Nicole Schneyder v. Gina Smith

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2367

_____________

NICOLE SCHNEYDER,

v.

GINA SMITH,

Appellant

v.

LAURA DAVIS;

DEFENDER ASSOCIATION OF PHILADELPHIA

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-06-cv-04986

District Judge: The Honorable Jan E. Dubois

_____________

Argued January 26, 2011

Before: McKEE, Chief Judge, SMITH, Circuit Judge,

and STEARNS, District Judge*

(Filed: July 29, 2011)

Peter Carr (Argued)

Alison J. Guest

Todd M. Mosser

Office of the District Attorney

Three South Penn Square

Philadelphia, PA 19107

Counsel for Appellant

Daniel Silverman (Argued)

Silverman & Associates, P.C.

1429 Walnut Street, Suite 1001

Philadelphia, PA 19102

Counsel for Appellee

________________

OPINION

________________

SMITH, Circuit Judge.

The Fourth Amendment guarantees the right of the

*

The Honorable Richard G. Stearns, United States District

Judge for the District of Massachusetts, sitting by designation.

2

people to be secure against unreasonable searches and

seizures. This case is about a seizure and presents questions

of whether and how the Constitution‘s guarantee applies in

the case of a material witness who was jailed for weeks on

end, even though the date of the trial in which she was to

testify had been pushed back several months. We hold that

the Fourth Amendment applies to such a detention, and that it

requires a prosecutor responsible for such a detention to

inform the judge who ordered the witness‘s incarceration of

any substantial change in the underlying circumstances. We

also conclude that the prosecutor in this case had ―fair

warning‖ of the constitutional right she is accused of

violating, and that she is therefore not shielded from liability

by the doctrine of qualified immunity. Finally, we reaffirm

our earlier holding that absolute prosecutorial immunity does

not apply. We will therefore affirm the District Court‘s order

denying summary judgment to the defendant.

I

Nicole Schneyder was an essential witness in

Pennsylvania‘s effort to bring Michael Overby to justice for

rape, robbery, and murder. After apparently being threatened

by Overby‘s family, Schneyder refused to testify, going so far

as to pull a knife on a police detective as he attempted to

arrest her for the purpose of compelling her appearance in

court. Schneyder successfully avoided capture for the

duration of Overby‘s first two trials, so the prosecution

offered her prior recorded statements in lieu of her live

testimony. This procedure presented obvious Confrontation

Clause problems, and Overby‘s conviction in the second trial

3

(the first ended in a hung jury) was overturned on appeal.

Commonwealth v. Overby, 809 A.2d 295 (Pa. 2002).1

Overby‘s third trial—at which Schneyder‘s live

testimony would be absolutely necessary—was set to begin

on February 2, 2005. Schneyder went into hiding as the trial

date approached, leaving the police unable to serve her with a

subpoena despite several attempts. Schneyder‘s mother

informed police on one of these occasions that her daughter

had no intention of coming into court.

On January 26, 2005, Philadelphia assistant district

attorney Gina Smith applied to Judge Rayford Means of the

Philadelphia Court of Common Pleas for a warrant

authorizing Schneyder‘s arrest as a material witness pursuant

to what is now Pa. R. Crim. P. 522.2 Rule 522(A) allows a

court to ―issue process‖ and ―set bail for any material

witness‖ for whom there is ―adequate cause for the court to

conclude that the witness will fail to appear when required if

not held in custody or released on bail.‖ Once process has

issued and the witness has been brought into court, Rule

522(B) directs that ―the court shall commit the witness to jail‖

if she is unable to fulfill the bail conditions—provided that

the court must release the witness if at any time thereafter she

1

On the fourth try, the Commonwealth succeeded in

convicting Overby of murder, robbery, and criminal conspiracy.

Schneyder apparently testified at that proceeding.

2

Rule 522 was formerly codified as Rule 4017. The text of

the Rule has not changed, although a new Comment was added in

2006 (after the events giving rise to this appeal) directing that

―[w]hen a material witness is to be detained, the court should

impose the least restrictive means of assuring that witness‘s

presence.‖

4

satisfies the court‘s demands. Smith‘s warrant application

averred that Schneyder‘s testimony was ―critical,‖ that she

―ha[d] been threatened by someone in the defendant‘s

family,‖ and that ―[g]iven her previous several failure[s] to

appear . . . it is highly unlikely that she will appear for trial.‖

Judge Means issued the warrant, and a police officer

apprehended Schneyder that night.

Judge Means scheduled a bail hearing for the next day

and appointed public defender Laura Davis3 to represent

Schneyder. Before the hearing, Judge Means met with Smith

and Davis in camera. At this off-the-record meeting, Judge

Means advised Smith that he intended to authorize

Schneyder‘s detention until trial, but instructed Smith to

inform him in the event that the trial was pushed back from

the scheduled date.4 On the record, Judge Means expressed

distaste for ―setting bail on people who are not accused of a

crime,‖ but nevertheless ordered Schneyder imprisoned when

she could not put up a $300,000 surety. The court also

advised the parties (the language in the transcript leaves

unclear precisely whom he was addressing): ―If the case

breaks down, let me know early and I‘ll let you out.‖ Judge

Means then went on:

I only intend to keep you on this bail until you

testify or the trial is concluded if you did have it

on February 2nd and the Commonwealth says,

we don‘t need you anymore, we‘re done with

you, okay, then I will want them to come back

3

Davis is named as a third-party defendant in this suit, but

she is not a party to this appeal.

4

Smith concedes this fact for purposes of the instant

motion but would contest it at trial.

5

to me and say, look, we don‘t have any need for

her. If they make a decision at some point on

January 31st, we changed our mind, we don‘t

even need this lady, come back to me so I can

bring her down and remove this.

The court ordered an informal status conference for February

14, 2005 to facilitate reassessment of the situation in the event

that the trial remained ongoing. According to Judge Means‘

affidavit, he ―explicitly placed the onus on Ms. Smith to

notify me if for any reason the case was continued or broke

down, as it was my clear intention that, in that event, I would

immediately release Ms. Schneyder from custody.‖ Further,

he averred that, ―[h]ad I been notified that the Overby case

had been continued, I would have immediately ordered Ms.

Schneyder‘s release.‖

When February 2 arrived, the Overby trial (over which

Judge Means was not presiding) was continued until May 25,

2005. Smith did not inform Judge Means of this fact,5 and

Schneyder remained in jail. Smith did not appear for the

scheduled February 14 status conference, which led Judge

Means to assume that the issue of Schneyder‘s detention had

been mooted by her release. Over the course of the next

several weeks, members of Schneyder‘s family contacted

Smith ―approximately 25 times‖ to inquire as to why she was

still in jail and to ask when she would be let go. Schneyder‘s

father died on February 28, and on March 1 Schneyder‘s

5

Smith concedes this point only for purposes of the motion

that has given rise to this appeal; she testified in her deposition that

she had appeared in Judge Means‘s courtroom more than once

between February 2 and February 14, and that she had informed

the judge and his staff of the continuance.

6

sister contacted Paul Conway, chief of the Philadelphia

Defender Association‘s Homicide Unit,6 in the hopes that he

could obtain Schneyder‘s release for the funeral. Conway

was able to secure only an order allowing the plaintiff to visit

the funeral home in handcuffs for a few minutes; Schneyder

was denied permission to attend the funeral itself.

In the process of obtaining the funeral home release,

Conway learned that the trial for which Schneyder was being

held was not set to start until late May. In Conway‘s view, ―it

wasn‘t right to keep her there‖ for such a long time, so he

began an effort to free Schneyder from jail. He started by

contacting Smith, but she initially refused to agree to

Schneyder‘s release. His next step was to ask that Schneyder

be allowed out on house arrest. In the course of preparing

that request, Conway made contact with Davis, the public

defender who had been assigned to Schneyder at the January

27 bail hearing. Davis provided him with her notes of that

hearing, and upon reading them Conway became convinced

that Judge Means had meant for Schneyder to be released in

the event that the Overby trial did not start on February 2.

Put in that context, the fact that Schneyder was still locked up

made Conway ―really angry.‖ He hustled to Judge Means‘

courtroom and (according to Conway‘s account) ―astonished‖

the judge by telling him that Schneyder was still in custody.

Judge Means ordered Schneyder discharged shortly

thereafter. By this time it was March 21, and Schneyder had

6

Prior opinions in this case have indicated that Conway

was a hired attorney when he was in fact a public defender

approached for assistance by Schneyder‘s family. See Odd v.

Malone, 538 F.3d 202, 206 (3d Cir. 2008); Schneyder v. Smith, 709

F. Supp. 2d 368, 373 (E.D. Pa. 2010).

7

been locked up for 54 days—48 of them after the February 2

continuance.

