The opinion
24-1785-cv
Galloway v. County of Nassau
1 United States Court of Appeals
2 for the Second Circuit
3
4 AUGUST TERM 2024
5 No. 24-1785-cv
6
7
8 JOSIAH GALLOWAY,
9 Plaintiff-Cross-Defendant-Appellee,
10
11 v.
12
13 COUNTY OF NASSAU, DETECTIVE MATTHEW ROSS, (SHIELD #834),
14 DETECTIVE CHARLES DECARO, (SHIELD #1047) , DETECTIVE RONALD
15 LIPSON, (SHIELD #1296) , DETECTIVE THOMAS D'LUGINSKI, (SHIELD
16 #7900), DETECTIVE GEORGE DARIENZO, (SHIELD #1038),
17 Defendants-Cross-Defendants-Appellants,
18
19 DETECTIVE THOMAS BISCHOFF, (SHIELD #1001), KATHLEEN RICE,
20 ASSISTANT DISTRICT ATTORNEY JOSEPH LAROCCA, ASSISTANT DISTRICT
21 ATTORNEY ROBERT SCHALK, DETECTIVE CHARLES OLIE, SHIELD NO.
22 1047,
23 Defendants,
24
25 NASSAU COUNTY POLICE DEPARTMENT, JOHN DOES #1-20, being and
26 intended to be other parties from the County of Nassau, Nassau
27 County Police Department, Incorporated Village of Hempstead and
28 Incorporated Village of Hempstead Police Department whose names
29 are presently unknown, all jointly and severally, JANE DOES #1-20,
30 being and intended to be other parties from the County of Nassau,
31 Nassau County Police Department, Incorporated Village of
32 Hempstead and Incorporated Village of Hempstead Police
33 Department whose names are presently unknown, all jointly and
34 severally, DETECTIVE SERGEANT RICHARD DORSI, DETECTIVE RENE
1 YAO, DETECTIVE CARL M. STRANGE, SHIELD NO. 1225,
2 Defendants-Cross-Defendants,
3
4 INCORPORATED VILLAGE OF HEMPSTEAD, P.O. STEVEN HOROWITZ,
5 (SHIELD #144), DETECTIVE KEVIN CUNNINGHAM, (SHIELD
6 #112), DETECTIVE JOSEPH SORTINO,
7 Defendants-Cross-Claimants.
8
9
10 SUBMITTED: APRIL 11, 2025
11 DECIDED: JUNE 26, 2025
12
13
14 Before: JACOBS, CHIN, and MENASHI, Circuit Judges.
15
16 Plaintiff-Appellee Josiah Galloway sued five current and
17 former Nassau County detectives, alleging (among other things) that
18 they denied him his constitutional right to a fair trial by:
19 (a) improperly inducing witnesses to identify him as the perpetrator
20 of a 2008 crime, (b) coercing a witness to sign a statement implicating
21 him, and (c) withholding evidence of those deficiencies in the state’s
22 case in violation of Brady v. Maryland, 373 U.S. 83 (1963). Galloway
23 also sued Defendant-Appellant Nassau County for state-law
24 malicious prosecution.
25 Given the limitations of our interlocutory appellate jurisdiction,
26 as well as of the appellants’ briefing, we decide only whether--
27 accepting Galloway’s version of events--the detectives were entitled
28 to qualified immunity on the constitutional fair trial claim. Because
29 it was clearly established law by 2008 that detectives could not rig
30 witness identifications, coerce a witness to sign a false inculpatory
31 statement, or ensure that the state withheld evidence of the same from
32 the defense, the district court did not commit legal error in rejecting
33 the detectives’ qualified immunity defenses.
2
1 DISMISSED IN PART and otherwise AFFIRMED.
2 Judge Menashi dissents in part in a separate opinion.
3
4 GABRIEL P. HARVIS, BAREE N.
5 FETT, Elefterakis, Elefterakis &
6 Panek, New York, NY;
7 JIM DAVY, All Rise Trial &
8 Appellate, Philadelphia, PA;
9 ELIANA MACHEFSKY, National
10 Police Accountability
11 Project, Berkeley, CA, for
12 Plaintiff-Appellee.
13
14
15 JUDY C. SELMECI, JOHN A.
16 VITAGLIANO, Wilson Elser
17 Moskowitz Edelman & Dicker
18 LLP, New York, NY, for
19 Defendants-Cross-Defendants-
20 Appellants.
3
1 DENNIS JACOBS, Circuit Judge:
2 After serving nearly a decade in prison for a 2008 attempted
3 murder, Plaintiff-Appellee Josiah Galloway was exonerated. As
4 relevant to this appeal, Galloway then sued five current and former
5 Nassau County detectives alleging that they (1) maliciously
6 prosecuted him; and (2) denied him his constitutional right to a fair
7 trial by (a) improperly inducing witnesses to identify him as the
8 perpetrator, (b) coercing a witness to sign a statement implicating
9 him, and (c) withholding evidence of those deficiencies in the state’s
10 case in violation of Brady v. Maryland, 373 U.S. 83 (1963). Galloway
11 also sued Defendant-Appellant Nassau County for malicious
12 prosecution under state law.
13 The detectives--Matthew Ross, Charles DeCaro, Ronald
14 Lipson, Thomas Dluginski, and George Darienzo--together with the
15 county moved for summary judgment, in part claiming qualified
16 immunity. The United States District Court for the Eastern District
17 of New York (Donnelly, J.) denied the motion in relevant part, and
18 adhered to that decision on reconsideration.
19 The detectives and county now pursue these interlocutory
20 appeals, ostensibly seeking that we reverse the denial of their motion
21 for summary judgment, which raised multiple issues. However,
22 because of the limitations of our interlocutory appellate jurisdiction,
23 as well as of the appellants’ briefing, we consider only a sliver of the
24 claims as to which the defendants sought summary judgment. We
25 have jurisdiction over only the defense of qualified immunity, and
26 only as a matter of law.
27 Because New York does not grant municipalities a qualified
28 immunity defense to state-law malicious prosecution claims, we lack
29 jurisdiction over Nassau County’s appeal. Of the issues within our
30 jurisdiction, the appellants press only qualified immunity as to the
31 fair trial claim. The only reference to malicious prosecution in
32 Defendants-Appellants’ opening brief is a list of the claims asserted
4
1 in the complaint. The detectives have accordingly abandoned any
2 interlocutory challenge to the district court’s denial of qualified
3 immunity as to malicious prosecution. See In re Platinum & Palladium
4 Antitrust Litig., 61 F.4th 242, 276 (2d Cir. 2023) (“[A]rguments not
5 made in an appellant’s opening brief are waived even if the appellant
6 pursued those arguments in the district court . . . .”) (citation omitted).
