Byron Halsey v. Frank Pfeiffer

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

Nos. 13-1549 and 13-2236

________________

BYRON HALSEY,

Appellant

v.

FRANK PFEIFFER; GERALD ALSTON; PETER

BRANNON; RUSSELL COLUCCI; KEVIN CONNORS;

GERALD COURTNEY; RAYMOND LYNCH; JOHN

PROPSNER; EDWARD SANTIAGO; JOHN DOES NOS

1-100; RICHARD ROES NOS 1-10; PLAINFIELD

POLICE DEPARTMENT; CITY OF PLAINFIELD;

COUNTY OF UNION

________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 2-09-01138)

Hon. Dennis M. Cavanaugh, District Judge

________________

Argued December 18, 2013

BEFORE: JORDAN, VANASKIE, and GREENBERG,

Circuit Judges

(Filed: April 24, 2014)

_____________

OPINION OF THE COURT

David Rudovsky, Esq. (argued)

Jonathan H. Feinberg, Esq.

Kairys Rudovsky Messing & Feinberg, LLP

718 Arch Street, Suite 501 South

Philadelphia, PA 19106

Peter J. Neufeld, Esq.

Emma Freudenberger, Esq.

Anna Benvenutti Hoffmann, Esq.

Neufeld Scheck & Brustin, LLP

99 Hudson Street, 8th Floor

New York, NY 10013

Attorneys for Appellant

Edward J. Kologi, Esq.

Michael S. Simitz, Esq. (argued)

Kologi & Simitza

923 N. Wood Avenue

Linden, NJ 07036

Attorneys for Appellee Frank Pfeiffer

Robert F. Varady, Esq. (argued)

2

LaCorte, Bundy, Varady & Kinsella

989 Bonnel Court

Union, NJ 07083

Attorney for Appellee Raymond Lynch

GREENBERG, Circuit Judge

I. INTRODUCTION

The facts underlying this appeal—many of which are

undisputed—are hardly believable. Plaintiff-Appellant, Byron

Halsey, a young man with limited education, learned that the

two small children for whom he had been caring had been

tortured and murdered. He wanted to help in the investigation

of these heinous crimes but found himself isolated in a police

interview room, accused of the murders, told he had failed a

polygraph examination (that we now know he passed), and

confronted with false incriminating evidence. For a time he

maintained his innocence, but, after being interrogated for a

period extending over several days, and in a state of great fear,

he signed a document purporting to be his confession to the

crimes. Subsequently, he was charged, indicted, convicted, and

sentenced to prison for two life terms. But his “confession”

contained details that the investigators must have inserted

because Halsey could not have known them. And the real killer,

though he had a record of sexual assaults, was known to the

police, and was an obvious potential suspect as he lived in an

apartment next to the one that Halsey, the children, and their

mother occupied, avoided arrest despite nervously asking the

3

investigating detectives whether he would be “locked up.”

Finally, after 22 years the State of New Jersey released Halsey

from prison, not because trial error cast doubt on the result of

his criminal trial, but because it had been established beyond all

doubt that he had not committed the offenses. Except when an

innocent defendant is executed, we hardly can conceive of a

worse miscarriage of justice.

After his release, Halsey filed this civil action under 42

U.S.C. § 1983 with supplemental state-law claims alleging that

state actors and entities involved in his prosecution had violated

his constitutional rights. The defendants included, inter alia,

defendants-appellees Frank Pfeiffer and Raymond Lynch, the

two investigating police officers who Halsey claims (1)

fabricated the oral confession that led to the prosecutor filing

charges against him, (2) maliciously prosecuted him, and (3)

coerced him into signing the fabricated confession, which was

the critical evidence at his criminal trial. On appellees’ motions

for summary judgment, the District Court entered judgment in

their favor on all three claims on February 21, 2013, because the

Court believed that they had qualified immunity from Halsey’s

claims. Halsey v. Pfeiffer, Civ. No. 09-1138, 2013 WL 646200

(D.N.J. Feb. 21, 2013) (Halsey). Halsey then filed this appeal.

We will reverse and remand the case to the District Court

for further proceedings. First, we reaffirm what has been

apparent for decades to all reasonable police officers: a police

officer who fabricates evidence against a criminal defendant to

obtain his conviction violates the defendant’s constitutional

right to due process of law. Second, we reinstate Halsey’s

malicious prosecution claim, principally because the prosecutor

4

instrumental in the initiation of the criminal case against Halsey

has acknowledged that the false confession that appellees

claimed they obtained from Halsey contributed to the

prosecutor’s decision to charge Halsey, and for that reason we

will not treat the decision to prosecute as an intervening act

absolving appellees from liability. Moreover, without that false

confession, there would not have been direct evidence linking

Halsey to the crimes so that the prosecutor would not have had

cause to prosecute Halsey. Therefore, the District Court should

not have held on the motions for summary judgment that

appellees had a probable cause defense to Halsey’s malicious

prosecution claim. Third, we conclude that because the

evidence was sufficient for a rational jury to find that appellees,

who had interrogated Halsey for many hours, had coerced him

into signing the false confession, the Court should not have

granted appellees a summary judgment on Halsey’s coercion

claim.

II. FACTUAL BACKGROUND

The record that the parties submitted to the District Court

on appellees’ motions for summary judgment contains some

disputed facts that we recount, as we must, in the light most

favorable to Halsey, who was the non-moving party, though in

doing so we do not ignore undisputed facts favorable to

appellees. We emphasize, however, that we are not deciding

that appellees are liable to Halsey as we cannot be certain of

what evidence the parties will introduce at trial, and that

evidence may vary significantly from the evidence before the

5

District Court on the motions for summary judgment. In any

event, Halsey did not file a cross-motion for summary judgment

and even now does not contend that he is entitled to a judgment

in his favor without a trial.

The record, as now developed, shows that on the morning

of Friday, November 15, 1985, the superintendent of the

apartment building in Plainfield, Union County, New Jersey, in

which Halsey resided, discovered the body of eight-year-old

Tyrone Urquhart who had been murdered in the building’s

basement. The superintendent notified the police, and when the

officers arrived at the apartment house, they also found in the

basement the body of Tyrone’s seven-year-old sister, Tina, who

like Tyrone, had been murdered. Tina had been raped, beaten,

and strangled to death; Tyrone had been sexually assaulted,

mutilated with scissors, and killed with five large nails

hammered into his brain. It is difficult to imagine more brutal

crimes. The killer was Halsey’s friend and next-door neighbor,

Clifton Hall, who had a prior record for attempted sexual

assault. Naturally and appropriately, the police interviewed Hall

who, at that time, appeared to be nervous and asked whether he

was “going to be locked up.” J.A. 627. 1 But Hall need not have

been worried about that possibility because the investigators

focused their attention almost immediately on Halsey, and, so

far as we can ascertain from the record, they did not actively

treat Hall as a suspect.

1

J.A. refers to the parties’ joint appendix and D.A. refers to

appellees’ supplemental appendix.

6

Halsey, who had been living with Margaret Urquhart, the

mother of Tyrone and Tina, in the apartment building,

considered her children to be his own. Halsey, however, was

not a model citizen as he had a record that included numerous

arrests, though most were not for violent crimes and none had

resulted in his incarceration. At the time of the children’s

murders, Halsey was 24 years old with only a sixth-grade

education, and was, by his own account, not “a good reader.”

J.A. 270. Indeed, in 1988 he tested in the “Mildly Mentally

Retarded” range of intellectual functioning, with an I.Q. score of

68. J.A. 890. Pfeiffer was aware of Halsey’s cognitive

limitations. 2 Halsey had worked as a superintendent until about

a week before the murders in the building where he, Urquhart,

and the children lived and during that employment had access to

the basement where the bodies were found. But, as he later

would tell Pfeiffer, he had relinquished the basement keys prior

to the murders and we do not know if he continued to have

access to the basement after his employment as superintendent

ended.

Halsey was at his new job at another location when

Urquhart telephoned him and told him that her son was dead.

Understandably, he rushed home to his apartment, which he

2

As Halsey’s false-confession expert notes, Halsey had tested

higher as a child (77) and later, as an adult (94). As we will see,

however, the important matter with respect to Halsey’s mental

limitations is Halsey’s mental capacity at the time he confessed

as well as appellees’ perception of that capacity. To that end

appellees do not dispute that Halsey was, and appeared to them

to have been, mentally limited.

