Brady v. Dill

United States Court of Appeals

For the First Circuit

No. 98-2293

WILLIAM BRADY AND THERESA BRADY,

Plaintiffs, Appellees,

v.

MARYANN DILL, ET AL.,

Defendant, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Pollak,* Senior District Judge.

Joseph P. Kittredge, with whom Timothy M. Burke was on brief,

for appellants.

Scott Harshbarger, Attorney General, and Michelle A.

Kaczynski, Assistant Attorney General, on brief for Commonwealth of

Massachusetts, amicus curiae.

Philip A. Tracey, Jr., with whom Paul T. Prew and Dimento &

Sullivan were on brief, for appellees.

July 22, 1999

*Of the Eastern District of Pennsylvania, sitting by designation. SELYA, Circuit Judge. This appeal poses an intriguing

question of constitutional law. Suppose that the following

scenario exists: (1) the police arrest a person pursuant to a

facially valid warrant, supported by probable cause; (2) the

person, though named in the warrant, asserts that he is actually

innocent; and (3) the police come to believe that claim. In those

circumstances, can the officers be held liable under 42 U.S.C.

1983 for their refusal unilaterally to release the person whom they

have arrested? The district court answered this question

unconditionally in the affirmative. We reverse.

I. BACKGROUND

This case had its genesis in an arrest that occurred in

Middleboro, Massachusetts, on September 17, 1994, when a state

trooper stopped David Buckley for driving under the influence of

alcohol. Buckley (who had no driver's license or other

identification on his person) palmed himself off to the arresting

officer as William Brady and supplemented this misidentification

with Brady's authentic address, date of birth, and social security

number. When the imposter failed to appear in court to respond to

the charge, a warrant issued in Brady's name.

That warrant was still outstanding on Saturday evening,

March 4, 1995, when the Rockland police department received word of

a brawl. The officer who responded to the scene encountered

plaintiff-appellee William Brady and detained him because of the

outstanding warrant, unaware that he had nabbed the real William

Brady, not the poseur whose default had inspired the issuance of

process.

Informed that the warrant had borne fruit, a

Massachusetts state trooper, Thomas Majenski, made a beeline for

the Rockland station house and assisted in transporting Brady to

the state police barracks in Bourne. There, other troopers placed

him in a holding cell. From the outset, Brady proclaimed his

innocence, insisting that he had not been stopped for drunk driving

in Middleboro the previous year.

Shortly after Brady's arrival, his new custodians began

looking into his protested innocence. An examination of the

original arrest report (Report No. 1), transmitted by facsimile

from Middleboro, revealed certain discrepancies when compared with

the Rockland arrest report (Report No. 2) (e.g., Report No. 1

indicated that Brady had a tattoo and that his mother's maiden name

was "Kowalski," whereas Report No. 2 noted no tattoos and listed

the detainee's mother's maiden name as "Kozloski"). Moreover, the

particulars concerning height, weight, hair and eye color did not

correlate precisely. Trooper Steven Vrona proceeded to contact the

officer who had cited the allegedly inebriated motorist, and this

conversation provided further reason to believe that Brady probably

was not the person who had been stopped in Middleboro.

Suspecting that they might have the wrong man

(notwithstanding the exact match between the name that appeared on

the warrant and the name of the person in custody), the troopers

unsuccessfully attempted to glean information from Brady about who

might have preempted his identity. They then essayed to arrange

his release on bail. At around midnight, a bail commissioner

arrived at the barracks in response to the troopers' importuning

and offered to turn Brady loose on personal recognizance upon his

(Brady's) execution of an agreement to appear voluntarily for

arraignment. Brady declined, apparently fearing that he might

somehow inculpate himself by signing the paper. On Sunday, March

5, the troopers tried to involve an attorney on Brady's behalf, but

their efforts came to naught. The next day, Brady was taken to the

first available court session, arraigned, and released. He had

spent a day and a half in custody. The charges against him

eventually were dismissed.

Brady sued under 42 U.S.C. 1983, claiming that the

troopers had violated his right to be free from unreasonable

seizures and wrongful detention. See U.S. Const. amends. IV & XIV,

1. Although he did not challenge either the validity of the

default warrant or the propriety of the initial arrest, he

contended that the troopers had a constitutional obligation to

release him from custody, despite the command of the facially valid

warrant, once it had become apparent to them that they were holding

the wrong person.

The defendants moved for summary judgment, asseverating

that their handling of the situation had not violated Brady's

rights, and that, in all events, the doctrine of qualified immunity

shielded them from liability for money damages. The district court

granted brevis disposition in favor of Colonel Charles Henderson

(the state police superintendent) and Majenski (whose only

involvement had been in ferrying Brady from Rockland to Bourne),

but it denied similar relief to the four troopers who served as

Brady's principal custodians at the Bourne barracks (Vrona,

Sergeant Maryann Dill, and Troopers Kenneth J. Hudson, Jr., and

Douglas Mendes). See Brady v. Dill, 24 F. Supp.2d 129 (D. Mass.

1998). The quartet of disappointed troopers then prosecuted this

interlocutory appeal. See Camilo-Robles v. Zapata, F.3d ,

(1st Cir. 1999) [1999 WL 223051, at *4] (explaining the basis

on which public officials may bring interlocutory appeals from

pretrial orders rejecting assertions of qualified immunity).

II. DISCUSSION

When qualified immunity is at issue, an inquiring court

first must ask whether the Constitution recognizes the right

asserted by the plaintiff. See Conn v. Gabbert, 119 S. Ct. 1292,

1295 (1999). In this instance, Brady argues that the Fourth

Amendment's prohibition against unreasonable seizures obligates

officers who have made a "matched" arrest pursuant to a facially

valid warrant (i.e., an arrest in which the suspect's identity

matches the stated identity of the person denominated in the

warrant) to release the person unilaterally if and when they come

to believe that he is innocent. We think that this claim, as it

relates to the facts of this case, is foreclosed by Baker v.

McCollan, 443 U.S. 137 (1979).

Like this case, Baker involved the "matched" arrest, over

vigorous protest, of a victim of mistaken identities pursuant to

what was, on its face, a valid warrant. The sheriff's office

detained McCollan for several days, releasing him only after

comparing his visage to a photograph of the wanted man (McCollan's

brother, who, as matters turned out, had used McCollan's

identification when originally apprehended). See id. at 140-41.