7 We therefore consider only whether, construing the facts in
8 Galloway’s favor, the detectives were entitled to qualified immunity
9 on Galloway’s fair trial claim. Because it was clearly established by
10 2008 that detectives could not rig witness identifications, coerce a
11 witness to sign a false inculpatory statement, or ensure that the state
12 withheld Brady evidence from the defense, the district court did not
13 commit legal error in rejecting the detectives’ qualified immunity
14 defenses.
15 I.
16 We recite the facts in the light most favorable to Galloway.
17 In 2008, taxi driver Jorge Anyosa was shot in the face during an
18 altercation with another driver. Anyosa survived and assisted the
19 police in creating a sketch of the shooter, with accompanying
20 description: a 25- to 30-year-old man, 5’10” tall, with short black hair,
21 a medium complexion, and a discernible accent. Galloway was
22 arrested on an unrelated matter three weeks after the shooting.
23 Galloway was 21 years old, 5’5” tall, wore his hair in braids, and had
24 no accent.
25 The police then undertook the following measures.
26 Defendants-Appellants DeCaro and Darienzo interviewed
27 Galloway’s friend, Robert Ogletree. They kept Ogletree at the
28 precinct for hours, threatened him with criminal charges, and thus
29 coerced him into signing a statement they had fabricated: that
30 Galloway had confessed to shooting a cab driver, near where Anyosa
31 was shot.
5
1 At DeCaro’s request, Defendant-Appellant Lipson put together
2 two photo arrays, each with the same photo of Galloway plus five
3 fillers. The arrays were first displayed to cab driver Wilmer
4 Hernandez, who witnessed the argument between Anyosa and the
5 shooter. Lipson (and a non-defendant officer) told Hernandez that
6 they “had the person who was the cause of the [Anyosa] incident” in
7 custody, but that “they wanted to show [Hernandez] pictures” as part
8 of an identification process. Galloway v. Cnty. of Nassau, No. 19-CV-
9 5026 (AMD) (JMW), 2024 WL 1345634, at *2 (E.D.N.Y. Mar. 29, 2024)
10 (quoting Hernandez’s deposition testimony). Hernandez identified
11 Galloway.
12 Lipson then presented Anyosa with two or three photo arrays
13 containing Galloway’s photo. Lipson told Anyosa that Hernandez
14 had already picked the “right person[’s]” photo. Id. at *3 (quoting
15 Anyosa’s deposition testimony). Anyosa initially failed to identify
16 Galloway, but ultimately selected Galloway’s photo in one of the
17 arrays. Lipson affirmed that Anyosa had selected the right person.
18 Galloway was charged in connection with the Anyosa shooting
19 and ordered by the court to participate in a lineup. Defendants-
20 Appellants Ross and Dluginski, who conducted the lineup, seated
21 Galloway with five fillers. They sat Galloway on two phone books,
22 which made him appear taller, and covered Galloway and the fillers
23 with white sheets to mask the adjustment. Besides Galloway,
24 nobody else in the lineup had braids; yet Ross and Dluginski had
25 Galloway and the fillers wear hats. When Anyosa identified
26 Galloway at the lineup, detectives told Anyosa that he had done “a
27 good job” and “got the right person.” Id. at *5 (quoting Anyosa’s
28 deposition testimony). Hernandez, having recognized Galloway
29 from the photo array, then selected Galloway from the lineup.
30 Ross’s then-fiancée, Lori Magliaro, submitted an affidavit
31 attesting that Ross had since admitted that he had “contrived a lineup
32 where [Galloway] wore a baseball cap to conceal the difference in
33 hair” and “made adjustments” “to make [him] look taller” because
6
1 “his height was not the same as the assailant[’]s.” Id. (quoting
2 Magliaro’s affidavit). Magliaro later disavowed some of her
3 affidavit.
4 Lipson never disclosed the particulars of his photo
5 identification procedures to the prosecutors, who in turn failed to
6 disclose them as Brady material. DeCaro and Darienzo likewise
7 never informed prosecutors that they had coerced and fabricated
8 Ogletree’s signed statement, and the prosecutors in turn failed to
9 disclose these facts as Brady material.
10 At trial, Anyosa and Hernandez again identified Galloway as
11 Anyosa’s shooter. Ogletree testified that he had been coerced into
12 making a fabricated statement implicating Galloway in the shooting.
13 After receiving an Allen charge, the jury convicted Galloway on all
14 counts. Galloway was sentenced to a determinate prison term of 25
15 years, and five years of post-release supervision.
16 More than nine years into the prison term, Galloway was
17 exonerated when new evidence implicated a different suspect in
18 Anyosa’s shooting. Anyosa told officers in the reopened
19 investigation that he would not have identified Galloway as his
20 shooter if he had been informed that Galloway was several inches
21 shorter than 5’10”-11”.
22 II.
23 In an interlocutory appeal of the denial of qualified immunity,
24 we review de novo, construing the facts in the light most favorable to
25 the non-moving party (here, Galloway). See Demoret v. Zegarelli, 451
26 F.3d 140, 148 (2d Cir. 2006). Summary judgment is appropriate “if
27 the movant shows that there is no genuine dispute as to any material
28 fact and the movant is entitled to judgment as a matter of law.” Fed.
29 R. Civ. P. 56(a).
7
1 Pursuant to the collateral order doctrine, we have
2 circumscribed appellate jurisdiction over the interlocutory appeal of
3 an order denying qualified immunity. See Plumhoff v. Rickard, 572
4 U.S. 765, 771-72 (2014) (explaining that qualified immunity is
5 immunity from suit, not liability, and therefore is collateral to the
6 merits). Specifically, we have jurisdiction “to the extent that
7 [qualified immunity] turns on an issue of law.” Jok v. City of
8 Burlington, 96 F.4th 291, 294 (2d Cir. 2024) (citation omitted). We
9 may consider only “stipulated facts, facts accepted for purposes of the
10 appeal, or the plaintiff’s version of the facts that the district judge
11 deemed available for jury resolution.” Salim v. Proulx, 93 F.3d 86, 90
12 (2d Cir. 1996).