7

immediately discovered to be a crime scene. Pfeiffer and other

detectives intercepted him and required him to accompany them

to the police station for questioning, which Halsey reluctantly

did.

Because the events that transpired once Halsey arrived at

the police station that Friday morning were critical to the

disposition of the summary judgment motions and are critical on

this appeal, we recite them at length. The detectives took

Halsey to an interview room in the police station, read his

Miranda rights to him, handed him a Miranda waiver form, and

left him alone to decide whether to sign the waiver. After

Halsey signed the waiver, Pfeiffer and Lynch returned to ask

him questions, and Halsey’s answers were the first of three

statements that Halsey either gave or which was attributed to

him.

In the first statement, Halsey told the detectives—in

significant detail—about his activities the night of the murders.

Halsey stated that Urquhart left to play bingo and then went

straight to work for a night shift, leaving Halsey alone with the

children. After she left, Halsey went next door to smoke

marijuana with Hall. As he left the apartment, he locked the

doors and warned the children not to let anyone in. After Halsey

and Hall smoked marijuana, they left the apartment building to

go drinking at various bars. However, they separated when Hall

went home prior to Halsey who stayed out and continued

drinking. When Halsey finally arrived home at about 1 a.m., he

observed that the door to his apartment was open, the lights and

stove were on, and the children were missing. For reasons that

are unclear to us, in his first account to the investigators of his

8

activities on the night of the murders he falsely claimed to have

gotten into a fight on the way home. Regardless, discovering

that the children were missing, Halsey began searching for them

by asking several relatives and neighbors, including Hall,

whether they had any information about the children’s

whereabouts. Halsey called Urquhart within a half hour of

arriving home and told her that the children were missing. In a

debilitated state—he described being “in a daze” after staying up

until 4 a.m.—Halsey went to work that morning even though the

children still were missing, but he returned home after Urquhart

called him and told him that Tyrone was dead.

Following his initial interview with Halsey at the police

station, Pfeiffer obtained and executed a search warrant to take

Halsey’s clothes and to obtain his fingernail scrapings. Pfeiffer

then asked Halsey if he would take a polygraph examination,

and Halsey agreed to do so. Lynch, who was in charge of the

Major Crimes Division of the Union County Prosecutor’s

Office, arranged for a polygraph examiner from that office,

Peter Brannon, to administer the polygraph. Meanwhile, Halsey

fell asleep at the police station as he waited for the detectives

and Brannon to arrive. When they arrived, Brannon interviewed

Halsey and determined that he was too sleep deprived to take the

test. After Halsey had spent over 12 hours at the police station,

officers took him to his apartment to get clothes and then took

him to his half-sister’s apartment to sleep. They told him that

they would pick him up the next morning to administer the

polygraph test.

On the morning of Saturday, November 16, Pfeiffer

picked up Halsey and drove him to the prosecutor’s office in

9

Elizabeth, New Jersey. There, Halsey, who was not represented

by counsel, signed a statement stipulating that the results of the

polygraph test could be admitted into evidence at a criminal

trial. The agreement went further and explicitly waived any

opportunity for the side opposing the use of the polygraph

results to introduce expert witnesses at trial to challenge the

results, but did permit questions relating to the polygraph

examiner’s qualifications and methods.

Halsey ate breakfast and then took the polygraph, which,

according to an uncontested expert report written years later by

Charles Honts, Halsey’s expert on polygraphs, he passed. This

report, which Honts prepared with the use of methods of

assessing polygraph results that had been upgraded since the

time that Brannon gave the test, indicated that despite “some

serious problems with the design and implementation” of the

exam, Halsey registered “the strongest truthful score possible,”

even according to the metric used in 1985. J.A. 819-20. Honts

further opined that “no polygraph examiner who used a valid

scoring technique in 1985 could [have reached] the conclusion

that Mr. Halsey was being deceptive.” J.A. 819. Nevertheless,

Lynch testified at Halsey’s criminal trial that when he met with

Brannon at the prosecutor’s office, Brannon’s “preliminary”

view was that Halsey “was attempting deception.” J.A. 410. In

fact, Brannon subsequently indicated in a written report that

Halsey had lied in some respects, he was likely the killer, and he

had acted alone.

When Halsey finished taking the polygraph exam,

Pfeiffer drove him to the police station in Plainfield, and again

took him to an interview room. The evidence at Halsey’s trial

10

indicated that Halsey had told Pfeiffer that he wanted to correct

his first statement, though the record is unclear (and the parties

do not explain) whether this was why the police took Halsey to

the station or whether he went there on his own accord. In any

event, Halsey gave a second statement, which, like the first,

included many details, none of which were incriminating. He

did, however, recite in the second statement that he had not

gotten into a fight on his way home after drinking at the bars, as

he had claimed in his first statement. But he added that he

returned to his apartment with another individual, who, he said,

could confirm part of his account. Halsey has not explained

why he made up the seemingly insignificant fact regarding the

imaginary fight, though in his deposition in this case he

indicated that his physical state when he gave his first statement

could have been a contributing factor leading to this fabrication.

Halsey testified in his deposition that he thought that up

until this point Pfeiffer had treated him “fairly.” D.A. 50.

Indeed, Halsey indicated that Pfeiffer even offered him

cigarettes. In Halsey’s view, however, the nature of his

treatment soon changed. While Halsey was completing his

second statement, Pfeiffer and Lynch knew that Brannon

believed that Halsey had failed his polygraph test. The

detectives nonetheless let Halsey finish his story, to “hear him

out,” J.A. 414, before confronting him with the results of the

polygraph.

After conferring with Lynch, Pfeiffer returned to

interrogate Halsey for the next two hours, beginning at about

3:40 p.m.—an interrogation that Pfeiffer claimed in his

deposition ultimately led Halsey to confess to the commission of

11

the crimes. Halsey claimed in his deposition that this time

Pfeiffer took a different, more “forceful” approach than he had

taken earlier. D.A. 55. Pfeiffer stopped taking notes and

fixated on Halsey. As a result, the only record of this critical

interrogation appears in Pfeiffer’s summary of the interview,

which he drafted four days later. Lynch, as well as Pfeiffer,

prepared reports describing the proceedings in the investigation

so that each set forth his view of the investigative steps.

According to Halsey’s deposition testimony, Pfeiffer was

as relentless in this renewed interrogation as he was obstinate:

He didn’t really want to hear what I had to say.

He was just coming with these ideas, this paper,

and he was telling me this and telling me that. . . .

I’m telling him I had nothing to do with the crime,

okay. This man keeps telling me I have

something to do with the crime; this person said

that, that person said that, I failed the polygraph

test, and he kept going over and over and over. I

told him I didn’t do it, I don’t know nothing about

it.

D.A. 55. Pfeiffer probed Halsey’s statements, which he told

Halsey he found absurd, like not calling the police immediately

after discovering that the children were missing and eating a

meal before looking for them.

Pfeiffer also told Halsey that two witnesses, Jeffrey

Nicholson and Halsey’s cousin, Audrey King, had given

statements contradicting his account of his activities on the night

12

of the murders. Pfeiffer informed Halsey that Nicholson said

that he had heard Halsey engage in sexual relations that night at

a time when Halsey claimed he was searching for the children,

and that King had spoken with him about Tina and Tyrone prior

to the time that he claimed to have returned home from his

evening of drinking. In addition, Dawn Troutman said that

Halsey called her at around 9:00 p.m. on the night of the

murders and told her that the children were missing. In 2007,

King and Troutman told the Union County Prosecutor’s office

that their statements to the police at the time of the original

investigation had been inaccurate. According to these

witnesses’ 2007 accounts, the police at the time of the first

investigation had “badgered” Troutman and coerced King until

they agreed to change earlier statements that they had given.

Halsey contended in his deposition in this case that he

maintained his innocence throughout the interrogation, telling

Pfeiffer repeatedly that he “didn’t do it” and that he “had

nothing to do with it.” J.A. 277-78. Pfeiffer purports to have a

different recollection of the interrogation. In the report that he

prepared after the prosecutor filed the charges against Halsey, he

wrote that Halsey began “talking in somewhat jibberish type of

phrases” and told Pfeiffer that he often loses control when he

consumes drugs and alcohol, becoming a “Jeckyl and Hyde.” It

then became obvious to Pfeiffer that Halsey wanted “to get

something off of his mind”; Pfeiffer said that he could help; and

Halsey “went into some form of a trance . . . talking basically in

one syllable sentences.” Halsey began to cry, and then

confessed in vague terms to killing the children and hiding their

bodies. J.A. 485-86. Halsey acknowledged in his deposition to

having cried, and could not recall whether he went into a trance;

13

but he denied the rest of Pfeiffer’s account, particularly the

portion about confessing.

