United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS
Stewart United States District Judge
matter is before the Court on Defendants Utah County Deputy
Prosecutor Craig Johnson and the Utah County Attorney's
Office's (“UCAO”) Motion to Dismiss. For the
reasons discussed below, the Court will grant the Motion.
Conrad Truman was convicted of murder and obstruction of
justice after his wife Heidy Truman passed away from a
gunshot wound. Mr. Truman was later granted a new trial based
on newly discovered evidence and found not guilty. Mr. Truman
brings the present § 1983 action against the police
officers and prosecutors involved in his criminal
prosecution, as well as several local government agencies
including the UCAO. Defendants Utah County Deputy Prosecutor
Craig Johnson and the UCAO now seek to be dismissed from the
case. Plaintiff asserts a total of ten causes of action. The
Second, Fifth, Sixth, Seventh, Eighth, and Tenth are relevant
to the Motion to Dismiss.
to the Amended Complaint (“Complaint”), Conrad
and Heidy Truman were at home together on September 30, 2012,
the night Heidy Truman was shot. No. one else was in the
home. At some point that evening, the couple began to quarrel
and then spent some time apart.
Truman was in the kitchen alone when he thought he heard the
bathroom door open. A moment later he heard a
“pop” sound. According to the Complaint, when the
shot was fired Heidy Truman was located toward the back of
the house and was near the bathroom doorway. She fell forward
toward Mr. Truman onto the dining room floor. Rushing to help
her, he quickly realized she was bleeding profusely from the
side of her head and was struggling to breathe. He attempted
CPR and then called 911.
police arrived at the scene, they found Mr. Truman covered in
blood, intoxicated, and in shock. He had to be removed from
Heidy Truman's body and threatened to kill the police
officers if they did not save her life.
police officer measured the scene of the crime and created a
diagram that misrepresented the size and proportions of the
home and was misleading about how Heidy Truman's body was
situated within the home. Most crucially, it exaggerated the
distance between the back of the house (where Mr. Truman
claimed he heard the shot) and the location where Heidy
Truman's body was found. Relying on this incorrect
diagram, at trial the prosecution argued that Heidy Truman
could not have killed herself because she could not have
travelled such a long distance after being shot.
this served as the state court's basis for granting a new
trial. The court reasoned that this compelling evidence
“took a defense of suicide away from the jury's
consideration” and may have changed the outcome of the
trial. The court found the real distance was two
feet four inches less than the depiction presented and
thought it possible that Heidy Truman could have taken a step
or two after being shot, placing her body approximately where
it was found.
ALLEGATIONS AGAINST CRAIG JOHNSON Johnson was the lead
prosecutor in Plaintiff's trials. As summarized below,
the Complaint alleges that Mr. Johnson took many
inappropriate actions before, during, and after Mr.
Truman's first criminal trial.
trial, Mr. Johnson allegedly:
1. approved and gave advice in preparing affidavits which
contained false information or omissions.
2. fabricated evidence, including:
o inducing false testimony from the Utah State Medical
o evidence of Mr. Truman having a financial motive to kill
o testimony about gunshot residue (“GSR”).
o a diagram showing misleading measurements of the crime
o testimony of inconsistent statements from Mr. Truman.
o mishandling evidence.
3. used fabricated or manufactured evidence and testimony to
support arrest, charging incarceration, and prosecution of
4. presented false evidence at a preliminary
5. prepared and filed an arrest warrant.
6. failed to disclose:
o a PowerPoint presentation given to Utah State Medical
Examiner Dr. Leis.
o information about Heidy Truman's difficult relationship
with her family as a potential suicide factor. o that Heidy
Truman's family took action to freeze her insurance after
o that an expert forensics team drew inconclusive results in
its examination of the crime scene. o notes and other
estimates to show the crime scene was measured incorrectly.
o evidence to show Heidy Truman retrieved a voicemail minutes
before the 911 phone call.
o evidence that Heidy Truman received a voicemail shortly
before being shot.
o exculpatory statements from the Truman's financial
During or after the first trial, Mr. Johnson allegedly:
7. maliciously prosecuted Mr. Truman.
