Tenth Circuit Avoids Addressing the Constitutionality of Investigatory Failures

By Jake Spratt

In Nicholas v. Boyd , the Tenth Circuit declined to address whether investigative officials who “cover up” information can be liable for denial of access to the courts under 42 U.S.C. § 1983.

In Boyd, the parents of a deceased student alleged that the defendants—various officials from the Colorado School of Mines—actively withheld information and interfered with a private investigation into their son’s death.  According to the parents, the defendants’ actions delayed the timely filing of a wrongful death action and thus denied the parents access to the courts.  In response, the defendants argued that the two-year statute of limitations had expired and, in the alternative, that qualified immunity barred the claim.  The District Court dismissed the action based on the statute of limitations defense, but declined to address the defendants’ qualified immunity claim.

Qualified immunity does not apply if there is “a violation of a clearly established constitutional right.”  Under Pearson v. Callahan, which was recently decided by the U.S. Supreme Court, a court can grant qualified immunity simply because the state of the law was unclear, without deciding whether there was a constitutional violation.

In the past, plaintiffs in the Tenth Circuit have brought similar § 1983 actions in response to deficient investigations.  Although the court has commented favorably about the potential success of such a claim, the Tenth Circuit has never explicitly recognized—or rejected—a constitutional violation for “covering up” information.  Because the court had not clearly resolved the issue, the defendants in Boyd argued that qualified immunity applied because the law was not clearly established.

In a majority opinion written by Judge Kelly and joined by Judge Murphy, the Tenth Circuit affirmed the dismissal based on the statute of limitations.  The court concluded that it was unclear whether a plaintiff could bring a § 1983 action against an official who “covers up” information in an investigation.  However, because it found the statute of limitations issue dispositive, the majority declined to address the issue.

Judge Lucero concurred in the majority’s judgment, but on different grounds. Judge Lucero did not find the statute of limitations dispositive, but instead argued that the defendants were protected by qualified immunity.

Similar to the majority opinion, Judge Lucero recognized the confusion as to whether “cover up” investigations violate a constitutional right.  Under the recently decided Pearson v. Callahan, Judge Lucero argued the court could have granted qualified immunity without deciding whether the defendants had indeed blocked the plaintiffs’ access to the courts.

“[I]n cases where it is ‘far from obvious’ that a right exists,” he argued, “it may be appropriate not to decide whether there has been a violation” (emphasis added).  Therefore, although Judge Lucero suggested the defendants might have been eligible for qualified immunity, he did so without deciding whether or not the plaintiffs had actually suffered a constitutional injury.

The majority and concurring opinions recognized the defendants’ qualified immunity defense, but neither opinion addressed whether the defendant investigators had violated a constitutional right.  Thus, plaintiffs asserting claims in relation to official investigative “cover ups” remain on unsure footing in the Tenth Circuit.