13 Our jurisdiction does not extend to Nassau County’s appeal
14 from the denial of summary judgment on the state law malicious
15 prosecution claim. True, we have discretion to exercise “[p]endent
16 appellate jurisdiction” over an “otherwise unappealable claim [if] the
17 issue is inextricably intertwined with an issue” over which we have
18 jurisdiction, or if “review of the otherwise unappealable issue is
19 necessary to ensure meaningful review of the appealable one.” Britt
20 v. Garcia, 457 F.3d 264, 273 (2d Cir. 2006). But the malicious
21 prosecution claim against Nassau County does not turn on such an
22 issue. While New York recognizes a state law qualified immunity
23 defense to malicious prosecution, see Jones v. Parmley, 465 F.3d 46, 54-
24 55, 63 (2d Cir. 2006) (Sotomayor, J.), a municipal defendant cannot
25 invoke it, even when (as here) municipal liability depends on
26 respondeat superior. See Triolo v. Nassau Cnty., 24 F.4th 98, 113 (2d Cir.
27 2022). Consequently, the county’s liability is too far removed from
28 a qualified immunity question to allow for pendent appellate
29 jurisdiction.
30 We are thus limited to considering the individual defendants’
31 entitlement to qualified immunity. On appeal, they press qualified
32 immunity only as to the fair trial claim; so we consider only that claim.
8
1 Qualified immunity “shields officials from civil liability so long
2 as their conduct does not violate clearly established statutory or
3 constitutional rights.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (cleaned
4 up). “To be clearly established, a right must be sufficiently clear that
5 every reasonable official would have understood that what he is
6 doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012)
7 (cleaned up). “In making this determination, we consider Supreme
8 Court and Second Circuit precedent as it existed at the time of the
9 challenged conduct.” Tripathy v. McKoy, 103 F.4th 106, 116 (2d Cir.
10 2024) (citation omitted). “We do not require a case directly on point,
11 but existing precedent must have placed the statutory or
12 constitutional question beyond debate.” Id. at 116 (quoting Ashcroft
13 v. al-Kidd, 563 U.S. 731, 741 (2011)).
14 The Due Process Clause “guarantees a criminal defendant’s
15 right to a fair trial,” and it may be vindicated “in an action for
16 damages under 42 U.S.C. § 1983.” Frost v. New York City Police Dep’t,
17 980 F.3d 231, 244 (2d Cir. 2020). By 2008, it was clearly established
18 that police officers violate the due process right to a fair trial if they
19 rig witness identifications, coerce a witness to sign a fabricated
20 inculpatory statement, or ensure that the state withholds evidence of
21 the same from the defense. In Bermudez v. City of New York, 790 F.3d
22 368 (2d Cir. 2015), we evaluated police conduct from the early 1990s;
23 we denied qualified immunity where a jury could find that police
24 pursued an improper “photo array, lineup, and interrogation of [a
25 witness],” and the “officers misled [the prosecutor]” about those
26 procedures. Id. at 376 nn.3-4.
27 Galloway alleges that each of the individual defendants
28 violated his right to a fair trial through one or more of the following:
29 suggestive photo arrays; a suggestive lineup; coercing Ogletree’s
30 fabricated statement; and Brady violations. For the following
31 reasons, we find no error of law in the district court’s determination
32 that a rational jury could find all five individual defendants liable for
33 violating Galloway’s clearly established right to a fair trial.
9
1 Specifically: (1) Lipson conducted dubious photo identifications and
2 then withheld Brady evidence of that fact from prosecutors (infra Part
3 III); (2) Ross and Dluginski conducted an unconstitutionally
4 suggestive lineup (albeit with Galloway present, avoiding any
5 compounding Brady issue) (infra Part IV); and (3) DeCaro and
6 Darienzo coerced Ogletree into signing a false statement and then
7 withheld Brady evidence of that fact from prosecutors (infra Part V).
8 III.
9 “A defendant’s right to due process includes the right not to
10 be the object of suggestive police identification procedures that create
11 ‘a very substantial likelihood of irreparable misidentification.’”
12 United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992) (quoting
13 Simmons v. United States, 390 U.S. 377, 384 (1968)). Due process also
14 “precludes the generation of . . . increased certainty through a
15 suggestive [identification procedure].” Raheem v. Kelly, 257 F.3d 122,
16 135 (2d Cir. 2001). Photo arrays and lineups alike will violate due
17 process if unduly suggestive. See Concepcion, 983 F.2d at 377;
18 Raheem, 257 F.3d at 134. The suggestiveness of an identification
19 procedure is assessed holistically: even if “none of the[] aspects of the
20 [procedure] alone necessarily would have invalidated the
21 identification, the combination of them all” may “comprise[] a highly
22 suggestive identification procedure.” Dickerson v. Fogg, 692 F.2d 238,
23 245 (2d Cir. 1982).
24 Photo arrays that included Galloway were presented by Lipson
25 to both Hernandez and Anyosa. When the array was presented to
26 Hernandez, Lipson told Hernandez that the suspect was already in
27 custody. In the context of lineups, we have disapproved a similar
28 practice. See Jenkins v. City of New York, 478 F.3d 76, 93 (2d Cir. 2007)
29 (“[T]he police generally should refrain from informing a witness that
30 the suspect is in the lineup, [though] a lineup is not unduly suggestive
31 merely because they do so.”). Telling the witness a suspect is in
32 custody is even more dangerous before a photo identification.
33 While “any witness . . . must realize that he would not be asked to
10
1 view the lineup if there were not some person there whom the
2 authorities suspected,” id., the same is not true of photo arrays. See,
3 e.g., Humbert v. Mayor & City Council of Balt. City, 866 F.3d 546, 551 (4th
4 Cir. 2017), as amended (Aug. 22, 2017) (describing presentation of a
5 photo array to a witness two days before a photo was taken of the
6 suspect ultimately arrested).
7 Armed with Hernandez’s tainted identification, Lipson then
8 showed arrays to Anyosa and obtained an even less reliable
9 identification. Whereas Lipson told Hernandez that the police had
10 a suspect in custody, Lipson went further with Anyosa, confiding that
11 Hernandez had already identified the shooter correctly. Then, once
12 Anyosa identified Galloway’s photo after viewing multiple arrays,
13 Lipson confirmed that Anyosa had selected the suspect. We have
14 disapproved of “endorsing the correctness of the selection.” United
15 States v. Thai, 29 F.3d 785, 810 (2d Cir. 1994); see United States v.
16 Moskowitz, 581 F.2d 14, 20 (2d Cir. 1978) (“[A] witness’s belief” in her
17 identification “may be improperly reinforced by the confirmatory
18 remarks of [law enforcement].”).