According to Lynch’s deposition testimony, Pfeiffer

emerged from the interview room around 6:00 p.m., about 2.5

hours after he began the more forceful part of the interrogation,

and told Lynch that Halsey had confessed to the crime. He also

showed Lynch a piece of paper with Halsey’s handwriting,

which contained doodles and cryptic phrases—still nothing

incriminating—including the line, “I feel like a fuck up because

of thing or things that happen [sic] Friday night.” J.A. 929.

According to Pfeiffer’s report, Halsey requested that

members of the Union County Prosecutor’s Office join in his

conversation with appellees. Lynch testified at Halsey’s trial

that he entered the interview room with Pfeiffer, beginning

another six hours of uninterrupted interrogation. Appellees

described Halsey asking Lynch what charges he would face and,

upon learning that he would be charged with rape and homicide,

he agreed to make a formal statement. Without any objection or

request for clarification, Halsey again agreed to waive his

Miranda rights.

Pfeiffer recorded the alleged confession in a question-

and-narrative-answer format to which we refer as Halsey’s third

statement. The account began with Halsey, who was frustrated

and angry, berating Urquhart before she departed to play bingo,

and quickly turned into a scene of Halsey beating and choking

the children. This account contained information about the

crime that was not publicly available, and thus that only the

police and the murderer knew. The account, in terrible detail,

14

indicates that a brick was used to hammer nails into Tyrone’s

head and was left on a closet shelf; bloody rags and scissors

were stuffed in a plastic bag and hidden in a boiler room,

outside of a broken window; Tina was raped on a couch in the

basement, with her underwear stuffed in her mouth; and the

children’s bloodied bodies were carried down the staircase to the

basement. 3

The purported confession also included details that were

consistent with what the investigators believed at the time they

were questioning Halsey, but these details were inconsistent

with or omitted significant facts as they ultimately emerged.

Thus, Pfeiffer’s summary of Halsey’s confession stated that he

had hammered four nails into Tyrone’s head. It is true that four

nails were visible when the police examined Tyrone’s body, but

an x-ray and a pathology report later revealed that there was a

fifth nail in Tyrone’s head. In another omission of a critical

fact, the confession did not indicate that Tyrone had been

sexually assaulted, a fact that was not known until later tests

were performed on Tyrone’s body.

While Halsey was insisting that he was innocent (or if

Pfeiffer’s and Lynch’s testimony at Halsey’s criminal trial is to

3

In the statement attributed to Halsey he said that he carried the

two children down the stairs to the basement and that he

sexually assaulted Tina “in the basement on the blue couch.”

J.A. 488-89. He also purportedly said that he grabbed Tina by

the throat “upstairs and choked her” until he “killed her.” J.A.

490. This point is important as the police found “blood on the

staircase” and that was a “nonpublic fact.” J.A. 549.

15

be believed, while he was confessing), Assistant Prosecutor

David Hancock was outside of the interview room, waiting for

Pfeiffer or Lynch to slide each finished page of what appeared

to be a summary of Halsey’s oral confession underneath the

door. Hancock was present to suggest any questions that the

detectives might have forgotten to ask and to determine whether

there was sufficient probable cause to charge Halsey with the

murders. Hancock testified in his deposition that he did not

recall hearing any yelling and even reported hearing laughter

coming from the interview room. But Hancock was unable to

understand the interview room’s occupants’ conversation and

assumed that the pages appellees were sliding to him were an

accurate transcription of Halsey’s statement.

Although Halsey has denied confessing, he has admitted

that after the investigators reduced the incriminating statement

to writing and showed it to him, he signed it. Halsey explained

in his deposition that the detectives had been ignoring his

answers, and he was “tired . . . , drained, frustrated.” D.A. 67.

Halsey claimed in his deposition to have signed the statement to

“get away” from the detectives, who had been “coming at

[him]” all night, causing him to “fear[] for [his] life.” D.A. 67;

J.A. 276, 494. 4

The chief of the Plainfield Police Department, John

4

Halsey testified in his deposition that “I just was arguing with

them and going back and forth and no one seemed to be

listening to what I was saying, and there was hollering and

screaming and just so much stuff, and I was like, whatever, I just

signed, [sic] get away from them.” J.A. 276.

16

Propsner, arrived at the police station at about midnight to go

over Halsey’s third statement, the so-called confession. It took

about 17 minutes for Propsner to discuss the written statement

with Halsey and to obtain his signature on it. According to

Pfeiffer’s summary, Halsey made a minor edit on the first page,

which shows a handwritten “I” and “BH.” Halsey testified in

his deposition that he could not recall whether he made those

changes, or whether he even had a chance to review the

statement before he signed it.

Hancock testified in his deposition that, based in part on

Halsey’s confession, he decided to charge Halsey with the

murders. Halsey’s apparent knowledge of the nonpublic details

of the crimes significantly contributed to Hancock’s decision to

charge Halsey with the offenses. As Hancock explained in his

deposition, he deems corroborating evidence to confessions to

be critical and uncorroborated statements to be “worthless.”

J.A. 753. The incriminating details that he believed that Halsey

supplied were particularly important because, in Hancock’s

view, a defendant’s failure on a polygraph examination is not, in

itself, a sufficient basis to arrest and charge him. Hancock did

not indicate whether, without the confession, he would have

believed that there was sufficient probable cause to prosecute

Halsey based on the polygraph exam results and other evidence,

such as the circumstance that Urquhart left him alone with the

children when she left the apartment to play bingo and go to

work. He conceded, however, that he would not have charged

Halsey that night if he did not have the confession.

Hancock read only a few pages of what he believed was

Halsey’s admission of guilt before starting to draft the criminal

17

complaint against him. Hancock explained in his deposition that

if Halsey had refused to sign the so-called confession and

backtracked, he might not have charged Halsey with the

offenses. But Halsey gave no indication to Propsner that the

confession was, as he later put it, “a lie.” D.A. 38. So Hancock

saw no reason to delay bringing the charges.

A detective, other than Pfeiffer or Lynch, took Halsey to

be arraigned on charges of first degree murder, aggravated

sexual assault, possession of a weapon, and child abuse. 5

During a hearing in a state trial court on a motion to suppress

evidence of the confession, the prosecutor indicated that if the

court excluded Halsey’s signed confession, the prosecution

would not have sufficient evidence to proceed with the case

because the confession was the sole direct evidence linking

Halsey to the crimes as there was no physical evidence or

eyewitness testimony supplying such a link. The state court

denied the motion to suppress the confession, so it was admitted

into evidence, and used at trial. Halsey was convicted and

sentenced to two life terms plus 20 years in prison. As severe as

the sentence was, it was less severe than the death penalty that

the prosecutor had sought. Halsey appealed, but the New Jersey

courts upheld the conviction. See State v. Halsey, 748 A.2d

634, 635 (N.J. Super. Ct. App. Div. 2000).

The criminal proceedings did not end with the trial and

direct appeal. Finally, after additional proceedings, the Union

5

Prosecutor Howard Weiner signed the criminal complaint, but

he had no recollection of Halsey’s criminal case when he was

deposed in this litigation.

18

County Prosecutor’s Office agreed to release certain items from

the crime scene for DNA testing. In 2006 a DNA test and a

follow-up investigation confirmed, beyond dispute, that Halsey

was innocent. In particular, the results excluded Halsey as a

potential contributor to the semen stains found on Tina’s

underpants and the basement couch. Those items, as well as a

cigarette butt in the basement, tied Clifton Hall to the crimes.

The Union County Prosecutor’s Office then moved to vacate

Halsey’s conviction and it sought and obtained an order

dismissing the indictment against Halsey who was released from

prison.