Schneyder sued Smith and the Philadelphia District

Attorney‘s office, filing a complaint which included claims

under 42 U.S.C. § 1983 and state law. Only the § 1983 claim

against Smith remains in the case; it alleges that Smith

violated Schneyder‘s Fourth Amendment rights ―by failing to

notify Judge Means or take any steps to have plaintiff

released from custody knowing that she would not be needed

as a witness in the underlying criminal case for several more

months.‖ The District Court initially granted Smith‘s Rule 12

motion to dismiss the § 1983 claim on the basis that she was

entitled to absolute prosecutorial immunity, but a panel of this

court reversed. Odd v. Malone, 538 F.3d 202 (3d Cir. 2008).7

After remand and discovery, Smith invoked both absolute and

qualified immunity and moved for summary judgment. The

District Court rejected Smith‘s arguments and denied the

motion. Schneyder v. Smith, 709 F. Supp. 2d 368 (E.D. Pa.

2010). This appeal ensued.

II

We have appellate jurisdiction under the collateral

order doctrine: ―28 U.S.C. § 1291 confers appellate

jurisdiction over the District Court‘s denial, at the summary-

judgment stage, of [a] defendant[‘s] claim that [she is]

entitled to absolute or qualified immunity, to the extent that

denial turns on questions of law.‖ Bayer v. Monroe Cnty.

Children & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009)

(citations omitted). There are no material factual disputes,

7

Schneyder‘s appeal was consolidated with the case of one

Korvell Odd; the caption on our prior opinion bears his name.

8

Smith having conceded various of the plaintiff‘s factual

averments for purposes of this motion.

We review the District Court‘s denial of summary

judgment de novo, applying the same test that the District

Court should have applied and viewing the facts in the light

most favorable to the nonmoving party. Id.

III

―The doctrine of qualified immunity protects

government officials ‗from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.‘‖ Pearson v. Callahan, 555 U.S. ---, 129 S. Ct.

808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). There are two related but distinct inquiries in a

qualified immunity case. One is whether the defendant‘s

conduct violated the plaintiff‘s civil rights; the other is

whether the right in question was clearly established at the

time of the violation. We conclude that both of these

questions should be answered affirmatively, and that Smith is

therefore not shielded by qualified immunity.

A

The Civil Rights Act of 1871, 42 U.S.C. § 1983,

provides that ―[e]very person who, under color of [state law],

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party

injured‖ in an appropriate action. Setting aside the

availability of immunity, the basic cause of action requires

9

that a § 1983 plaintiff prove two essential elements: (1) that

the conduct complained of was committed by a person acting

under color of state law; and (2) that the conduct deprived the

plaintiff of rights, privileges, or immunities secured by the

Constitution or laws of the United States. Kost v.

Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993) (citing Parratt v.

Taylor, 451 U.S. 527, 535 (1981)). There is no question that

Smith, who acted in her capacity as an assistant district

attorney, did so under color of state law. The question under

§ 1983 is therefore whether Smith‘s failure to advise Judge

Means of the continuance in Overby deprived Schneyder of a

constitutionally protected right. This inquiry can be

subdivided into the questions (1) whether Schneyder‘s

imprisonment violated one or more of her constitutional

rights, and, if so, (2) whether Smith‘s conduct caused the

illegal imprisonment.

1

To determine whether Schneyder has made out a

violation of her constitutional rights, we first must determine

what right she is asserting and whence in the Constitution that

right springs. The parties and the District Court have all

discussed the right at issue primarily in terms of the Fourth

Amendment‘s proscription of unreasonable seizures.

Superficially, at least, Schneyder‘s imprisonment meets the

Supreme Court‘s definition of a ―seizure‖: ―a Fourth

Amendment seizure [occurs] . . . when there is a

governmental termination of freedom of movement through

means intentionally applied.‖ Scott v. Harris, 550 U.S. 372,

381 (2007) (quoting Brower v. Cnty. of Inyo, 489 U.S. 593,

596–97 (1989)). Schneyder‘s freedom of movement was

obviously terminated, and there is ample evidence that Smith

intended that result. See Ashcroft v. al-Kidd (al-Kidd II), 563

10

U.S. ---, 131 S. Ct. 2074, 2080 (2010) (―An arrest, of course,

qualifies as a ‗seizure‘ of a ‗person‘ . . . , and so must be

reasonable under the circumstances.‖) (citation omitted).

There was, however, some suggestion at oral argument, and

in the briefs, that the Fourteenth Amendment‘s Due Process

Clause applies instead.8

The question of which Amendment applies is

answered, at least in this Circuit, by citation to Gallo v. City

of Philadelphia, 161 F.3d 217, 222–24 (3d Cir. 1998),

wherein we adopted Justice Ginsburg‘s ―continuing seizure‖

interpretation of the Fourth Amendment. See Albright v.

Oliver, 510 U.S. 266, 277–80 (1994) (Ginsburg, J.,

concurring). In her Albright concurrence, Justice Ginsburg

wrote:

At common law, an arrested person‘s seizure

was deemed to continue even after release from

official custody. See, e.g., 2 M. Hale, Pleas of

the Crown *124 (―he that is bailed, is in

supposition of law still in custody, and the

parties that take him to bail are in law his

keepers‖); 4 W. Blackstone, Commentaries

8

In order to argue that the Fourth Amendment is not

applicable—or at least that its applicability was not clearly

established—Smith‘s briefs distinguish ―seizures‖ from

―detentions,‖ arguing that at some point after the arrest

Schneyder‘s incarceration became a ―detention‖ not subject to the

Fourth Amendment. The unspoken corollary must be that

―detentions‖ are governed directly by the Due Process Clause;

otherwise Smith‘s proposed distinction would leave a ―detained‖

material witness without any constitutionally protected liberty

interest whatsoever.

11

*297 (bail in both civil and criminal cases is ―a

delivery or bailment, of a person to his sureties,

. . . he being supposed to continue in their

friendly custody, instead of going to gaol‖).

Id. at 277–78. The purpose of the arrest, regardless of the

nature of the case, ―was ‗only to compel an appearance in

court,‘ and ‗that purpose is equally answered, whether the

sheriff detains [the suspect‘s] person, or takes sufficient

security for his appearance, called bail.‘‖ Id. at 278 (citing 3

Blackstone, supra, at *290 (discussing civil cases); 4 id., at

*297 (explaining that the nature of bail is the same in criminal

and civil cases)). Pre-trial restrictions of liberty aimed at

securing a suspect‘s court attendance are all ―seizures‖ on this

view; the difference between detention in jail, release on

bond, and release subject to compliance with other conditions

is in the degree of restriction on the individual‘s liberty, not

in the kind of restriction. Id. Justice Ginsburg went on to

argue that ―[t]his view of the definition and duration of a

seizure comports with common sense and common

understanding.‖ Id. A person who is ―required to appear in

court at the state‘s command,‖ who may be (for instance)

―subject . . . to the condition that he seek formal permission

from the court . . . before exercising what would otherwise be

his unquestioned right to travel outside the jurisdiction,‖ and

who may suffer diminished employment prospects,

reputational harm, and ―the financial and emotional strain of

preparing a defense‖ continues to labor under a restriction of

his liberty interests even though he is not in custody. Id.

Thus even a defendant who is released pending trial ―is

scarcely at liberty; he remains apprehended, arrested in his

movements, indeed ‗seized‘ for trial, so long as he is bound to

appear in court and answer the state‘s charges. He is equally

12

bound to appear, and is hence ‗seized‘ for trial, when the state

employs the less strong-arm means of a summons in lieu of

arrest to secure his presence in court.‖ Id. at 279. On Justice

Ginsburg‘s theory, the plaintiff in Albright (also suing under

§ 1983 for a Fourth Amendment violation), ―remained

effectively ‗seized‘ for trial for so long as the prosecution

against him remained pending.‖ Id. The rationale is that a

government-imposed restriction on a person‘s liberty is a

seizure governed by the Fourth Amendment if its purpose is

to ensure that he appears in court. In contrast, if a pre-trial

detainee suffers a deprivation amounting to punishment, his

claim is governed by the Due Process Clause: ―[A] detainee

may not be punished prior to an adjudication of guilt in

accordance with due process of law.‖ Bell v. Wolfish, 441

U.S. 520, 535 (1979). And once a person has been convicted

and sentenced, his liberty may be restricted provided that he

received the process he was due and that the conditions and

duration of his punishment are not ―cruel‖ or ―unusual‖ under

the Eighth Amendment.9 But when the government restricts

the liberty of a person who has not been convicted of a crime

for the purpose of securing her court appearance, that

restriction is a Fourth Amendment seizure.

9

Similar reasoning explains why the detention of a person

who has been involuntarily committed, as well as the conditions of

his confinement, are governed by the Due Process Clause. See

Youngberg v. Romeo, 457 U.S. 307, 315–16 (1982). While the

initial arrest of such a person to compel his appearance at the

commitment proceeding might be governed by the Fourth

Amendment, once commitment has been ordered he is no longer

being detained for the purpose of ensuring that he will appear in

court. Thus he is no longer ―seized‖ for Fourth Amendment

purposes, and the requirements of due process take over.