19 Most importantly, Lipson compounded the prejudice to
20 Galloway by withholding information about the photo array
21 procedures from the prosecutors. It was clearly established by 2008
22 that police officers violate Brady when they withhold exculpatory
23 evidence from prosecutors. Cf. Walker v. City of New York, 974 F.2d
24 293, 299 (2d Cir. 1992) (“[P]olice satisfy their obligations under Brady
25 when they turn exculpatory evidence over to the prosecutors.”).
26 That specifically includes “misl[eading]” prosecutors “as to the
27 nature of . . . photo identification procedures.” Bermudez, 790 F.3d at
28 376 n.4. While we have disapproved tactics used in the photo
29 identifications here, we need not decide whether they violated clearly
30 established law; Lipson’s qualified immunity defense fails in any
31 event because he misled prosecutors.
11
1 IV.
2 Next, a jury could find that Ross and Dluginski conducted an
3 unduly suggestive lineup. Anyosa had described his shooter as over
4 5’10”, with short hair. Yet Ross and Dluginski conducted a seated
5 lineup that masked Galloway’s 5’5” height and hid his (braided) hair. 1
6 It is clear, as confirmed in the first affidavit of Ross’s fiancée, that
7 these machinations invited an identification that would not otherwise
8 have been made.
9 Ross and Dluginski defend their lineup on the ground that
10 neither the concealment of hair or of height is per se unduly
11 suggestive; and that their subjective intent could not turn acceptable
12 identification techniques into an unduly suggestive procedure.
13 These arguments are sound, but miss the point.
14 “A lineup may be suggestive to one viewer even though it is
15 not to another.” Raheem, 257 F.3d at 134. In Raheem, we observed
16 that a lineup that includes only one short participant--the suspect--
17 will be unduly suggestive only to a viewer who has already insisted
18 that the perpetrator is short. See id. at 134-35. This case presents the
19 converse: a lineup that hides that the suspect is short is unduly
20 suggestive to a viewer known to believe that the perpetrator is tall.
21 Qualified immunity does not shield Ross and Dluginski. It
22 was clearly established that police could not use identification
23 procedures that are unduly suggestive as to a particular investigation,
24 even if those same procedures would be textbook in another. “[I]t is
25 the likelihood of misidentification,” by the particular viewer “which
26 violates a defendant’s right to due process,” not the method. See
1 It also appears that Galloway and the fillers did not speak as part
of the lineup, despite that Anyosa had described his assailant as
having an accent, while Galloway had none. See Appellant’s Br. 12
(“Anyosa and Hernandez each viewed the lineup” (emphasis
added)).
12
1 Raheem, 257 F.3d at 133-34 (emphasis added) (quoting Neil v. Biggers,
2 409 U.S. 188, 198 (1972)); see also Neil, 409 U.S. at 198 (explaining that
3 evidence of a “showup” does not categorically violate due process;
4 “the likelihood of misidentification” at a given showup is
5 dispositive).
6 Moreover, the jury could find, based on the first affidavit of
7 Ross’s fiancée, that Ross and Dluginski knew that the lineup would
8 be unduly suggestive. True, as the partial dissent usefully explains,
9 “we do not consider the subjective intent, motives, or beliefs of the
10 officials” when “determining whether official conduct was
11 objectively reasonable.” Connecticut ex rel. Blumenthal v. Crotty, 346
12 F.3d 84, 106 (2d Cir. 2003); Dissent at 7-8. But cf. Galloway, 2024 WL
13 1345634, at *12 (stating, perhaps imprecisely, that the lineup would be
14 unduly suggestive if Ross and Dluginski “inten[ded] to conceal the
15 plaintiff’s height and deprive him of a fair trial”). Nevertheless, “the
16 information that [Ross and Dluginski] possessed when they made
17 the[ir] decisions . . . is a part of the mix.” Id. The question is
18 whether a reasonable officer “acting under the circumstances then
19 confronting [him], would have understood that the applicable law was
20 being violated.” Id. (quoting Vega v. Miller, 273 F.3d 460, 466 (2d Cir.
21 2001)). Ross and Dluginski, knowing that the witnesses believed the
22 shooter to be tall with short hair, would have so understood--Anyosa
23 has since confirmed that he never would have identified Galloway as
24 his shooter if he had known Galloway’s height.
25 V.
26 Galloway alleges that Defendants-Appellants DeCaro and
27 Darienzo coerced Ogletree into signing a fabricated statement: that
28 Galloway had confessed to shooting a cab driver. Under law clearly
29 established by 2008, a police officer violates a plaintiff’s right to a fair
30 trial when he “creates false information likely to influence a jury’s
31 decision and forwards that information to prosecutors.” Ricciuti v.
32 N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). In Frost, we
33 found this standard satisfied where (1) a witness was purportedly
13
1 coerced to identify the plaintiff as a perpetrator, and (2) a reasonable
2 jury could have found that this coerced identification “critically
3 influenced” the prosecutor’s decision to pursue charges. 980 F.3d at
4 248 (citing Garnett v. Undercover Officer C0039, 838 F.3d 265, 277 (2d
5 Cir. 2016)). Ogletree’s statement was provided to prosecutors before
6 they charged Galloway with the shooting. A reasonable jury could
7 conclude that, as in Frost, this coerced statement “critically
8 influenced” the decision to prosecute Galloway. Moreover, a
9 reasonable jury could also find that DeCaro and Darienzo “misled
10 [the prosecutor]” about “the fact that [Ogletree’s] testimony was
11 coerced,” Bermudez, 790 F.3d at 376 n.4--a Brady violation.
12 VI.
13 Finally, each individual defendant argues that he is entitled to
14 summary judgment on qualified immunity grounds for events in
15 which he did not participate. Ross, for example, argues that he
16 “could not have intervened . . . in events he was not involved in,” and
17 that “it was clearly established at the time of these events that a police
18 officer does not violate a suspect’s constitutional rights by merely not
19 intervening where the officer is not present.” Appellant’s Br. 23.
20 The defendants are pressing on an open door. The district
21 court’s rulings on qualified immunity did not hold expressly or
22 implicitly that the detectives could be liable for constitutional
23 violations in which they played no role, whether under a “failure to
24 intervene” theory or otherwise. The district court rejected that
25 suggestion when confronted with a motion for reconsideration on this
26 very ground.