The prosecutor then reopened the investigation and

ultimately concluded that Hall had committed the offenses and

had acted alone. Besides the new DNA evidence, the

prosecution took into account a new witness account, which

debunked a statement that Hall had given regarding his

whereabouts the night of the murders, as well as an expert report

suggesting that Halsey’s behavior during his confession should

have raised “red flags.” 6 J.A. 1138-39, 1142. The investigators

concluded that “there was no evidence linking Byron Halsey to

that murder scene at all, at all.” J.A. 1143. Hall was indicted

for commission of the offenses, but died while in custody before

he could be tried for the offenses involved in this case. Hall’s

attorney later represented to the prosecution that Hall had been

6

An assistant prosecutor testifying in a deposition about the

reinvestigation of the criminal case referred to a report authored

by a Dr. Schlesinger, which none of the parties discusses in the

briefs.

19

prepared to confess to having committed the offenses.

III. PROCEDURAL BACKGROUND

Halsey’s original complaint in this case, filed in March

2009, named a number of defendants besides Pfeiffer and

Lynch, but ultimately the District Court dismissed the complaint

against all the defendants, some with Halsey’s consent or on his

motion. These additional defendants were police officers and

investigators, including Propsner and Brannon, as well as Union

County, the City of Plainfield, and the Plainfield Police

Department. Halsey has not appealed from any order dismissing

a defendant other than appellees, and thus we are concerned

only with the District Court’s February 21, 2013 order granting

appellees’ motions for summary judgment. In the portion of the

order from which Halsey appeals, the Court dismissed Halsey’s

claims of fabrication of evidence, malicious prosecution, and

coercion under 42 U.S.C. § 1983 predicated on federal

constitutional law as well as supplemental counts under N.J.

Stat. Ann. §10:6-2, et seq. 7

7

Halsey included a section 1983 claim in his complaint based on

the law announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194 (1963), contending that appellees suppressed exculpatory

evidence relating to his case. Although Halsey opposed the

dismissal of his Brady civil claim at the summary judgment

proceedings, he does not seek a reversal of that dismissal on this

appeal. Thus, we do not address that claim.

20

When the District Court granted Pfeiffer and Lynch

summary judgment it said that they were entitled to qualified

immunity from Halsey’s action. First, the Court held that

appellees had qualified immunity from Halsey’s due process of

law fabrication claim because this Court never expressly has

recognized such a claim as the basis for a stand-alone cause of

action, i.e., a claim not tied to a separate cause of action, and

thus appellees could not have violated established law simply by

fabricating evidence. Second, the Court granted appellees

summary judgment on Halsey’s Fourth Amendment malicious

prosecution claim because it believed that Hancock, the

prosecutor, made a reasonable and independent decision to

charge Halsey, and by this intervening act created a defense for

appellees on that claim. Finally, the Court found that Halsey’s

testimony undercut his claim that appellees coerced him into

making a false confession in violation of due process of law.

Halsey challenges these conclusions on appeal. 8

IV. JURISDICTION AND STANDARD OF REVIEW

8

Although Pfeiffer and Lynch have filed separate briefs, they

have taken virtually identical positions on this appeal and

Lynch’s brief incorporates much of its argument from Pfeiffer’s

brief. For simplicity, generally when we make reference to

Pfeiffer’s contentions we intend to include Lynch’s contentions,

or we refer to “appellees’” contentions. In this regard, we note

that appellees are not at odds over the facts of the case.

21

The District Court had jurisdiction under 28 U.S.C. §§

1331, 1343, and 1367; we have jurisdiction under 28 U.S.C. §

1291. 9 We exercise plenary review of the District Court’s grant

of summary judgment and the legal issues underpinning a claim

of qualified immunity. Doe v. Luzerne Cnty., 660 F.3d 169, 174

(3d Cir. 2011); Yarris v. Cnty. of Delaware, 465 F.3d 129, 134

(3d Cir. 2006).

In reviewing orders entered on motions for summary

judgment, we apply the same standard as a district court, and

thus we determine whether there was any “genuine dispute as to

any material fact.” Fed. R. Civ. P. 56(a). When defendants

move for summary judgment, they bear the burden “to show that

the plaintiff has failed to establish” an essential element of his

claim. Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir.

2013). At the summary judgment stage of proceedings, courts

do not “weigh the evidence or make credibility determinations,”

but, instead, leave that task to the fact-finder at a later trial if the

court denies summary judgment. Petruzzi’s IGA Supermarkets

v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993).

In considering a summary judgment motion, a court must view

the evidence in the light most favorable to the non-moving party

and give that party the benefit of all reasonable inferences that

can be drawn from the evidence. Burton, 707 F.3d at 425. The

9

After Halsey filed his initial notice of appeal, the parties

formalized an agreement that they had reached to dismiss the

case against defendants other than appellees, and the District

Court entered dismissal orders in accordance with that

agreement, making its decision granting summary judgment to

appellees a final and appealable order.

22

line between reasonable inferences and impermissible

speculation is often “thin,” Fragale & Sons Beverage Co. v. Dill,

760 F.2d 469, 474 (3d Cir. 1985), but nevertheless is critical

because “an inference based upon a speculation or conjecture

does not create a material factual dispute sufficient to defeat

summary judgment.” Robertson v. Allied Signal, Inc., 914 F.2d

360, 382 n.12 (3d Cir. 1990). Inferences must flow directly

from admissible evidence. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986).

V. DISCUSSION

As we noted, the District Court held that qualified

immunity shielded Pfeiffer and Lynch from liability on all three

claims that Halsey presses on this appeal. Qualified immunity

protects government officials performing discretionary functions

“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.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982).

A qualified immunity inquiry is two-pronged, though

courts are free to address the two elements in whichever order

they deem appropriate. Pearson v. Callahan, 555 U.S. 223, 235,

129 S.Ct. 808, 818 (2009). Normally, however, in considering a

qualified immunity issue, we will ask whether a defendant’s

conduct violated a defendant’s statutory or constitutional rights

before addressing whether that law had been established at the

time of the violation so that the unlawfulness of the conduct

23

should have been apparent to an objectively reasonable official.

See, e.g., Showers v. Spangler, 182 F.3d 165, 171 (3d Cir.

1999); see also Pearson, 555 U.S. at 236, 129 S.Ct. at 818

(recognizing that addressing the two elements in the traditional

order is “often beneficial”). 10

Unlike some other courts, 11 we follow the general rule of

10

Like the District Court, we acknowledge the preference for

resolving qualified immunity questions “at the earliest possible

stage in litigation,” preferably before discovery. Pearson, 555

U.S. at 231, 129 S.Ct. at 815 (citation and internal quotation

marks omitted). We recognize this preference because, as the

Supreme Court has explained, “qualified immunity is an

immunity from suit rather than a mere defense to liability . . . .

[I]t is effectively lost if a case is erroneously permitted to go to

trial.” Id., 129 S.Ct. at 815 (internal citation and quotation marks

omitted).

11

See, e.g., Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.

2013) (“This court reviews summary judgments based on

qualified immunity differently than other summary judgments.

When a defendant asserts qualified immunity at summary

judgment, the burden shifts to the plaintiff . . . .” (internal

quotation marks omitted)); Crosby v. Monroe Cnty., 394 F.3d

1328, 1332 (11th Cir. 2004) (“Once the official has established

that he was engaged in a discretionary function, the plaintiff

bears the burden of demonstrating that the official is not entitled

to qualified immunity.”). We note, however, that our result on

this appeal would not be different if we placed the burden on

Halsey to demonstrate that appellees were not entitled to

24

placing the burden of persuasion at a summary judgment

proceeding on the party asserting the affirmative defense of

qualified immunity. See, e.g., Reedy v. Evanson, 615 F.3d 197,

223 (3d Cir. 2010) (“The burden of establishing entitlement to

qualified immunity is on [the defendant-movant].”); Bailey v.

Pataki, 708 F.3d 391, 404 (2d Cir. 2013)

(“Qualified immunity is an affirmative defense and the burden is

on the defendant-official to establish it on a motion for summary

judgment.”); see also Harlow, 457 U.S. at 812, 102 S.Ct. at 2735

(“The burden of justifying absolute immunity rests on the

official asserting the claim.” (emphasis added)). Thus, appellees

either had to show that there was no genuine dispute of material

fact to refute their contention that they did not violate Halsey’s

constitutional rights as he asserted them, or show that reasonable

officers could not have known that their conduct constituted

such a violation when they engaged in it.

