issued from Senior’s account to an expert document examiner at

4 The parties’ briefs describe the elder Olin Coones as Mr. Coones’s father, but the pretrial order stipulates that he was Mr. Coones’s grandfather, and the district court relied on this stipulation in its statement of the facts. The exact nature of their relationship is unimportant to the issues in this appeal; the point remains that Kathleen was a housekeeper for Mr. Coones’s elderly relative. 5 Following the naming conventions used by the district court and the parties, this opinion refers to the elder Olin Coones as “Senior.”

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the Kansas Bureau of Investigation (“KBI”). The document examiner issued a report

on July 27, 2007. In this report, which identified Kathleen as a suspect, “the examiner

found ‘strong indications’ that all but three of the 120 checks submitted for review

may not have been authored by Senior, although due to the poor quality of the copies

sent for evaluation, ‘he could not be eliminated as the author.’” Id. at 3815.

Before her death, Kathleen made several statements about Mr. Coones to her

mother and other family members. She told them that Mr. Coones had been stalking

and harassing her, that she suspected he had burglarized her home, and that she had

reported this conduct to the police on numerous occasions. However, the police

department had no record of Kathleen ever contacting them about Mr. Coones.

At approximately 2:20 a.m. on April 7, 2008, Kathleen called her mother,

Elizabeth Horton, “and told her that ‘Pete’ was there trying to kill her husband . . . ,

that he said he was going to kill her, and that he had covered his tracks so they would

not know it was him.” Id. at 3802. “The line then went dead.” Id. Ms. Horton’s son

called 911 and reported that Mr. Coones was at the Schrolls’ house trying to kill

Kathleen and Carl.

When police officers arrived at the Schrolls’ house, the front screen door was

shut but the interior door was ajar. The officers entered the house and found

Kathleen’s body in the living room, with a silver revolver near her left foot and a

cordless phone near her right foot. She had sustained a single gunshot wound to the

back of her head. “Carl’s body [was] in a bedroom, sprawled across the bed with

gunshot wounds to his left chest and left abdomen and an injury to his head.” Id.

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A pillow near his head had a bullet hole going through it. The house contained no

signs of a struggle or forced entry.

Detectives Michael and Garrison, the lead detectives on the case, were called

to the scene at approximately 3:15 a.m. Ms. Horton later arrived and told the

Detectives about the phone call she had received from Kathleen before her death. She

also told the Detectives that “Pete” was Mr. Coones, and she explained that

Mr. Coones was contesting Kathleen’s claim to benefits under Senior’s life insurance

policy. She further told them that Kathleen had filed numerous police reports against

Mr. Coones for harassment and stalking.

While the Detectives interviewed witnesses, a police sergeant on the scene

“radioed to dispatch and reported that the deaths appeared to be a ‘possible murder-

suicide.’” Id. at 3803.

The Detectives asked Kathleen’s brother to accompany them to Mr. Coones’s

home. The brother gave them Mr. Coones’s address and told them that Mr. Coones

drove a brown van. The Detectives stopped their vehicle halfway down Mr. Coones’s

street, and Detective Michael walked the rest of the way to Mr. Coones’s house.

Detective Michael ran the vehicle tags for the only two vehicles he saw in the

driveway, but neither was registered to Mr. Coones. Detective Michael could not see

around the entire west side of the house from where he was standing. “He did not

document or photograph his vantage point, despite admitting later that he should have

done so.” Id. at 3804. Seeing no brown van at the residence, the Detectives returned

to the crime scene.

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At approximately 6:35 a.m., the Detectives interviewed Kathleen’s daughter,

Blair Hadley. Ms. Hadley reported that Kathleen said she had been threatened by

Mr. Coones at a QuikTrip gas station on April 5, 2008, as Kathleen was walking out

of the QuikTrip and Mr. Coones was walking in. Specifically, during this encounter

Mr. Coones allegedly told Kathleen: “You’re not going to be spending my dad’s

money no more, bitch.” Id.

Shortly after the Detectives spoke with Ms. Hadley, police received

information that Mr. Coones was in his brown van, preparing to drive away from his

house. The Detectives drove to the house and arrested Mr. Coones at about 7:00 a.m.

on April 7, 2008.

The Detectives then interviewed Mr. Coones’s children, Melody and Ben

Coones. Both children reported that their father was in the house when they went to

bed before 1:00 a.m., as well as when they woke up at about 6:30 a.m. They also told

the Detectives about their father’s legal dispute with Kathleen. And “Ben told

detectives that his father’s brown van had been parked at their home and that it would

have been visible from the front of the house, but not from the street.” Id. at 3805.

The Detectives interviewed Mr. Coones at about 10:00 a.m. He provided them

with details about his lawsuit against Kathleen, told them about Detective Block’s

investigation into Kathleen’s theft from Senior’s bank account, and identified the

lawyers involved in his civil dispute with Kathleen. He said that Kathleen’s story

about the QuikTrip encounter was not true. And he told the Detectives that he had

been home from 11:15 p.m. on April 6 until he left to take his children to the bus stop

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the next morning, at which time he was arrested. He said that his van had been

parked behind his house and that the police should keep investigating, because he did

not do it.

The Detectives then interviewed Mr. Coones’s wife, Deirdre. Deirdre told

them that Mr. Coones “went to bed at about 11:30 p.m. and was home when her

alarm went off at 6:15 a.m.” Id. at 3806. She also told them that Mr. Coones’s van

was parked in the back of the house that night and could not have been accessed

without her daughter’s boyfriend’s van being moved out of the way first.

The boyfriend, Ross Minks, would later testify at trial that he saw Mr. Coones

exit his bedroom to use the bathroom at around 2:00 a.m., that he heard Mr. Coones

using his computer until Mr. Minks fell asleep at around 2:30 or 3:00 a.m., and that

Mr. Coones would have had to pass in front of him to leave the house. Mr. Minks

also testified that Mr. Coones woke him up at 6:00 a.m. to get his car keys so

Mr. Coones could move Mr. Minks’s vehicle so he could access his own van.

Mr. Minks added that he “made several attempts to talk to” the Detectives to try to

explain that he “knew where Mr. Coones was the whole entire time up until [he] went

to sleep,” but the Detectives did not respond to his attempts to contact them and thus

never interviewed him or asked him to prepare a statement. Id. at 3813.

Within just a few hours after the Schrolls’ deaths, the police searched

Mr. Coones’s home and van, finding no evidence of any blood, tissue, firearms,

ammunition, gunshot residue, or anything else linking Mr. Coones to the deaths. “No

DNA or fingerprint evidence from Mr. Coones was found at the Schrolls’ house,” and

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the revolver was later found to contain only Kathleen’s DNA—located “on both the

barrel and the trigger.” Id. at 3807. Although officers on the scene swabbed the van’s

steering wheel and Carl’s and Kathleen’s hands for gunshot residue, the Detectives

did not send these swabs to the KBI for testing.

On the morning of the Schrolls’ deaths, Detective Garrison received an email

from a deputy district attorney informing her about the prior investigation involving

Mr. Coones, Senior, and Kathleen. This email detailed Detective Block’s findings

about Kathleen’s misuse of Senior’s credit and bank accounts to financially benefit

herself. The case reports from the elder abuse investigation were ultimately included

in the investigative file for the Schroll death investigation. However, the KBI report

on the authorship of the 120 checks from Senior’s account was not included in that

file.

As part of their investigation into the Schrolls’ deaths, the Detectives went to

QuikTrip and requested surveillance footage from April 5, 2008, to attempt to verify

the story Kathleen had told her daughter about Mr. Coones threatening her in the

QuikTrip. An employee burned a CD copy of the surveillance footage, and the

Detectives brought the CD back to the police station and viewed it. 6 They observed

As the Detectives note, this factual determination seems to conflict somewhat 6

with the district court’s statement in another section of the Memorandum and Order that “[i]t is undisputed that detectives did not collect . . . the QuikTrip surveillance video.” App. Vol. XIV at 3830. But taking the facts in the light most favorable to the Estate, as we must in an interlocutory appeal from the summary judgment denial of qualified immunity, see Fogarty, 523 F.3d at 1159, we credit the district court’s factual determination that a jury could find that the Detectives obtained a CD copy of the surveillance footage and took it back to the police station. 9 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 10

that neither Mr. Coones nor Kathleen appeared at any point in the video, which

showed the interior of the store. The Detectives did not document their visit to

QuikTrip, their review of the surveillance footage, or their observation that the

footage did not show either Kathleen or Mr. Coones present at QuikTrip on the

relevant date. Moreover, the Detectives did not inventory the surveillance video,

which they should have done under their normal practice.

On April 8, the day after the Schrolls’ deaths, the Detectives learned that the

silver revolver found at the crime scene had been stolen from Senior’s daughter

Patsy. The Detectives had already been informed at this point that Kathleen

possessed a gun she referred to as “Pat’s gun.” Id. at 3805.

“Also on April 8, Forensic Pathologist Erik Mitchell, M.D. performed

autopsies on Carl’s and Kathleen’s bodies.” Id. at 3808. Before the autopsies, he was

told only “that the decedents were found dead of gunshot wounds after a call had

been placed by the female decedent ‘to a daughter, indicating there was an assault.’”