McCollan subsequently sued the sheriff under section 1983, seeking

damages for the deprivation of his liberty. See id. at 141. The

district court directed a verdict in the sheriff's favor, but the

court of appeals reversed and remanded for a new trial. See

McCollan v. Tate, 575 F.2d 509, 511 (5th Cir. 1978). The Supreme

Court then granted the sheriff's certiorari petition. See Baker v.

McCollan, 439 U.S. 1114 (1979).

Although McCollan had framed his suit in terms of the

Fourteenth Amendment, the Court began by considering whether the

arrest itself had violated the Fourth Amendment. See Baker, 443

U.S. at 142-43 (noting that the Fourth Amendment has been

incorporated into the Fourteenth). The Court concluded that

because the warrant naming McCollan was valid on its face, probable

cause existed for the arrest and, hence, the Fourth Amendment was

not implicated. See id. at 143-44; see also Graham v. Connor, 490

U.S. 386, 396 (1989) (observing that, even if the wrong person is

arrested, there is no Fourth Amendment violation as long as the

arrest is based on probable cause) (citing cases).

Once the Fourth Amendment had dropped out of the

equation, the Court considered whether McCollan had been deprived

of any of the specific subset of procedural guarantees,

incorporated into the Fourteenth Amendment's Due Process Clause,

that come into play after completion of an arrest (e.g., the

prohibition against excessive bail, the guarantee of a speedy

trial, and the like). See Baker, 443 U.S. at 144-46 & n.3.

Because McCollan had not been deprived of any such rights, the

Court concluded that the complainant had failed to prove a

constitutional wrong. See id. at 145-47. While conceding that a

lengthy detainment in the face of repeated claims of innocence

might in extreme circumstances furnish the basis for a

constitutional violation, the Court was "quite certain that a

detention of three days over a New Year's weekend does not and

could not amount to such a deprivation." Id. at 145. In the

bargain, the Court also rejected, at least implicitly, any claim

that the detainment constituted a substantive due process

violation. See id. at 147-49 (Blackmun, J., concurring).

Baker is compelling here. Given that Brady does not

challenge the validity of the arrest itself he was, after all,

the very person named in the outstanding warrant the Fourth

Amendment (which governs the legitimacy of the arrest and its

incidents) is not at issue. See id. at 143-44. The question,

then, is whether Brady's post-arrest procedural guarantees were

abridged. To prevail on such a battleground, Brady must do more

than show that the troopers made a mistake. See id. at 145

(treating the fact that McCollan was innocent of the charges

underlying the warrant as "largely irrelevant to his claim of

deprivation of liberty without due process of law").

In all events, the answer to the question is in the

negative. The record shows beyond peradventure of doubt that the

appellants afforded Brady more than the full panoply of post-arrest

rights that the Constitution demands: despite the fact that he was

the person designated in the default warrant, the troopers went to

great pains to gather information bearing on his situation, tried

to assist in securing his prompt release, and arraigned him before

an impartial magistrate at the earliest opportunity. Under these

circumstances, there is no foundation for a claim that Brady's

post-arrest rights were abridged.

Viewed through the Baker prism, this conclusion

effectively ends the matter. Because, under parallel

circumstances, the Supreme Court pronounced a three-day detention

as failing to constitute a deprivation of liberty without due

process, it would take circumstances much more egregious than

Brady's for us to conclude that a weekend detention of

approximately thirty-six hours, accompanied by a concerted effort

on the part of the police to secure the detainee's release,

resulted in a wrong of constitutional dimensions. Accord Sanchez

v. Swyden, 139 F.3d 464, 468-69 (5th Cir. 1998) (rejecting section

1983 claim premised on similar factual circumstances on the

authority of Baker).

In an effort to escape Baker's deadly embrace, Brady

urges us to read the Court's words narrowly. In his view, Baker

stands only for the rule that when a person in custody protests his

innocence, police officers have no affirmative obligation to

investigate. Baker, Brady maintains, does not address situations

in which police officers, after an arrest, do investigate and come

to possess "actual knowledge" that the detained person, though

named in an outstanding warrant, is a victim of mistaken

identities. In such an eventuality, Brady posits, the Constitution

requires the officers to release the detainee without further ado.

The district court endorsed this cramped reading of Baker and

refused to grant the appellants' motion for summary disposition

because it perceived a factual dispute as to whether they had

actual knowledge of Brady's innocence. See Brady, 24 F. Supp.2d

at 134-35.

To support this ruling, Brady cites to Gay v. Wall, 761

F.2d 175 (4th Cir. 1985). There, a warrant had issued for Gay's

arrest after two eyewitnesses had identified him as the perpetrator

of a crime. See id. at 176. Acting upon the warrant, the police

arrested Gay, kept him in custody for several weeks, and released

him only after they had arrested someone else. See id. Gay sued

under section 1983, alleging that, as early as the day of the

arrest, the police officers were certain that he was innocent and

had so stated, yet nonetheless kept him in custody for several

weeks. See id. Thus, Gay asserted, the officers had "knowingly,

unlawfully, violently, and without probable cause" arrested him,

depriving him of an array of constitutional rights. See id.

(internal quotation marks omitted).

Although the district court had granted summary judgment

in favor of the defendants on the authority of Baker, a panel of

the Fourth Circuit reversed, maintaining that Baker does "not

involve actual knowledge of the defendant's innocence, but rather

the failure to take affirmative steps to determine his innocence."

Id. at 178-79. Thus, the panel concluded, if the plaintiff's

factual allegations could be proven, "the defendants' conduct may

well be actionable under 1983." Id. at 179.

We do not believe that Brady's reliance on Gay removes

his case from Baker's compass. Brady's minor premise is unarguably

correct: the Baker Court declined to impose upon police officers

an affirmative duty of investigating every claim of innocence

raised during a relatively short period of detention. See Baker,

443 U.S. at 145-46. But his major premise that the police must

unilaterally release a person detained pursuant to a facially valid

warrant directing his arrest if they conclude that he is innocent

is too much of a stretch.

Gay is distinguishable, for the detention there lasted

much longer and the arrest itself was on shaky ground. Equally as

important, the Fourth Circuit has backed away from Gay. In Brooks

v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996), the court,

characterizing Gay as a case that stands for the proposition "that

a defendant is deprived of substantive due process by continued

prosecution in the absence of probable cause," stated that Gay's

foundation had been irretrievably compromised by more recent

Supreme Court decisions. See Brooks, 85 F.3d at 184 n.6 (citing,

inter alia, Albright v. Oliver, 510 U.S. 266 (1994)).