A. Fabrication of Evidence

The first claim on this appeal presents two purely legal

questions: Did the appellees violate Halsey’s constitutional

right to due process of law under the Fourteenth Amendment by

fabricating evidence to justify his prosecution? And, if so, was

that Fourteenth Amendment right so clearly established by 1985,

when appellees allegedly fabricated Halsey’s oral confession,

that reasonable officers would have known that their conduct in

fabricating evidence would violate that right?

qualified immunity.

25

Appellees argue that they cannot be held liable either for

fabricating Halsey’s confession, because it “only had relevance

once signed,” or for writing their reports describing the

investigation, because they wrote those reports after the

prosecutor already had filed the charges against Halsey.

Pfeiffer’s br. at 30. Those contentions besides being

unpersuasive, come too late. They inform only the first prong of

the qualified immunity inquiry—i.e., whether appellees

committed a constitutional violation—but the appellees did not

address that prong in the District Court. Before that Court they

addressed only the second prong of a qualified immunity claim,

i.e., whether reasonable officers would have known that their

conduct violated a defendant’s statutory or constitutional rights.

Thus, the District Court did not consider whether appellees had

a qualified immunity defense based on the first prong of that

defense and appellees have not preserved any contention that

they had a defense on that basis. See, e.g., United States v.

Dupree, 617 F.3d 724, 727 (3d Cir. 2010) (confirming the “well-

established proposition that arguments not raised in the district

courts are waived on appeal”).

But even if they had preserved their new contentions they

would be meritless for two reasons. First, the contention that a

defendant’s oral confession is irrelevant until there is a signed

written confession is simply wrong. Evidence of oral

confessions can be admissible in criminal trials, particularly if

the confessing defendant has waived his Miranda rights. See,

e.g., United States v. Oba, 978 F.2d 1123, 1130 (9th Cir. 1992)

(“Oba signed a waiver form and gave an oral statement. Thus,

his confession was admissible.”); see also 18 U.S.C. § 3501(e)

(including both oral and written confessions as admissible in

26

federal criminal proceedings).

Second, for purposes of summary judgment, appellees

engaged in conduct before Halsey signed the purported

confession and before the prosecutor charged him with

commission of the crimes that later injured him. Appellees

allegedly inserted nonpublic facts about the crime (of which

Halsey could not have been aware) into a detailed oral

confession that Halsey maintains he never made. Their

purported fabrication was double-edged: they told the prosecutor

that Halsey had confessed even though he had not done so, and

they included critical details in the confession to enhance its

credibility in order to induce the prosecutor to proceed against

Halsey. Accordingly, even if appellees’ contention that oral

confessions have no “relevance” were correct in the abstract, as

already noted, Halsey’s confession was quite relevant because it

played a crucial role in the prosecutor’s decision to charge

him. 12

12

Lynch’s counsel at oral argument contended that we should

affirm the dismissal of the fabrication count against his client by

arguing his client was not in the interview room at the time of

the alleged fabrication. Lynch has waived this contention

because he did not make it in the District Court and has raised it

for the first time on this appeal. See United States v. Voigt, 89

F.3d 1050, 1064 n.4 (3d Cir. 1996). But even if Lynch

preserved the contention, it would be meritless in these summary

judgment proceedings. Although, according to Pfeiffer, Halsey

initially confessed to him alone, Lynch entered the room when

Halsey made the detailed—and purportedly fabricated—

27

We thus turn to the legal question of whether a state actor

engages in actionable conduct simply by fabricating evidence.

The District Court held that he does not do so because, in the

Court’s view, malicious prosecution claims that often

accompany fabrication claims subsume the fabrication claims.

The Court believed that this Court has not recognized that

fabrication claims standing alone are actionable under 42 U.S.C.

§ 1983, and it therefore reasoned that appellees could not have

violated established law in 1985 by fabricating evidence. We

disagree. When falsified evidence is used as a basis to initiate

the prosecution of a defendant, or is used to convict him, the

defendant has been injured regardless of whether the totality of

the evidence, excluding the fabricated evidence, would have

given the state actor a probable cause defense in a malicious

prosecution action that a defendant later brought against him.

We thus pass to the question of whether a state actor can be

liable on a stand-alone claim for fabrication of evidence or

whether a defendant’s fabrication claim must be included as an

aspect of a malicious prosecution claim.

1. Whether There is an Independent Prohibition Against

Fabricating Evidence

Appellees concede that a criminal defendant has been

denied due process of law if he is convicted on the basis of

fabricated evidence. Pfeiffer br. at 34 (“It is undisputed that

statement that was passed page-by-page (either by Lynch or

Pfeiffer) to Hancock, the prosecutor. Thus, the record supports

a conclusion that Lynch played a role nearly as central as that of

Pfeiffer in the fabrication of the confession.

28

fabrication of evidence can violate the Constitution. . . .”). They

further agree that a defendant can seek redress for violation of

this right through a civil action under 42 U.S.C. § 1983, though

they maintain that he can do so only by bringing the fabrication

claim as part of a malicious prosecution claim. Thus, appellees

contend that the two claims are intertwined and that the former

can exist only as a portion of the latter.

The District Court agreed with this position in reliance on

several district court opinions as well as our opinion in Johnson

v. Knorr, 477 F.3d 75 (3d Cir. 2007). But Johnson does not

stand for the proposition that the District Court ascribed to it, to

wit that we have “recognize[ed] a fabrication of evidence claim

as one for malicious prosecution.” Halsey, 2013 WL 646200, at

*8. In Johnson, the plaintiff-appellant, Gamal Johnson, fused

his fabrication of evidence and malicious prosecution claims by

arguing that the district court had erred in dismissing his

malicious prosecution count that he based in part on allegations

that evidence against him was fabricated. See Johnson, 477

F.3d at 81. But Johnson did not argue that a fabrication claim

could give rise to a stand-alone cause of action, and,

accordingly, we did not address that issue. We will do so today.

Section 1983 provides a civil remedy for the “deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983. To state a claim

under section 1983, a plaintiff must demonstrate that “some

person has deprived him of a federal right . . . [and] that the

person who has deprived him of that right acted under color of

state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640,

100 S.Ct. 1920, 1923 (1980). Appellees do not contend that

29

they were not acting under the color of state law when they

questioned Halsey during their investigation of the murders and,

as we have noted, they acknowledge that by fabricating evidence

a state actor violates a criminal defendant’s constitutional rights.

But the parties disagree over the identification of the

constitutional right implicated in a fabrication case. This

identification can be important. Appellees maintain that a state

actor by fabricating evidence violates only the Fourth

Amendment and its protection against unlawful seizures, 13 and

the violation is redressable, as we have indicated that they have

asserted, only by bringing a case for malicious prosecution. 14

13

The Fourth Amendment provides that:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

14

For two reasons our discussion of malicious prosecution, as

distinguished from our discussion of fabrication of evidence,

will center on the Fourth Amendment rather than on the

Fourteenth Amendment. First, while Halsey pled both Fourth

and Fourteenth Amendment malicious prosecution counts, at

some point in the proceeding—certainly by the time of the

appeal—he abandoned the Fourteenth Amendment iteration of

30

the malicious prosecution claim, thus obviating the need for us

to decide its viability. Compare Torres v. McLaughlin, 163 F.3d

169, 173 (3d Cir. 1998) (reaffirming that section 1983 malicious

prosecution claims cannot be based on substantive due process

but declining to decide whether they could be grounded in

procedural due process), with Gallo v. City of Philadelphia, 161

F.3d 217, 222 (3d Cir. 1998) (suggesting that Supreme Court

case law leaves only the Fourth Amendment as potential source

of malicious prosecution claims). In addition, neither Halsey

nor appellees point to other constitutional provisions covering

malicious prosecutions. See, e.g., Merkle v. Upper Dublin Sch.

Dist., 211 F.3d 782, 792-93 (3d Cir. 2000) (analyzing malicious

prosecution claims predicated on the First and Sixth

Amendments).

Second, though appellees mention in passing and in

general terms other causes of action that potentially could

subsume evidence-fabrication claims—namely, false arrests

(Pfeiffer’s br. at 32; Lynch’s br. at 20) and claims pursuant to

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)

(Pfeiffer’s br. at 34)—for purposes of this case, they focus

exclusively on the Fourth Amendment malicious prosecution

theory. Furthermore, the Fourth Amendment is the only

constitutional predicate that the District Court found covered

Halsey’s evidence-fabrication count. Halsey, 2013 WL 646200,

at *8-9. In these circumstances, we, too, will focus on the

Fourth Amendment when discussing malicious prosecutions

claims. We add, however, that even if a fabrication claim could

be tied to a claim under a constitutional provision other than the

Fourth Amendment, we would see no reason why the fabrication

31

Pfeiffer’s br. at 30-31. See Johnson, 477 F.3d at 81-82. Halsey,

however, grounds the right to be free from fabricated evidence

on the Fourteenth Amendment’s guarantee of due process of

law. 15 Appellant’s br. at 25-26.