Id. Based on this information combined with his forensic examination, he concluded

that both Carl and Kathleen died by homicide. Detective Block, who attended the

autopsies, noted in his report that “[t]here was blood on [Kathleen’s] face, her scrubs,

and the outside of her glasses,” as well as “a small amount of blood spatter on [her]

left hand.” Id. “At some point, investigators learned that . . . Kathleen w[as] left-

handed.” Id. at 3810.

On April 9, Kathleen’s daughter, Ms. Hadley, told the Detectives that Kathleen

kept a handgun. And on April 14, Kathleen’s mother, Ms. Horton, told the Detectives

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that Kathleen kept a pistol in her purse, which Kathleen said she carried “for work

and for protection.” Id. at 3809. Ms. Horton reported “that Kathleen often carried

large sums of money from the credit union where she worked and made deposits at

another location.” Id. Finally, she told the Detectives that Kathleen said Mr. Coones

had broken into the garage of her house and stolen a riding lawnmower.

On the same day they interviewed Ms. Horton, the Detectives also interviewed

Kathleen’s supervisor at Midwest Regional Credit Union, Thad Jones. Mr. Jones

“confirmed that Kathleen owned a handgun but said he had never seen it.” Id. And he

refuted Kathleen’s story to her mother that she carried a gun because of her work,

explaining to the Detectives that Kathleen’s job duties did not include transporting

money. Mr. Jones further told the Detectives that Kathleen had embezzled more than

$11,000 from the credit union. Mr. Jones had discovered this embezzlement on the

day she died, and he documented his findings regarding her embezzlement in a

Suspicious Activity Report prepared on April 9. Mr. Jones provided the Detectives

with a copy of the Suspicious Activity Report.

However, although Detective Michael would later admit that “reasons why a

person might kill themselves, including financial trouble or imminent criminal

prosecution,” are relevant in investigating a potential suicide, id. at 3804, the

Detectives did not mention the embezzlement in their reports, nor did they inventory

the Suspicious Activity Report. As a result of the Detectives’ withholding of this

information, neither the deputy district attorney nor Mr. Coones’s defense attorney

was aware of Kathleen’s embezzlement until long after Mr. Coones was convicted.

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The Detectives tried but failed to corroborate Kathleen’s accusation that

Mr. Coones stole her lawnmower. The police did not see the lawnmower when they

searched Mr. Coones’s home shortly after the Schrolls’ deaths, and the Detectives

could not find any other evidence or information to support Kathleen’s story. The

Detectives were also unable to corroborate the stories Kathleen had told her family

about filing several police reports and calling the police numerous times about

Mr. Coones. The police department had no record of any such contact or complaints.

Likewise, although Kathleen had told her brother that she had a restraining order

against Mr. Coones, the police department had no record that any such restraining

order ever existed. And Detective Michael further “learned that Senior had not, in

fact, left an inheritance to Kathleen, as she told her mother.” Id. at 3810. “Detective

Michael now admits that these inconsistencies would have been a ‘red flag’ to

Detective Michael that Kathleen was not honest.” Id.

Detective Michael testified at a preliminary hearing on June 27, 2008. He

stated that Mr. Coones told him following his arrest that his brown van was parked

behind his house during the early morning hours of April 7, 2008. Detective Michael

then testified:

I explained to him that, once I received information as far as who he was and where he lived, that I personally went to that residence and I didn’t see his vehicle. He told me that he has his vehicle parked way around behind the house, to hide it from creditors that he owned [sic] money to. He feared that his vehicle may be repossessed. And I told him that when I went up to his house to try to find his vehicle, I didn’t see it. I walked to the east side of his house, which would give me a view to the back yard. I—I—I will admit, if— if if there was anything that would have indicated that the vehicle was on the extreme west end of the house, I would not have been able to see it; but we

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subsequently served a search warrant at that house, and I did see some tire marks. I went back up to the area where I initially began my walk-up; and if the van would have been anywhere near those tire marks, I—I would have seen it, regardless of the lighting conditions. Id. at 3810–11.

“Based on this testimony, the prosecutor argued that Mr. Coones gave police

‘an account of his whereabouts that are inconsistent with the facts the police knew.’”

Id. at 3811.

Mr. Coones’s defense attorney, Patricia Kalb, spoke to Detective Michael

before trial about the alleged confrontation at QuikTrip. Detective Michael told

Ms. Kalb that he “investigated it and could not find the video.” Id. at 3812. Neither

the Detectives nor anyone else informed Ms. Kalb that Kathleen had been embezzling

money from her employer, Midwest Credit Union. If she had known this information,

she would have presented it as part of the defense. Moreover, neither the Detectives

nor anyone else told Ms. Kalb that an expert document examiner at the KBI had

examined 120 checks issued from Senior’s account and “found ‘strong indications’

that all but three of the 120 checks submitted for review may not have been authored

by Senior.” Id. at 3815. Again, if Ms. Kalb had been aware of this evidence, she

would have used it in Mr. Coones’s defense.

The case was first tried before a jury in January 2009. The jury found

Mr. Coones guilty of murdering Kathleen and not guilty of murdering Carl. However,

the trial court ordered a new trial because the prosecution had not timely disclosed a

forensic examination report of Mr. Coones’s computer. On retrial in December 2009,

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Mr. Coones was again convicted of Kathleen’s murder. He was “sentenced to serve at

least fifty years in prison before becoming eligible for parole.” Id. at 3812.

At both trials, Detective Michael gave testimony regarding the brown van that

was “consistent with his testimony at the preliminary hearing—that he personally

went to the Coones’ residence after the murder, that he did not see the brown van

there, and that he would have seen it if it [were there] based on where the tire ruts

were located when he viewed the backyard on the morning of April 7, 2008.” Id.

At the retrial, Ms. Kalb argued that Kathleen committed suicide. In response,

the prosecutor argued: “No evidence suggests that [Kathleen] would have any

motivation other than to . . . live and keep on living.” Id. at 3814.

A decade after the first trial, in 2019, the KBI finally tested the gunshot

residue swabs that had been collected shortly after the Schrolls’ deaths. No gunshot

residue was detected on the swabs taken from Mr. Coones’s van, but there was

gunshot residue on Kathleen’s left hand. And in 2020, an investigator from the

prosecutor’s office discovered evidence that disproved a jailhouse informant’s

testimony from the second trial regarding a purported confession made by

Mr. Coones. Further investigation also revealed information that had been missing

from the Detectives’ case files, such as Kathleen’s embezzlement from Midwest

Credit Union and the KBI report on the examination of Senior’s checks. Finally,

when Forensic Pathologist Mitchell was informed of key facts known to the

Detectives before trial but unknown to Forensic Pathologist Mitchell—specifically,

“that the gun used to kill Kathleen and Carl was Kathleen’s gun[,] that there was no

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sign of forced entry[, and] that Kathleen had been embezzling money before her

death”—he stated that if he had known these facts when he conducted his forensic

examination, “he would have determined that Kathleen’s most likely cause of death

was suicide.” Id. at 3816.

On November 5, 2020, Mr. Coones’s conviction was vacated, all charges

against him were dismissed, and he was released from custody after more than twelve

years of incarceration. “Mr. Coones passed away 108 days after his release, on

February 21, 2021.” Id. He “was posthumously granted a certificate of innocence,

and the records of his conviction and arrest were expunged.” Id.

The Estate then filed a complaint under 42 U.S.C. § 1983 against Defendants-

Appellants Board of County Commissioners of the Unified Government of

Wyandotte County and Kansas City, Kansas; the Unified Government; Detectives

Michael, Garrison, and Block; and three other police officers. The complaint alleged

ten claims for relief. As pertinent to this appeal, Count I alleged a due process

violation based on the fabrication and suppression of evidence, and Count II alleged

malicious prosecution.

Defendants filed a Motion for Summary Judgment in which they sought

judgment as to all claims against all Defendants, with the individual Defendants

asserting a qualified immunity defense on the claims against them. The district court

granted the Motion for Summary Judgment in part and denied it in part. As relevant

to this appeal, the district court denied summary judgment to Detectives Michael and

Garrison on Counts I and II and denied summary judgment to the Unified

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Government on the Monell claims against it. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694 (1978).

In this timely interlocutory appeal, the Detectives argue that the district court

erred in denying them qualified immunity on Counts I and II. The Unified

Government raises no independent arguments for relief, but it conditionally requests

dismissal of the claims against it if we hold that the Detectives did not violate

Mr. Coones’s constitutional rights.

II. JURISDICTION

This court does not generally have jurisdiction to review orders denying

summary judgment, but we have limited “interlocutory jurisdiction over denials of

qualified immunity at the summary judgment stage to the extent they ‘turn[] on an

issue of law.’” Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008) (quoting

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)) (alterations in original); see also Vette

v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1161 (10th Cir. 2021).

“Under this limited jurisdiction, we may review: (1) whether the facts that the

district court ruled a reasonable jury could find would suffice to show a legal

violation, or (2) whether that law was clearly established at the time of the alleged

violation.” Est. of Booker v. Gomez, 745 F.3d 405, 409 (10th Cir. 2014) (internal

quotation marks omitted). “At this stage, however, we are not at liberty to review a

district court’s factual conclusions, such as the existence of a genuine issue of

material fact for a jury to decide, or that a plaintiff’s evidence is sufficient to support

a particular factual inference.” Fogarty, 523 F.3d at 1154. “Thus, if a district court

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concludes that a reasonable jury could find certain specified facts in favor of the

plaintiff, the Supreme Court has indicated we usually must take them as true—and do

so even if our own de novo review of the record might suggest otherwise as a matter

of law.” Booker, 745 F.3d at 409–10 (internal quotation marks omitted). Moreover,

when a defendant “nominally frames [an] argument as a legal issue” but actually

challenges “the facts the district court concluded a reasonable jury could infer based

upon the evidence in the summary judgment record,” this court “lacks jurisdiction” to

consider that argument. Fancher v. Barrietos, 723 F.3d 1191, 1199–1200 (10th

Cir. 2013).

