222860P.pdf   02/09/2024  The Estate of Donald Nash  v.  Henry Folsom
   U.S. Court of Appeals Case No:  22-2860
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Smith, Author, with Melloy and Erickson, Circuit Judges] 
   Civil case - Civil rights. Nash was convicted of capital murder and spent 
   11 years in prison; he was released in 2020 after the Missouri Supreme 
   Court set aside his conviction; later that year, the State dismissed 
   charges against him because further DNA testing on the shoelace used to 
   strangle the victim supported Nash's noninvolvement. He then brought this 
   action against several Missouri public officials for their roles in his 
   prosecution and conviction, asserting Section 1983 claims for unlawful 
   arrest and detention, fabrication of evidence, failure to investigate, 
   violations of his right of access to the courts, and violation of the 
   right to familial and marital associations. The district court denied 
   defendants' motions for summary judgment based on qualified immunity, and 
   they appeal. (Nash passed away while this appeal was pending and his 
   estate and personal representative were substituted.) Held: whether or not 
   a particular theory of Nash's guilt (the "hair washing" theory regarding 
   DNA samples) was recklessly included in the probable cause statement is a 
   matter of fact that should be resolved at trial; however, the court does 
   have jurisdiction to decide whether probable cause existed; five critical 
   facts omitted from the search warrant application would have been critical 
   to the probable cause determination, and recklessness may be inferred from 
   their omission; thus the district court did not err in holding that a 
   reasonable juror could conclude that the reconstructed affidavit 
   (including the omitted facts) did not support probable cause; our cases 
   show that omitting truthful evidence from a probable cause affidavit 
   violated a clearly established constitutional right in 2008, and the 
   district court did not err in denying the defendant officers qualified 
   immunity on the Section 1983 claim for unlawful arrest and detention; with 
   respect to the remaining counts: (1) at the time of the incident it was 
   clearly established that fabrication of evidence to establish probable 
   cause clearly violated a person's Fourteenth Amendment's due process 
   rights; (2) an officer who intentionally or recklessly fails to 
   sufficiently investigate an incident before making an arrest is not 
   entitled to qualified immunity; (3) right of access to the courts was 
   clearly established at the time of the incident; and (4) there is neither 
   Supreme Court nor Eighth Circuit precedent for the claim that wrongful 
   prosecution and incarceration violated a right to familial association, 
   and the district court's denial of qualified immunity on this count is 
   reversed. The court lacked jurisdiction to resolve the denial of qualified 
   immunity on the remaining counts because they require the resolution of 
   genuine issues of material fact. The court affirms the denial of qualified 
   immunity on plaintiff's claim of unlawful arrest and detention; reverses 
   the denial of qualified immunity on the claim for violation of the right 
   to familial and marital rights; and dismisses the appeal from the 
   remaining counts of the complaint for want of jurisdiction.