13

We followed this analysis in Gallo, stating that it was

both ―compelling and supported by Supreme Court case law.‖

161 F.3d at 223. Applying Justice Ginsburg‘s reasoning, we

held that the plaintiff had been seized where he ―had to post a

$10,000 bond, . . . had to attend all court hearings including

his trial and arraignment, . . . was required to contact Pre-trial

Services on a weekly basis, and . . . was prohibited from

traveling outside New Jersey and Pennsylvania.‖ Id.

Similarly, in Johnson v. Knorr, 477 F.3d 75, 85 n.14 (3d Cir.

2007), we held that the plaintiff‘s detention in a cell for two

days, the requirement that he post bail, and the fact that he

was required to appear in court for a hearing constituted a

Fourth Amendment seizure. See also DiBella v. Borough of

Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (―Pre-trial

custody and some onerous types of pre-trial, non-custodial

restrictions constitute a Fourth Amendment seizure.‖). The

theory undergirding these decisions and Justice Ginsburg‘s

Albright concurrence is that substantial pre-trial restrictions

on liberty—most prominently, custodial detentions—are

―seizures‖ when they are imposed in order to compel a court

appearance.

We acknowledge that this theory may be in tension

with our statement in Torres v. McLaughlin, 163 F.3d 169,

174 (3d Cir. 1998), that ―the limits of Fourth Amendment

protection relate to the boundary between arrest and pre-trial

detention‖—the implication being that once the state‘s

conduct ceases to be an arrest and begins to constitute pre-

trial detention (wherever that line may be drawn), the seizure

ends and the Fourth Amendment no longer applies.10 The

10

We also acknowledge that other circuits have declined to

adopt Justice Ginsburg‘s theory. See, e.g., Harrington v. City of

Nashua, 610 F.3d 24, 33 n.4 (1st Cir. 2010); Reed v. City of

14

Torres court‘s statement is not, however, binding on us here.

For one thing, Torres was decided after Gallo, leaving its

precedential value on this point in serious doubt.11 See

Holland v. N.J. Dep’t of Corr., 246 F.3d 267, 278 n.8 (3d Cir.

2001) (―[T]o the extent that [a case within this Circuit] is read

to be inconsistent with earlier case law, the earlier case law . .

. controls.‖) (citation omitted). Moreover, the above

quotation from Torres is dicta: the case involved the question

whether Torres‘ post-conviction incarceration was a Fourth

Amendment seizure. The answer to that question is ―no,‖

even under the Ginsburg-Gallo theory. The Torres panel

therefore had no need to opine on the limits of the Fourth

Amendment‘s pre-conviction application. Finally, Torres left

open the possibility that ―there may be some circumstances

during pre-trial custodial detention that implicate Fourth

Amendment rights,‖ 169 F.3d at 174, and if that is the case

then surely the very fact of a pre-trial detention would

implicate the right against unreasonable seizures.

We agree with Gallo‘s assessment of Justice

Ginsburg‘s theory, and therefore reaffirm what Gallo at least

strongly implied: When the state places constitutionally

significant12 restrictions on a person‘s freedom of movement

Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996). As we have

explained, Gallo would require us to adhere to the continuing

seizure theory even if we were otherwise disposed to reject it.

11

The majority opinion in Torres does not cite Gallo—

though the dissent does. See 163 F.3d at 179 (Debevoise, Dist. J.,

dissenting).

12

We hold open the possibility that some conditions on

pre-trial release may be so insignificant as not to implicate

constitutionally protected liberty interests. See, e.g., Kingsland v.

City of Miami, 382 F.3d 1220, 1236 (11th Cir. 2004) (concluding

15

for the purpose of obtaining his presence at a judicial

proceeding, that person has been seized within the meaning of

the Fourth Amendment.

This theory concerning the ―definition and duration of

a seizure,‖ Albright, 510 U.S. at 278 (Ginsburg, J.,

concurring), implies that when a material witness is subjected

to constitutionally significant restrictions of her liberty for the

purpose of securing her appearance at trial, those restrictions

are governed by the Fourth Amendment. That Amendment is

not limited to criminal suspects, but protects ―[t]he right of

the people to be secure . . . against unreasonable searches and

seizures.‖ U.S. Const. amend. IV (emphasis added).

Accordingly, the Supreme Court defines ―seizure‖ in general

terms: ―a person has been ‗seized‘ within the meaning of the

Fourth Amendment only if, in view of all the circumstances

surrounding the incident, a reasonable person would have

believed that he was not free to leave.‖ California v. Hodari

D., 499 U.S. 621, 627–28 (1991) (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)) (emphasis added).

The Fourth Amendment‘s protection against unreasonable

seizures extends to all of ―the people,‖ and the guarantees of

the Bill of Rights extend to a person detained as a material

witness just as they would extend to anyone else. See al-Kidd

II, 131 S. Ct. at 2080–83 (applying Fourth Amendment

analysis to the arrest and detention of a material witness); al-

Kidd v. Ashcroft (al-Kidd I), 580 F.3d 949, 965 (9th Cir.

2009) (―[M]aterial witness arrests are ‗seizures‘ within the

meaning of the Fourth Amendment and are therefore subject

to its reasonableness requirement.‖) (citing Bacon v. United

States, 449 F.2d 933, 942 (9th Cir. 1971)), rev’d on other

that conditions of release not amounting to a ―significant

deprivation of liberty‖ did not implicate the Fourth Amendment).

16

grounds, 563 U.S. ---, 131 S. Ct. 2074. A person who is

subjected to conditions that would constitute a seizure if she

had been arrested for a crime is still seized even though she is

not a criminal suspect but a material witness. She has been

arrested and deprived of liberty for precisely the same

purpose as a pre-trial detainee in a criminal case: to ensure

that she shows up in court as required by the state. See

Albright, 510 U.S. at 278–79 (Ginsburg, J., concurring). The

Fourth Amendment therefore governs our inquiry into the

constitutionality of Schneyder‘s detention.

2

As we noted above, Schneyder‘s incarceration plainly

meets the Supreme Court‘s definition of a Fourth Amendment

―seizure.‖ But that is not the end of the story, for ―what the

Constitution forbids is not all searches and seizures, but

unreasonable searches and seizures.‖ Elkins v. United States,

364 U.S. 206, 222 (1960) (emphasis added); United States v.

Ritter, 416 F.3d 256, 261 (3d Cir. 2005). In the ordinary

criminal case, arrest and detention of a suspect is reasonable

if it is supported by probable cause, as determined by the

judge who either issues an arrest warrant or conducts a

preliminary hearing. See, e.g., Gerstein v. Pugh, 420 U.S.

103, 111–14 (1975). Gerstein explained that the probable

cause standard ―represents a necessary accommodation

between the individual‘s right to liberty and the State‘s duty

to control crime‖—that is, it is a particular instance of the

Fourth Amendment‘s more general inquiry into overall

reasonableness. Id. at 112. This point is further reflected in

the fact that while a pre-arrest probable cause determination is

to be made by a ―neutral and detached magistrate whenever

possible,‖ the Fourth Amendment admits of ―practical

compromise‖ allowing police to make an on-the-scene

17

probable cause assessment so long as any prolonged restraint

of liberty is supported by a prompt post-arrest judicial

determination that probable cause does in fact exist. Id. at

112–14.

We are not, however, presented with an ordinary

criminal case, and despite the parties‘ arguments and the

District Court‘s opinion (all of which are couched in terms of

probable cause), probable cause is an inapposite concept for

assessing whether the detention of a material witness was

constitutionally reasonable. The phrase ―probable cause‖

appears, on its face, to prescribe only a burden of proof, and

the Fourth Amendment does not provide an obvious answer

to the substantive question, ―probable cause as to what?‖

This is explained by the fact that ―probable cause, since

before the founding, has always been a term of art of criminal

procedure.‖ al-Kidd I, 580 F.3d at 966. The phrase has

meaning, derived from its common-law origins, that is more

than its two words would reveal if read in isolation. That is,

the term itself supplies an answer to the ―as to what?‖

question. Probable cause demands that the police have

reasonably trustworthy knowledge of facts ―sufficient to

warrant a prudent man in believing that the [arrestee] had

committed or was committing an offense.‖ Beck v. Ohio, 379

U.S. 89, 91 (1964) (emphasis added) (quoted in Gerstein, 420

U.S. at 111; al-Kidd I, 580 F.3d at 966). Stated differently,

―[t]he substance of all the definitions of probable cause is a

reasonable ground for belief of guilt.‖ Brinegar v. United

States, 338 U.S. 160, 175 (1949) (emphasis added) (citations

and internal quotation marks omitted) (quoted in Maryland v.

Pringle, 540 U.S. 366, 371 (2003)).13 See also al-Kidd I, 580

13

Smith‘s opening brief, at 39, quotes the Brinegar

formulation (citing Pringle) but conspicuously elides the phrase

18

F.3d at 966–67 (citing, e.g., Whren v. United States, 517 U.S.