8. presented the following at trial:
o inaccurate photographs depicting the crime
o fabricated evidence of financial motive.
o false evidence regarding the location of the
o fabricated evidence regarding the distance Heidy
Truman's body traveled after being shot.
o fabricated expert witness testimony.
o mischaracterizations of expert witness
o false evidence regarding GSR testing and
o testimony about insurance that did not have proper
o false evidence regarding a phone call between the Trumans
just prior to the shooting.
o false evidence to show Mr. Truman gave inconsistent
o mischaracterizations of Mr. Truman's comments to police
officers as being threatening.
o misleading testimony about police testing of the
o mischaracterization of the prosecution's reliance on a
theory of financial motive.
o false testimony and mischaracterization of evidence
regarding the location where the shooting took
9. objected to bail and release of Mr. Truman.
10. presented the case at trial a second time.
ALLEGATIONS 3 THROUGH 10
prosecutor, Mr. Johnson is entitled to absolute immunity for
actions that are “intimately associated with the
judicial phase of the criminal process.” “[T]he
actions of a prosecutor are not absolutely immune merely
because they are performed by a prosecutor,
” rather, immunity depends on “the
nature of the function performed.” Therefore,
“[t]he more distant a function is from the judicial
process, the less likely absolute immunity will
engaged in administrative or investigative actives are only
entitled to qualified immunity.
standard for absolute immunity can be “easier to state
than apply.” This is because “all investigative
activity could be considered in some sense to be
‘preparing for the initiation of judicial
proceedings.'” The difference a court must seek to
identify is “between the advocate's role in
evaluating evidence and interviewing witnesses as he prepares
for trial, on the one hand, and the detective's role in
searching for the clues and corroboration that might give him
probable cause to recommend that a suspect be arrested, on
the other hand.”
Tenth Circuit emphasizes a “continuum based
approach.” Under this analysis, the
“determinative factor is ‘advocacy' because
that is the prosecutor's main function and the one most
akin to his quasi-judicial role.” It follows
that “absolute immunity may attach even to
administrative or investigative activities ‘when these
functions are necessary so that a prosecutor may fulfill his
function as an officer of the
court.'” Important factors include “(1)
whether the action is closely associated with the judicial
process, (2) whether it is a uniquely prosecutorial function,
and (3) whether it requires the exercise of professional
have considered absolute immunity appropriate for many types
of actions, including:
• deciding whether to bring charges.
• preparing and filing an application for an arrest
• interviewing witnesses and evaluating evidence in
preparation for trial.
• presenting a case at trial.
• introducing evidence at a hearing.
• failing to independently investigate
• failing to disclose evidence.
• using perjured testimony at trial.
• seeking a specific amount of bail.
• seeking denial of bail.
• negotiating a prisoner's release.
• preparing and presenting post-trial motions and
preparing for appeal.
• malicious prosecution.
have considered absolute immunity inappropriate in a number
of instances as well, including:
• giving legal advice to police during the investigative
phase of a criminal case.
• assisting with the execution of a warrantless
• holding a press conference.
• personally attesting to the accuracy of facts
contained in an affidavit.
• approving a warrant affidavit that the prosecutor
played no role in preparing or presenting to a
• fabricating evidence during the investigative stages
of a case before there is probable cause to make an
prosecutor, Mr. Johnson is entitled to absolute immunity for
obtaining an arrest warrant, deciding whether to prosecute,
deciding whether to disclose evidence, presenting evidence at
trial, objecting to bail and release, and prosecuting the
case a second time. In the previous section listing 10
allegations against Mr. Johnson, allegations 3 through 10 are
centered on these traditional prosecutorial functions.
Because these allegations fall squarely under Mr.
Johnson's “advocacy” or “quasi-judicial
role” as a prosecutor, absolute immunity applies.
the Court will dismiss these allegations with prejudice.
