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Truman v. Orem City

United States District Court, D. Utah

October 19, 2018



          Ted Stewart United States District Judge

         This 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.


         Plaintiff 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.


         According 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.

         Mr. 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.

         When 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.

         A 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.

         Ultimately, 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.[1] 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.[2]

         III. 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.

         Before trial, Mr. Johnson allegedly:

1. approved and gave advice in preparing affidavits which contained false information or omissions.[3]
2. fabricated evidence, including:[4]
o inducing false testimony from the Utah State Medical Examiner.
o evidence of Mr. Truman having a financial motive to kill his wife.
o testimony about gunshot residue (“GSR”).
o a diagram showing misleading measurements of the crime scene.
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 Mr. Truman.[5]
4. presented false evidence at a preliminary hearing.[6]
5. prepared and filed an arrest warrant.[7]
6. failed to disclose:[8]
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 her death.
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 planner.
During or after the first trial, Mr. Johnson allegedly:
7. maliciously prosecuted Mr. Truman.[9]
8. presented the following at trial:
o inaccurate photographs depicting the crime scene.[10]
o fabricated evidence of financial motive.[11]
o false evidence regarding the location of the gun.[12]
o fabricated evidence regarding the distance Heidy Truman's body traveled after being shot.[13]
o fabricated expert witness testimony.[14]
o mischaracterizations of expert witness testimony.[15]
o false evidence regarding GSR testing and relevance.[16]
o testimony about insurance that did not have proper foundation.[17]
o false evidence regarding a phone call between the Trumans just prior to the shooting.[18]
o false evidence to show Mr. Truman gave inconsistent statements.[19]
o mischaracterizations of Mr. Truman's comments to police officers as being threatening.[20]
o misleading testimony about police testing of the gun.[21]
o mischaracterization of the prosecution's reliance on a theory of financial motive.[22]
o false testimony and mischaracterization of evidence regarding the location where the shooting took place.[23]
9. objected to bail and release of Mr. Truman.[24]
10. presented the case at trial a second time.[25]



         As a prosecutor, Mr. Johnson is entitled to absolute immunity for actions that are “intimately associated with the judicial phase of the criminal process.”[26] “[T]he actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor, ”[27] rather, immunity depends on “the nature of the function performed.”[28] Therefore, “[t]he more distant a function is from the judicial process, the less likely absolute immunity will attach.”[29]

         Prosecutors engaged in administrative or investigative actives are only entitled to qualified immunity.[30]

         The standard for absolute immunity can be “easier to state than apply.”[31] This is because “all investigative activity could be considered in some sense to be ‘preparing for the initiation of judicial proceedings.'”[32] 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.”[33]

         The Tenth Circuit emphasizes a “continuum based approach.”[34] 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.”[35] 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.'”[36] 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 judgment.”[37]

         Courts have considered absolute immunity appropriate for many types of actions, including:

• deciding whether to bring charges.[38]
• preparing and filing an application for an arrest warrant.[39]
• interviewing witnesses and evaluating evidence in preparation for trial.[40]
• presenting a case at trial.[41]
• introducing evidence at a hearing.[42]
• failing to independently investigate allegations.[43]
• failing to disclose evidence.[44]
• using perjured testimony at trial.[45]
• seeking a specific amount of bail.[46]
• seeking denial of bail.[47]
• negotiating a prisoner's release.[48]
• preparing and presenting post-trial motions and preparing for appeal.[49]
• malicious prosecution.[50]

         Courts 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.[51]
• assisting with the execution of a warrantless arrest.[52]
• holding a press conference.[53]
• personally attesting to the accuracy of facts contained in an affidavit.[54]
• approving a warrant affidavit that the prosecutor played no role in preparing or presenting to a court.[55]
• fabricating evidence during the investigative stages of a case before there is probable cause to make an arrest.[56]

         As a 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.

         Therefore, the Court will dismiss these allegations with prejudice.

         B. ALLEGATIONS 1 AND 2

         In 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.'”[57] 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.”[58] “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.”[59] 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.”[60] A court can consider the two inquiries in any order.[61]

         Government officials are not required to perform their duties flawlessly to be entitled to qualified immunity. The standard is “objective reasonableness.”[62] It allows “ample room for mistaken judgments” and offers protection to “all but the plainly incompetent or those who knowingly violate the law.”[63] The Tenth Circuit has recognized that prosecutors may be put in the position of relying on information from law enforcement officers.[64] A prosecutor that acts on such information is entitled to qualified immunity if their actions are “objectively reasonable.”[65]

         Qualified immunity is typically asserted at summary judgment.[66] 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.”[67] At the motion to dismiss stage, the defendant's conduct as alleged in the complaint is scrutinized for reasonableness.[68] The standard for reviewing a motion to dismiss in qualified immunity cases is the same as that for dismissals generally.[69] 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.[70] Plaintiff must provide “enough facts to state a claim to relief that is plausible on its face, ”[71] which requires “more than an unadorned, the-defendant-unlawfully harmed-me accusation.”[72] “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.”[73] Qualified immunity applies if the “facts that a plaintiff has alleged” fail to “make out a violation of a constitutional right.”[74]

         1. Affidavits in support of warrants and subpoenas

         According 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.[75]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.[76]

         Whether 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 . . . .[77]

         In 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.[78] 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.[79]

         Conversely, 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.”[80] 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 different case.”[81]

         The Tenth Circuit subsequently confronted such a case in Klen v. City of Loveland.[82]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.[83]

         The 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.

         The 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.”[84]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.

         In 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.”[85] 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.[86] For her role as a witness, the prosecutor was only entitled to qualified immunity.[87]

         The 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.[88] 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.

         Assuming some affidavits are not covered by absolute immunity, the analysis would proceed under qualified immunity.[89] 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 misconduct.”[90]

         To satisfy these requirements, a “plaintiff may not simply allege a Fourth Amendment violation in the abstract.”[91] Rather, they must show in a “more particularized sense” that a constitutional violation occurred.[92] 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.”[93]

         In this case, Plaintiff appears to assert two claims, that through the actions of Johnson: (1) warrants were obtained without demonstrating probable cause;[94] and (2) affidavits included false statements and/or omitted information which, if included, would have vitiated probable cause.

         These are valid and established rights. The Fourth Amendment only permits a warrant to be issued “upon probable cause, supported by Oath or affirmation.”[95] 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.'”[96] Otherwise, the Fourth Amendment is “no barrier at all if it can be evaded by a policeman concocting a story that he feeds a magistrate.”[97]

         a. Warrants obtained without demonstrating probable cause

         The existence of probable cause is analyzed by “setting aside the false information and reviewing the remaining contents of the affidavit.”[98] 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 ...

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