To be sure, Brady does not cast his argument in terms of

substantive due process; instead, he endeavors to use Gay as a

wedge to extend the Fourth Amendment's protections to the post-

arrest context. We doubt that Gay, fairly read, supports this

gloss (although it is difficult to tell, for Gay leaves us guessing

as to what act by the police officers the panel thought was

wrongful and which specific constitutional provision the panel

suspected the officers might have violated). If, however, Gay is

to be construed in this free-wheeling manner, we must reject it as

antithetical both to the teachings of Baker and to this court's

pronouncements in Thompson v. Olson, 798 F.2d 552 (1st Cir. 1986).

We begin with Baker. Brady's position clashes head-on

with the Baker Court's conclusion that once a "matched" arrest

pursuant to a facially valid warrant supported by probable cause

has been completed, a detainee's protections from unlawful custody

no longer repose in the Fourth Amendment. See Baker, 443

U.S. at 143-44; see also Brothers v. Klevenhagen, 28 F.3d 452, 455-

56 (5th Cir. 1994) (explaining that once an arrest is complete, a

criminal defendant's protection no longer emanates from the Fourth

Amendment, but from other rights recognized by the Due Process

Clause); Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir. 1992)

(similar); cf. Brooks, 85 F.3d at 184 (concluding that the Fourth

Amendment does not require a police officer to attempt to halt

criminal proceedings when he concludes that the criminal defendant

is innocent). As Baker teaches, "[t]he Constitution does not

guarantee that only the guilty will be arrested." 443 U.S. at 145.

This disclaimer is not as harsh as it might seem.

Persons who are arrested enjoy "manifold procedural protections,"

quite apart from those embodied in the Fourth Amendment, that allow

them to establish their innocence. Id. Our legal system

effectuates these procedural protections in a manner that adds

further safeguards for the innocent by placing the "ultimate

determination of [the arrestee's] claims of innocence . . . in the

hands of the judge and the jury." Id. at 146. Baker thus

venerates the separation of functions among various government

actors. See id. at 145 (endorsing a "reasonable division of

functions between law enforcement officers, committing magistrates,

and judicial officers" as "entirely consistent with 'due process of

law'"). This respect for the separation of functions, the

significance of which the Court has noted in related contexts, see,

e.g., Gerstein v. Pugh, 420 U.S. 103, 117-18 (1975), largely

explains why the Baker Court declined to impose on police officers

an affirmative duty of investigating claims of innocence. The

same principle also bears on why the Court deemed adherence to the

archetypical post-arrest due process guarantees sufficient to

protect McCollan's rights (and, ultimately, to defeat his section

1983 claim).

We hewed to this very line in Thompson which, as a

precedent of this court, further binds us in our consideration of

the case at hand. See Williams v. Ashland Eng'g Co., 45 F.3d 588,

592 (1st Cir. 1995) (outlining the parameters of the law of the

circuit doctrine). Thompson involved a warrantless arrest in which

the police officer himself had made the initial probable cause

determination. The plaintiff then filed a section 1983 suit

founded on a theory of substantive due process, coupled with a

pendent state-law false imprisonment claim. In discussing the

latter, we noted the general rule, which we considered applicable

to cases of warrantless arrests, that "once the arrest has been

properly effected, it is the magistrate and not the policeman who

should decide whether probable cause has dissipated to such an

extent following arrest that the suspect should be released." Id.

at 556; accord Romero v. Fay, 45 F.3d 1472, 1481 (10th Cir. 1994)

(rejecting a section 1983 claim based on the police's refusal to

release an individual who maintained his innocence after a

warrantless arrest in light of Baker's "recognition that the

judicial system represents the proper forum in which to determine

the innocence of an arrestee"). If the rule we recognized in

Thompson applies to a warrantless arrest, it must apply, a

fortiori, to an arrest of a person named in a facially valid

warrant.

Important considerations undergird the separation of

functions recognized in Baker and Thompson, and those

considerations are at their zenith when a person who is named in a

facially valid warrant, supported by probable cause, is arrested

pursuant to that warrant. When such a person asserts that he is a

victim of mistaken identities, he in effect is pressing a claim of

innocence in fact a claim not analytically distinct from any

other factual defense (say, an alibi defense or a defense premised

on a lack of specific intent) tendered by a person whom the police

arrest in pursuance of a warrant issued by a judge or magistrate.

Regardless of the merits of the defense, our legal system simply

does not rely on police officers to determine its bona fides, even

though they may have information bearing on that ultimate question

and even though they may harbor strong and informed opinions one

way or the other. To the contrary, once probable cause has been

established, a warrant issued, and an arrest perfected, the

ordinary course is for the prosecutor to decide whether to go

forward, and if he elects to proceed, for the judicial branch to

make the final ascertainment of guilt or innocence not for the

police to take matters into their own hands.

One reason for this allocation of decisionmaking

responsibility is that the prosecutor, the judge, and the jury are

institutionally better equipped to make such determinations. The

prosecutor, as the official responsible for proving guilt, has the

capacity and the armamentarium to assemble and assess all the

existing evidence and to evaluate whether there is proof enough to

press charges. The judge, as a neutral and detached factfinder,

benefits from the formal mechanisms of introduction and

consideration of proof (not the least of which is cross-

examination) that give his ultimate determination the degree of

reliability that our system of justice deems essential to ensure

fairness. The jury, similarly, is positioned to make informed

judgments as to guilt or innocence upon receipt of tested proof and

legal instructions.

The police officer assumes a different posture. Though

a trained investigator, he often receives information over time in

bits and pieces, and does not have available the same means for

marshaling the evidence or the same tools for assessing conflicting

evidence ex post. Consequently, in a situation in which a warrant

has issued upon probable cause, a police officer is not called upon

either to exercise discretion or to weigh the proof. Rather, his

obligation is more straightforward: to execute the warrant which

is, after all, a judicially-approved order according to its tenor

and terms, detaining the individual named therein. To place on

police officers the additional burden of determining, after a

legitimate arrest pursuant to a facially valid warrant, whether the

person detained is or is not the guilty party would blur the usual

separation of functions. The Constitution imposes no such burden

on the police. Cf. Thompson, 798 F.2d at 556 (stating that "having

once determined that there is probable cause to arrest, an officer

should not be required to reassess [this] probable cause conclusion

at every turn, whether faced with the discovery of some new

evidence or a suspect's self-exonerating explanation from the back

of a squad car").

It is, moreover, impossible to subscribe to the wistful

supposition (shared by Brady, the district court, and our

concurring brother) that police officers who must make conclusions

from conflicting evidence gathered during a post-arrest

investigation may come to "know" that an arrestee is innocent.