The boundary between Fourth Amendment and

Fourteenth Amendment claims is, at its core, temporal. The

Fourth Amendment forbids a state from detaining an individual

unless the state actor reasonably believes that the individual has

committed a crime—that is, the Fourth Amendment forbids a

detention without probable cause. See, generally, Bailey v.

United States, __ U.S. __, 133 S.Ct. 1031, 1037 (2013). But this

protection against unlawful seizures extends only until trial. See

Schneyder v. Smith, 653 F.3d 313, 321 (3d Cir. 2011)

(observing that post-conviction incarceration does not implicate

the Fourth Amendment). The guarantee of due process of law,

by contrast, is not so limited as it protects defendants during an

entire criminal proceeding through and after trial. Pierce v.

Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir. 2004) (“The initial

claim could not stand alone.

15

The Fourteenth Amendment guarantees, in relevant part:

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any state

deprive any person of life, liberty, or property,

without due process of law . . . .

32

seizure is governed by the Fourth Amendment, but at some point

after arrest, and certainly by the time of trial, constitutional

analysis shifts to the Due Process Clause.” (internal citation

omitted)).

In the future we may be called on to chisel more finely

the lines between the two claims—thus we might be required to

decide precisely when an unlawful seizure “ends and [a] due

process . . . [violation] begins.” Pierce, 359 F.3d at 1286. But

we are spared the burden of doing so now because the fabricated

confession obviously injured Halsey long after he suffered an

injury attributable to his pre-trial detention. In his complaint,

Halsey alleged that the fabrication of evidence resulted in an

unfair trial and his wrongful conviction that, in turn, led to his

incarceration. He supported these allegations opposing the

summary judgment motions with evidence that the confession

was fabricated, that it was the key ingredient to securing his

indictment and conviction, and that it was the reason he spent 22

years in prison, almost 20 of which he served after his wrongful

conviction. Wherever the boundary between the Fourth and

Fourteenth Amendment claims lies, it is in the rear view mirror

by the end of trial, when Fourth Amendment rights no longer are

implicated. See, e.g., Schneyder, 653 F.3d at 321; Donahue v.

Gavin, 280 F.3d 371, 382 (3d Cir. 2002) (disallowing recovery

for post-conviction injuries based on the Fourth Amendment);

Torres v. McLaughlin, 163 F.3d 169, 174 (3d Cir. 1998) (“At

most, there may be some circumstances during pre-trial

detention that implicate Fourth Amendment rights; however, we

refer to the Fourth Amendment as applying to those actions

which occur between arrest and pre-trial detention.”).

33

Accordingly, at least some of Halsey’s allegations

stemming from the alleged oral confession do not fall under the

traditional definition of a Fourth Amendment malicious

prosecution claim. See Johnson, 477 F.3d at 81-82. 16 We

therefore must decide whether his fabrication claim can be

grounded on the due process clause of the Fourteenth

Amendment.

On this score, appellees have little to offer. To the best

of our knowledge, every court of appeals that has considered the

question of whether a state actor has violated the defendant’s

right to due process of law by fabricating evidence to charge or

convict the defendant has answered the question in the

affirmative. See Whitlock v. Brueggemann, 682 F.3d 567, 585

(7th Cir. 2012) (collecting court of appeals cases). 17 We join

16

See also Albright v. Oliver, 510 U.S. 266, 271 n.4, 114 S.Ct.

807, 811 n.4 (1994) (collecting courts of appeals’ cases dealing

with treatment of malicious prosecution claims under section

1983); Washington v. Cnty. of Rockland, 373 F.3d 310, 316 (2d

Cir. 2004) (“[T]o sustain a § 1983 malicious prosecution claim,

there must be a seizure or other perversion of proper legal

procedures implicating the claimant’s personal liberty and

privacy interests under the Fourth Amendment.” (internal

quotation marks omitted)).

17

See also Washington v. Wilmore, 407 F.3d 274, 283 (4th Cir.

2005) (holding that a conviction and incarceration resulting

from fabricated evidence may violate due process); Limone v.

Condon, 372 F.3d 39, 45 (1st Cir. 2004) (observing that actions

involving fabricating evidence and framing individuals

34

these courts in expressly adopting this principle.

A different view is not just unsupported; it is untenable.

Adoption of the District Court’s conclusion would mean that

there would not be a redressable constitutional violation when a

state actor used fabricated evidence in a criminal proceeding if

the plaintiff suing the actor could not prove the elements of a

malicious prosecution case, such as the lack of probable cause

for the prosecution. See Johnson, 477 F.3d at 82. We need not

look beyond this case for a basis to reject appellees’ contention

that evidence-fabrication claims must be tied to malicious

prosecution cases. The District Court concluded that there was

“necessarily violate due process”); Wilson v. Lawrence Cnty.,

260 F.3d 946, 954 (8th Cir. 2001) (“If officers use false

evidence, including false testimony, to secure a conviction, the

defendant’s due process is violated.”); Devereaux v. Abbey, 263

F.3d 1070, 1074-75 (9th Cir. 2001) (en banc) (“[T]here is a

clearly established constitutional due process right not to be

subjected to criminal charges on the basis of false evidence that

was deliberately fabricated by the government.”); Ricciuti v.

N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (“Like a

prosecutor’s knowing use of false evidence to obtain a tainted

conviction, a police officer’s fabrication and forwarding to

prosecutors of known false evidence works an unacceptable . .

.[violation of due process.]”); United States v. Lochmondy, 890

F.2d 817, 822 (6th Cir. 1989) (“The knowing use of false or

perjured testimony constitutes a denial of due process if there is

any reasonable likelihood that the false testimony could have

affected the judgment of the jury.”).

35

probable cause to charge Halsey even without considering his

confession. 18 Even if we agreed with this conclusion (and we

do not), we believe that no sensible concept of ordered liberty is

consistent with law enforcement cooking up its own evidence.

We emphatically reject the notion that due process of law

permits the police to frame suspects. Indeed, we think it self-

evident that “a police officer’s fabrication and forwarding to

prosecutors of known false evidence works an unacceptable

‘corruption of the truth-seeking function of the trial process.’”

Id. (quoting, inter alia, United States v. Agurs, 427 U.S. 97, 104,

96 S.Ct. 2392, 2397 (1976)). Requiring that a plaintiff join a

fabrication claim with a malicious prosecution claim would

come close to making “a mockery of the notion that Americans

enjoy the protection of due process of the law and fundamental

justice.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130

(2d Cir. 1997).

We could not reconcile a contrary conclusion with the

mandate of section 1983 that guarantees defendants (and other

persons as well) against “deprivation of any rights . . . secured

by the Constitution.” 42 U.S.C. § 1983 (emphasis added). As

the Supreme Court has explained, section 1983 was intended “to

deter state actors from using the badge of their authority to

deprive individuals of their federally guaranteed rights and to

provide relief to victims if such deterrence fails.” Wyatt v.

Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 1830 (1992). A rule of

18

The District Court, referring to the fabricated confession, said

that “there were facts independent of the tainted evidence . . . to

establish probable cause.” Halsey, 2013 WL 646200, at *6.

36

law foreclosing civil recovery against police officers who

fabricate evidence, so long as they have other proof justifying

the institution of the criminal proceedings against a defendant,

would not follow the statute’s command or serve its purpose.

Against these settled principles and overwhelming

precedent, appellees cite district court decisions that fall into

two categories, but both categories are distinguishable from this

case. Pfeiffer’s br. at 30-32. In the first group, the cases merely

demonstrate that a single set of factual allegations can contribute

to more than one claim. For instance, one case that Pfeiffer

cites, Pfeiffer’s br. at 31, explained that falsification of

evidence, like other “bad-faith conduct,” can be “probative of a

lack of probable cause.” Peterson v. Bernardi, 719 F. Supp. 2d

419, 428 (D.N.J. 2010). But that view is reconcilable with a

conclusion that there is an independent falsification claim for

“[c]ertain wrongs affect more than a single right and,

accordingly, can implicate more than one of the Constitution’s

commands.” Soldal v. Cook Cnty., 506 U.S. 56, 70, 111 S.Ct.