27 The district court observed that “[o]ne of the themes the County
28 presses . . . is that the defendants cannot be held liable if they were
29 not physically present for certain conduct.” Galloway v. Cnty. of
30 Nassau, No. 19-CV-5026 (AMD) (JMW), 2024 WL 2960532, at *2
31 (E.D.N.Y. June 11, 2024). The court specifically acknowledged each
32 such argument: “Darienzo, [Dluginski], and DeCaro cannot be held
14
1 liable for . . . the photo array”; “Lipson, DeCaro, and Darienzo cannot
2 be held liable for . . . the line-up”; “Ross cannot be held liable for
3 any . . . violations that occurred before the line-up”; and “[Dluginski]
4 cannot be held liable” for “Ogletree’s statement.” Id. at *3. The
5 district court confirmed that it agreed, and had already “accounted
6 for these unremarkable propositions in its order,” id. at *3, and
7 underscored them in so many words: “[o]bviously, the defendants
8 cannot be liable for conduct in which they had no involvement,” id. at
9 *3 n.4 (discussing malicious prosecution claims that survived “[f]or
10 the same reasons” as the fair trial claims). Moreover, the district
11 court has ample tools to ensure that each defendant is liable only for
12 his own conduct. For example, Fed. R. Civ. P. 49(b)(1) allows the
13 court to require “a jury to return only a special verdict in the form of
14 a special written finding on each issue of fact.” See, e.g., Aczel v.
15 Labonia, 584 F.3d 52, 54-55 (2d Cir. 2009) (describing juror form that
16 asked jurors to identify the damages that each defendant’s
17 constitutional violation had proximately caused). The district court
18 did not make the error the defendants urge us to correct.
19 ***
20 All members of the panel agree that summary judgment was
21 appropriately denied on Galloway’s Due Process claim against
22 Lipson, DeCaro, and Darienzo. See Dissent at 13. Insofar as there
23 is a parting of ways, we disagree respectfully, as follows:
24 1. Our partially dissenting colleague would hold that Ross and
25 Dluginski are entitled to qualified immunity. See Dissent at 6-7.
26 The dissent reasons that “existing precedent” in 2008 had not “placed
27 . . . beyond debate” the “statutory or constitutional question” of
28 whether police may use phone books, hats, and sheets to obscure a
29 suspect’s short height and braided hair from a witness who they
30 know believes the perpetrator is tall and short-haired. See Dissent at
31 8 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
15
1 We disagree. It is (and was) clearly established that
2 identification methods bearing a “likelihood of misidentification” of
3 the accused violate due process, no matter their form--just as
4 procedures without such a likelihood do not. See Raheem, 257 F.3d
5 at 133-34; Neil, 409 U.S. at 199. It is immaterial whether appearance
6 is disguised by phone books, or by cigar boxes, or by pillows, or by
7 hats, sheets, eyelashes, moustaches or pimples. With enough artifice
8 and disguise, almost anybody may end up fingered.
9 In employing such artifices, Ross and Dluginski could claim
10 qualified immunity only if a “reasonable official” would not “have
11 understood” that he was “violat[ing]” due process. Horn v.
12 Stephenson, 11 F.4th 163, 169 (2d Cir. 2021) (cleaned up).
13 “[P]recedent involving ‘fundamentally similar’ facts” is not required;
14 “[t]he salient question is whether the state of the law gave the
15 defendant fair warning that his alleged treatment of the plaintiff was
16 unconstitutional.” Id. at 171 (quoting Hope v. Pelzer, 536 U.S. 730, 741
17 (2002)). Ross and Dluginski had such warning: every reasonable
18 officer would have understood that their lineup was unduly likely to
19 result in a misidentification--as the state, having now released
20 Galloway, apparently believes that it did.
21 2. The dissent argues that Lipson is entitled to summary
22 judgment on Galloway’s “separate due process claim that Lipson
23 subjected Galloway to impermissibly suggestive identification
24 procedures,” as distinguished from Galloway’s claim premised on
25 Brady violations. Dissent at 5. But the district court has already
26 clarified that there is no such freestanding claim against Lipson;
27 Galloway has a single, unitary fair trial claim against Lipson under
28 the Due Process Clause. See Galloway, 2024 WL 1345634, at *22; 2024
29 WL 2960532, at *3. As the district court held on reconsideration, “at
30 least one theory of liability applies to each fair trial claim against each
31 County defendant,” so that those claims “survive summary
32 judgment.” 2024 WL 2960532, at *3.
16
1 3. The dissent argues that the district court erred in denying
2 qualified immunity as to the malicious prosecution claims. See
3 Dissent at 11. As we have explained, see supra at 4-5, this challenge
4 has been waived for want of briefing. Accordingly, we express no
5 opinion on its merits.
6 For the foregoing reasons, Nassau County’s appeal is
7 dismissed. We affirm in all other respects.
17
24-1785-cv
Galloway v. County of Nassau
MENASHI, Circuit Judge, dissenting in part and concurring in part:
Qualified immunity shields a government official from liability
for civil damages when his actions did not violate clearly established
law. See Pearson v. Callahan, 555 U.S. 223, 231 (2009). Even if an official
acted unlawfully, liability attaches only if the existing precedent had
“placed the statutory or constitutional question beyond debate.”
Kisela v. Hughes, 584 U.S. 100, 104 (2018) (quoting White v. Pauly, 580
U.S. 73, 79 (2017)). Government officials thus remain free to “perform
their duties reasonably,” subject to constraints of which a reasonable
person would be aware. Pearson, 555 U.S. at 231. In this way, the
“immunity protects all but the plainly incompetent or those who
knowingly violate the law.” White, 580 U.S. at 79 (internal quotation
marks omitted). If the applicable law is unclear—or if our precedents
have permitted the conduct—we must dismiss the case.
We may entertain an appeal from the denial of qualified
immunity only “to the extent that it turns on an issue of law.” Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985). So in this case, we appropriately
rely on “the facts favorable to the plaintiff that the trial judge
concluded the jury might find.” Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.
1996). According to the district court, a reasonable jury could find that
Detective Lipson told the witnesses—Wilmer Hernandez and Jorge
Anyosa—that they selected the “right person” from the photo arrays.
And a reasonable jury could find that Detectives Ross and Dluginski
used generally permissible lineup procedures to obscure certain
differences between Josiah Galloway and Anyosa’s description of the
shooter.