ALLEGATIONS 1 AND 2
addition to absolute immunity, Mr. Johnson asserts qualified
immunity against the remaining claims-approving and
presenting false or misleading affidavits and fabricating
evidence prior to trial. Unlike the allegations discussed in
the previous section, these could arguably be considered
investigative or administrative functions to which only
qualified immunity would apply. “Qualified immunity
protects officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.'” The doctrine
“balances two important interests-the need to hold
public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” “When a defendant
raises a claim of qualified immunity, the burden shifts to
the plaintiff to show that the defendant is not entitled to
that immunity.” A two-part test is applied: (1)
“whether the facts that a plaintiff has alleged make
out a violation of a constitutional right, ” and (2)
“whether the right at issue was clearly established at
the time of defendant's alleged
misconduct.” A court can consider the two inquiries
in any order.
officials are not required to perform their duties flawlessly
to be entitled to qualified immunity. The standard is
“objective reasonableness.” It allows
“ample room for mistaken judgments” and offers
protection to “all but the plainly incompetent or those
who knowingly violate the law.” The Tenth
Circuit has recognized that prosecutors may be put in the
position of relying on information from law enforcement
officers. A prosecutor that acts on such
information is entitled to qualified immunity if their
actions are “objectively
immunity is typically asserted at summary
judgment. When, as in the case currently before
the Court, qualified immunity is asserted at the motion to
dismiss stage, the defendant faces a “more challenging
standard of review than would apply on summary
judgment.” At the motion to dismiss stage, the
defendant's conduct as alleged in the complaint is
scrutinized for reasonableness. The standard for
reviewing a motion to dismiss in qualified immunity cases is
the same as that for dismissals generally. All
well-pleaded factual allegations, as distinguished from
conclusory allegations, are accepted as true and viewed in
the light most favorable to Plaintiff as the nonmoving
party. Plaintiff must provide “enough
facts to state a claim to relief that is plausible on its
face, ” which requires “more than an
unadorned, the-defendant-unlawfully harmed-me
accusation.” “A pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.' Naked assertions devoid of further factual
enhancement are insufficient.” Qualified immunity
applies if the “facts that a plaintiff has
alleged” fail to “make out a violation of a
Affidavits in support of warrants and subpoenas
to the Complaint, Mr. Johnson approved and advised police
officers on affidavits filed in support of approximately 23
warrants and 37 investigative subpoenas. All the affidavits
allegedly lacked probable cause because of pervasive false
information or omissions.According to the Complaint,
despite the errors they contained, Mr. Johnson knowingly, or
with reckless disregard, approved and authorized these
affidavits for presentation to a court.
a prosecutor is entitled to absolute or qualified immunity
for their involvement in obtaining information through
warrants and subpoenas is a difficult question. In Imbler
v. Pachtman, the Supreme Court recognized that
the duties of the prosecutor in his role as advocate for the
State involve actions preliminary to the initiation of a
prosecution and actions apart from the courtroom . . .
Preparation, both for the initiation of the criminal process
and for a trial, may require the obtaining, reviewing, and
evaluating of evidence. At some point, and with respect to
some decisions, the prosecutor no doubt functions as an
administrator rather than as an officer of the court. Drawing
a proper line between these functions may present difficult
questions . . . .
Burns, the Supreme Court considered whether a
prosecutor appearing at a preliminary hearing in support of a
search warrant should be entitled to absolute immunity. The
Court recognized that “the issuance of a search warrant
is unquestionably a judicial act” and found that,
although the prosecutor was accused of presenting false
information at the hearing, he was protected by absolute
immunity. The Second Circuit has similarly found
that issuing a subpoena is a task “adjunct” to a
prosecutor's role as an advocate and so a prosecutor is
entitled to absolute immunity.