806, 811 (1996); Michigan v. DeFillippo, 443 U.S. 31, 37

(1979); Locke v. United States, 11 U.S. (7 Cranch) 339, 348

(1813) (Marshall, C.J.)). ―Probable cause as used in the

Fourth Amendment is a substantive concept of law. . . . Its

meaning embraces not merely a certain quantum of evidence,

but a certain quantum of evidence related to one and only one

specific thing—the commission of a crime. This has always

been so.‖ Ricardo J. Bascuas, The Unconstitutionality of

―Hold Until Cleared‖: Reexamining Material Witness

Detentions in the Wake of the September 11 Dragnet, 58

Vand. L. Rev. 677, 716–19 (2005). For probable cause to

exist, the evidence available must provide police or the

warrant-issuing magistrate with reasonable grounds to believe

that the person to be arrested is guilty of a crime. This

definition of the term renders it irrelevant to an assessment of

the legality of the seizure of a material witness: ―An arrest of

a material witness is not justified by probable cause because

[the facts that justify such an arrest] do not constitute the

elements of a crime.‖ al-Kidd I, 580 F.3d at 967; see also al-

Kidd II, 131 S. Ct. at 2082, 2083 (discussing the justification

for detaining a person as a material witness in terms of

―individualized reasons to believe that he was a material

witness and that he would soon disappear‖ and

―individualized suspicion,‖ rather than probable cause).14

―of guilt‖—apparently to avoid grappling with the fact that

Schneyder was not arrested or detained because anyone thought

her guilty of a crime.

14

The cases cited for the proposition that probable cause is

the appropriate lens through which to view this case do not engage

in any analysis of the issue, and we can set them aside. See Stone

v. Holzberger, 1994 WL 175420, 1994 U.S. App. LEXIS 231 (6th

Cir.) (unpublished) (requiring that a detained material witness be

19

3

afforded a probable cause hearing without discussing what should

be assessed at such a hearing); White v. Gerbitz, 892 F.2d 457,

460–61 (6th Cir. 1989) (concluding that a material witness‘s arrest

―was supported by probable cause‖ without considering the term‘s

applicability); Bacon v. United States, 449 F.2d 933, 942 (9th Cir.

1979) (stating uncritically that a material witness‘s ―arrest and

detention must be based on probable cause‖). See also Donald Q.

Cochran, Material Witness Detention in a Post-9/11 World:

Mission Creep or Fresh Start?, 18 Geo. Mason L. Rev. 1, 18 &

n.105 (2010) (noting that ―[c]ourts have generally relied on the

Bacon ‗probable cause‘ standard without any discussion of its

reasoning‖).

Bacon actually read the federal material witness statute to

require ―probable cause to believe (1) that the testimony of a

person is material and (2) that it may become impracticable to

secure his presence by subpoena.‖ 449 F.2d at 943 (citation and

internal quotation marks omitted). The Ninth Circuit‘s opinion

thus arguably redefined a preexisting constitutional term of art, and

to the extent it does so its persuasiveness (along with the

persuasiveness of those cases relying on it) is badly undercut. See

Bascuas, supra, 58 Vand. L. Rev. at 715–19 (criticizing Bacon and

―the idea that ‗probable cause‘ can be redefined from case to

case‖). But see Cochran, supra, 18 Geo. Mason L. Rev. at 20–21

(noting that ―probable cause is a two-prong concept, possessing

both a burden-of-proof component and a substantive component,‖

and arguing that in material witness cases the substantive

component is not guilt of a crime but ―the risk that a miscarriage of

justice will occur‖ absent the witness‘s testimony). The Ninth

Circuit panel that decided al-Kidd I interpreted Bacon as having

only imported the burden-of-proof element of probable cause,

which it then applied to the federal material witness statute‘s

substantive requirements. 580 F.3d at 967–68.

20

So while the Fourth Amendment applies here, the

probable cause requirement cannot. The Amendment

provides only one standard that could govern this situation: a

seizure of an uncharged material witness is constitutionally

prohibited if it is ―unreasonable.‖15 Schneyder‘s Fourth

15

It can be argued that because (i) the Fourth Amendment

requires that warrants be supported by probable cause, and (ii)

―probable cause,‖ as defined above, cannot exist for a person

seized only as a material witness, the entire practice of issuing

warrants for and arresting material witnesses is unconstitutional.

See al-Kidd II, 131 S. Ct. at 2084–85 (suggesting the possibility of

such an argument but noting that plaintiff in that case had not taken

that position); id. at 2085–86 (Kennedy, J., concurring) (observing

that ―[t]he scope of the [material witness] statute‘s lawful

authorization is uncertain‖ because of a possible conflict with the

Warrants Clause, but indicating that ―material witness arrests

might still be governed by the Fourth Amendment‘s separate

reasonableness requirement for seizures of the person‖); Bascuas,

supra, 58 Vand. L. Rev. at 702–19 (Under ―the one and only

definition of ‗probable cause,‘ the practice of detaining witnesses

[can] not . . . survive[] constitutional analysis. Of course, the

seizure of one innocent of any wrongdoing can never be supported

by ‗probable cause‘ because ‗probable cause‘ for an arrest exists

only where there is reason to believe that the prospective arrestee

committed a crime.‖). Like the plaintiff in al-Kidd, Schneyder

does not argue that all material witness arrests are necessarily

unconstitutional; we therefore do not address that question. We

assume, with the plaintiff, that her initial arrest was legal and that

her detention became unlawful, if at all, once the Overby trial had

been continued. For reasons explained above, the only way to

analyze such a claim under the Fourth Amendment is to inquire

into the reasonableness of the detention. We therefore assume for

present purposes that the reasonableness framework applies, while

leaving for another case the possibility that all arrests made

21

Amendment rights were therefore violated only to the extent

that her detention as a material witness was ―unreasonable‖

within the Fourth Amendment‘s meaning, and Smith is liable

under § 1983 only insofar as she caused Schneyder to endure

such an ―unreasonable‖ detention. See al-Kidd I, 580 F.3d at

968 (interpreting Bacon as having held that a material witness

seizure is ―reasonable‖ where the statutory requirements are

established by a ―probable cause‖ burden of proof).

The ―key principle of the Fourth Amendment‖ is the

balancing of various competing interests. Michigan v.

Summers, 452 U.S. 692, 700 n.12 (1981) (citation omitted).

―To determine the constitutionality of a seizure ‗[we] must

balance the nature and quality of the intrusion on the

individual‘s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the

intrusion.‘‖ Tennessee v. Garner, 471 U.S. 1, 8 (1985)

(quoting United States v. Place, 462 U.S. 696, 703 (1983)).

The question is ―whether the totality of the circumstances

justifie[s] a particular sort of search or seizure.‖ Id. at 8–9.

See also United States v. Awadallah, 349 F.3d 42, 58–64 (2d

Cir. 2003) (applying a balancing analysis to determine

whether the length of a material-witness detention comported

with the Fourth Amendment); Donald Q. Cochran, Material

Witness Detention in a Post-9/11 World: Mission Creep or

Fresh Start?, 18 Geo. Mason L. Rev. 1, 22–24 (2010)

(proposing a rule combining ―probable cause‖ to believe that

the elements of the federal material witness statute are met

with a separate reasonable-duration limitation on the length of

a detention); cf. Zadvydas v. Davis, 533 U.S. 678, 689 (2001)

(reading an implicit ―reasonable time‖ limitation into a

without probable cause as to guilt of a crime, including material

witness arrests, are ipso facto unconstitutional.

22

federal alien detention statute in order to avoid the ―serious

constitutional problem[s]‖ that would face an indefinite

detention provision).

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

Judge Posner offered a method of analysis for considering the

reasonableness of a civil commitment: ―In mathematical

terms, the test of a reasonable commitment can be expressed

by the inequality C<PH, where C is the cost of confinement

to the person confined, H is the harm he might do if released,

and P is the probability of his doing that harm if released.‖

Id. at 796. The premise of this formula is that detention is

reasonable where the expected cost to the public of releasing

the detainee exceeds the expected cost to the individual of

being imprisoned. So as the cost to the plaintiff of being

confined increases (e.g., as the incarceration grows longer),

so too must the magnitude of the harm to be prevented, or the

likelihood of that harm (or both), if PH is to keep pace with C

and thus continue to justify confinement. This analysis

resembles Learned Hand‘s famous negligence test, see United

States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.

1947), for good reason: ―The test of negligence at common

law and of an unlawful search or seizure challenged under the

Fourth Amendment is the same: unreasonableness in the

circumstances.‖ Villanova, 972 F.2d at 796; see also

Awadallah, 349 F.3d at 59 (balancing a material witness‘s

liberty interests against the government‘s interest in a

successful terrorism prosecution). However helpful Judge

Posner‘s approach may be, of course, courts must in the end

bear in mind that ―the application of standards that can be

expressed in algebraic terms still requires the exercise of

judgment, implying elements of inescapable subjectivity and

intuition in the decisional calculus.‖ Villanova, 972 F.2d at

23

796 (citing Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6

(7th Cir. 1992)).