We have previously held that such conduct did not violate a
defendant’s constitutional rights. Furthermore, because under our
precedents these identifications were independently reliable, a
reasonable officer would have had arguable probable cause to initiate
criminal charges against Galloway. For these reasons, the officers are
entitled to qualified immunity on the malicious prosecution claim and
on the claim that the officers subjected Galloway to unconstitutionally
suggestive identification procedures. Because the majority holds
otherwise, I dissent in part. I concur that, at this stage, the officers are
not entitled to qualified immunity on the remaining claims.
I
Accepting the facts in the light most favorable to Galloway,
Detective Lipson made potentially suggestive remarks to Hernandez
and Anyosa. Before Hernandez viewed the photo array, Lipson told
him that the police had the shooter in custody. See Galloway v. County
of Nassau, No. 19-CV-5026, 2024 WL 1345634, at *13 (E.D.N.Y. Mar. 29,
2024). After Hernandez identified Galloway from the array, Lipson or
another officer confirmed that Galloway was the right choice. See id.
Before showing Anyosa the array, Lipson told him that Hernandez
had already selected the “right person,” and after Anyosa also
identified Galloway as the shooter, Lipson told Anyosa that he made
the correct identification. Id. at *12-13. The question in this appeal is
whether Lipson violated clearly established law by making those
comments. He did not.
To violate a defendant’s right to due process, an identification
procedure must be “unduly suggestive of the suspect’s guilt.” Styers
v. Smith, 659 F.2d 293, 297 (2d Cir. 1981). Unduly suggestive
procedures “elicit a specific identification” of the defendant by
singling him out as the perpetrator. United States v. Al-Farekh, 956 F.3d
99, 111 (2d Cir. 2020). In the context of a photo-array identification,
we have “rejected” the “contention that agents’ post-selection
2
confirmatory comments are forbidden” and that such comments
render the identification “impermissibly suggestive.” United States v.
Marrero, 705 F.2d 652, 655 n.5 (2d Cir. 1983). “Indeed,” we have said,
“such a rule would be incompatible with other necessary police
procedures which indirectly signal a witness that he has selected the
person under investigation.” United States v. Leonardi, 623 F.2d 746,
755 (2d Cir. 1980). We have also held that a lineup is not unduly
suggestive when the police tell the witness that there is a suspect in
the lineup. “[A]lthough the police generally should refrain from
informing a witness that the suspect is in the lineup, a lineup is not
unduly suggestive merely because they do so.” Jenkins v. City of New
York, 478 F.3d 76, 93 (2d Cir. 2007) (citing Sales v. Harris, 675 F.2d 532,
538 (2d Cir. 1982)).
Given this precedent, it is incorrect to conclude that Lipson
violated clearly established law. He made remarks during a photo
array that we have specifically held do not render the identification
unduly suggestive. That prior precedent “squarely demonstrates that
no clearly established law precluded [the officer’s] conduct at the time
in question.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014).
The majority implicitly acknowledges the mismatch between
our precedent and the denial of qualified immunity in this case; it
quotes our earlier decision that “a lineup is not unduly suggestive
merely because” police officers tell a witness that a suspect is in
custody. Ante at 10 (quoting Jenkins, 478 F.3d at 93). The majority
nevertheless suggests that Lipson violated clearly established law
because in two cases we have “disapproved” of such confirmatory
remarks. Id. at 11. But in both of those cases, we held that the
identifications were “not so impermissibly suggestive” as to violate a
defendant’s rights. United States v. Moskowitz, 581 F.2d 14, 20 (2d Cir.
1978) (emphasis added) (internal quotation marks omitted); see also
3
United States v. Thai, 29 F.3d 785, 810 (2d Cir. 1994) (“[S]uch misguided
postidentification remarks or actions will not render [the
identification] invalid or preclude a subsequent in-court
identification.”). These prior holdings—that the identification
procedure was legal but inadvisable—do not suffice to defeat
Lipson’s defense of qualified immunity. That is especially true
because whether an identification was unconstitutionally suggestive
depends on several factors. See Thai, 29 F.3d at 808. In “an area in
which the result depends very much on the facts of each case,” the
equivocal opinions on which the majority relies “by no means clearly
established that the officer’s conduct violated” the Constitution.
Plumhoff, 572 U.S. at 779 (internal quotation marks and alterations
omitted).
The majority also sidesteps the rule that a suggestive procedure
alone does not violate a defendant’s constitutional rights. “It is the
likelihood of misidentification which violates a defendant’s right to
due process.” Neil v. Biggers, 409 U.S. 188, 198 (1972). For that reason,
“a suggestive procedure does not in itself intrude upon a
constitutionally protected interest if it did not contribute significantly
to the identification of the defendant.” Raheem v. Kelly, 257 F.3d 122,
135 (2d Cir. 2001). As we have explained, “even an unnecessarily
suggestive identification does not violate due process so long as the
identification possesses sufficient aspects of reliability.” Richardson v.
Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 204 (2d Cir.
2010) (internal quotation marks omitted). It is not enough to establish
a constitutional violation, therefore, for Lipson’s comments to have
been unduly suggestive; the witness identifications must also have
been unreliable.
The majority does not even address whether Hernandez’s and
Anyosa’s identifications were independently reliable. Yet the
4
reliability of the identifications again shows that neither the photo
array nor the lineup violated clearly established law. These witnesses
had close confrontations with the shooter. Anyosa remembered the
shooter’s face well enough that he could assist in creating a composite
sketch, and both Anyosa and Hernandez identified the shooter within
weeks of the incident. See Neil, 409 U.S. at 199-200. In fact, Galloway
was ultimately exonerated because the alternative suspect closely
resembled the composite sketch and was identified by Anyosa as the
shooter nine years after the shooting. If the exonerating identification
was reliable, then a reasonable officer could have believed the initial
identification was reliable too.
Perhaps sensing these problems, the majority declines even to
“decide whether [Lipson] violated clearly established law” in
conducting the photo array. Ante at 11. The court instead concludes
that “Lipson’s qualified immunity defense fails in any event because
he misled prosecutors.” Id. at 12. That is a non sequitur. We must
decide whether Lipson has qualified immunity for “each cause of
action.” Drimal v. Tai, 786 F.3d 219, 226 (2d Cir. 2015) (quoting Gill v.