in Mink the Tenth Circuit found that a prosecutor
was not entitled to absolute immunity for approving
a warrant affidavit because the prosecutor “played no
role in preparing the affidavit” or “preparing,
analyzing, and presenting pleadings to a
court.” Acknowledging cases like Burns,
where prosecutors have been “absolutely immunized for
drafting, filing, and arguing in support of an arrest or
search warrant, ” Mink reasoned that merely
reviewing an affidavit “falls on the side of
investigatory legal advice, ” but had the prosecutor
been involved in preparing the affidavit and presenting
pleadings in court, it would have been “quite a
Tenth Circuit subsequently confronted such a case in Klen
v. City of Loveland.There, the court found that a
city attorney was entitled to absolute immunity for helping
to prepare an affidavit and presenting it in judicial
proceedings. As noted in a concurring opinion, the difference
in the cases was that the Mink prosecutor “was
not part of an active prosecutorial function, ” but
merely reviewed an affidavit, while the City of
Loveland prosecutor helped prepare an affidavit and then
presented it in court in an active case.
Court is not currently able to analyze each affidavit to
determine whether absolute immunity should apply. Mr. Johnson
would likely be entitled to absolute immunity in at least
some cases-particularly if he helped prepare an affidavit and
presented it in court once the case was already active.
However, the Complaint does not make clear exactly what role
Mr. Johnson played in preparing and presenting each
individual affidavit. And, in most cases the timing and
circumstances of individual filings in relation to the
Plaintiff's eventual trial is unclear.
Complaint asserts that absolute immunity should not apply to
the majority of affidavits because they allegedly include the
statement, “This affidavit has been reviewed by Craig
Johnson of the Utah County Attorney's Office, and it has
been approved for presentation to the
Court.”Relying on Kalina v. Fletcher,
Plaintiff asserts that where this statement appears, Mr.
Johnson should not be entitled to absolute immunity because
he is acting as a witness and not as an advocate. However,
this reliance is misplaced.
Kalina, a prosecutor filed a separate
“Certification” to support the affidavit she
prepared. In the certification, the prosecutor
“personally vouched for the truth of the facts set
forth in the certification under penalty of
perjury.” The Court found that the
prosecutor's “act in personally attesting to the
truth of the averments in the certification” was not a
function of an advocate, but rather that of a
witness. For her role as a witness, the
prosecutor was only entitled to qualified
Tenth Circuit has repeatedly clarified the holding in
Kalina as a limitation on absolute immunity only
when the prosecutor acts as a witness by personally attesting
to the truthfulness of the facts contained in the
affidavit. In this case, by making the alleged
statement, Mr. Johnson did not personally vouch for the
truthfulness of the facts, but merely certified his review
and approval for presentation.
some affidavits are not covered by absolute immunity, the
analysis would proceed under qualified
immunity. As stated above, the two-part test is:
(1) “whether the facts that a plaintiff has alleged
make out a violation of a constitutional right, ” and
(2) “whether the right at issue was clearly established
at the time of defendant's alleged
satisfy these requirements, a “plaintiff may not simply
allege a Fourth Amendment violation in the
abstract.” Rather, they must show in a “more
particularized sense” that a constitutional violation
occurred. However, “[t]he more obviously
egregious the conduct in light of prevailing constitutional
principles, the less specificity is required from prior case
law to clearly establish the violation.”
case, Plaintiff appears to assert two claims, that through
the actions of Johnson: (1) warrants were obtained without
demonstrating probable cause; and (2) affidavits included
false statements and/or omitted information which, if
included, would have vitiated probable cause.
are valid and established rights. The Fourth Amendment only
permits a warrant to be issued “upon probable cause,
supported by Oath or affirmation.” And,
“[i]nherent in this language is ‘the obvious
assumption that there will be a truthful showing' of
facts to support probable cause, meaning that ‘the
information put forth is believed or appropriately accepted
by the affiant as true.'” Otherwise, the Fourth
Amendment is “no barrier at all if it can be evaded by
a policeman concocting a story that he feeds a
Warrants obtained without demonstrating probable cause
existence of probable cause is analyzed by “setting
aside the false information and reviewing the remaining
contents of the affidavit.” Similarly, with regard to
alleged material omissions, the “existence of probable
cause is determined by examining the evidence ‘as if
the omitted information had been included' and inquiring