See Brady, 24 F. Supp.2d at 134. Absent personal knowledge of

Brady's innocence and Brady does not aver that any of the

appellants were percipient witnesses to the drunk driving or its

immediate aftermath the worst one can say about the troopers who

continued to hold Brady in custody is that they came to believe,

with some degree of subjective certainty, that the man they had

arrested, though named in the warrant, was innocent of the

underlying charge. This is not knowledge, but subjective belief

even when embellished by declarative prepositional phrases. See

post at 30 (suggesting that police officers may "learn to a

certainty" of a detainee's innocence); id. at 36 (suggesting that

officers may "know to a certainty" that they are holding the wrong

man). Regardless of rhetoric, this kind of subjective belief,

without more, is generally insufficient to justify a police

officer's unilateral release of a person who has been lawfully

arrested pursuant to a valid judicial order. Cf., e.g., United

States v. Whren, 517 U.S. 806, 811-13 (1996) (explaining that

police officers' subjective intentions are irrelevant to Fourth

Amendment probable cause analyses); Graham, 490 U.S. at 397

(reiterating that subjective intent plays no role in assessing the

reasonableness of police officers' conduct under the Fourth

Amendment).

To illustrate the point, it is readily apparent that

Brady's claim that the troopers had "actual knowledge" of his

innocence rests on the assumption that the discrepancies between

the two arrest reports, coupled with Vrona's call to the trooper

who had stopped the ostensibly inebriated driver in Middleboro,

were sufficient to demonstrate conclusively that he was a victim of

mistaken identities. What seems like a strong argument with the

benefit of hindsight is much more dubious when matters are viewed

ex ante. The discrepancies involved things like Brady's mother's

maiden name ("Kozloski" as opposed to ""Kowalski"), the evanescent

tattoo, and certain divergent physical traits. But we live in an

age where altering physical features may be accomplished with

facility, see Blackwell v. Barton, 34 F.3d 298, 304 (5th Cir.

1994), where clerical errors in recording, receiving, or

transmitting data are commonplace, see United States v. De Leon-

Reyna, 930 F.2d 396, 398-99 (5th Cir. 1991) (en banc) (per curiam),

and where descriptive inaccuracies can occur easily. Thus, courts

have concluded with some regularity that relatively minor

discrepancies in physical features or other data do not render

unreasonable an arrest pursuant to a facially valid warrant. See

White v. Olig, 56 F.3d 817, 820 (7th Cir. 1995); Rodriguez v.

United States, 54 F.3d 41, 46-47 (1st Cir. 1995); Blackwell, 34

F.3d at 304; Thompson v. Prince William County, 753 F.2d 363, 364-

65 (4th Cir. 1985); Johnson v. Miller, 680 F.2d 39, 41 (7th Cir.

1982).

The logic underlying these pre-arrest cases applies even

more forcefully to discrepancies that come to light only after an

arrest has been accomplished. The analogy therefore buttresses

this court's earlier intuition that the initial determination of

probable cause should not be undone by a police officer's

assessment of post-arrest evidence that bears adversely on that

initial finding. See Thompson, 798 F.2d at 553, 556. Were the law

otherwise, there is a considerable risk that a police officer,

subjectively convinced that he has the wrong person, might turn

loose a wanted criminal.

To complete the picture, we note that Brady's position

presents significant practical problems. To state the obvious, a

warrant is a judicial order authorizing an arrest, and, as long as

the police are acting in compliance with that order, it is

surpassingly difficult to fathom why the proper method of

challenging the ensuing detainment should be something other than

a prompt hearing before a magistrate. Additionally, the

implications of holding the police responsible for not releasing an

individual held under a facially valid warrant that bears his name

as evidence accumulates pointing to others poses such complexities

that it is not constitutionally unreasonable to leave such

decisions to the magistrate. Among other things, a contrary rule

would create an incentive for police officers not to investigate

claims of innocence at all, for fear of incurring liability should

they uncover information that would cast doubt upon the putative

offender's guilt.

Perhaps more insidious, Brady's position has the

potential of turning police stations into tribunals for making

preliminary determinations of guilt or innocence an eventuality

that Baker explicitly disavows. See Baker, 443 U.S. at 145-46

(refusing to recognize a constitutional duty on the police's part

to investigate a detainee's innocence). And, once police feel

pressured to make such decisions, they may encroach upon the

judiciary's functions, denigrating the authority of warrants issued

under the auspices of judicial officers. Should that come to pass,

the concerns about unbridled police action that the Gerstein Court

underscored, 420 U.S. at 117-18, may be realized. Such a

happenstance would pose a much greater danger to an ordered

conception of liberty than the occasional snafu that the separation

of functions regime thus far has produced.

All this is not to say that a police officer may treat

evidence of innocence with impunity. He may not. See Thompson,

798 F.2d at 556 (noting that an officer may not, after the initial

finding of probable cause, "close his eyes to all subsequent

developments"). One standard police function is to provide

information to the prosecutor and the courts. Thus, a police

officer sometimes may be liable if he fails to apprise the

prosecutor or a judicial officer of known exculpatory information.

See Hart v. O'Brien, 127 F.3d 424, 446-47 (5th Cir. 1997), cert.

denied, 119 S. Ct. 868 (1999); Sanders v. English, 950 F.2d 1152,

1162 (5th Cir. 1992); Jones v. City of Chicago, 856 F.2d 985, 992-

94 (7th Cir. 1988); but see Taylor v. Waters, 81 F.3d 429, 435-37

(4th Cir. 1996). In these cases, the constitutional wrong results

from the officer's failure to deliver material information to

competent authorities. In that respect, the cited cases are unlike

the case at bar: when a police officer acts as an information

provider, he may be obliged to reveal exculpatory facts (bearing

either on innocence or on probable cause) to a prosecutor or a

judicial officer, cf. United States v. Agurs, 427 U.S. 97, 111-13

(1976) (concluding that prosecutor has a duty to reveal material

exculpatory evidence even in the absence of a specific request),

but the Constitution imposes no parallel duty on a police officer

to function as a decisionmaker in order to determine the

dissipation vel non of probable cause or the actual innocence of a

person in custody. In such post-arrest cases, it is ordinarily

sufficient for the police officer to bring the relevant information

to the attention of the prosecutor or the proper judicial official

in a timeous fashion.