The Unified Government’s appeal invokes this court’s pendent jurisdiction.

We have pendent jurisdiction over a pendent appellate claim on collateral appeal if

“the appellate resolution of the collateral appeal necessarily resolves the pendent

claim as well.” Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995). In

the context of an appeal from the denial of qualified immunity, we may exercise

pendent jurisdiction over a municipality’s appeal if (1) the plaintiff’s claim against

the municipality is premised on a police officer’s allegedly unconstitutional conduct,

and (2) we hold that the officer did not violate the plaintiff’s constitutional rights.

Lynch v. Barrett, 703 F.3d 1153, 1163–64 (10th Cir. 2013). Accordingly, if we hold

that the Detectives did not violate Mr. Coones’s constitutional rights, then we may

exercise pendent jurisdiction over the Unified Government’s appeal. See id.

However, if we either affirm the district court’s denial of qualified immunity or

reverse on other grounds, then the Unified Government’s appeal will not be

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“inextricably intertwined,” id. at 1164, with the Detectives’ appeal. If so, then the

Unified Government’s appeal must be dismissed for lack of subject matter

jurisdiction. See id.

III. DISCUSSION

When a defendant in a § 1983 action raises the defense of qualified immunity,

“the plaintiff carries a two-part burden to show: (1) that the defendant’s actions

violated a federal constitutional or statutory right, and, if so, (2) that the right was

clearly established at the time of the defendant’s unlawful conduct.” Booker, 745

F.3d at 411 (quotation marks omitted). “To determine whether the right was clearly

established, we ask whether ‘the contours of a right are sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’”

Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “Ordinarily, in order 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 have found the law to be as the plaintiff maintains.” Fogarty, 523 F.3d at 1161

(quotation marks omitted). “The plaintiff is not required to show, however, that the

very act in question previously was held unlawful to establish an absence of qualified

immunity.” Booker, 745 F.3d at 411 (quotation marks and ellipsis omitted).

“Within this court’s limited jurisdiction, we review the district court’s denial

of a summary judgment motion asserting qualified immunity de novo.” Fancher, 723

F.3d at 1199. “We thus consider de novo the purely legal questions of (1) whether the

facts that the district court ruled a reasonable jury could find would suffice to show a

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legal violation and (2) whether that law was clearly established at the time of the

alleged violation.” Sawyers v. Norton, 962 F.3d 1270, 1282 (10th Cir. 2020)

(quotation marks and brackets omitted). As discussed above, however, because we

lack jurisdiction to consider the district court’s evaluation of factual sufficiency, “we

usually must take . . . as true” any facts that the district court concludes a jury could

find, “even if our own de novo review of the record might suggest otherwise as a

matter of law.” Booker, 745 F.3d at 409–10 (internal quotation marks omitted). Thus,

“[t]he district court’s factual findings and reasonable assumptions comprise the

universe of facts upon which we base our legal review of whether defendants are

entitled to qualified immunity.” Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015)

(internal quotation marks omitted).

The Detectives argue that they are entitled to qualified immunity on Counts I

and II of the complaint. We address each in turn.

A. Count I

As defined by the pretrial order, Count I alleged that the Detectives “violated

Mr. Coones’s due process rights by fabricating evidence against him and suppressing

exculpatory evidence, resulting in Mr. Coones’s wrongful conviction and

incarceration.” App. Vol. I at 282. The district court construed this claim to include

allegations of “withholding, failing to preserve, and fabricating evidence,” and the

court held that the Detectives were not entitled to qualified immunity on any of these

theories of liability. App. Vol. XIV at 3822.

19 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 20

To address the Detectives’ arguments related to Count I of the complaint, we

first explain the framework the Supreme Court has established to analyze claims

based on government officials’ failures to provide required evidence to the defense.

After explaining this framework, we consider the Detectives’ argument that the

district court erred in construing Count I to include a failure-to-preserve theory of

liability. Because we hold that the district court did not abuse its discretion by so

construing Count I, we then turn to the Detectives’ argument that they are entitled to

summary judgment on the merits of this theory of liability. Next, we consider the

Detectives’ arguments on the withholding-of-evidence theory of liability. Finally, we

address the Detectives’ arguments regarding Count I’s allegation of evidence

fabrication.

1. Legal Framework

“[T]he Supreme Court has developed a framework to analyze what might

loosely be called the area of constitutionally guaranteed access to evidence.” Fero v.

Kerby, 39 F.3d 1462, 1471 (10th Cir. 1994) (quoting United States v. Femia, 9 F.3d

990, 993 (1st Cir.1993)). This framework began with the Supreme Court’s decision

in Brady v. Maryland, 373 U.S. 83 (1963), in which “the Court pronounced the basic

principle that ‘the suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.’” Fero,

39 F.3d at 1471–72 (quoting Brady, 373 U.S. at 87).

20 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 21

A Brady violation occurs when (1) the government—through a prosecutor, an

investigator, a law enforcement officer, or some other “arm[] of the state”—

suppresses evidence; (2) the evidence is favorable to the accused; and (3) the

evidence is material to the defense. Smith v. Sec. of N.M. Dep’t of Corr., 50 F.3d 801,

824–27 (10th Cir. 1995). And civil liability for a Brady violation may arise when

police officers or other government employees suppress favorable, material evidence

either “knowingly or with reckless disregard for the truth.” Pierce v. Gilchrist,

359 F.3d 1279, 1298 (10th Cir. 2004).

This court has held that the Brady test does not apply to evidence that the

government is unable to locate or produce. See Fero, 39 F.3d at 1472. When “the

government no longer possesses the disputed evidence,” id. (quotation omitted), a

due process claim based on the failure to produce this evidence is governed instead

by the Supreme Court’s decisions in California v. Trombetta, 467 U.S. 479 (1984),

and Arizona v. Youngblood, 488 U.S. 51, 54–58 (1988). “Under the two-prong

Trombetta test, the government violates a defendant’s right to due process when:

(1) it [loses or] destroys evidence whose exculpatory significance is ‘apparent before’

[the loss or] destruction; and (2) the defendant remains unable to ‘obtain comparable

evidence by other reasonably available means.’” United States v. Bohl, 25 F.3d 904,

909–10 (10th Cir. 1994) (quoting Trombetta, 467 U.S. at 489); see also id. at 911

(explaining that this standard applies to evidence that is either lost or destroyed). In

Youngblood, the Court “extended Trombetta to provide that, if the exculpatory value

of the evidence is indeterminate and all that can be confirmed is that the evidence

21 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 22

was ‘potentially useful’ for the defense, then a defendant must show that the

government acted in bad faith in destroying the evidence.” Id. at 910 (quoting

Youngblood, 488 U.S. at 58).

The controlling legal standard for a claim brought under this broad framework

may shift over the course of the proceeding. For instance, in Fero a piece of bloody

carpet from a crime scene “could not be located by the State when the defense

requested it,” and it was therefore “at least initially . . . subject to the rule stated in

[Youngblood].” 39 F.3d at 1472. However, “the carpet evidence was later discovered

during the pendency of [the accused’s] direct appeal,” meaning that “it could be and

was tested by the defense and there was no task of guessing as to its probative value.”

Id. Because the evidence was thus available to the defense at the time of the appeal,

we concluded “that reliance on Youngblood in these circumstances is misplaced,” and

the “due process claim must be determined under the standard of Brady” instead. Id.

2. Count I’s Inclusion of a Failure-to-Preserve Theory of Liability

The Detectives argue that the district court erred in analyzing Count I in part

under the Trombetta/Youngblood standard. According to the Detectives, the pretrial

order did not include a failure-to-preserve claim, and the Estate therefore cannot

proceed on a Trombetta/Youngblood theory of liability in this case.

“We review for abuse of discretion a trial court’s decision to address or not to

address an issue on the basis of a pretrial order.” Leathers v. Leathers, 856 F.3d 729,

760 (10th Cir. 2017). “Under the abuse of discretion standard, the decision of a trial

court will not be disturbed unless the appellate court has a definite and firm

22 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 23

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Id. (quotation marks omitted).

Although a claim or theory that is not included in the pretrial order is

“usually” waived, “a pretrial order should be liberally construed to cover any of the

legal or factual theories that might be embraced by its language.” Id. (quotation

marks omitted). “In particular, we have construed pretrial orders most liberally when

the orders state the parties’ claims in general terms.” Id. at 760–61.

Here, the pretrial order stated the parties’ claims in general terms. The

statement of Count I consists in its entirety of the following description:

Count I: Due Process Violation (fabricating and suppressing evidence), 42 U.S.C. § 1983, against Michael, Garrison, Block, Brown, Board of County Commissioners of the Unified Government of Wyandotte County and Kansas City Kansas, and the Unified Government of Wyandotte County and Kansas City Kansas. These Defendants, acting individually and in concert, violated Mr. Coones’s due process rights by fabricating evidence against him and suppressing exculpatory evidence, resulting in Mr. Coones’s wrongful conviction and incarceration. App. Vol. I at 282.