538, 548 (1992); see also Gregory v. City of Louisville, 444

F.3d 723, 750-54 (6th Cir. 2006) (reversing district court’s

conclusion that one factual premise could not form the bases of

separate claims of constitutional violations under section 1983).

The second group of cases that appellees cite involve

plaintiffs against whom the germane criminal charges were

dismissed before trial. See, e.g., Molina v. City of Lancaster,

159 F. Supp. 2d 813 (E.D. Pa. 2001). These decisions are

inapposite here because, as we noted earlier, we do not decide

today whether pre-trial detentions can implicate constitutional

rights beyond the Fourth Amendment inasmuch as we are

37

dealing with injuries that go far beyond the injury to Halsey

attributable to his pre-trial detention.

To be sure, some courts have expressed uncertainty as to

whether section 1983 evidence-fabrication claims can stand

alone, and Zahrey v. City of N.Y., No. 98-4546, 2009 WL

54495, at *36 n.47 (S.D.N.Y. Jan. 7, 2009), helpfully collects

some of those cases. Zahrey points out that “[t]here seems to be

some question in [the Second Circuit] as to whether evidence

fabrication creates a section 1983 cause of action separate and

apart from a malicious prosecution action.” But at least some of

the courts that treat fabrication and malicious prosecution claims

together, as the Court of Appeals for the Second Circuit

appeared to have done in Jocks v. Tavernier, 316 F.3d 128 (2d

Cir. 2003), have done so in circumstances that we already have

distinguished, namely where the evidence-falsification did not

result in a conviction or where a plaintiff did not clearly advance

a claim predicated on fabrication alone. In any event, we reject

the contention that there cannot be a stand-alone Fourteenth

Amendment claim predicated on the fabrication of evidence.

We find much support for our conclusion. For example,

the Court of Appeals for the Fifth Circuit has found jury

instructions “deeply flawed” when they limited the jury’s use of

fabricated evidence to evaluate a Fourth Amendment malicious

prosecution claim without allowing a finding of a Fourteenth

Amendment due process violation. Castellano v. Fragozo, 352

F.3d 939, 955 (5th Cir. 2003) (en banc). See also Lowery v.

Cnty. of Riley, 522 F.3d 1086, 1093 (10th Cir. 2008) (affirming

district court’s denial of qualified immunity for claims of

fabrication of evidence and malicious prosecution); Riley v. City

38

of Montgomery, 104 F.3d 1247, 1253-54 (11th Cir. 1997)

(permitting a fabrication-of-evidence claim to go forward

against one defendant while rejecting malicious prosecution

claim against others); Stemler v. City of Florence, 126 F.3d 856,

872 (6th Cir. 1997) (holding that knowing use of fabricated

evidence violates a criminal defendant’s right to due process and

is actionable “if there is a reasonable likelihood that the false

evidence could have affected the judgment of the jury”). As

these cases show, we are not the first court to reach our

conclusion.

Accordingly, we hold that if a defendant has been

convicted at a trial at which the prosecution has used fabricated

evidence, the defendant has a stand-alone claim under section

1983 based on the Fourteenth Amendment if there is a

reasonable likelihood that, without the use of that evidence, the

defendant would not have been convicted. 19 Appellees do not

19

We use “reasonable likelihood” to emphasize that plaintiffs

bringing fabrication claims must draw a meaningful connection

between their conviction and the use of fabricated evidence

against them. See 42 U.S.C. § 1983 (imposing liability on any

official who violates or “causes to” violate a person’s

constitutional right). As the Court of Appeals for the Seventh

Circuit recently explained, this causal link is a familiar concept

in tort law, requiring both factual and proximate causation.

Whitlock, 682 F.3d at 582-83; see also Gregory, 444 F.3d at 737

(“It is well established that a person’s constitutional rights are

violated when evidence is knowingly fabricated and a

reasonable likelihood exists that the false evidence would have

affected the decision of the jury.” (Emphasis added.) The

39

argue that the false confession attributed to Halsey, which the

prosecutor acknowledged in the state courts was the only direct

evidence linking Halsey to the crimes, could not have affected

the jury’s verdict. As a result, we have no difficulty in

concluding that Halsey has demonstrated that there is a genuine

dispute of material fact on the question of whether appellees

violated his right to due process of law by fabricating evidence

against him. Thus, the District Court erred when it granted

summary judgment to appellees on the fabrication claim.

In reaching our result, we hasten to add that courts in this

Circuit should not permit a criminal defendant who later brings

a civil action against state actors who had been involved in his

requirement is in line with our own precedent, though until

today we have not had occasion to apply it in the fabrication

context. See, e.g., Lamont v. New Jersey, 637 F.3d 177, 185 (3d

Cir. 2011) (“Like a tort plaintiff, a § 1983 plaintiff must

establish both causation in fact and proximate causation.”).

Because the record at summary judgment established that

Halsey’s fabricated confession was critical to his conviction, we

do not decide whether the mere introduction of falsified

evidence at trial—without regard to its significance in the

context of other evidence considered by the jury—is necessarily

sufficient to satisfy the causal link. Nor do we decide whether a

defendant acquitted at a trial where fabricated evidence has been

used against him has an actionable section 1983 claim. We

note, however, that if fabricated evidence is used as a basis for a

criminal charge that would not have been filed without its use

the defendant certainly has suffered an injury.

40

prosecution to use this opinion beyond the scope of our holding.

Thus, a civil plaintiff alleging that he had been convicted in a

criminal prosecution in which the prosecutor used fabricated

evidence should not be permitted to survive a motion for

summary judgment or for judgment as a matter of law unless he

can demonstrate that the record supports a conclusion that the

allegedly fabricated evidence was so significant that it could

have affected the outcome of the criminal case. 20 Moreover,

testimony that is incorrect or simply disputed should not be

treated as fabricated merely because it turns out to have been

wrong. Therefore, for example, a witness’s misidentification

should not be regarded as a fabrication in the absence of

persuasive evidence supporting a conclusion that the proponents

of the evidence were aware that the identification was incorrect,

and thus, in effect, offered the evidence in bad faith.

Accordingly, we expect that it will be an unusual case in which

a police officer cannot obtain a summary judgment in a civil

action charging him with having fabricated evidence used in an

earlier criminal case. But we deal here with such a case. See

Whitlock v. Brueggemann, 682 F.3d 567, 586 (7th Cir. 2012).

2. Whether the Law Was Clearly Established in 1985

20

We, of course, are not suggesting that there is nothing wrong

with the fabricating of evidence if it does not affect the final

verdict. We do not have occasion to consider what legal

mechanisms may be available to discipline police officers who

corruptly try to change the outcome of a case but fail either

because the jury returns a not guilty verdict or because the jury

would have returned a guilty verdict even without the fabricated

evidence.

41

Our foregoing conclusion recognizing the existence of a

stand-alone section 1983 Fourteenth Amendment claim

predicated on the use of fabricated evidence does not end our

inquiry into whether the District Court erred in dismissing

Halsey’s fabrication count. Appellees also argue that because,

back in 1985, we had not explicitly recognized Fourteenth

Amendment stand-alone claims based on the fabrication of

evidence, they are entitled to a qualified immunity defense on

the fabrication of evidence claim as “it would not [have been]

known to an officer what the elements of such a claim are or

how it would be applied and analyzed by a court.” Pfeiffer br. at

35. We disagree.

The established-right prong of a qualified immunity

defense does not demand that there had been a precise preview

of the applicable legal analysis underlying the defense; rather,

“what is required is that government officials have ‘fair and

clear warning’ that their conduct is unlawful.” Devereaux, 263

F.3d at 1075 (quoting United States v. Lanier, 520 U.S. 259,

271, 117 S.Ct. 1219, 1227 (1997)).

Analogous precedent should have informed appellees or

any reasonable state actor that, by fabricating evidence for use in

a criminal prosecution, a state actor would violate a defendant’s

constitutional rights regardless of whether or not the state actor

violated other constitutional rights of the defendant. The

Supreme Court established decades before the original

investigation in this case that the Constitution forbids

prosecutors from knowingly using perjured testimony to secure

a criminal conviction. See id. (citing Pyle v. Kansas, 317 U.S.

