Coones v. Board of County Commissioners: Uncorroborated “Dying Declarations” from an Unreliable Declarant Cannot Establish Probable Cause; Police Brady Liability Extends to Reckless Suppression and Trombetta Preservation Without Bad-Faith

Introduction

In Coones v. Board of County Commissioners of the Unified Government of Wyandotte County/Kansas City, Kansas, the Tenth Circuit affirmed the denial of qualified immunity to two lead homicide investigators, Detectives William Michael and Angela Garrison, on (i) a due process claim premised on fabrication and suppression/loss of exculpatory evidence (Count I) and (ii) a § 1983 malicious prosecution claim (Count II). The case arises from the 2008 deaths of Kathleen and Carl Schroll and the 2009 conviction of Olin “Pete” Coones for Kathleen’s murder. After more than twelve years incarcerated, Coones’s conviction was vacated and charges dismissed when later-discovered evidence supported a murder-suicide theory, including gunshot residue on Kathleen’s left hand and undisclosed evidence of her financial distress and theft.

The key interlocutory issues were whether the detectives were entitled to qualified immunity despite evidence that they (a) withheld or failed to preserve exculpatory materials (e.g., QuikTrip surveillance footage contradicting an alleged threat, a Suspicious Activity Report reflecting Kathleen’s embezzlement, and a KBI check-forgery examiner report) and (b) allegedly fabricated testimony about the visibility/absence of Coones’s van. The Unified Government conditionally appealed the denial of summary judgment on municipal liability, seeking dismissal if the detectives committed no constitutional violation.

Summary of the Opinion

  • Qualified immunity denied (affirmed). Accepting the district court’s “reasonable jury could find” facts (as required on interlocutory review), the panel held the Estate presented triable due process violations under both Brady v. Maryland (suppression) and California v. Trombetta (failure to preserve), and triable malicious prosecution elements, particularly the absence of probable cause.
  • Trombetta—not Youngblood—can govern lost evidence without a bad-faith showing. Where the exculpatory value is determinable (here, a video allegedly showing neither suspect nor decedent at the relevant time), Arizona v. Youngblood’s “bad faith” requirement does not apply.
  • Police officers have Brady obligations and can be liable for knowing or reckless suppression. The court rejected arguments that Brady binds only prosecutors or that liability requires “knowing suppression” of evidence that would “prove innocence.”
  • Probable cause cannot rest on uncorroborated hearsay from a demonstrably unreliable declarant—even framed as a “dying declaration.” Given extensive evidence that Kathleen had lied about Coones and other matters, and given that QuikTrip video evidence allegedly refuted an important “threat” narrative, her uncorroborated accusation in a final phone call could be found insufficiently trustworthy to establish probable cause.
  • Unified Government appeal dismissed. Because the panel affirmed the denial of qualified immunity (i.e., did not find no constitutional violation), it dismissed the municipality’s pendent appeal for lack of appellate jurisdiction under Lynch v. Barrett.

Analysis

Precedents Cited

1) Interlocutory jurisdiction and the “facts as found/assumed” constraint

  • Mitchell v. Forsyth: supplies the core rule that denials of qualified immunity are immediately appealable only to the extent they “turn on an issue of law.”
  • Fogarty v. Gallegos, Est. of Booker v. Gomez, Fancher v. Barrietos, Vette v. K-9 Unit Deputy Sanders: collectively enforce that the appellate court may not revisit the district court’s determinations about what facts a reasonable jury could find. The panel repeatedly invoked these cases to reject detective arguments that were, in substance, factual disputes (e.g., whether they possessed the KBI report or QuikTrip video).
  • Cox v. Glanz: emphasized that the district court’s factual findings and reasonable assumptions define the universe for the legal qualified-immunity analysis.

2) Pendent appellate jurisdiction over municipal liability

  • Moore v. City of Wynnewood and Lynch v. Barrett: establish that pendent jurisdiction exists over a municipality’s appeal only when the officer’s appeal necessarily resolves it—typically when the court holds no constitutional violation occurred. Because the panel affirmed the denial of qualified immunity, it dismissed the municipality’s appeal.
  • Monell v. Dep't of Soc. Servs.: provided the background municipal-liability framework but did not drive the holding, given the jurisdictional dismissal.

3) Due process access to evidence: Brady vs. Trombetta/Youngblood

  • Brady v. Maryland: anchors the rule that suppression of favorable, material evidence violates due process.
  • Smith v. Sec. of N.M. Dep't of Corr.: supplied the Tenth Circuit’s three-part Brady test (suppression, favorability, materiality), and that Brady duties apply to “arms of the state,” not only prosecutors.
  • Fero v. Kerby: explained the Supreme Court’s broader “access to evidence” framework and distinguished Brady (suppression) from the lost/destroyed evidence line.
  • California v. Trombetta, Arizona v. Youngblood, and United States v. Bohl: establish that loss/destruction violates due process if the evidence’s exculpatory significance was apparent and comparable evidence is unavailable; bad faith is required only when evidence is merely “potentially useful.” The panel’s important application: where exculpatory value can be determined (e.g., video allegedly showing the absence of both people), Trombetta governs without a bad-faith requirement.
  • Cone v. Bell and Kyles v. Whitley: framed Brady materiality as whether undisclosed evidence could put the case in such a different light as to undermine confidence in the verdict.