The Detectives cite no authority for the proposition that a general reference to

“suppressing exculpatory evidence” can be construed only as invoking the Brady test

while waiving any reliance on the Trombetta/Youngblood side of the Supreme

Court’s framework for evaluating this type of claim. And the Detectives’ argument

that the pretrial order foreclosed any reliance on Trombetta or Youngblood is

dramatically undermined by the fact that, after the pretrial order was issued, the

Detectives devoted several pages of their Motion for Summary Judgment to arguing

23 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 24

that Youngblood governed the Estate’s due process claim; indeed, the Detectives

continue to argue for the application of at least part of the Youngblood test to the

Estate’s claims in this appeal. Moreover, the pretrial order’s summary of the Estate’s

factual contentions referred not just to the withholding of evidence, but also to the

failure to preserve exculpatory evidence, further supporting the idea that Count I’s

general claim of “suppressing exculpatory evidence,” App. Vol. I at 282, can be

liberally construed to include both Brady and Trombetta/Youngblood theories of

liability. See Leathers, 856 F.3d at 760.

Under these circumstances, the district court’s decision to address the potential

application of the Trombetta/Youngblood test to the Estate’s due process claim “d[id]

not conflict with the underlying purpose served by requiring issues to be set forth in

pretrial orders,” which is “to avoid surprise by requiring parties to fully and fairly

disclose their views as to what the real issues of the trial will be.” Id. at 761 (internal

quotation marks omitted). We therefore hold that the district court did not abuse its

discretion by analyzing Count I under both the Trombetta/Youngblood standard and

the Brady standard.

3. Trombetta/Youngblood Standard

We turn then to the merits of the district court’s application of the

Trombetta/Youngblood standard to the Estate’s due process claim. The Detectives’

sole contention of error is that the Trombetta/Youngblood standard requires a

showing of bad faith, which the Detectives argue was not satisfied here.

24 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 25

This argument misstates the governing legal standard. As explained above,

“[u]nder the two-prong Trombetta test, the government violates a defendant’s right to

due process when: (1) it [loses or] destroys evidence whose exculpatory significance

is ‘apparent before’ [the loss or] destruction; and (2) the defendant remains unable to

‘obtain comparable evidence by other reasonably available means.’” Bohl, 25 F.3d

at 909–10 (quoting Trombetta, 467 U.S. at 489); see also id. at 911 (explaining that

this standard applies to both the loss and destruction of exculpatory evidence).

Youngblood “extend[s]” this standard “to provide that, if the exculpatory value of the

evidence is indeterminate and all that can be confirmed is that the evidence was

‘potentially useful’ for the defense, then a defendant must show that the government

acted in bad faith in destroying the evidence.” Id. at 910 (quoting Youngblood,

488 U.S. at 58). But Youngblood does not apply if the exculpatory value of the

evidence can be determined. See id. And here, the district court identified specific

facts that the jury could refer to in determining the exculpatory value of the QuikTrip

video. The district court therefore appropriately held that Trombetta alone would

govern any possible failure-to-preserve claim regarding the QuikTrip video.

Because the Detectives’ sole argument on the merits of this claim thus fails as

a matter of law, we affirm the district court’s denial of qualified immunity on Count I

as it relates to the Detectives’ failure to preserve evidence.

4. Brady Standard

Having established that the district court did not err in applying

Trombetta/Youngblood, we next consider the court’s application of the Brady

25 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 26

standard. In analyzing Count I under the Brady standard, the district court focused on

three pieces of withheld evidence: (1) the Suspicious Activity Report and related

evidence of Kathleen’s embezzlement and financial distress; (2) the KBI check-

forging report; and (3) the QuikTrip surveillance video. The district court concluded

that a jury could find the Detectives suppressed each of these pieces of evidence

because, “[v]iewing the evidence in the light most favorable to [the Estate],

[Detectives Michael and Garrison] were personally responsible for completing the

investigative reports, viewing and then withholding evidence of the QuikTrip video,

the embezzlement evidence, and the KBI expert report.” App. Vol XIV at 3833.

The district court determined that a jury could find this suppressed evidence to

be both favorable and material, explaining that this evidence would have

(1) supported the defense theory of murder–suicide by providing a motive for

Kathleen to commit suicide, (2) corroborated the defense theory that Kathleen was

stealing money from Senior, (3) supported the defense’s trial argument that Kathleen

had a reason to frame Mr. Coones for her murder, and (4) “tipped the scales in terms

of supporting the defense theory that Kathleen had been lying to her family about

Mr. Coones harassing her, and specifically lied about harassing her two days before

her death.” Id. at 3829. Based on this analysis, the court concluded there was “a

reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different.” Id. at 3824 (quoting Cone v. Bell, 556 U.S.

449, 470 (2009)).

26 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 27

The district court further held: “[A] reasonable jury could find that these

detectives’ conduct went beyond mere negligence because they should have

understood the importance of the evidence and yet, failed to produce it to the

prosecutors or the defense.” Id. at 3833. Because the facts thus supported a finding of

“at least reckless intent,” the court concluded that a jury could find the Detectives

liable under § 1983 for violating Mr. Coones’s constitutional due process rights. Id.

Turning then to the second prong of the qualified immunity analysis, the

district court held that the law was clearly established at the time of the Detectives’

actions in 2008, such that a reasonable officer in their position would have

understood that withholding this evidence violated Mr. Coones’s constitutional due

process rights. See Booker, 745 F.3d at 411. In so holding, the district court noted

that this circuit “made clear as early as 1995 that ‘Brady requirements extend to law

enforcement personnel.’” App. Vol. XIV at 3829 (quoting Bledsoe v. Carreno,

53 F.4th 589, 613 (10th Cir. 2022) (internal quotation marks, brackets, and ellipsis

omitted)).

Many of the Detectives’ arguments on appeal directly or implicitly challenge

the district court’s evaluation of the record on summary judgment. For instance, the

Detectives contend that there is no evidence they knew about the KBI check-forging

report. Likewise, they contest both whether they were aware of Kathleen’s

embezzlement and whether a jury could find that the embezzlement evidence was

material. And they further argue that the QuikTrip surveillance video was not in their

27 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 28

possession, and thus the district court erred in treating it as withheld evidence under

Brady rather than unpreserved evidence under Youngblood. 7

As explained above, however, we must generally accept as true any facts that

the district court concludes a jury could find, “even if our own de novo review of the

record might suggest otherwise as a matter of law.” Booker, 745 F.3d at 409–10

(internal quotation marks omitted). And here, the district court specifically

determined that a reasonable jury could find that the Detectives “were personally

responsible for completing the investigative reports, viewing and then withholding

evidence of the QuikTrip video, the embezzlement evidence, and the KBI expert

report.” App. Vol. XIV at 3833. Similarly, the district court determined that the jury

could find the withheld evidence to be material, explaining how this evidence “could

reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Id. at 3826 (quoting Cone, 556 U.S. at 469–70 (in turn

quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995))). With respect to the

embezzlement evidence, for instance, the district court specifically determined that

the jury could find this evidence to be material because it would have supported

Mr. Coones’s trial defense by helping to prove that (1) Kathleen had a motive to

commit suicide, (2) Kathleen was stealing from her current employer and might well

7 The district court in fact considered the QuikTrip video under both standards and concluded that a reasonable jury could find that the Detectives violated Mr. Coones’s clearly established due process rights under either standard. For the reasons discussed in this Section of the opinion and in Section III.A.3 above, we affirm the district court’s ruling under both standards. 28 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 29

have stolen from Senior when she worked for him, and (3) Kathleen had a motive to

frame Mr. Coones for her murder.

The Detectives’ arguments to the contrary ignore this court’s limited

jurisdiction in an interlocutory appeal from the denial of qualified immunity,

impermissibly asking us “to review the district court’s factual conclusions concerning

the reasonable facts and inferences the evidence could support.” Vette, 989 F.3d

at 1167. But “we are not at liberty” to do so. Fogarty, 523 F.3d at 1154. And we are

unpersuaded by the Detectives’ attempt to skirt around this court’s jurisdictional

limitations by couching some of these arguments as legal rather than factual issues.

As we have explained, we lack jurisdiction to consider an argument that is

“nominally frame[d]” as a legal issue but “cannot reasonably be understood as

anything other than an attack” on the district court’s determinations regarding the

facts and inferences supported by the summary judgment record. Fancher, 723 F.3d

at 1199–20; see also Vette, 989 F.3d at 1167.

Likewise, although their next argument is rather unclear, the Detectives appear

to be attempting to hide a factual dispute behind a legal façade by arguing that the

district court incorrectly permitted “liability for damages under § 1983 for mere

negligence,” Appellants’ Br. at 29, and “without a mens rea or scienter requirement,

id. at 37. This purportedly legal argument does not seem to be based on the district

court’s statement of the pertinent legal standard, as the district court specifically held

that the Estate’s due process claim required a showing “that the officers acted ‘with

deliberate or reckless intent.’” App. Vol. XIV at 3869 (quoting Johnson v. City of

29 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 30

Cheyenne, 99 F.4th 1206, 1232 (10th Cir. 2024)). And the district court also referred

to the correct legal standard when it applied the scienter requirement to facts of this

case, holding that “[a] reasonable jury could find that these detectives’ conduct went

beyond mere negligence” and instead demonstrated “at least reckless intent.” Id.

at 3833.