We say "ordinarily" because we do not mean to suggest

that under no circumstances can such a duty arise. Thus, despite

the Court's recent efforts at containment of substantive due

process initiatives, see, e.g., Collins v. City of Harker Heights,

503 U.S. 115, 125 (1992), we understand Baker to leave open the

possibility that, under extreme circumstances, a plaintiff may be

able to press such a claim. Then-Justice Rehnquist, writing for

the Court in Baker, took pains to note that the Court was not

speaking in absolute terms, as if writing a rule of plane geometry.

See Baker, 443 U.S. at 144-45. Depending upon factors such as the

length of the detention, the behavior of the police, the source and

quality of the information available to them, and the nature of the

pretrial procedures afforded by local law, there may be

circumstances so egregious as to ground a substantive due process

claim. See, e.g., Gray v. Cuyahoga County Sheriff's Dep't, 150

F.3d 579, 582-84 (6th Cir. 1998) (concluding that plaintiff had

stated a substantive due process claim when the police had detained

him for 41 days despite their possession of a photograph of the

wanted person "that bore virtually no resemblance" to him and the

ready availability of a physical description of the wanted person

which "detail[ed] certain permanent scars" that the plaintiff did

not have), cert. denied, 67 U.S.L.W. 3625 (May 17, 1999); Rodriguez

v. Roth, 516 F. Supp. 410, 412 (E.D. Pa. 1981) (reaching similar

conclusion where detention had lasted for 30 days). But Brady's

experience, while distasteful, does not sink to such depths.

To summarize, Brady who was targeted in a facially

valid warrant issued by a judicial officer upon probable cause

has no Fourth Amendment claim in respect to a detention that

followed a lawful arrest pursuant to that warrant. At least in

the case of the "matched" warrant here at issue, the officers'

subjective belief as to Brady's innocence does not justify an

"actual knowledge" exception to the general schema that Baker

prescribes. Finally, viewed as a matter of due process, Brady's

circumstances do not go beyond the boundaries of McCollan's (the

plaintiff in Baker). Accordingly, the district court should have

granted the appellants' motion for summary judgment.

We add a coda. Even had we concluded that the record

might support a finding that the troopers infringed on Brady's

constitutional rights, we nonetheless would uphold their request

for summary judgment based on the doctrine of qualified immunity.

We explain briefly.

To determine a defendant's eligibility for qualified

immunity, courts must define the right asserted by the plaintiff at

an appropriate level of generality and ask whether, so

characterized, that right was clearly established when the harm-

inducing conduct allegedly took place. See Anderson v. Creighton,

483 U.S. 635, 639 (1987). This does not mean that a right is

clearly established only if there is precedent of considerable

factual similarity. See id. at 640 (explaining that a general rule

of constitutional law identified by precedent may clearly apply to

the specific conduct at issue, even though "the very action in

question has [not] previously been held unlawful"). It does mean,

however, that the law must have defined the right in a quite

specific manner, and that the announcement of the rule establishing

the right must have been unambiguous and widespread, such that the

unlawfulness of particular conduct will be apparent ex ante to

reasonable public officials. See Wilson v. Layne, S. Ct. ,

(1999) [1999 WL 320817, at *8-*9]; Ringuette v. City of Fall

River, 146 F.3d 1, 4 (1st Cir. 1998); Nereida-Gonzalez v. Tirado-

Delgado, 990 F.2d 701, 704 (1st Cir. 1993). After all, qualified

immunity for public officials serves important societal purposes,

and it is therefore meant to protect "all but the plainly

incompetent or those who knowingly violate the law." Malley v.

Briggs, 475 U.S. 335, 341 (1986).

Here, the troopers scrupulously executed a judicial order

the arrest warrant that bore Brady's name according to its

terms. Their reliance on that warrant appears to have been

objectively reasonable. Cf. id. at 345. Insofar as their failure

to release Brady unilaterally once they began to believe that he

was innocent, that conduct, under the case law discussed supra,

likewise appears to be objectively reasonable. Gay is the only

case that seems to support Brady's assertion of a post-arrest

constitutional right to be released unilaterally by police officers

who come to believe that a person duly apprehended is, in fact,

innocent. That case is in obvious tension with Baker and Thompson,

and its precedential value is highly suspect in the circuit of its

origin. It is, therefore, too slender a reed to ward off a finding

of qualified immunity.

The Supreme Court recently held that an asserted right

was not clearly established where the plaintiffs were unable to

cite "any cases of controlling authority in their jurisdiction at

the time of the incident which clearly established the rule on

which they [sought] to rely," and equally failed to "identif[y] a

consensus of cases of persuasive authority such that a reasonable

officer could not have believed that his actions were lawful."

Wilson, S. Ct. at [1999 WL 320817, at *9]. The Wilson

Court's reasoning is perfectly tailored to the circumstances here.

Thompson, which represents the governing law of this circuit,

plainly did not render the troopers' actions unlawful, and the

tenuous status of Gay falls far short of the "persuasive authority"

that Wilson envisions.

III. CONCLUSION

The Constitution does not guarantee that the police will

never blunder when making arrests, but it establishes certain

procedures to ensure that most mistakes will be detected and

rectified. Those mechanisms worked in this case. Brady was taken

before a judge at the earliest opportunity, promptly released, and

thereafter acquitted of any wrongdoing. While we are mindful of

the indignities that accompany arrest and subsequent detainment, we

are also mindful of the dangers inherent in tipping the delicate

constitutional balance that separates the functions assigned to

different departments of government. Far from eliminating errors,

imposing liability on police officers for honest mistakes of this

kind especially in cases where, from all indications, the

officers acted with reasonable dispatch to compensate for any bevue

not only would have a detrimental impact on effective law

enforcement, but also would threaten the separation of functions

that our constitutional system has deployed as a means of

minimizing the occurrence (and mitigating the adverse effects) of

those very errors.

We need go no further. There is no persuasive authority

to support Brady's contention that he was deprived of liberty

without due process of law as a result of his regrettable thirty-

six hour detention. The appellants are therefore entitled to

summary judgment.

Reversed.

Concurring Opinion follows POLLAK, District Judge (concurring). Plaintiff William

Brady and his wife, co-plaintiff Theresa Brady, have jointly

advanced the federal claim that when law enforcement officers learn

to a certainty that a person they are holding in custody pursuant

to a valid arrest warrant is in fact not the perpetrator of the

offense giving rise to the arrest warrant, the law enforcement

officers then have an obligation under the Constitution to release

that person from custody, an obligation assertable in a law suit

brought pursuant to 42 U.S.C. 1983. (The plaintiffs have also

advanced certain claims under Massachusetts law, but the proper

disposition of those claims is not at issue on this appeal). Since

Theresa Brady's share of the federal claim is entirely derivative

from, and hence contingent on the viability of, the share of the

federal claim put forward by her husband, I will, for convenience

of presentation in the discussion which follows, refer to the

plaintiffs' federal claims in the singular -- "the Brady claim," or

"Brady's claim". Defendant police officers Maryann Dill, Kenneth

J. Hudson, Jr., Douglas Mendes and Steve Vrona have questioned

whether the Brady claim has any constitutional footing; further,

defendants have contended that -- assuming arguendo that the Brady

claim is a cognizable constitutional claim -- the constitutional

principle undergirding that claim was not clearly established at

the time (March 4th to March 6th, 1995) William Brady was arrested

and held in custody, and hence that the defendants would be

shielded from any putative liability by qualified immunity.