Monroe Cnty. Dep’t of Soc. Servs., 547 F.2d 31, 32 (2d Cir. 1976)). I agree
with the majority that Lipson is not entitled to qualified immunity on
the claim that he failed to disclose favorable evidence to prosecutors.
See Brady v. Maryland, 373 U.S. 83 (1963); Walker v. City of New York,
974 F.2d 293, 299 (2d Cir. 1992). But Galloway alleged a separate due
process claim that Lipson subjected Galloway to impermissibly
suggestive identification procedures; the district court said that the
suggestive-identification claim plausibly established a constitutional
violation such that it is “for a jury to resolve” at trial. Galloway, 2024
WL 1345634, at *13; see also id. at *22.
The majority insists that Galloway has “a single, unitary fair
trial claim against Lipson under the Due Process Clause,” no matter
5
how many separate “theor[ies] of liability” support that claim, so it
does not need to evaluate each theory. Ante at 16. That makes no
sense. The district court has decided to hold a trial not only about the
Brady violations but also about the suggestive identification
procedures. Because Lipson is entitled to qualified immunity for any
claim based on the allegations of unduly suggestive identification
procedures, it is incumbent on this court to say that the district court
erred by allowing such a claim to proceed to trial.
Given the refusal of the majority to decide the issue one way or
the other, it is unclear what will happen when the case proceeds to
trial. Should the jury be instructed that the suggestiveness of the
procedures could violate § 1983? Or should Galloway be limited to
evidence that the prosecutors were misled? The majority does not say.
I would provide an answer. I would reverse the judgment of the
district court insofar as it denied Lipson qualified immunity on the
claim—or, if the majority prefers, the “theory of liability”—that he
subjected Galloway to unconstitutionally suggestive identification
procedures. I would affirm the judgment insofar as it allowed the
Brady theory to proceed.
II
When conducting the lineup, Detectives Ross and Dluginski
asked Galloway and the fillers to wear hats, sit on chairs, and cover
themselves with sheets “so that only their faces were visible.”
Galloway, 2024 WL 1345634, at *11. Galloway sat on two phone books
so that the men in the lineup appeared to be the same height. See id.
at *4. Allegedly, Ross and Dluginski used these procedures to obscure
the fact that Galloway’s height and hair did not match Anyosa’s
description of the shooter. See id. at *12. The majority claims that these
6
actions violated clearly established law, but again the precedents have
held otherwise.
A
Even the district court recognized that the lineup procedures,
standing alone, “were not unduly suggestive.” Id. at *11 (emphasis
added). It did so in reliance on a body of case law holding that a
“line-up conducted with men seated, covered in sheets, [and] wearing
hats was not unduly suggestive.” Id. (citing Ashby v. Senkowski, 269
F. Supp. 2d 109, 117 (E.D.N.Y. 2003); Neree v. Capra, No. 17-CV-5434,
2020 WL 2098097, at *7-8 (E.D.N.Y. May 1, 2020); Roldan v. Artuz, 78
F. Supp. 2d 260, 272-73 & n.9 (S.D.N.Y. 2000); Solis v. Artus, No. 09-
CV-386, 2012 WL 1252722, at *3 (E.D.N.Y. Apr. 12, 2012); United States
v. Ríos-Orama, No. 22-CR-174, 2023 WL 7403602, at *4-5 (D.P.R. Nov.
3, 2023)). The district court reasoned that the otherwise-permissible
procedures became unduly suggestive because the officers “employed
these procedures in bad faith.” Id. at *11-12.
That is wrong. Whether the procedures were unduly
suggestive does not depend on the subjective intent of the officers. It
depends on objective features of the identification procedures and
whether, in light of those features, the “identification procedure was
so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Neil, 409 U.S. at 197
(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). It
contradicts our precedents to hold that a procedure that the police
may generally employ to produce a reliable identification becomes
unconstitutionally suggestive based on the officer’s state of mind.
Our court and the Supreme Court have specifically held that
the subjective intent of the officer may not be the basis for denying
qualified immunity. “[D]etermining whether official conduct was
7
objectively reasonable ‘requires examination of the information
possessed’ by the officials at that time (without consideration of
subjective intent).” Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84,
106 (2d Cir. 2003) (alteration omitted) (quoting Anderson v. Creighton,
483 U.S. 635, 641 (1987)). “On the other hand, we do not consider the
subjective intent, motives, or beliefs of the officials.” Id. (emphasis added).
The majority’s analysis does not resolve the contradiction. The
majority opinion holds that “[i]t was clearly established that police
could not use identification procedures that are unduly suggestive as
to a particular investigation, even if those same procedures would be
textbook in another.” Ante at 12. That general assertion merely
restates the platitude that the suggestiveness of a procedure depends
on the “totality of the surrounding circumstances.” Thai, 29 F.3d at
808. But this truism “is far too general a proposition to control this
case.” City & County of San Francisco v. Sheehan, 575 U.S. 600, 613
(2015). The Supreme Court has “repeatedly told courts … not to
define clearly established law at a high level of generality.” Ashcroft v.
al-Kidd, 563 U.S. 731, 742 (2011) (citation omitted). The majority fails
to explain how “existing precedent … placed the statutory or
constitutional question beyond debate” when the only comparable
cases have held that these identification procedures are permissible
without regard to an officer’s subjective intent. Id. at 741.
B
The typical scenario in which a court has held a lineup to be
unduly suggestive is when the defendant matches the description of
the perpetrator but others in the lineup do not. See, e.g., Frazier v. New
York, 156 F. App’x 423, 425 (2d Cir. 2005); Piper v. Portuondo, 82
F. App’x 51, 52-53 (2d Cir. 2003); Raheem, 257 F.3d at 134-36; United
States v. Wong, 40 F.3d 1347, 1359-60 (2d Cir. 1994) (citing cases); Foster
8
v. California, 394 U.S. 440, 442-43 (1969). In evaluating such a scenario,
we have explained that “[t]he critical question is whether a
defendant’s appearance made him so stand out from the others in the
lineup as to suggest unfairly that he was more likely to be the culprit.”
Piper, 82 F. App’x at 52 (internal quotation marks and alteration
omitted); see Wong, 40 F.3d at 1359-60. A lineup is unduly suggestive
if it includes “only one person [who] possessed the most salient
characteristic described by the victim.” Frazier, 156 F. App’x at 425.
Those cases do not apply here. The lineup procedure in this
case did not make Galloway stand out as the likely shooter. There was
no distinct facial feature of the shooter that Galloway exhibited but
the fillers did not. The procedure prevented Anyosa and Hernandez
from seeing Galloway’s height, but it also focused the witnesses’
attention on the faces of those in the lineup.