The Detectives seem to be arguing that the district court implicitly allowed

§ 1983 liability for negligent behavior because the facts in the summary judgment

record would not support a finding of knowledge or recklessness. But any such

argument would necessarily be premised on a dispute over “the facts the district court

concluded a reasonable jury could infer based upon the evidence in the summary

judgment record,” which we lack jurisdiction to consider despite the Detectives’

attempts to “nominally frame[] this argument as a legal issue.” Fancher, 723 F.3d

at 1199; see also Ralston v. Cannon, 884 F.3d 1060, 1067–68 (10th Cir. 2018)

(dismissing an interlocutory qualified immunity appeal for lack of appellate

jurisdiction because the defendant only challenged the district court’s factual

determination that a reasonable juror could find the requisite mens rea).

Thus, to the extent the Detectives are arguing that the district court held as a

matter of law that a government official can be held liable under § 1983 for mere

negligence, this argument is refuted on its face by the plain language of the district

court’s Memorandum and Order. And to the extent the Detectives are arguing that the

summary judgment record does not support the district court’s determination that a

30 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 31

jury could find the requisite mental state for § 1983 liability, we lack jurisdiction

over this factual dispute. See Ralston, 884 F.3d at 1067–68.

Ultimately, the Detectives raise only two challenges to the district court’s

Brady analysis that are properly before us in this interlocutory appeal. 8 First, they

argue that Brady imposes a duty only on prosecutors, not on police officers. Second,

they argue that, to the extent police officers have duties under Brady, an officer

cannot be held liable for a Brady violation under § 1983 unless the plaintiff proves

that the officer acted in bad faith by “knowingly suppress[ing] exculpatory evidence

that would have proven innocence.” Appellant’s Br. at 34.

Both of these arguments are squarely contradicted by controlling Tenth Circuit

law. This court has repeatedly “extended Brady obligations” to both police officers

and “other personnel in the police department who are actively involved in a

8 The Detectives devote a single sentence in their opening brief to asserting that Detective Garrison cannot be held liable for the suppression of evidence because she “(1) did not prepare the investigative report, (2) did not testify at the preliminary hearing, and (3) did not testify at [Mr.] Coones’s trials.” Appellants’ Br. at 45. This argument “has not been even minimally supported by legal argument or authority,” Phillips v. Calhoun, 956 F.2d 949, 953 (10th Cir. 1992), nor does it include the required “citations to the . . . parts of the record on which the appellant relies,” Fed. R. App. P. 28(a)(8)(A). Moreover, the Detectives have failed to comply with this court’s requirement to “cite the precise reference in the record where the issue was raised and ruled on.” 10th Cir. R. 28.1(A). “[W]e have elsewhere declined to consider issues based on similar omissions.” United States v. Williams, 893 F.3d 696, 701 (10th Cir. 2018). Additionally, our review of the record reveals that the Detectives did not raise this argument before the district court. And the Detectives have not argued for plain error review on appeal, which “surely marks the end of the road for an argument for reversal not first presented to the district court.” Richison v. Ernest Grp., 634 F.3d 1123, 1131 (10th Cir. 2011). This argument is therefore waived, and we will not address it on appeal. See id. 31 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 32

particular investigation.” Tiscareno v. Anderson, 639 F.3d 1016, 1022 (10th

Cir. 2011), reh’g granted, vacated in part on other grounds, 421 F. App’x 842 (10th

Cir. 2011) (unpublished); see also, e.g., Bledsoe, 53 F.4th at 612–13 (holding that

police officers violated clearly established law in 1999 by suppressing material

exculpatory evidence). And the Detectives’ argument that police officers cannot be

held liable unless they “knowingly suppressed exculpatory evidence that would have

proven innocence,” Appellants’ Br. at 34, is contrary to Tenth Circuit law in two

different ways.

As an initial matter, it is well established that Brady does not require a

showing that the exculpatory evidence would have conclusively proven the accused’s

innocence. See, e.g., Douglas v. Workman, 560 F.3d 1156, 1173 (10th Cir. 2009)

(reiterating that Brady’s materiality element “is not a requirement that the evidence

be sufficiently strong to ensure an acquittal had it been presented at trial” (emphasis

omitted)). And as for the Detectives’ argument that a Brady claim against a police

officer requires evidence of knowledge, this court has held for more than two decades

that the mens rea requirement for this type of claim can be satisfied by either

knowledge or “reckless disregard for the truth.” Pierce, 359 F.3d at 1298; see also,

e.g., Johnson, 99 F.4th at 1225 (noting that liability for this type of claim requires “a

mental state surpassing negligence—that is, acting at least knowingly or recklessly”);

Tiscareno, 639 F.3d at 1023 (“[I]n a § 1983 context, [it] is clearly established . . . that

an investigator must not knowingly or recklessly cause a Brady violation.” (emphasis

added)).

32 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 33

For example, this court held in Pierce that a police forensic chemist violated

clearly established law in 1986 by concealing material exculpatory evidence, as

“[n]o one could doubt that the prohibition on falsification or omission of evidence,

knowingly or with reckless disregard for the truth, was firmly established as of

1986.” Pierce, 359 F.3d at 1298. Accordingly, an officer in the chemist’s position

“could not have labored under any misapprehension that the knowing or reckless

falsification and omission of evidence was objectively reasonable.” Id. at 1299. And

we have reiterated this mens rea requirement several times, including in our recent

decision in Bledsoe, 53 F.4th at 612.

The Detectives make a weak attempt to distinguish Pierce and Bledsoe by

arguing that those cases were decided on motions to dismiss. They do not articulate

why the stage of the proceeding would alter this court’s legal conclusions regarding

the mens rea required to hold a police officer liable for a Brady violation, and we can

see no logical reason for disregarding Pierce and Bledsoe’s substantive legal standard

based on this procedural distinction.

The Detectives also argue that Bledsoe in fact supports their argument because

the police officers in that case knowingly suppressed exculpatory evidence. However,

the particular facts at issue in Bledsoe do not change the legal test applied by this

court, under which the police officers could be held liable for their “falsification or

omission of evidence, knowingly or with reckless disregard for the truth.” 53 F.4th

at 612 (emphasis added) (quotation marks omitted). Thus, regardless of whether the

police officers in Bledsoe acted knowingly or recklessly, Bledsoe’s statement of the

33 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 34

law is consistent with this court’s longstanding rule, allowing § 1983 liability for a

Brady violation committed either knowingly or recklessly. See id.

In sum, all of the Detectives’ arguments regarding the Brady test “are

alternatively meritless or are ones over which we may not exercise appellate

jurisdiction.” Vette, 989 F.3d at 1168. We therefore affirm the district court’s denial

of qualified immunity to the Detectives on Count I under the Brady theory of

liability.

5. Fabrication of Evidence

Finally, we consider Count I’s allegations of evidence fabrication. The district

court held that the Detectives were not entitled to qualified immunity on the Estate’s

fabrication claim for two reasons. First, in light of the very sparse briefing on this

claim in the Detectives’ Motion for Summary Judgment, the court held that the

Detectives’ arguments were “insufficient to trigger invocation of qualified immunity,

or otherwise move for summary judgment, on [the Estate’s] fabrication claim.” App.

Vol. XIV at 3831. In explaining this holding, the court noted that the Detectives had

not addressed the elements of this claim, nor had they even acknowledged that a

fabrication claim requires a separate test from a Brady claim. Second, the court

alternatively held that the Estate had met its “burden of coming forward with

evidence creating a strong issue of fact about whether Detective Michael fabricated

his testimony about the van.” Id. at 3832.

34 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 35

The Detectives argue that both of the district court’s reasons for denying

qualified immunity on this claim were incorrect. 9 First, they argue that they

adequately raised an argument regarding the fabrication claim based on three

scattered statements on three different pages of their Motion for Summary Judgment.

Specifically, they cite to (1) their conclusory assertion that they were “entitled to

judgment on plaintiff’s claim of fabrication of evidence/suppression of exculpatory

evidence,” App. Vol. II at 310; (2) their argument that Bledsoe “suggests the

threshold for individual liability requires proof the defendant knowingly fabricated

false evidence or knowingly suppressed exculpatory evidence that would have proven

innocence,” id. at 313 (emphasis omitted); and (3) their assertion that “[n]othing

during the investigation corroborated, as fact, that [Mr.] Coones[] could not have

used his van to commit the murder,” id. at 318. Second, the Detectives argue on the

9 The Detectives additionally raise a new argument on appeal, asserting for the first time that Detective Garrison cannot be found liable on a fabrication claim because she did not prepare the investigative report or testify at the preliminary hearing or trial. As with the Detectives’ earlier argument regarding Detective Garrison’s personal responsibility for suppressing evidence, this argument is not supported by any citations to the record. And although this argument was raised for the first time on appeal, the Detectives do not address plain error. We conclude that this argument has been waived by the Detectives’ failure to adequately brief this argument on appeal as well as by their failure to address plain error in either their opening or reply brief. See MacArthur v. San Juan Cnty., 495 F.3d 1157, 1160–61 (10th Cir. 2007) (“Mere conclusory allegations with no citations to the record or any legal authority for support does not constitute adequate briefing.” (internal quotation marks and brackets omitted)); Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An issue or argument insufficiently raised in the opening brief is deemed waived.”); Richison, 634 F.3d at 1131 (“[T]he failure to argue for plain error and its application on appeal[ ]surely marks the end of the road for an argument for reversal not first presented to the district court.”). We therefore decline to consider this argument. 35 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 36

merits that the facts in the summary judgment record “do[] not permit the inference

that [Detective] Michael fabricated evidence” and thus “[t]he district court erred by

inferring far more into [Detective] Michael’s testimony than what he said.”