The District Court, in ruling on defendants' motion for

summary judgment, concluded that Brady's claim is firmly rooted in

the Fourth Amendment: "If a jury finds that defendants knew that

Brady was not really the man wanted by the warrant, then they could

also conclude that the defendants violated Brady's Fourth Amendment

right to be free from unreasonable seizure." Brady v. Dill, 24 F.

Supp. 2d, 129, 135 (D. Mass. 1998). Further, the District Court

found that the Fourth Amendment right sought to be vindicated was

clearly established; the District Court rested this aspect of its

analysis on the Supreme Court's recognition, in Maryland v.

Garrison, 480 U.S. 79, 86-87 (1980), of the obligation of police

officers executing a search warrant to desist from searching

premises lying outside the scope of the search warrant the moment

the officers recognize that they have travelled beyond the

warrant's boundaries. Accordingly, the District Court -- while

granting summary judgment in favor of two defendant officers who

clearly played no role in Brady's allegedly extended detention --

declined to grant summary judgment in favor of Officers Dill,

Hudson, Mendes and Vrona. The question whether there came a time at

which "defendants did know ...that they had the wrong man" was, in

the District Court's view, "the quintessential jury question."

Brady v. Dill, supra, 24 F. Supp. 2d at 135 (emphasis in original).

Disagreeing with both aspects of the District Court's

ruling, this court concludes that (1) Brady has not presented a

viable constitutional claim, and (2) even if the claim were to be

regarded as having persuasive doctrinal footing, the published case

law which can be said to demonstrate some measure of antecedent

credence for the claim is so meager as to be "too slender a reed to

ward off a finding of qualified immunity." In sum, the court is of

the view that defendants are doubly entitled to summary judgment.

(However, this court's reversal of the judgment of the District

Court does not necessarily close this litigation: this court's

opinion is, properly, at pains "to direct the District Court to

dismiss Brady's state-law claims without prejudice for want of

federal jurisdiction," so that any potentially cognizable state-law

claims may be asserted in the Massachusetts courts).

On the question whether Brady has presented a viable

constitutional claim I respectfully disagree with the position

announced by this court. On the question whether defendants are

entitled to qualified immunity, I respectfully disagree with the

position announced by the District Court. This means that I concur

in the judgment of this court but not in the court's opinion. I

write separately to explicate the line of thinking that leads me to

differ with both courts.

I. Is the Brady claim a viable constitutional claim?

i

This court's opinion states: "We believe that [the Brady]

claim...is foreclosed by Baker v. McCollan, 443 U.S. 137 (1979)."

In Baker the Supreme Court held that a person arrested in

conformity with a validly issued warrant who was held in custody

for three days by a sheriff who made no real effort to investigate

the detainee's fully justified and readily documentable insistence

that, although named in the warrant, he was in fact not the person

who committed the offense charged, had no cognizable 1983 claim

against the sheriff for the three days of inappropriate detention.

While deeming Baker to be adversely dispositive of the claim

advanced in the case at bar, this court recognizes that Brady --

and the District Court -- have posited a reading of Baker that is

not preclusive of the Brady claim:

In an effort to escape Baker's deadly

embrace, Brady urges us to read the Court's

words narrowly. In his view, Baker stands

only for the rule that when a person in

custody protests his innocence, police

officers have no affirmative obligation to

investigate. Baker, Brady maintains, does not

address situations in which police officers,

after an arrest, come to possess "actual

knowledge" that the detained person, though

named in an outstanding warrant, is a victim

of mistaken identities. In such an

eventuality, Brady posits, the Constitution

requires the officers to release the detainee

without further ado. The district court

endorsed this cramped reading of Baker and

refused to grant the appellants' motion for

summary judgment disposition because it

perceived a factual dispute as to whether they

had actual knowledge of Brady's innocence.

Turning to what the Supreme Court wrote in Baker in the

paragraph which concludes its Fourteenth Amendment analysis, I find

it difficult to acquiesce in this court's characterization of the

Brady/district court interpretation of Baker as a "cramped

reading." What the Supreme Court wrote was this:

The Fourteenth Amendment does not

protect against all deprivations of liberty.

It protects only against deprivations of

liberty accomplished "without due process of

law." A reasonable division of functions

between law enforcement officers, committing

magistrates, and judicial officers -- all of

whom may be potential defendants in a 1983

action -- is entirely consistent with "due

process of law." Given the requirements that

arrest may be made only on probable cause and

that one detained be accorded a speedy trial,

we do not think a sheriff executing an arrest

warrant is required by the Constitution to

investigate independently every claim of

innocence, whether the claim is based on

mistaken identity or a defense such as lack of

requisite intent. Nor is the official charged

with maintaining custody of the accused named

in the warrant required by the Constitution to

perform an error-free investigation of such a

claim. The ultimate determination of such

claims of innocence is placed in the hands of

the judge and the jury.

443 U.S. at 145-146 (footnote omitted).

The quoted paragraph announces two linked propositions of

constitutional law. These propositions govern claims brought, under

1983, by one arrested pursuant to a valid arrest warrant who,

notwithstanding that he is concededly the person named in the

warrant, promptly and continuously asserts his innocence, but who,

nonetheless, is not promptly released by the law enforcement

officers who arrested and/or subsequently detained him. The

propositions -- rendered in paraphrase -- are these: (1) The

"liberty" clause of the Fourteenth Amendment ("[N]or shall any

State deprive any person of life, liberty, or property without due

process of law") does not obligate a law enforcement officer

carrying out an arrest under a valid warrant to investigate claims

of innocence voiced by or on behalf of the person arrested. (2) The

"liberty" clause does not obligate an officer who, post-arrest, has

custody of a person validly arrested, to conduct an "error free"

(443 U.S. at 146) inquiry into claims of innocence advanced by or

on behalf of the person arrested and subsequently detained. (This

second proposition is not, as a matter of syntax, entirely devoid

of ambiguity: the proposition may be taken to mean that a custodial

officer is under no constitutional obligation to conduct an

inquiry, perfect or otherwise, into claims of innocence; or,

alternatively, the proposition may be taken to mean that, whether

or not there is deemed to be a constitutional obligation to

inquire, a custodial officer who undertakes to inquire has no

constitutional obligation to insure that the findings arrived at

are "error free.")