Here, the alleged problem with Schneyder‘s detention

is that it went on for an unreasonable length of time—i.e.,

longer than the facts of the case warranted. On the ―cost to

the plaintiff‖ side of the ledger we have Schneyder‘s obvious

and quite substantial interest, as a citizen not accused of any

crime, in being free from incarceration. On the other side, we

have the significant harm that might have been done to the

Commonwealth‘s case against Overby, and thus to the overall

justice system, by the failure of a critical witness to testify.

At the time Schneyder was arrested, the likelihood of that

harm was high, as she clearly did not intend to appear in

court. Given the relatively brief period of time that she would

have had to spend in jail (a maximum of some 19 days, had

Schneyder been released on the date of Judge Means‘

scheduled informal status hearing) in order to remain

available for a February 2 trial, we may suppose that her

initial arrest and detention were reasonable: the potential cost

to Schneyder was not terribly high in comparison with the

risk that the prosecution would fall apart in her absence.16

This balance, Schneyder argues (or should have

argued, had she framed her complaint in terms of

reasonableness rather than probable cause), was upset when

the trial was pushed back more than three months. While the

potential harm to the prosecution‘s case remained the same,

16

Schneyder‘s counsel conceded at oral argument that

―there was probable cause to detain [Schneyder] initially‖; we

assume that he would likewise concede that the arrest and

detention until February 2 were ―reasonable‖ under the framework

that we have set out.

24

the weight of Schneyder‘s liberty interest grew considerably:

instead of the twelve days that were left before the scheduled

status hearing on the date of the continuance, she was

suddenly looking at some 131 days in jail before the trial

would even start.17 Even if the risk to the public interest

remained high, a jury could find that the cost to Schneyder of

being imprisoned outweighed the state‘s interest in holding

her for that extra time. Moreover, a jury could conclude that

the risk of harm (that is, P) was not as great as the

government would have it. Schneyder seems not to have

been especially difficult to apprehend (an officer picked her

up on the same night that the warrant issued), and there is

evidence that being arrested had impressed on her the gravity

of the situation and had thus made it more likely that she

would show up for court. A reasonable jury could find that

Schneyder‘s prolonged detention became unreasonable once

the case had been continued.18

17

In point of fact, Schneyder‘s wait could well have been

much longer: Overby‘s third trial ended in a hung jury on

November 1, 2006, and he was not finally convicted until February

20, 2007—more than two years after Schneyder‘s initial arrest.

18

It is a mistake to argue that Smith‘s failure to comply

with Judge Means‘ order was the essence of the alleged Fourth

Amendment violation. A state judge‘s order cannot have created a

federal constitutional right where none otherwise existed. The

Fourth Amendment‘s reasonableness standard is an objective one,

see Scott, 550 U.S. at 381 (citing Graham v. Connor, 490 U.S. 386,

388 (1989)), that relies on a balancing of competing interests, as

discussed above. Judge Means‘ words cannot have had any

bearing on the relative weights of those interests, although it may

have altered Schneyder‘s subjective (and therefore irrelevant)

expectations. See al-Kidd II, 131 S. Ct. at 2080 (―Fourth

Amendment reasonableness is predominantly an objective inquiry.

. . . This approach recognizes that the Fourth Amendment

25

4

Schneyder has thus made out a prima facie case that

she suffered a Fourth Amendment violation. Section 1983

also requires her to show that Smith was a legal cause of her

unreasonable detention. See Martinez v. California, 444 U.S.

277, 284–85 (1980); Rivas v. City of Passaic, 365 F.3d 181,

regulates conduct rather than thoughts; and it promotes

evenhanded, uniform enforcement of the law.‖) (citations and

internal quotation marks omitted); Whren, 517 U.S. at 814 (―[T]he

Fourth Amendment‘s concern with ‗reasonableness‘ allows certain

actions to be taken in certain circumstances, whatever the

subjective intent.‖).

Nor can Judge Means‘ statements constitute a ruling that

further detention in the event of a delay in trial would be

unreasonable. Such an ex ante assessment cannot take into

account all of the circumstances surrounding a given incident:

Judge Means cannot have known at the time of Schneyder‘s bail

hearing how long the delay would be; nor could he have taken into

account the possibility that the likelihood that Schneyder would

appear if freed might change. At most, Judge Means‘ assessment

might have provided some rule-of-thumb guidance. It was not a

binding determination of Fourth Amendment reasonableness.

Finally, we note that while Judge Means‘ order may have

placed an obligation upon Smith, that obligation was one that she

owed to the court rather than to Schneyder. The proper remedy for

the violation of such an order is a disciplinary proceeding or a

contempt charge, not a § 1983 suit by a third party. That is, Smith

owed two overlapping duties: One to the court, which obligated

her to obey the judge‘s order and which the court may enforce in

the same manner as any other order; and another to Schneyder,

which obligated Smith not to violate any constitutional rights and

which Schneyder may seek to enforce through civil-rights

litigation.

26

193 (3d Cir. 2004); Bodine v. Warwick, 72 F.3d 393, 400 (3d

Cir. 1995) (citing Restatement (Second) of Torts §§ 431,

440–53, and finding no proximate causation in a § 1983

excessive-force case). In tort law a person‘s action is a legal

cause of another‘s injury if ―his conduct is a substantial factor

in bringing about the harm.‖ Restatement (Second) of Torts §

431. ―Lurk[ing]‖ in this understanding of causation is ―the

idea of responsibility‖; the real question is whether an

ordinary person would regard the act in question as having

caused the harm, ―in the popular sense.‖ Id. cmt. a.

On the facts before us, we conclude that Schneyder has

made her case. The District Court summarized much of the

relevant evidence in the course of making a slightly different

point:

[There was] deposition testimony: (1) that the

duty to notify Judge Means of a trial

continuance did not rest [on] the Sheriff‘s

Office, the Philadelphia prison system, or the

court administration; (2) from Public Defender

Paul Conway that defendant ―was the only one

that ha[d] the information that [Judge Means]

needed for him to make the decision‖ on

plaintiff's continued detention; (3) from court

personnel working in the chambers of Judges

Poserina19 and Means that defendant‘s failure to

notify Judge Means would not comport with

their understanding of usual court practice and

procedure; and (4) that following the release of

Korvel Odd on January 13, 2005—who was

kept in custody for 37 days after the criminal

19

Judge John J. Poserina presided in Overby.

27

case for which he was detained as a material

witness was dismissed—assistant district

attorneys were briefed on safeguards to ensure

that no material witnesses were detained

improperly. These safeguards included

centralizing procedures that required assistant

district attorneys to seek a supervisor‘s approval

of a material witness petition before presenting

it to the judge; to present the petition to the

judge assigned to the underlying criminal case;

and to monitor the status of witnesses through

the computer system to ensure that they were

released promptly. Both Homicide Unit Chief

Edward McCann and his assistant, Ann

Ponterio, agreed that they ―indicated to the unit‖

in January 2005 ―that when a witness is in

custody and a case is either over, or is

continued, or is guilty, or anything that we must

make sure that the witness is released from

custody.‖

709 F. Supp. 2d. at 381–82 (citations omitted). In addition to

this evidence, Judge Means‘ various statements, in chambers

and on the record, are relevant in that they indicate that he

was reliant on Smith to keep him apprised of Overby‘s status

so that he could monitor the continued reasonableness of

Schneyder‘s detention. Perhaps most importantly, Smith was

the only official who was in a position to do anything about

Schneyder‘s incarceration. She was responsible for the

issuance of the warrant and Schneyder‘s subsequent arrest,

and there does not appear to be anyone else she can point to

as being obligated to take steps to aid the court in monitoring

the continued reasonableness of the detention—including by

28

informing the court that the trial date had changed. As Smith

should have been well aware, it is the court‘s role—not a

prosecutor‘s—to assess the legality of an incarceration, and to

do so on a continuing basis and in light of changes in the

underlying facts. Smith also should have known that the

court would be unable to fulfill this function without a good-

faith effort on her part to keep Judge Means abreast of

developments in the Overby case. Schneyder has presented

sufficient evidence from which a jury could conclude that

Smith‘s failure to advise the court of the continuance was a

substantial factor in causing her Fourth Amendment injury.20

Smith‘s duty as a state official not to cause the

violation of anyone‘s constitutional rights demanded that she

advise the court of any substantial change in the

circumstances justifying Schneyder‘s seizure as a material

witness. Smith was not required to advocate for Schneyder‘s

release; she was obligated to provide the court with the

information it needed to properly perform its adjudicative

function. A jury could find that she breached this duty, and

20

We recognize the potential here for a superseding cause

argument: Judge Means‘ independent will stood in between

Smith‘s disclosure of the continuance and Schneyder‘s liberation,

so Smith‘s omission cannot have been a proximate cause of

Schneyder‘s injuries. See, e.g., Troup v. Sarasota Cnty., 419 F.3d

1160, 1166 (11th Cir. 2005) (finding no causation in a § 1983 case

where ―the continuum between Defendant‘s action and the ultimate

harm is occupied by the conduct of deliberative and autonomous

decision-makers‖) (citation and internal quotation marks omitted).