Appellants’ Br. at 42–43.

We agree with the district court that the Motion for Summary Judgment’s few

scattered references to the fabrication claim did not adequately raise any summary

judgment arguments regarding this claim. The Detectives have therefore failed to

preserve any contentions regarding this claim for appellate review. See Wall v.

Astrue, 561 F.3d 1048, 1066 (10th Cir. 2009) (“Because Claimant failed to state her

theory below with the required specificity, she has failed to preserve this issue for

our review.” (internal quotation marks omitted)); Harrell v. United States, 443 F.3d

1231, 1233 (10th Cir. 2006) (“Vague, arguable references to an issue are insufficient

for preservation on appeal.”).

Moreover, even if the Detectives had adequately preserved a challenge to the

fabrication claim, we would nevertheless lack appellate jurisdiction to consider the

arguments they raise in this appeal. As the Detectives’ opening brief makes clear,

they are challenging the denial of qualified immunity on the fabrication claim solely

on the basis that the facts in the summary judgment record “do[] not permit the

inference that [Detective] Michael fabricated evidence” and thus “[t]he district court

erred by inferring far more into [Detective] Michael’s testimony than what he said.”

Appellants’ Br. at 42–43. But this is clearly a challenge to “the facts the district court

concluded a reasonable jury could infer based upon the evidence in the summary

36 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 37

judgment record,” which this court “lacks jurisdiction” to consider. Fancher, 723

F.3d at 1199–1200. And although the Detectives attempt to fix this problem in their

reply brief by reframing their argument as a challenge to “a legal conclusion of

fabrication,” Reply Br. at 10, this nominal reframing does not save their argument,

which still rests on a disagreement with the district court’s determination that the

Estate’s evidence was sufficient to support the inference that Detective Michael

fabricated his testimony regarding the absence of the brown van from Mr. Coones’s

house on the morning of the Schrolls’ deaths. See Fancher, 723 F.3d at 1199–1200.

We therefore lack jurisdiction to consider the Detectives’ argument on the merits of

this claim. See id.

Accordingly, because all of the Detectives’ challenges to the district court’s

ruling on Count I “are alternatively meritless or are ones over which we may not

exercise appellate jurisdiction,” Vette, 989 F.3d at 1168, we affirm the district court’s

denial of the Detectives’ Motion for Summary Judgment on Count I of the Estate’s

complaint.

B. Count II

Count II raises a malicious prosecution claim against the Detectives. “A

§ 1983 malicious prosecution claim includes five elements,” requiring a plaintiff to

show that “(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 arrest, confinement, or prosecution; (4) the defendant

acted maliciously; and (5) the plaintiff sustained damages.” Shrum v. Cooke, 60 F.4th

37 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 38

1304, 1310 (10th Cir. 2023) (emphasis omitted). If the plaintiff sufficiently

establishes these elements, the plaintiff has shown a constitutional violation, thus

satisfying the first prong of the qualified immunity analysis.

When the second prong of the qualified immunity analysis is at issue on

appeal, we “determine whether the plaintiff’s rights were clearly established, which

we approach by asking whether the officers arguably had probable cause.” Felders

ex rel. Smedley v. Malcolm, 755 F.3d 870, 879 (10th Cir. 2014) (brackets and

quotation marks omitted). “Arguable probable cause exists where ‘a reasonable

police officer in the same circumstances and . . . possessing the same knowledge as

the officer in the question could have reasonably believed that probable cause existed

in light of well-established law.’” Id. (quoting Fleming v. Livingston Cty., 674 F.3d

874, 880 (7th Cir. 2012)) (emphasis omitted). The pertinent question is thus whether

the conduct at issue was “objectively reasonable under existing law.” Cortez v.

McCauley, 478 F.3d 1108, 1120 (10th Cir. 2007) (en banc). And in this circuit an

arrest is not “objectively reasonable under existing law”—and thus lacks “arguable

probable cause”—when “the information relied on to conduct the seizure was not

reasonably trustworthy information sufficient on its own to justify the seizure.” Id.

at 1120–21; see also Irizarry v. Yehia, 38 F.4th 1282, 1294 (10th Cir. 2022)

(“[G]eneral statements of the law can clearly establish a right for qualified immunity

purposes if they apply with obvious clarity to the specific conduct in question.”

(quotation omitted)).

38 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 39

On appeal, the Detectives do not discuss the first, second, or fifth elements of

this circuit’s malicious prosecution test, but they contend that the district court erred

in concluding that the Estate could establish malice and a lack of probable cause.

Additionally, they argue that they are entitled to qualified immunity on the second

prong of the qualified immunity test based on the existence of at least arguable

probable cause.

1. Preservation

The Detectives’ arguments on malice and probable cause were raised before

the district court and have thus been preserved for appeal. However, the Motion for

Summary Judgment did not raise any arguments regarding arguable probable cause;

indeed, it was completely devoid of any reference to arguable probable cause.

Although the Detectives argued that the Estate’s other claims failed to show a

violation of clearly established law, they did not explicitly raise a similar argument

regarding the Estate’s malicious prosecution claim. Instead, after arguing with

respect to Count I that they did not violate Mr. Coones’s clearly established Brady

rights, they simply cited without explanation to a few cases setting forth the legal

standard for probable cause, neither arguing that these cases were relevant to the

malicious prosecution claim nor otherwise explaining how the cited cases would

apply to their alleged conduct in this case.

Nevertheless, despite the lack of any clear argument by the Detectives on this

issue, the Estate’s Response in Opposition to Defendants’ Motion for Summary

Judgment addressed the question of clearly established law in its discussion of the

39 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 40

malicious prosecution claim. There, the Estate discussed the specific conduct at issue

and argued that this conduct violated Mr. Coones’s clearly established constitutional

right to be free from malicious prosecution. The Estate supported this argument with

citations to two different Tenth Circuit cases.

But the Detectives’ Reply in Support of Defendants’ Motion for Summary

Judgment did not explain why the Estate’s cases failed to put them on notice that

their conduct violated Mr. Coones’s right to be free from malicious prosecution, nor

did the Detectives otherwise engage with the Estate’s argument that their conduct

violated clearly established law. Rather, the Detectives’ discussion of the second

prong of the qualified immunity test as it related to Count II consisted in its entirety

of a conclusory sentence in which the Detectives simply asserted, with no elaboration

or discussion, that they were “entitled to qualified immunity as there was

unquestionably arguable probable cause.” App. Vol. XIV at 3712. This bald assertion

was followed by a case citation with no parenthetical or other explanation of how this

case was relevant to the issues before the district court on summary judgment.

In its Memorandum and Order, the district court held that the Estate had met

its burden of demonstrating a violation of clearly established law as to Count II,

citing for support to one of the cases raised by the Estate in its Response in

Opposition.

The Detectives’ appellate challenge to that ruling consists of a single

paragraph in which the Detectives recite the standard for arguable probable cause and

then assert without explanation that the “facts and circumstances” here, “at a

40 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 41

minimum, gave rise to arguable probable cause.” Appellants’ Br. at 54–55. Although

this argument is slightly more fleshed out than the single-sentence assertion in their

Reply in Support, it is still undeveloped and perfunctory. And the Detectives’

argument on appeal still fails to acknowledge or address the cases raised by the

Estate and relied on by the district court to hold that their conduct violated clearly

established law with respect to the malicious prosecution claim. Indeed, the

Detectives’ appellate briefing does not address the district court’s reasoning on this

issue at all.

“To preserve an issue for appeal, a party must alert the district court to the

issue and seek a ruling—a party does not preserve an issue merely by presenting it to

the district court in a vague and ambiguous manner, or by making a fleeting

contention before the district court.” GeoMetWatch v. Behunin, 38 F.4th 1183, 1206

(10th Cir. 2022) (internal quotation marks, brackets, and ellipsis omitted). Generally,

we will “not address arguments raised in the [d]istrict [c]ourt in a perfunctory and

underdeveloped manner.” Id. at 1207 (internal quotation marks omitted); see also

Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (holding that an appellate

argument was waived because it consisted in its entirety of one case citation and two

conclusory sentences that failed to state the pertinent legal standard or to explain why

the facts and the law supported the appellants’ argument).

Although the failure to adequately raise an argument before the district court

generally constitutes a forfeiture rather than waiver of that argument, the failure to

“invoke[] the plain-error framework” on appeal “effectively waive[s]” a forfeited

41 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 42

argument. GeoMetWatch Corp., 38 F.4th at 1206. Moreover, “[i]t is well-settled that

arguments inadequately briefed in the opening brief are waived.” United States v.

Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (internal quotation marks and brackets

omitted). And because “[t]he first task of an appellant is to explain to us why the

district court’s decision was wrong,” an appellant who “utterly fails . . . to explain

what was wrong with the reasoning that the district court relied on” has waived any

appellate challenge to the district court’s decision. Nixon v. City & Cty. of Denver,

784 F.3d 1364, 1366 (10th Cir. 2015).

The Detectives did not adequately raise their arguable probable cause

argument before the district court, have not argued for plain error review on appeal,

and have not “explain[ed] what was wrong with the [district court’s] reasoning” in

their appellate briefs. Id. They have therefore waived appellate review of this

argument. They suggest on appeal that we can overlook their waiver of this argument

based on this circuit’s reasoning in Cox, 800 F.3d at 1244–46. In Cox, however, we

exercised our discretion to consider a forfeited qualified immunity argument based on

“the unique factual and legal context of th[at] case.” Id. at 1244. In particular, we

focused in Cox on the plaintiff’s failure to adequately brief the question of clearly

established law in response to the defendant’s assertion of qualified immunity. See id.

at 1245–46. We explained that “in deciding whether it is a proper exercise of our

discretion to overlook the assumed forfeiture of [the defendant] regarding the clearly-

established-law question, [the plaintiff’s] significant briefing shortcomings on this

same question—as to which she bears the burden of proof—should be taken into

42 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 43

account.” Id. at 1246. And taking those “significant briefing shortcomings” into

account, we “elect[ed] to reach the merits” of the defendant’s qualified immunity

argument on appeal. Id.

Cox is thus distinguishable. Even assuming that its reasoning applies to an

appellate argument that has been waived rather than simply forfeited, our decision to

consider the forfeited issue in Cox was based primarily on our conclusion that the

plaintiff there had “merely assert[ed] in bare-bones fashion” that the detainee in that

case had a constitutional right to adequate medical care. Id. at 1245. Here, however,

the Estate discussed the Detectives’ specific conduct and cited to two different cases

in support of the Estate’s contention that the Detectives were on notice of the

unconstitutionality of that conduct. The district court relied on this briefing, which

the Detectives did not specifically address or contest, to hold that the Estate had met

its burden of showing a violation of clearly established law. And the Detectives’

appellate arguments still fail to engage with the cases cited by the Estate or with the

district court’s reasoning. Under these circumstances, we are not persuaded that it

would be “a proper exercise of our discretion” to consider the Detectives’

inadequately briefed and unpreserved argument on the merits of this issue. Id.

at 1246.

We accordingly do not address this possible basis for reversing the district

court’s summary judgment decision. See Abernathy v. Wandes, 713 F.3d 538, 552

(10th Cir. 2013) (“[T]he decision regarding what issues are appropriate to entertain

on appeal in instances of lack of preservation is discretionary.”); see also Cummings

43 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 44

v. Norton, 393 F.3d 1186, 1190 (10th Cir. 2005) (noting that “the general rule that

issues not raised below are waived on appeal” applies with particular force when the

appeal arises at the summary judgment stage).

We therefore address only the Detectives’ properly preserved challenges to the

district court’s rulings on the probable cause and malice elements of the malicious

prosecution claim.

2. Lack of Probable Cause

“Probable cause 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.” United States v. Johnson, 43 F.4th 1100, 1107 (10th Cir.

2022) (quotation omitted). In evaluating probable cause, “the relevant question is

whether a substantial probability existed that the suspect committed the crime,

requiring something more than a bare suspicion.” Felders, 755 F.3d at 879 (quotation

marks omitted). “Officers must consider the totality of the evidence known to them

when considering probable cause, and in cases where they have both inculpatory and

exculpatory evidence they must not ignore the exculpatory evidence in order to find

probable cause.” Id. (quoting Williams ex rel. Allen v. Cambridge Bd. of Educ.,

370 F.3d 630, 637 (6th Cir. 2004)) (brackets omitted).

“[O]rdinarily, the statement of a victim of a crime to police may establish

probable cause absent some reason to think the statement not trustworthy.” Cortez,

478 F.3d at 1121. If the police have “reason to think the statement [is] not

44 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 45

trustworthy,” however, then the police cannot rely on an uncorroborated victim

statement to establish probable cause. Id. And additional scrutiny into the

trustworthiness of a statement may be required where, as here, the police do not take

a statement directly from the purported victim, but instead only receive a hearsay

account of the victim’s statements from someone “who had no personal knowledge of

the actual facts.” Id. at 1119.

“Reason to think [an alleged victim’s] statement [is] not trustworthy” may

arise in several different types of circumstances. Id. at 1121. In Cortez, for instance,

this court held en banc that the police did not have probable cause to arrest an

individual when the only evidence that he committed a crime was a double hearsay

statement originating from a two-year-old child. Id. at 1122. In concluding that an

uncorroborated hearsay statement from a young child was not sufficiently trustworthy

to support a finding of probable cause, we cited approvingly to a Sixth Circuit case

similarly holding that a “bare-bones hearsay accusation” from the mother of a three-

year-old, unaccompanied by any corroborating evidence, was insufficient to establish

probable cause. Id. at 1120 (quoting United States v. Shaw, 464 F.3d 615, 626

(6th Cir. 2006)). We contrasted this decision with our earlier decision in Easton v.

City of Boulder, 776 F.2d 1441 (10th Cir. 1985), in which the non-hearsay statements

of two young children to the police, combined with “ample corroborating evidence,”

were sufficient to give rise to probable cause. Cortez, 478 F.3d at 1122. We held that

the prior decision in Easton did not compel a finding of probable cause in Cortez

because the police in Cortez, unlike in Easton, never spoke to the alleged child

45 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 46

victim, nor did they find any evidence to corroborate the statement reportedly made

by the child. Id. We found these distinguishing facts to be controlling. See id.

Notably, our holding in Cortez did not depend on the potential admissibility of

the reported hearsay statement at trial. Id. at 1118. Regardless of whether an

exception to the hearsay rule would have allowed the hearsay to be admitted at trial,

we held that “the issue is whether the officers were justified in relying upon it alone.”

Id. And we resolved this question by holding that it “should have been patently

obvious” that “unsubstantiated double-hearsay originating from a two-year-old,

standing alone, does not give rise to probable cause.” Id.

A purported victim’s statements may also lack sufficient trustworthiness to

establish probable cause if the declarant has a known history of dishonesty,

particularly with respect to the accused, or if any facts in the record “suggest[] an

ulterior motive for [the declarant’s] statements.” Id.; see also United States v. Hall,

113 F.3d 157, 158–59 (9th Cir. 1997) (finding no probable cause based on

uncorroborated statements made by someone with a prior conviction for a crime of

dishonesty, as an uncorroborated anonymous tip is not enough to establish probable

cause and “[a] known liar is [even] less worthy of belief” than “an anonymous

tipster”).

In holding that the uncorroborated statement at issue in Cortez was insufficient

to establish probable cause, we distinguished a previous case in which corroboration

of the victim-witness’s statement was held not to be “essential.” Cortez, 478 F.3d

at 1122 (citing United States v. Patane, 304 F.3d 1013 (10th Cir. 2002), rev’d on

46 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 47

other grounds, 542 U.S. 630 (2004)). In our prior case, the police arrested the

victim’s ex-boyfriend after the victim told the police that her ex-boyfriend had called

her phone in violation of a domestic violence restraining order. Patane, 304 F.3d

at 1017. We held that the police had probable cause to arrest the ex-boyfriend

without the need for additional corroboration specifically because there was no

evidence in the record “suggesting that [the victim] lied about the purported hang-up

call out of personal animosity . . . , let alone that the police were aware of such

evidence.” Id. “For example,” we explained, “there was no evidence that [the victim]

had threatened to lie in such a manner, or that she had lied in such a manner in the

past.” Id. But as Cortez makes clear, when the police have some reason to question

the reliability and trustworthiness of the purported victim’s statements—for instance,

when they are aware of evidence that the victim has fabricated accusations against

the accused in the past—then they cannot arrest the accused unless they are able to

obtain other evidence corroborating the victim’s statements. Cortez, 478 F.3d

at 1122.

Here, the only evidence potentially linking Mr. Coones to the Schrolls’ deaths

consisted of (1) Kathleen’s daughter’s hearsay report that Kathleen told her she was

threatened by Mr. Coones as they walked past each other in a QuikTrip on April 5,

and (2) Kathleen’s mother’s hearsay report that Kathleen told her in a phone call on

April 7 that “Pete” was at Kathleen’s house and was going to kill her and Carl. But

the Detectives had “reason to think” that neither of these hearsay statements was

47 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 48

trustworthy, and thus these statements could not establish probable cause absent

corroboration. Id. at 1121.

The hearsay account of Mr. Coones threatening Kathleen shortly before her

death would, if trustworthy, have supported a finding of probable cause. However,

when the Detectives attempted to corroborate this story, they discovered that the

QuikTrip surveillance video showed that neither Kathleen nor Mr. Coones was

present inside the QuikTrip on April 5. Because the surveillance video thus refuted

key details of Kathleen’s story to her daughter, the Detectives were aware that this

hearsay account was not trustworthy and could not be relied upon to establish

Unlike Kathleen’s story to her daughter about the purported encounter in the

QuikTrip, Kathleen’s story to her mother about “Pete” showing up at her house to kill

her and Carl was not directly refuted by evidence in the Detectives’ possession.

However, taking the facts in the light most favorable to the Estate, the Detectives

knew that Kathleen had recently (1) fabricated a story to her daughter about

Mr. Coones threatening her in a QuikTrip, (2) lied to several family members about

filing police reports and calling the police about Mr. Coones, (3) lied to her brother

about obtaining a restraining order against Mr. Coones, (4) lied to her mother about

needing to transport large sums of money for her job, (5) lied to her mother about the

reasons why she carried a firearm, (6) lied to her mother about receiving an

inheritance from Senior, and (7) embezzled money from her current employer. The

Detectives also knew that the evidence strongly supported Mr. Coones’s position in

48 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 49

the civil litigation that Kathleen had exploited Senior’s age and poor health to steal

his money and other assets while working for him. The Detectives were thus in

possession of significant evidence indicating that Kathleen had “an ulterior motive,”

id. at 1122, for fabricating a story about Mr. Coones. They were aware that Kathleen,

unlike the victim in Patane, had repeatedly “lied in such a manner in the past.”