Neither of these two propositions addresses in terms --

or, I submit, by necessary implication -- the question posed in the

case at bar: when (1) law enforcement officers undertake to

investigate claims that a person in custody pursuant to a valid

arrest is innocent, and (2) the investigation produces information

that provides the officers with actual knowledge that the person in

custody is not the person who committed the crime, does the

"liberty" clause impose on the law enforcement officers an

obligation to release that person forthwith -- notwithstanding that

he is the person named in the arrest warrant -- because they know

to a certainty that he is innocent?

It may be urged that in transposing the quoted Baker

paragraph into two paraphrased propositions I have given the

Court's language short shrift by ignoring the paragraph's closing

sentence: "The ultimate determination of such [i.e., the

detainee's] claims of innocence is placed in the hands of the judge

and jury." 443 U.S. at 146. Quoting that sentence, this court

properly observes that "Baker thus venerates the separation of

functions among various government actors." So understood, the

distinction drawn by the Supreme Court between the conventional

role of law enforcement officers and the conventional role of

courts is clearly responsive to the issue posed in Baker -- namely,

whether a law enforcement officer has a constitutional duty to

investigate, and arrive at reliable findings with respect to,

claims that a person properly taken into custody is in fact (as

Baker was in fact) not the person who committed the alleged

offense. The answer to that question is in the negative for the

reason that, in the American scheme of things, it is generally the

case that determining innocence vel non is a judicial function

rather than a police function. But that general description of the

American scene does not answer the question posed by the case at

bar: in a circumstance in which, going beyond their constitutional

duty, law enforcement officers do investigate and in the process

learn that the person detained is indisputably not the perpetrator

of the offense charged, are not the law enforcement officers then

under a constitutional duty forthwith to release the person

detained? In arguing that this is a question that is not, as the

court holds, "foreclosed" by Baker, I would note that Baker's

attribution to the judiciary of institutional responsibility for

"[t]he...determination of...claims of innocence" characterized that

determination as the "ultimate" determination. Assigning to the

judicial branch "ultimate" responsibility for determining innocence

would not appear to preclude an earlier finding of innocence by law

enforcement officers of the executive branch. It might, indeed, be

thought to invite such executive intervention in the circumstance

-- the rare circumstance -- in which agents of the executive branch

acquire actual knowledge (as opposed to information establishing a

high degree of probability yet in some modest measure still open to

further inquiry) of the innocence of the person detained.

ii

In the foregoing subsection of this opinion I have

undertaken to summarize the broad construction of Baker presented

in the court's opinion; and then, to counter that broad

construction, I have undertaken to present, in summary form, a

reconstruction of Baker positing what I think is a plausible,

albeit less spacious, reading. Doubtless some will tend to regard

this revisionist reading as less a reconstruction than a

deconstruction -- or, more charitably, a desiccation. I must

acknowledge that the court has advanced some good arguments in

favor of its broad reading. To do justice to the court's arguments,

which are developed with considerable care, I quote from those

arguments at some length (footnote omitted):

Important considerations undergird the

separation of functions recognized in Baker

and Thompson [v. Olson, 798 F. 2d 552 (1st

Cir. 1986)(see supra, notes 1 and 2)], and

those considerations are at their zenith when

a person who is named in a facially valid

warrant, supported by probable cause, is

arrested pursuant to that warrant. When such

a person asserts that he is a victim of

mistaken identities, he in effect is pressing

a claim of innocence in fact -- a claim not

analytically distinct from any other factual

defense (say, an alibi defense or a defense

premised on a lack of specific intent)

tendered by a person whom the police arrest in

pursuance of a warrant issued by a judge or

magistrate. Regardless of the merits of the

defense, our legal system simply does not rely

on police officers to determine its bona

fides, even though they may have information

bearing on that ultimate question and even

though they may harbor strong and informed

opinions one way or the other. To the

contrary, once probable cause has been

established, a warrant issued, and an arrest

perfected, the ordinary course is for the

prosecutor to decide whether to go forward,

and if he elects to proceed, for the judicial

branch to make the final ascertainment of

guilt or innocence -- not for the police to

take matters into their own hands.

......

It is, moreover, impossible to

subscribe to Brady's (and the district

court's) supposition that police officers who

must make conclusions from conflicting

evidence gathered during a post-arrest

investigation may come to 'know' that an

arrestee is innocent. . . .Absent personal

knowledge of Brady's innocence -- and Brady

does not aver that any of the appellants were

percipient witnesses to the drunk driving or

its immediate aftermath -- the worst one can

say about the troopers who continued to hold

Brady in custody is that they came to believe,

with some degree of subjective certainty, that

the man they had arrested, though named in the

warrant, was innocent of the underlying

charge. This is not knowledge -- and this

kind of subjective belief, without more, is

generally insufficient to justify a police

officer's unilateral release of a person who

has been lawfully arrested pursuant to a valid

judicial order.

These are cogent arguments. But they are not, I think,

incontrovertible.

Let us consider just what it is that Brady contends. He

contends that: (1) the facially valid warrant pursuant to which he

was arrested named him rather than the real culprit because the

real culprit tricked the police by pretending to be Brady; and (2)

in response to Brady's protestations of innocence the police

inquired into the matter and soon came to realize that Brady was

not the man they wanted; but, (3) rather than releasing him at

once, the police kept Brady in custody for thirty-six hours until,

finally, Brady was brought before a magistrate who directed that he

be freed.

Now let us measure Brady's claim of innocence against the

analysis propounded by the court. According to the court, when a

person arrested pursuant to an arrest warrant that names him

"asserts that he is a victim of mistaken identities, he in effect

is pressing a claim of innocence in fact -- a claim not

analytically distinct from any other factual defense (say, an alibi

defense or a defense premised on a lack of specific intent)

tendered by a person whom the police arrest in pursuance of a

warrant issued by a judge or magistrate." I have no quarrel with

the proposition that such claims are not "analytically distinct."