Proximate cause is, however, generally a question for the jury, see

Rivas, 365 F.3d at 193, and there is ample evidence that Judge

Means would have released Schneyder without hesitation had

Smith lived up to her obligations.

29

thereby proximately caused a violation of Schneyder‘s Fourth

Amendment rights.

5

To summarize what we have said so far: The liberty

interests of a detained material witness are protected by the

Fourth Amendment, because this court adheres to Justice

Ginsburg‘s ―continuing seizure‖ theory. Schneyder‘s

detention was a seizure, but because she was not arrested as a

criminal suspect ―probable cause‖ is the wrong lens through

which to examine the case. Instead, to determine whether her

rights were violated we must assess whether the seizure was

―reasonable‖ within the Fourth Amendment‘s meaning. This

requires balancing Schneyder‘s interests against the

government‘s, and a jury could conclude that Schneyder‘s

interest in going free outweighed the government‘s interest in

keeping her locked up until the new trial date. If Schneyder‘s

rights were violated, Smith was the only official in a position

to prevent it—by keeping Judge Means informed of

significant changes in the facts underlying the detention

order. Smith‘s duty not to cause a violation of Schneyder‘s

constitutional rights required her to promptly report the

continuance in the Overby case to Judge Means—though she

would have been free to argue that continued detention was

warranted even in light of the new facts. Because Smith did

not fulfill this obligation, Schneyder has made out a prima

facie case for recovery of damages under § 1983.

B

Because the foregoing discussion takes place in the

context of qualified immunity, our inquiry is not complete.

We still must decide whether the duty we have just identified

30

was clearly established at the time the violation occurred.

Ordinarily a constitutional duty is not clearly established

simply because of the existence of a broad imperative like the

one against ―unreasonable . . . seizures.‖ ―[I]f the test of

‗clearly established law‘ were to be applied at this level of

generality, it would bear no relationship to the ‗objective

legal reasonableness‘ that is the touchstone of Harlow.‖

Anderson v. Creighton, 483 U.S. 635, 639 (1987). Thus the

usual rule is that ―the right the official is alleged to have

violated must have been ‗clearly established‘ in a more

particularized, and hence more relevant, sense: The contours

of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.‖ Id. at 640.

Although Anderson appears to require a relatively high

degree of specificity before a rule can be called ―clearly

established,‖ the Court was at pains to emphasize that ―[t]his

is not to say that an official action is protected by qualified

immunity unless the very action in question has previously

been held unlawful, but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.‖ Id. (citation

omitted). The Court further expounded this principle in a line

of cases beginning with United States v. Lanier, 520 U.S. 259

(1997). The ultimate question, the Court explained, is

whether the defendant had ―‗fair warning‘ that his conduct

deprived his victim of a constitutional right.‖ Hope v. Pelzer,

536 U.S. 730, 740 (2002) (quoting Lanier, 520 U.S. at 270–

71). The Court went on:

[G]eneral statements of the law are not

inherently incapable of giving fair and clear

warning, and . . . a general constitutional rule

already identified in the decisional law may

31

apply with obvious clarity to the specific

conduct in question, even though ―the very

action in question has [not] previously been

held unlawful.‖

Lanier, 520 U.S. at 271 (quoting Anderson, 533 U.S. at 640).

Most recently, the Court has reiterated:

To be established clearly . . . there is no need

that ―the very action in question [have]

previously been held unlawful.‖ . . .

[O]utrageous conduct obviously will be

unconstitutional, this being the reason, as Judge

Posner has said, that ―[t]he easiest cases don‘t

even arise.‖ But even as to action less than an

outrage, ―officials can still be on notice that

their conduct violates established law . . . in

novel factual circumstances.‖

Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. ---, 129 S.

Ct. 2633, 2643 (2009) (quoting Wilson v. Layne, 526 U.S.

603, 615 (1999); K.H. ex rel. Murphy v. Morgan, 914 F.2d

846, 851 (7th Cir. 1990); Hope, 536 U.S. at 741).

―To determine whether a new scenario is sufficiently

analogous to previously established law to warn an official

that his/her conduct is unconstitutional, we ‗inquir[e] into the

general legal principles governing analogous factual

situations . . . and . . . determin[e] whether the official should

have related this established law to the instant situation.‘‖

Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 177 (3d Cir. 2011)

(quoting Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir. 1985))

(alterations in original). In extraordinary cases, a broad

principle of law can clearly establish the rules governing a

32

new set of circumstances if the wrongfulness of an official‘s

action is so obvious that ―every objectively reasonable

government official facing the circumstances would know

that the official‘s conduct did violate federal law when the

official acted.‖ Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th

Cir. 2002). A plaintiff ―can demonstrate that the right was

clearly established by presenting a closely analogous case that

establishes that the Defendants‘ conduct was unconstitutional

or by presenting evidence that the Defendant‘s conduct was

so patently violative of the constitutional right that reasonable

officials would know without guidance from a court.‖ Estate

of Escobedo v. Bender, 600 F.3d 770, 779–80 (7th Cir. 2010)

(citing Hope, 536 U.S. at 739–40). ―There has never been a

section 1983 case accusing welfare officials of selling foster

children into slavery; it does not follow that if such a case

arose, the officials would be immune from damages liability

because no previous case had found liability in those

circumstances.‖ K.H., 914 F.2d at 851.

Although we are aware of no decision predating

Smith‘s actions that involved the sort of claim that Schneyder

has raised here, we are nevertheless convinced that this is one

of those exceedingly rare cases in which the existence of the

plaintiff‘s constitutional right is so manifest that it is clearly

established by broad rules and general principles. That is,

this ought to have been a member of that class of ―easiest

cases‖ that, according to Judge Posner, ―don‘t even arise.‖

Id.; Redding, 129 S. Ct. at 2643. One of the ―point[s] of the

Fourth Amendment‖ is to require that decisions involving

citizens‘ security from searches and seizures be made

wherever practicable by a ―neutral and detached magistrate‖

rather than by a police officer or prosecutor possessed of a

natural bias towards uncovering crime and obtaining

33

convictions. Johnson v. United States, 333 U.S. 10, 13–14

(1948). Thus the Court has established that a criminal suspect

is entitled to a prompt judicial determination that his arrest

and detention is justified by probable cause. Cnty. of

Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); Gerstein,

420 U.S. at 124–25. And numerous courts have reached the

almost tautological conclusion that an individual in custody

has a constitutional right to be released from confinement

―after it was or should have been known that the detainee was

entitled to release.‖ Cannon v. Macon Cnty., 1 F.3d 1558,

1563 (11th Cir. 1993); see also Fairley v. Luman, 281 F.3d

913, 917–18 (9th Cir. 2002); Armstrong v. Squadrito, 152

F.3d 564, 573–76 (7th Cir. 1998); Gray v. Cuyahoga Cnty.

Sheriff’s Dep’t, 150 F.3d 579, 582–83 (6th Cir. 1998);

Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992); cf.

Baker v. McCollan, 443 U.S. 137, 144–45 (1979) (assuming

that ―mere detention pursuant to a valid warrant but in the

face of repeated protests of innocence will after the lapse of a

certain amount of time deprive the accused of ‗liberty . . .

without due process of law‘‖). It should have required little

thought about these cases, in light of background knowledge

of the operation of the Bill of Rights within the justice

system, to have given a reasonable prosecutor ―fair warning‖

that she had a duty to ensure that the incarceration of an

innocent person was at all times approved by a judicial

officer.

Smith took it upon herself to decide that Schneyder

ought to be incarcerated well past the point at which explicit

judicial authorization had expired. Whether to keep

Schneyder in jail should have been the court‘s decision, and

Smith knew it. Judge Means had announced his intention to

let Schneyder go if the trial date were moved, but Smith took

34

the position that ―she should be held until she testified.‖

Actually, to say that she ―took the position‖ is too generous,

because Smith never presented the court with any such

argument. She ―advocated‖ her position by failing to reveal

an obviously pertinent fact, thereby preventing the judge from

doing his job. Moreover, the stance Smith purports to have

taken is so patently erroneous as a matter of constitutional

law as to be frivolous. No reasonable prosecutor would think

that she could indefinitely detain an innocent witness pending

trial without obtaining reauthorization. And there can be no

doubt that is what Smith intended. The trial at which

Schneyder was to testify did not take place until more than a

year and a half after her arrest, and there is no indication that

Smith would ever have taken steps of her own volition to free

her key witness or even to have her status reviewed. If the

initial continuance was not something Smith felt a need to

report, there is no reason to think that she would have advised

Judge Means of any of the subsequent developments. Were it

not for the persistence of Schneyder‘s family and the

generous efforts of a public defender with cases of his own

and no prior connection to the plaintiff, there can be no telling

how long she would have remained locked up.21

―When properly applied, [qualified immunity] protects

‗all but the plainly incompetent or those who knowingly

violate the law.‘‖ al-Kidd II, 131 S. Ct. at 2085 (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). The self-

evident wrongfulness of Smith‘s conduct is sufficient to place

21

The judges comprising this panel—all three former

prosecutors—feel secure in declaring that any reasonable attorney

in Smith‘s position would have known that her course of action

was so outrageous as to be unconstitutional, even in the absence of

a case telling her so.