4) Police liability for Brady violations and the scienter threshold

  • Pierce v. Gilchrist: central precedent holding that civil liability for suppression can attach when officers act “knowingly or with reckless disregard for the truth,” and that such prohibition was firmly established.
  • Tiscareno v. Anderson and Bledsoe v. Carreno: reinforce that Brady requirements extend to law enforcement personnel and that liability can be based on knowing or reckless conduct. The panel used these cases to reject a proposed “bad faith/actual innocence proof” threshold.
  • Johnson v. City of Cheyenne: cited for the proposition that the mental state must surpass negligence (at least knowing or reckless), aligning with the district court’s applied standard.
  • Douglas v. Workman: rejected the notion that Brady materiality requires evidence strong enough to ensure acquittal.

5) Malicious prosecution, probable cause, and reliability of hearsay accusations

  • Shrum v. Cooke: provided the five-element test for § 1983 malicious prosecution claims in the circuit.
  • Felders ex rel. Smedley v. Malcolm, Cortez v. McCauley, and Irizarry v. Yehia: provided (i) the “arguable probable cause” framing for qualified immunity (though the panel held defendants waived meaningful argument on that prong), (ii) the requirement that information be reasonably trustworthy, and (iii) that officers may not ignore exculpatory evidence in assessing probable cause.
  • Easton v. City of Boulder, United States v. Patane, and United States v. Shaw: used to draw the line between trustworthy statements (especially when corroborated or directly obtained) and “bare-bones hearsay” accusations that require corroboration.
  • Carver v. United States: supplied the historical caution that dying declarations do not “import absolute verity,” supporting the panel’s refusal to treat Kathleen’s final phone accusation as inherently reliable.

6) Preservation/waiver doctrines influencing the disposition

  • GeoMetWatch v. Behunin, Reedy v. Werholtz, and Nixon v. City & Cty. of Denver: supported the panel’s conclusion that perfunctory arguments (especially on clearly established law/arguable probable cause) are not preserved and are waived on appeal.
  • Richison v. Ernest Grp.: underscored that a failure to argue plain error ends the road for unpreserved arguments.
  • Ralston v. Cannon and Wilkins v. DeReyes: reinforced that, on interlocutory appeal, the court cannot revisit district court determinations about evidentiary sufficiency for intent/recklessness.

Legal Reasoning

1) Count I — due process (suppression, loss/preservation, fabrication)

  1. Scope of Count I (pretrial order): Applying Leathers v. Leathers (abuse of discretion review; liberal construction of generally stated claims), the court held that a pretrial-order allegation of “suppressing exculpatory evidence” could encompass both Brady suppression and Trombetta/Youngblood failure-to-preserve theories— especially where defendants themselves argued Youngblood below.
  2. Trombetta without Youngblood bad faith (QuikTrip video): The detectives argued bad faith was required. The panel rejected this as a legal error: if exculpatory value is determinable (as the district court’s assumed facts suggested—video did not show Kathleen or Coones in the store), Trombetta governs and does not require bad faith. Youngblood matters only when exculpatory value is indeterminate and the evidence is merely “potentially useful.”
  3. Brady suppression (embezzlement evidence; KBI check-forgery report; QuikTrip video): On interlocutory review, the panel accepted the district court’s view that a jury could find the detectives “personally responsible” for viewing/withholding and for leaving exculpatory items out of files and inventories. It emphasized three legal points:
    • Brady duties are not limited to prosecutors; police investigators can violate due process by suppressing evidence (citing Tiscareno v. Anderson, Bledsoe v. Carreno).
    • § 1983 Brady liability requires at least knowing or reckless conduct, not mere negligence; the district court applied the correct “deliberate or reckless intent” standard (citing Pierce v. Gilchrist, Johnson v. City of Cheyenne).
    • Brady materiality does not require proof the evidence would “prove innocence,” only a reasonable probability of a different result or undermined confidence in the verdict (citing Cone v. Bell, Kyles v. Whitley, Douglas v. Workman).
  4. Fabrication: The panel upheld denial of qualified immunity on fabrication largely on procedural and jurisdictional grounds: (i) defendants inadequately raised the issue below (insufficient to trigger qualified-immunity analysis), and (ii) on appeal their merits argument asked the court to reweigh inferences—an impermissible factual challenge under Fancher v. Barrietos.