Patane, 304 F.3d at 1017. And they were thus on notice of the likelihood that

Kathleen’s story to her mother on the night of her death, like all of the other stories

Kathleen told her family members about Mr. Coones, was false.

The Detectives suggest on appeal that Kathleen’s phone call to her mother on

the night of her death was inherently reliable as a “dying declaration.” Appellants’

Br. at 48. However, while a dying declaration may ordinarily be sufficient to

establish probable cause even without corroboration, “only if the facts of cases do not

matter[] would the expansive and incorrect interpretation put forth by the

[Detectives] be plausible.” Cortez, 478 F.3d at 1121. As the Supreme Court

recognized more than a century ago, “A dying declaration by no means imports

absolute verity. The history of criminal trials is replete with instances where

witnesses, even in the agonies of death, have through malice, misapprehension or

weakness of mind made declarations that were inconsistent with the actual facts.”

Carver v. United States, 164 U.S. 694, 697 (1897). And here, the evidence strongly

suggested that Kathleen’s accusation of Mr. Coones was based on malice rather than

the actual facts. In light of the significant evidence of Kathleen’s dishonesty, her

history of fabricating stories about Mr. Coones, her motive to commit suicide, and

49 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 50

her motive to frame Mr. Coones for her death, the Detectives could not reasonably

rely on her uncorroborated accusation of Mr. Coones, which they had “reason to

think [was] not trustworthy.” Cortez, 478 F.3d at 1121.

The Detectives also argue that they had probable cause to believe Mr. Coones

murdered Kathleen based on the existence of a litigation dispute between them.

However, the facts known to the Detectives indicated that Kathleen had indeed stolen

from Senior as Mr. Coones alleged, and his attempt to seek a legal remedy for that

theft says little about his motive to abandon a legal remedy in favor of violence,

while it says a great deal about Kathleen’s motive to frame him for a crime he did not

commit. Moreover, even if the civil litigation did provide some weak evidence of a

possible motive for Mr. Coones to murder Kathleen, this possible motive did not

establish “a substantial probability,” Felders, 755 F.3d at 879 (quotation marks

omitted), that Mr. Coones was responsible for the Schrolls’ deaths.

The Detectives further argue that they had probable cause to believe

Mr. Coones had murdered Kathleen because “none of the people interviewed that

were in [his] house on April 7 could definitively account for his whereabouts at the

time of the 911 call.” Appellants’ Br. at 49. True, the Detectives’ lack of probable

cause would have been even more obvious if they had followed up on Mr. Minks’s

repeated attempts to tell them that he was awake until 2:30 or 3:00 a.m. and knew

Mr. Coones was home “the whole entire time.” App. Vol. XIV at 3813. But even as it

stands, the fact that Mr. Coones’s wife and children were asleep when Kathleen

called her mother at 2:20 a.m. does not in any way suggest that Mr. Coones killed the

50 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 51

Schrolls. At most, this evidence would suggest that Mr. Coones might have had the

opportunity to murder them. But a possible opportunity to commit a crime—

combined only with an untrustworthy hearsay report from an unreliable source and

weak evidence of a possible motive—is simply not enough to sustain probable cause.

Of course, if Kathleen’s hearsay report of Mr. Coones’s presence in her house were

trustworthy, then evidence suggesting he had an opportunity to commit the crime

would be helpful for establishing probable cause. But Kathleen’s report was not

trustworthy, and there was no other evidence linking Mr. Coones to her death. Under

these circumstances, his purported opportunity to kill the Schrolls cannot give rise to

“a substantial probability,” Felders, 755 F.3d at 879 (quotation marks omitted), that

he murdered them. Cf. Cortez, 478 F.3d at 1113 n.1, 1117 (holding that the police

lacked probable cause to arrest a man for suspected child sexual abuse because the

only evidence tying him to the alleged crime was uncorroborated hearsay from a

young child, while making no mention of the arrestee’s possible opportunity, as the

husband of the child’s babysitter, to commit the alleged crime); Harris v. Bornhorst,

513 F.3d 503, 514–15 (6th Cir. 2008) (holding that the police lacked probable cause

to arrest a twelve-year-old child for a five-year-old’s murder where the only evidence

potentially tying the twelve-year-old to the crime consisted of (1) unreliable hearsay

about a threat he had allegedly made, (2) his opportunity to kill the younger child, as

he “was admittedly present, shortly after [her] disappearance, in the wooded area

where her body was later found”; and (3) his possible motive to kill her based on a

previous incident in which she threw a brick at him).

51 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 52

The only other evidence the Detectives rely on to establish probable cause is

evidence that the Schrolls died from gunshot wounds. But the fact of the Schrolls’

deaths does not establish in any way that Mr. Coones was responsible for them. “An

officer has probable cause to arrest if, under the totality of the circumstances, he

learned of facts and circumstances through reasonably trustworthy information that

would lead a reasonable person to believe that an offense has been or is being

committed by the person arrested.” United States v. Munoz-Nava, 524 F.3d 1137,

1144 (10th Cir. 2008) (emphasis added) (quotation omitted). While the evidence of

the Schrolls’ deaths might lead a reasonable person to believe that an offense had

been committed, there was no “reasonably trustworthy information” linking

Mr. Coones to any such offense.

As Detective Michael acknowledged in his deposition, the Detectives did not

find a single piece of evidence to corroborate “Kath[leen]’s story, as told to her mom,

that Pete was responsible for the murder of her husband and herself.” App. Vol. XII

at 2986. And as Detective Michael also admitted in his deposition, the numerous

inconsistencies in Kathleen’s other stories to her family should have been “a ‘red

flag’ to [him] that Kathleen was not honest.” Id. Thus, the only evidence linking

Mr. Coones in any way to the Schrolls’ deaths consisted of hearsay statements made

by a demonstrably dishonest woman with a history of fabricating stories about

Mr. Coones and a motive to frame him for a crime in retaliation for his attempts to

prove her dishonesty. This untrustworthy hearsay was wholly insufficient to establish

probable cause. See Cortez, 478 F.3d at 1116–22.

52 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 53

The Detectives’ other appellate challenges to the district court’s probable

cause ruling are all based on their disagreement with the district court’s specific

factual determinations, which we lack jurisdiction to consider. See Fogarty, 523 F.3d

at 1154. Accordingly, based on the facts and inferences that the district court

determined a jury could find, we affirm the district court’s holding that the Estate

made a sufficient showing of a lack of probable cause to survive summary judgment.

3. Malice

A plaintiff can establish the malice element of a malicious prosecution claim

by showing that the defendant’s conduct was either intentional or reckless. See

Stonecipher v. Valles, 759 F.3d 1134, 1146 (10th Cir. 2014); Sanchez v. Hartley,

810 F.3d 750, 755–56 (10th Cir. 2016).

The Detectives’ opening brief contains only three cursory references to the

malice element of the malicious prosecution test. First, they simply state the legal

standard for the malice element without applying it to the facts of this case. Second,

they assert without discussion that “[t]he failure to investigate a matter fully . . . is

generally considered to be token negligence at most.” Appellants’ Br. at 48 (quoting

Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (internal quotation

marks and emphasis omitted)). Finally, they assert that “[t]here is no evidence that

[Detective] Michael or [Detective] Garrison knowingly omitted facts or acted with

reckless disregard for the truth.” Id. at 51.

Even assuming these cursory assertions are sufficient to raise an appellate

challenge to the malice element of the malicious prosecution test, the Detectives have

53 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 54

not shown an entitlement to relief. Again, we lack jurisdiction to consider the

Detectives’ challenge to the facts the district court held a jury could find. See

Ralston, 884 F.3d at 1067–68; see also Wilkins v. DeReyes, 528 F.3d 790, 801 (10th

Cir. 2008), abrogated on other grounds by Thompson v. Clark, 596 U.S. 36 (2022)

(“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.”). And based on the “factual

findings and reasonable assumptions” made by the district court, Cox, 800 F.3d at

1242, the Detectives have not shown any error in the district court’s legal reasoning.

Their assertion regarding the legal standard for evaluating a failure to investigate, for

example, is irrelevant in light of the district court’s factual determination that a jury

could find that they not only failed to conduct an adequate investigation but also

actively suppressed exculpatory evidence and fabricated inculpatory evidence.

We accordingly affirm the district court’s denial of qualified immunity to the

Detectives on Count II of the Estate’s complaint.

C. Unified Government’s Appeal

Because we affirm the district court’s denial of qualified immunity to the

Detectives, our resolution of this appeal does not “necessarily resolve[]” the Unified

Government’s “pendent claim.” Moore, 57 F.3d at 930. We therefore dismiss the

Unified Government’s appellate arguments for lack of pendent appellate jurisdiction.

See Lynch, 703 F.3d at 1163–64.

54 Appellate Case: 24-3147 Document: 55 Date Filed: 01/21/2026 Page: 55

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of qualified

immunity to the Detectives on Counts I and II of the Estate’s complaint. The Unified

Government’s portion of the appeal is DISMISSED for lack of jurisdiction.