The case law does not prohibit the police from employing a
procedure that focuses on facial characteristics. In this case, the
shooter’s height “was hardly the single distinctive characteristic in
either the witnesses’ descriptions or their lineup identifications.”
Piper, 82 F. App’x at 52-53. Instead, the most detailed description the
police had received of the shooter was of his face; that description was
detailed enough for Anyosa to help create a composite sketch of his
assailant. Once that feature was isolated, two witnesses
independently identified Galloway as the shooter.
We have previously recognized that an eyewitness may not
focus on every characteristic of a perpetrator even if he or she can still
make a reliable identification. See Wong, 40 F.3d at 1360 (concluding
that a witness’s identification was reliable even though the defendant
“was taller than she remembered”). We have not—until today—held
that police officers are prohibited from using a lineup procedure that
9
focuses on a distinctive feature while obscuring others. The police
officers here may have been acting in bad faith. But that subjective
intent—absent some future development in the case law—does not
affect the qualified immunity analysis. The procedures here did not
violate clearly established law for being unduly suggestive.
The majority opinion robotically repeats the general principle
that “identification methods bearing a ‘likelihood of
misidentification’ of the accused violate due process.” Ante at 16. But
that incantation cannot alter the specific case law according to which
the identification method here was neither likely to result in
misidentification nor contrary to due process. Today’s opinion is the
first time our court has held that identification procedures focused on
facial characteristics are unconstitutionally suggestive. Far from
applying clearly established law, the majority opinion announces a
new rule and abrogates those decisions that have approved such
identification procedures. See Ashby, 269 F. Supp. 2d at 117; Neree,
2020 WL 2098097, at *7-8; Roldan, 78 F. Supp. 2d at 272-73 & n.9; Solis,
2012 WL 1252722, at *3.
C
Even if the lineup were unduly suggestive under clearly
established law, the majority again fails to consider whether the
lineup identifications were independently reliable. But that inquiry is
crucial. “It is not enough that the procedure may have in some
respects fallen short of the ideal.” Sexton v. Beaudreaux, 585 U.S. 961,
966 (2018) (internal quotation marks omitted). A suggestive
identification “does not violate due process so long as the
identification possesses sufficient aspects of reliability.” Richardson,
621 F.3d at 204 (quoting Manson v. Brathwaite, 432 U.S. 98, 106 (1977)).
10
As explained above, Hernandez’s and Anyosa’s identifications had
strong indicators of reliability.
In denying qualified immunity, the district court held that no
reasonable officer could have believed that the identifications of the
shooter by Anyosa and Hernandez were reliable. As the district court
explained it, “Anyosa and Hernandez had an opportunity to view the
criminal at the time of the crime or at least shortly before the shooting
when, during the first encounter, the shooter drove up behind Anyosa
and Hernandez, started honking, argued with them for a few
minutes, and drove away.” Galloway v. County of Nassau, No. 19-CV-
5026, 2024 WL 2960532, at *6 (E.D.N.Y. June 11, 2024) (internal
quotation marks and alteration omitted). Then “Anyosa also saw the
shooter at 2:00 a.m., when he shot Anyosa in the face.” Id. at *7. The
district court concluded that no reasonable officer could have
believed that Anyosa and Hernandez could provide reliable
identifications because the “argument lasted only a few minutes,
between midnight and 2:00 a.m.,” and the later “encounter lasted for
a few minutes at most, and the circumstances—getting shot in the face
at night—were not conducive to a reliable identification.” Id. at *6-7.
It is outlandish to think that no reasonable officer would have
sought—and relied on—identifications of the shooter from the victim
and the eyewitness who had close confrontations with the shooter.
Even if the case law clearly prohibited the lineup procedure used
here—which it does not—the officers still would be entitled to
qualified immunity because the identifications were independently
reliable.
III
Given the identifications, the officers are also entitled to
qualified immunity on the malicious prosecution claim. “[A]
11
malicious prosecution claim will be defeated by a showing of
probable cause (that is, by a showing of an independently reasonable
basis for the deprivation of liberty).” Barnes v. City of New York, 68
F.4th 123, 132 (2d Cir. 2023). A “victim’s identification is typically
sufficient to provide probable cause.” Stansbury v. Wertman, 721 F.3d
84, 90 (2d Cir. 2013). Yet “even when probable cause is lacking,” an
“officer’s decision to initiate a prosecution is objectively reasonable if
officers of reasonable competence could disagree on whether the
probable cause test was met.” Cornelio v. Connecticut, 32 F.4th 160, 179
(2d Cir. 2022) (internal quotation marks and alteration omitted). In
other words, the officers are entitled to qualified immunity if the
identifications provided arguable probable cause.
No clearly established law required the officers to discount the
identifications of Galloway by the victim and the eyewitness in this
case. It was not clearly established that the identification procedures
were unduly suggestive, and it was not clearly established that an
identification by a victim of a nighttime shooting was necessarily
unreliable. Accordingly, the officers had at least “arguable probable
cause to initiate the prosecution,” and that means the officers are
entitled to qualified immunity for the malicious prosecution claim. Id.
There may be evidence of improper motivations, but “an officer
cannot be liable for a vexatious motivation as long as she acts with
arguable probable cause.” Id. at 180.
The majority opinion complains about a “want of briefing” on
this issue—as if the majority were otherwise attentive to the briefing.
Ante at 17. But qualified immunity on the malicious prosecution claim
follows directly from the conclusion that the identifications provided
arguable probable cause, and that is the central question in this
appeal.
12
* * *
While conducting the photo arrays and the lineup, Lipson,
Ross, and Dluginski did not violate clearly established law. Our cases
have specifically held that the procedures at issue in this case were
not so impermissibly suggestive as to violate Galloway’s
constitutional rights. That means the district court erred in denying
qualified immunity to the officers with respect to the claims of
suggestive procedures and malicious prosecution.
At the same time, I agree with the majority that the other claims
should proceed. It was clearly established at the time of the officers’
actions that they could not coerce a witness into signing a false
statement, and they could not withhold favorable evidence about
identification procedures from the prosecutors. Because there remain
disputed issues of fact about whether the officers did so, they are not
entitled to qualified immunity on the Brady, fabrication-of-evidence,
and failure-to-intervene claims. For these reasons, I dissent in part
and concur in part.
13