But I would argue that such claims also are -- or at least may be

-- pragmatically very different. Thus -- subscribing in this

respect to the court's argument -- I find it very difficult to

posit a scenario in which a claim of "lack of specific intent"

could, within a few or even several days of dedicated police

investigation, be so painstakingly explored, intricately unraveled

and subtly evaluated as to lead the investigating officers to have

absolute assurance of the innocence of the person in custody. But

I have little difficulty in positing such a scenario with respect

to a claim of "mistaken identities." And I do not have to resort

to putting together a hypothetical case. Our doctrinal raw

materials offer us a real world case -- the case of Baker v.

McCollan. Linnie Carl McCollan -- so the Court narrated -- was

victimized by his brother Leonard. Leonard fabricated a copy of

Linnie's driving license with Leonard's photograph superimposed on

it. With the aid of this counterfeit identification, Leonard, when

arrested in October of 1972 in Potter County, Texas, for a

narcotics offense, orchestrated matters with such fraternal

devotion that he was booked and bailed -- and subsequently failed

to appear -- as Linnie. Wherefore, when, on December 26, 1972,

Linnie was pulled over by a Dallas police officer for going through

a red light, "[a] routine warrant check revealed that Linnie Carl

McCollan was wanted in Potter County, and respondent was taken into

custody over his protests of mistaken identification.." 443 U.S. at

141. For reasons not elaborated on in the Supreme Court's opinion,

or in Justice Stevens's dissent, notwithstanding the fact that the

Dallas Police Department promptly notified the Potter County

Sheriff's Department of Linnie's arrest, four days were to elapse

before Linnie was taken from Dallas to Potter County. What the

transpired, as the Court narrates it, was this:

On December 30, Potter County deputies took

custody of respondent and placed him in the

Potter County Jail in Amarillo. He remained

there until January 2, 1973, when officials

compared his appearance against a file

photograph of the wanted man and, recognizing

their error, released him.

Ibid.

Like the defendant police officers in the case at bar,

those who had Linnie Carl McCollan in charge were not "percipient

witnesses" of the offense charged against the person in custody:

that is, they had no "personal knowledge of [that person's]

innocence." But Linnie Carl McCollan's custodians did not conclude

that they had to wait for a judicial officer to dismiss the charges

and order Linnie released. "[R]ecognizing their error," they

"released him." Of course the Supreme Court did not say that it

was the constitutional duty of McCollan's custodians to release

McCollan on "recognizing their error." That issue -- which Brady's

claim presents to this court -- was not before the Baker Court. But

it is, I think, of at least passing interest that the Supreme

Court's narrative of the way in which McCollan's (belated) release

from custody was accomplished seems to treat it as a matter of

course.

It is my submission that the action Linnie Carl

McCollan's custodians took to release him when they knew to a

certainty that he was not their man was their constitutional duty.

The court disagrees. In terms of ultimate practical difference, the

gap separating my constitutional position from that of the court is

not a wide one, for the reason that, were my position to prevail,

there would, I think, be no more than a handful of cases in which

a plaintiff would be able to demonstrate to a fact-finder that

police officers kept someone in custody beyond a point in time at

which they knew to a certainty that the person in custody was not

the perpetrator of the offense charged. I employ the phrase "knew

to a certainty" advisedly. That would be my translation of the

phrase "actual knowledge" -- the phrase contended for by Brady and

relied upon by the District Court. Moreover, in explicating "knew

to a certainty," I would instruct the fact-finder that the

operative constitutional principle is the following: An affirmative

duty to release arises only if an arresting or custodial officer

ascertains beyond a reasonable doubt that the suspicion (probable

cause) which forms the basis for the privilege of arrest is

unfounded. (I have adapted this formulation -- almost verbatim --

from the formulation employed by this court in Thompson v. Olson,

supra, 798 F. 2d at 556, to describe the duty of an arresting

officer "following a legal warrantless arrest based on probable

cause." The Thompson formulation -- which was drawn from 134,

Comment f, of the Second Restatement of Torts -- is stated by this

court in today's opinion to be a principle of Maine law, not of

federal constitutional law. Possibly so; but, as I explain in

footnote 2, supra, I am not as agile as the court is in tracing,

let alone walking, the fine line between state and federal law

which the court discerns in its examination of Thompson. In any

event, whatever the scope -- just Maine law or also federal law --

of the Thompson formulation, I regard it as a useful source for the

constitutional principle I would deploy in cases such as the case

at bar).

If Brady's case were to go to trial, I would regard it as

highly unlikely that a jury charged in the manner I have just

described would find in his favor. I agree with the court that

"the worst one can say about the troopers who continued to hold

Brady in custody is that they came to believe, with some degree of

subjective certainty, that the man they had arrested, though named

in the warrant, was innocent of the underlying charge." But

although that is my view of the facts of record at the summary

judgment stage, I am persuaded that a jury might conceivably view

the facts differently. Which means that I agree with the District

Court's assessment that this is "the quintessential jury

question."

If the constitutional principle I have proposed were to

be adopted, it would be my expectation that concrete applications

of the principle would turn out to be few and far between. Does

the expectation that the proposed principle would rarely have

occasion to be vindicated mean that the proposed principle would

really be a sort of whimsical superfluity that would trivialize,

not augment, the Constitution? I am persuaded that the answer is

no. And I say this because, so it seems to me, to reject the

proposed principle -- to conclude that there is house room in the

American scene for law enforcement officers to keep a person in

custody for any appreciable length of time after they know to a

certainty that the person is not the culprit -- is to diminish what

is after all the central value of the text and of the spirit of the

Constitution: liberty.

II. Is the constitutional principle underlying Brady's claim

sufficiently clearly established so as to defeat the defendants'

assertion of qualified immunity?

At the end of its opinion, the court examines the

question whether, assuming arguendo the viability of Brady's

constitutional claim, the constitutional principle that Brady has

sought to vindicate is sufficiently clearly established so as to

defeat the defense of qualified immunity deployed by the defendant

law enforcement officers. The court answers that question in the

negative. I agree. The court's analysis seems to me entirely apt.

I would only add that the strength of the court's arguments against

the viability of Brady's claim, coupled with the dearth of case law

supporting my counter-arguments, seem to me to demonstrate

decisively that the Brady claim, even if the court were to accept

its theoretical cognizability, could not properly be pursued in

this case against these defendants. That is to say, when these

defendants did the things of which Brady has complained, they had

little ground for supposing that the Constitution imposed on them

the duty that I have attempted to formulate.

Conclusion

Although I disagree with the court's rejection of the

cognizability of Brady's constitutional claim, I acquiesce in the

court's view that the defendants are, in any event, shielded by

qualified immunity. Accordingly, I concur in the judgment of the

court.