2) Count II — § 1983 malicious prosecution

  1. Clearly established / arguable probable cause: While the panel recited the “arguable probable cause” framework from Felders ex rel. Smedley v. Malcolm, it held defendants waived meaningful review by failing to develop and preserve the argument in the district court and on appeal (citing GeoMetWatch v. Behunin, Nixon v. City & Cty. of Denver).
  2. Lack of probable cause: The panel affirmed the district court’s holding that, on the assumed facts, probable cause was absent because the only incriminating information was hearsay attributable to Kathleen:
    • A “threat at QuikTrip” narrative was allegedly refuted by the surveillance video the detectives viewed.
    • Kathleen’s phone accusation that “Pete” was at the house was uncorroborated and, critically, came from a declarant the detectives could view as demonstrably dishonest and motivated to frame Coones.
    Drawing from Cortez v. McCauley and Patane, the court reasoned that victim statements may establish probable cause only absent reasons to doubt trustworthiness. Here, multiple “red flags” and contradictions supplied those reasons. The court also refused to treat the call as inherently reliable merely because it could be styled a “dying declaration,” invoking Carver v. United States.
  3. Malice: The court reiterated that malice can be shown by intentional or reckless conduct (citing Stonecipher v. Valles and Sanchez v. Hartley), and rejected defendants’ attempt to downcast the case as mere “failure to investigate” negligence (distinguishing Beard v. City of Northglenn) because the district court’s assumed facts included affirmative suppression and fabrication theories.

Impact

1) Probable cause analysis becomes more defendant-specific and source-sensitive. The decision underscores that an accusation—even temporally proximate to death—does not automatically become “reasonably trustworthy” when officers have concrete reasons to suspect the declarant’s dishonesty, fabrication history, or motive to frame. Future cases in the circuit can cite Coones for the proposition that reliability deficits and known contradictions can negate probable cause even when the statement resembles a “dying declaration.”

2) Evidence-handling claims: clearer sorting between Brady and Trombetta/Youngblood. Coones highlights a practical dividing line: where the exculpatory character of evidence is knowable (e.g., a video that plainly contradicts an alleged encounter), plaintiffs may proceed under Trombetta without needing to prove Youngblood bad faith—strengthening failure-to-preserve theories in civil rights suits.

3) Reinforcement of police Brady duties and recklessness threshold. The panel reaffirmed, in emphatic terms, that officers cannot avoid Brady-based § 1983 exposure by recasting duties as “prosecutor-only,” or by raising the scienter bar to “knowing suppression that proves innocence.” This matters in wrongful-conviction litigation where evidence is functionally suppressed by non-inventorying, non-reporting, or “file hygiene” decisions.

4) Appellate practice consequences in qualified immunity appeals. The decision is also a cautionary precedent: undeveloped arguments on “clearly established law” (especially “arguable probable cause”) can be treated as waived, preventing appellate rescue at the interlocutory stage.

Complex Concepts Simplified

Qualified immunity
A doctrine shielding government officials from damages unless (1) they violated a constitutional right and (2) the right was clearly established at the time. In interlocutory appeals, appellate courts usually accept the district court’s view of what a jury could find.
Interlocutory appeal
An appeal taken before the case ends. Denials of qualified immunity can be appealed immediately, but only on legal questions—not factual disputes.
Brady evidence
Evidence favorable to the accused (exculpatory or impeachment) that is material. If the state suppresses it, due process is violated. In the Tenth Circuit, police officers can be liable if they knowingly or recklessly cause suppression.
Trombetta vs. Youngblood (lost/destroyed evidence)
If evidence is lost/destroyed and its exculpatory value was apparent (and comparable evidence is unavailable), Trombetta can establish a due process violation. If the evidence is only “potentially useful” and exculpatory value is uncertain, Youngblood requires bad faith.
Malicious prosecution under § 1983 (Tenth Circuit)
A claim requiring, among other elements, that prosecution lacked probable cause and that officers acted with malice (intent or recklessness).
Pendent appellate jurisdiction
A limited ability to hear related issues (like a municipality’s appeal) alongside a qualified immunity appeal, but generally only if resolving the officer’s appeal necessarily resolves the municipal issue.

Conclusion

Coones is a significant Tenth Circuit qualified-immunity decision in the wrongful-conviction context. It reinforces that (i) police share constitutional duties to disclose material exculpatory evidence and may be liable for reckless suppression, (ii) failure-to-preserve claims can proceed under Trombetta without proving Youngblood bad faith when the exculpatory value is determinable, and (iii) probable cause cannot be built on uncorroborated hearsay accusations when officers have concrete reasons to distrust the declarant—even if the accusation is made near death. Procedurally, it also illustrates the constraining force of interlocutory review and the consequences of underdeveloped briefing on “clearly established” arguments.