35

her in either category. She is not entitled to qualified

immunity.

IV

The final issue we must address is whether Smith, as a

prosecutor, is entitled to absolute immunity from liability.

The court has already answered this question in the negative,

Odd, 538 F.3d at 214, so the ―law of the case‖ doctrine would

ordinarily preclude this panel from reconsidering it. Pub.

Interest Research Grp. v. Magnesium Elektron, 123 F.3d 111,

116 (3d Cir. 1997). But because this is a rule of discretion

rather than a limit on authority, it does not apply in

―extraordinary circumstances.‖ Id. These ―include situations

in which: (1) new evidence is available; (2) a supervening

new law has been announced; or (3) the earlier decision was

clearly erroneous and would create manifest injustice.‖ Id.

(citations omitted). Smith of course thinks that our earlier

adverse ruling was wrongly decided; she bolsters this position

by asserting that both newly developed facts and the Supreme

Court‘s intervening decision in Van de Kamp v. Goldstein,

555 U.S. ---, 129 S. Ct. 855 (2009), have sufficiently altered

the landscape that our earlier decision should be disregarded.

Notwithstanding these changes in context, we remain of the

view that granting prosecutorial immunity would be

inappropriate in this case.

A

Before considering Smith‘s arguments, we briefly

rehearse the rationale for denying absolute immunity that we

set forth in Odd. The basic premise behind the immunity

doctrine is that prosecutors should not be encumbered by the

threat of civil liability while performing judicial or quasi-

36

judicial functions. See Odd, 538 F.3d at 208. But a person is

not immune from suit for every wrong he commits just

because he happens to be employed as a prosecutor: the

―inquiry focuses on ‗the nature of the function performed, not

the identity of the actor who performed it.‘‖ Id. (quoting

Light v. Harris, 472 F.3d 74, 78 (3d Cir. 2007)). Analysis of

prosecutorial immunity questions thus has two basic steps,

though they tend to overlap. The court must ascertain just

what conduct forms the basis for the plaintiff‘s cause of

action, and it must then determine what function

(prosecutorial, administrative, investigative, or something

else entirely) that act served. See id.

The first stage ―focuses on the unique facts of each

case and requires careful dissection of the prosecutor‘s

actions.‖ Id. at 210 (citations omitted). Thus in Odd we

―carefully defin[ed] the act (or rather omission) that gave rise

to Schneyder‘s suit‖ as a ―failure to notify Judge Means (per

his order and per local custom) that the Overby case had been

continued.‖ Id. at 212. Elsewhere we described it as an

omission to ―inform[] the court about the status of a detained

witness.‖ Id. at 213. From these definitions, ―it follow[ed]

that Smith is not entitled to absolute prosecutorial immunity,‖

because her obligation ―was primarily administrative,

especially in light of Judge Means‘s explicit order that he be

advised of any delay in the Overby proceedings. Smith‘s duty

to advise Judge Means of these facts required no advocacy on

her part.‖ Id.

We then raised three additional points to bolster our

conclusion. First, because of the continuance in Overby,

―Smith‘s failure to act occurred during [a] period of judicial

inactivity‖—a fact that ―cast[] serious doubt on Smith‘s

claims that her actions [were] ‗intimately associated with the

37

judicial phase‘ of the litigation.‖ Id. at 213–14 (quoting

Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Second, in

light of Judge Means‘ alleged orders that Smith inform him of

changes in Overby‘s status, the court stated: ―We can

imagine few circumstances under which we would consider

the act of disobeying a court order or directive to be

advocative, and we are loath to grant a prosecutor absolute

immunity for such disobedience.‖ Id. at 214. Finally, we

pointed out that the custom and practice of the Philadelphia

courts was to assign sole responsibility for monitoring

material witnesses to the District Attorney‘s Office and to

individual prosecutors, and that the gist of this obligation

(consistent with Fed. R. Crim. P. 46(h)) is ―plainly

administrative.‖ Id. All this together convinced us that the

duty Smith failed to fulfill was an administrative one, lacking

any significant discretionary or advocative component.

Accordingly, we ruled that absolute immunity was

inapplicable. Id.

B

We now turn to Smith‘s arguments for setting our prior

decision aside. First, she proffers ―new evidence‖ in the form

of the transcript of Schneyder‘s bail hearing. On Smith‘s

reading, the colloquy between Judge Means, Smith, and

Schneyder contains no explicit directive that Smith advise the

court in the event of a continuance. Smith claims that in the

absence of a clear order, her decision regarding what to tell

the court was discretionary and thus not administrative.

Even were we to accept Smith‘s interpretation of the

evidence (contrary to the rules governing adjudication of her

own motion for summary judgment), her argument is

mistaken in its dependence on the Odd panel‘s references to

38

the alleged order as the source of an administrative duty.

While the order was a relevant and supporting consideration,

it was not determinative of the court‘s conclusion. As

explained above, see supra note 18, the duty being enforced

in this lawsuit arises from the Constitution, not from the

authority of a state judge‘s order. Thus we must ask whether

Smith‘s violation of that constitutional obligation constituted

an administrative act or an advocative one. Whether or not

the judge issued an order therefore does not control the case,

and Smith‘s new evidence is unavailing.

C

The next question is whether the Supreme Court‘s

decision in Van de Kamp v. Goldstein abrogates the legal

conclusion we reached in Odd. Goldstein had been convicted

and imprisoned after the prosecution failed to provide defense

counsel with important information which could have been

used to impeach an informant-witness. After the evidence

came to light, Goldstein sued under § 1983, arguing that the

failure to disclose violated his constitutional rights. Because

the two defendants in Van de Kamp occupied managerial and

oversight roles and were not individually responsible for

withholding the information, Goldstein advanced theories of

failure to adequately train and supervise the prosecutors who

worked under them, and of failure to maintain an information

system about informants. See 129 S. Ct. at 859.

The Supreme Court concluded that the defendants

were entitled to absolute immunity. After setting out the

basic functional approach outlined above, the Court reasoned

that while the supervisory, training, and management

functions in question were properly characterized as

administrative, the obligations they created were ―directly

39

connected with the conduct of a trial.‖ Id. at 862. Writing for

a unanimous Court, Justice Breyer first observed that a low-

level prosecutor would be immune from suit for the

underlying failure to disclose. Id. It followed that

supervisory prosecutors would also be immune from a direct

attack on their actions relating to a particular trial (i.e., their

own failure to find and turn over the evidence in question),

because such actions would also be closely associated with

the judicial process. Id. From there the Court argued that

there is no way to draw a clean line between supervision and

training related to a particular case and an office‘s more

general policies and practices. Id. at 862–63. Although the

development and implementation of such general policies are

administrative in nature, the practices in question

―concern[ed] how and when to make impeachment

information available at a trial. They are thereby directly

connected with the prosecutor‘s basic trial advocacy duties.‖

Id. at 863. Allowing the suit to go forward would open up

prosecutors‘ offices to suit in virtually every case in which a

line prosecutor makes a mistake for which he is personally

immune. This would have been both anomalous and contrary

to the purposes of the absolute immunity doctrine. See id.22

Smith argues, and we agree, that Van de Kamp

establishes subcategories within the ―administrative‖ class of

22

As regards the failure to maintain an adequate

information system, the Court reasoned that allowing the claim to

go forward would force courts to inquire not only into whether to

maintain such a system, but also into the system‘s operation and

contents. This, in the Court‘s view, would require review of

prosecutors‘ exercise of legal judgment—exactly the kind of thing

prosecutorial immunity is meant to prevent. See Van de Kamp,

129 S. Ct. at 864.

40

official functions. That is, some administrative functions

relate directly to the conduct of a criminal trial and are thus

protected, while others (―concerning, for example, workplace

hiring, payroll administration, the maintenance of physical

facilities, and the like,‖ id. at 862) are connected to trial only

distantly (if at all) and are therefore not subject to immunity.

The question is whether Van de Kamp alters the result in Odd.

One thing that Van de Kamp does not change is our

characterization of the conduct in question as the

nonperformance of a constitutional duty to advise the court of

a significant change in the circumstances surrounding the

detention of a material witness. We also continue to think

that this duty is, broadly speaking, administrative rather than

advocative. After Van de Kamp, we must ask the further

question whether this is the sort of administrative duty the

performance or nonperformance of which is protected by

prosecutorial immunity. We hold that it is not.

As we stated in Odd, there was no advocative or

discretionary dimension to Smith‘s dereliction of her duty.

She was the only person with knowledge of the relevant facts,

and she was obligated to ensure that the court had information

sufficient to monitor Schneyder‘s status. Smith was not

obligated to argue for Schneyder‘s release; she was required

only to do what was necessary to allow the court to perform

its oversight function. It is true that this was not a

paradigmatic, ―workplace hiring‖ type of administrative duty,

but neither was it directly connected to the conduct of a trial.

After the continuance, the Overby case was a long way off,

and it simply is not the prosecutor‘s prerogative to decide

how long to keep a material witness detained. Declining to

reveal the change in Overby‘s status was an abdication of

Smith‘s responsibility to provide the court with information

41

sufficient for it to decide an issue within its sole competence.

As the sole government official in possession of the relevant

information, Smith had a duty of disclosure that was neither

discretionary nor advocative, but was instead a purely

administrative act not entitled to the shield of immunity, even

after Van de Kamp.

V

On the record before us, we conclude that Smith is not

entitled to either qualified or absolute immunity. Her motion

for summary judgment therefore fails, and we will affirm the

District Court‘s order.

42

Schneyder v. Smith, No. 10-2367

McKee, Chief Judge, concurring.

I agree wholeheartedly with the majority’s opinion and

therefore join my colleague’s analysis in its entirety. I write

separately merely to suggest that the issue before us is not as

complex as the majority's very methodical analysis may

imply. Although the rather complex subtlety and nuance of

the majority opinion is extraordinarily useful in resolving this

issue, it should not give rise to an argument that a reasonable

prosecutor could not have anticipated today’s result.

The central inquiry before us is simple: would a

reasonable prosecutor have known that detaining a material

witness for 48 days after a trial has been continued may have

been contrary to the wishes of the authorizing court, and that

this additional detention violated the witness’ constitutional

rights? See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))

It takes neither a panel of federal judges nor a prescient

prosecutor to know that the answer to both questions is a

resounding “yes.”

I.

There are very important reasons to afford prosecutors

immunity from law suits. As the Supreme Court has

explained, immunity allows a prosecutor to focus his/her

energy and attention on the trial at hand as opposed to having

to worry about being forced to “answer in court each time [] a

person charged him[/her] with wrongdoing.” Imbler v.

Pachtman, 424 U.S. 409, 425 (1976). It is just as clear that

there are also very important policies that counsel against

allowing prosecutors to act with impunity by taking it upon

themselves to determine when, and if, someone who has been

properly incarcerated should be released. This is especially

true when additional detention may well be contrary to the

instructions of the judge who authorized the initial seizure

and detention, and when the circumstances suggest that the

judge would no longer allow the person to be incarcerated.

The Supreme Court has cautioned that, “[t]he public

trust of the prosecutor's office would suffer if he were

1

constrained in making every decision by the consequences in

terms of his own potential liability in a suit for damages." Id.

at 425-26. However, it is no less certain that public trust of

that office as well as of the Constitution that the office is

sworn to uphold would suffer if prosecutors were allowed to

take it upon themselves to decide when and if someone

should be released from incarceration.

Here, Smith clearly took it upon herself to decide

when and if Schneyder would be released.1 After

Schneyder’s family repeatedly called Smith asking when

Schneyder could leave state custody, Smith informed them,

“I’m not going to let her go until this matter is resolved.”

(App. 257) (emphasis added). The umbrella of immunity

surely was not intended to shelter such conduct. The power to

release Schneyder did not reside in Smith nor in any other

prosecutor. It resided in the court, and it continued to reside

there after the Overby trial was postponed. Smith may well

have been troubled by the prospect of releasing Schneyder

and risking an acquittal of Overby, but that was not her

decision to make. It is certainly not a novel precept of Anglo

American jurisprudence to suggest that once the Overby trial

was continued, Smith should have made any concerns about

Schneyder's availability known to Judge Means so that the

court could then decide whether it was still reasonable to

detain Schneyder under the Fourth Amendment.2

1

Since we are reviewing a motion to dismiss, we must accept

the evidence in the light most favorable to the plaintiff, and

draw all reasonable inferences in her favor. See Giuffre v.

Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994).

2

Nor am I concerned that Smith could not have foreseen a

Fourth Amendment violation because additional detention

appeared to be a due process issue. See Bell v Wolfish, 441

U.S. 520, 535 (1979), and Maj. Op. at 13. Regardless of the

label, the foundation of the required analysis is surely the

same under § 1983. Any reasonable prosecutor should have

known the limits of the prosecutorial function and the

difference between the role of the prosecutor and the role of

the judge. And any reasonable prosecutor should have known

that the Constitution is always implicated when a person is

deprived of his/her liberty by a state sponsored seizure and

subsequent detention.

2

II.

Smith should have realized that holding Schneyder

even after the Oberby trial was postponed was contrary to the

authority Judge Means had afforded her. At the bail hearing,

Judge Means clearly stated on the record that he was uneasy

with incarcerating a person who was not accused of any crime

in order to obtain her testimony at a subsequent trial. He

stated, “I don’t like setting bail on people who are not

accused of a crime.” (App. 55 - 56). He also stated, “if the

case breaks down, let me know early and I’ll let you out, Ms.

Schneyder.”3 (App. 55-56).

Judge Means had every reason to believe that

Schneyder would only be held in custody for a few weeks

because Smith told the court that the trial would begin “six

days from today” and that it would be a “ten-day trial at

most.” (App. 55-56). Indeed, it is difficult to read this

transcript and conclude anything other than that the judge

believed that he was only authorizing Schneyder's detention

for a couple of weeks - the time it would take to start and

finish the Overby trial.

Smith’s actions were also an unreasonable usurpation

of the judicial authority to detain a material witness in light of

the prevailing custom in the prosecutor's office. Judge Means

testified that the “practice and custom in the Court of

3

In her brief, Smith contends that this statement suggests that

the judge placed the onus on Schneyder to notify him about

delays in the case. The argument is disingenuous. Judge

Means stated in his subsequent affidavit that he “explicitly

placed the onus on Ms. Smith to notify [him] if for any reason

the Overby case was continued or broke down.” (App. 215).

Moreover, to the extent that the Commonwealth argues that

the judge intended for Schneyder to contact him, this is an

issue of fact that must be resolved against the Commonwealth

at this stage of the proceedings. See Deary v. Three Un-

Named Officers, 746 F.2d 185 (3rd Cir. 1984).

3

Common Pleas in these situations [involving material witness

detentions] is for the prosecutor to bring the matter back to

court to address any outstanding issues.” (App. 215). That

custom is also evidenced by testimony from Edward McCann,

then-Chief of the District Attorney’s Homicide Unit and

Smith’s own supervisor. He stated that “it’s a well-known

office policy and Homicide Unit policy” that Smith would

have a responsibility to notify him if a case had been

continued and a material witness was held in custody. (App.

84). The policy existed since McCann “came into the DA’s

office [in 1989].” (App. 84, 90). Thus, a reasonable

prosecutor should have realized that she could not take it

upon herself to decide when a detained witness would be

released from custody.4

I do not, of course, suggest that the policy of a

prosecutor's office can give rise to a right of constitutional

import under § 1983. However, there was nothing

unreasonable or novel about Judge Means’ request to be told

of any continuance in the Overby trial because Means was

only authorizing Schneyder's detention for the brief period he

had been told was necessary to obtain Schneyder’s testimony

there.

III.

4

As the majority notes, we previously rejected Smith's claim

of absolute immunity. In Odd v. Malone¸538 F.3d 202, 206

(2008), we considered Smith's appeal along with a similar

appeal involving an A.D.A. who refused to inform the

authorizing court that the proceeding in which a material

witness was to testify had been continued. We noted that the

judge in the companion case was "[f]urious," upon learning

she had not been informed, and the judge released the witness

and "demanded that [the A.D.A.] appear before her to explain

why the plaintiff had been forced to remain in jail."

Judge Means' reaction here was similar. Judge Means and

his staff were "shocked" and "astonished" when they learned

that Schneyder was still incarcerated, and the judge

repeatedly apologized to Schneyder. He told her: "again I

apologize from the bottom of my heart for what happened to

you." (App. 7).

4

Nothing we say here suggests that a judge in this

situation would not have the authority to authorize continued

incarceration of a material witness if the trial s/he is to testify

at is postponed. Had Judge Means been properly informed of

the continuance, he could have again considered the

circumstances and competing interests (including Schneyder's

liberty interest) and could have concluded - based upon all the

circumstances - that Schneyder's continued incarceration was

both justified and appropriate.

However, that is not the point. The fact that

Schneyder may have remained in custody even if Smith had

told the court of the continuance does not mean that Smith is

somehow entitled to immunity. Rather, the point of our

holding today is quite simply that any reasonable prosecutor

should know that the authority to incarcerate belongs to the

court, not the prosecutor,5 and that one who disregards that

basic tenet violates a clearly established constitutional right.

I think it is helpful to look beneath the intricacies and

algebraic equations that assist my colleagues’ analysis,

because our holding results in nothing more surprising than

that extraordinarily unremarkable conclusion. Neither our

holding today, nor the reactions of the judges whom I

reference in footnote4 should come as a surprise to anyone

with even a rudimentary familiarity with the restrictions

imposed on the power of the state by the Fourth Amendment,

or the distinction between the prosecutorial function and

judicial authority.

5

See Odd, 258 F.3d at 214 ("In short, it is a judicial

function - the function of the courts - not a prosecutorial

function, to determine whom to incarcerate and for what

length of time.").

5