213, 216, 63 S.Ct. 177 (1942)); see also Miller v. Pate, 386 U.S.

42

1, 7, 87 S.Ct. 785, 788 (1967) (“More than 30 years ago this

Court held that the Fourteenth Amendment cannot tolerate a

state criminal conviction obtained by the knowing use of false

evidence.”). Investigators, including appellees, should have

known long before Halsey’s prosecution that they would be

violating a defendant’s constitutional rights if they knowingly

used fabricated evidence to bring about his prosecution or to

help secure his conviction, particularly if the investigators

themselves had fabricated the evidence. Cf. Devereaux, 263

F.3d at 1075 (“[T]he wrongfulness of charging someone on the

basis of deliberately fabricated evidence is sufficiently obvious,

and Pyle is sufficiently analogous, that the right to be free from

such charges is a constitutional right.”). Indeed, it has been an

axiomatic principle of our justice system that “those charged

with upholding the law are prohibited from deliberately

fabricating evidence and framing individuals for crimes they did

not commit.” Limone v. Condon, 372 F.3d 39, 45 (1st Cir.

2004). As the Court of Appeals for the First Circuit said in

Limone, “we are unsure what due process entails if not

protection against deliberate framing under color of official

sanction.” Id.

The obviousness of this violation would be difficult to

escape even without the closely analogous Supreme Court

precedent discussed above. By the time appellees allegedly

fabricated Halsey’s confession, more than two decades had

passed since the Supreme Court had held that the due process

clause required that the prosecution reveal exculpatory evidence

to a criminal defendant. Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194 (1963). Reasonable officers should have known that

if they could not withhold exculpatory evidence from a

43

defendant, they certainly could not fabricate inculpatory

evidence against a suspect or defendant.

For these reasons, we will reverse the District Court’s

entry of summary judgment dismissing Halsey’s fabricated-

evidence claim.

B. Malicious Prosecution

The District Court also entered summary judgment on

Halsey’s Fourth Amendment malicious prosecution claim. It

reasoned that the prosecutor, Hancock, “used independent

judgment in deciding to prosecute” Halsey because, when

Hancock made his decision, “he was unaware of the alleged oral

confession given to Pfeiffer earlier that day.” Halsey, 2013 WL

646200, at *5. In addition, the Court concluded that even

without his confession there was probable cause to prosecute

Halsey. The Court also noted that even if there had not been

probable cause for the prosecution, “the fault lies with Hancock”

alone because he made his decision to proceed before Halsey

signed his confession, which, in the Court’s view, cleared

appellees of any wrongdoing that justified the malicious

prosecution action against them. Id. at *7. We disagree with

each of these conclusions.

To prevail on a Fourth Amendment malicious

prosecution claim under section 1983, a plaintiff must establish

that:

(1) the defendant initiated a criminal proceeding;

(2) the criminal proceeding ended in [the

44

plaintiff’s] favor; (3) the defendant initiated the

proceeding without probable cause; (4) the

defendant acted maliciously or for a purpose other

than bringing the plaintiff to justice; and (5) the

plaintiff suffered deprivation of liberty consistent

with the concept of seizure as a consequence of a

legal proceeding.

Johnson, 477 F.3d at 82; see also Rose v. Bartle, 871 F.2d 331,

349 (3d Cir. 1989).

As the District Court noted, appellees have conceded for

purposes of the motions for summary judgment that most of

these elements of a malicious prosecution case are present in

this case and, in any event, even without that concession it is

apparent that they are present. Consequently, we limit our

review to the two questions in dispute: (1) whether Hancock

engaged in intervening acts that severed the causal nexus tying

appellees to the initiation of the prosecution; and (2) whether

there would have been probable cause to charge Halsey absent

his confession. If Hancock’s actions did not absolve appellees

of potential liability and the evidence was insufficient to

establish conclusively that appellees had probable cause to bring

charges against Halsey, once the fabricated confession was

excluded, the District Court should not have granted appellees’

motions for summary judgment against Halsey on his malicious

prosecution claim. 21

21

We reiterate that our repeated reference to the confession as

fabricated is only for purposes of our review of the disposition

45

1. Causation

It is settled law that “officers who conceal and

misrepresent material facts to the district attorney are not

insulated from a § 1983 claim for malicious prosecution simply

because the prosecutor, grand jury, trial court, and appellate

court all act independently to facilitate erroneous convictions.”

Pierce, 359 F.3d at 1292; see also Ricciuti, 124 F.3d at 130;

Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988). If

the officers influenced or participated in the decision to institute

criminal proceedings, they can be liable for malicious

prosecution. Sykes v. Anderson, 625 F.3d 294, 308-09, 317 (6th

Cir. 2010). 22 The District Court recognized this precedent but

of the summary judgment motions.

22

We need not decide how strong the connection must be

between a police officer’s misconduct and the defendant’s

eventual prosecution for the officer to be liable in a malicious

prosecution action. Compare Robinson v. Maruffi, 895 F.2d

649, 656 (10th Cir. 1990) (requiring police officers to have been

“instrumental” in the confinement and prosecution of the

plaintiff (quoting Jones, 858 F.2d at 994)), and Peterson v.

Bernardi, 719 F. Supp. 2d 419, 431 n.12 (D.N.J. 2010) (“[T]here

must be a showing that the misconduct significantly contributed

to the decision to prosecute.”), with Sykes, 625 F.3d at 317

(requiring only that officers “influence[d]” the decision to

prosecute), and Ricciuti, 124 F.3d at 130 (requiring officers to

have “played a role” in the initiation of the prosecution). As we

46

found it inapplicable because, in its view, the uncontroverted

evidence established that Hancock reached his decision to

prosecute Halsey without regard for the effect of appellees’

alleged misconduct.

The record, however, does not justify the District Court’s

conclusion, for there were disputed factual issues barring a

granting of summary judgment. See, e.g., Robinson v. Maruffi,

895 F.2d 649, 655-56 (10th Cir. 1990) (finding sufficient

evidence to require that the jury decide whether prosecutor and

courts were intervening actors that broke causal link between

falsified statements produced by police officers and plaintiff’s

conviction). Hancock testified at the criminal trial (and later

reaffirmed in his deposition in this case) that on November 16

he began drafting the criminal complaint at around 11:00 p.m.,

about five hours after Pfeiffer first told Lynch that Halsey had

confessed, and about an hour and a half before Halsey signed

the incriminating third statement. Standing alone timing would

suggest that Hancock knew that Halsey had confessed when he

started drafting the complaint, inasmuch as it would be

reasonable to draw an inference that appellees would have

advised Hancock, as the prosecuting attorney, of the confession.

After all, they surely must have regarded their obtaining of the

explain below, the evidence viewed in the light most favorable

to Halsey supports the conclusion that Hancock charged Halsey

precisely because he believed that Halsey had confessed.

Consequently, we conclude that, at this stage of the proceedings,

on the basis of the record now before us, that appellees’

misconduct was a significant cause of the prosecution.

47

confession as a major, indeed pivotal development in the case,

as it undoubtedly was.

We recognize that at the trial that will follow the remand

that we are requiring, appellees might argue that Hancock’s

action (drafting the complaint) lagged behind his thought

process (his decision to charge Halsey) so that the confession

did not contribute to his decision to file the complaint. But,

without evidence to support this theory at this stage of the

proceedings, we cannot affirm the District Court’s order

granting the motions for summary judgment on a delay-in-

drafting theory for if we did so we would be grounding our

determination on pure speculation.

In fact, when we view the events surrounding the

initiation of the criminal proceedings against Halsey from

Hancock’s perspective, it is clear that the District Court erred in

granting summary judgment on the theory that Hancock was an

independent actor whose conduct severed the causal link

between appellees’ misconduct and the filing of the charges. As

Hancock described the scene during the time when Halsey

allegedly was confessing, he sat outside of the interrogation

room, unable to hear what was being said inside, relying

exclusively on each page of Halsey’s alleged confession as

appellees slid it to him. At the time, Hancock believed that

those pages represented an accurate account of what Halsey was

telling appellees—that the pages, in fact, contained virtually

verbatim quotes from Halsey.

At some point Hancock believed that the evidence

justified the initiation of criminal proceedings against Halsey.

48

He testified that he decided to bring those charges after

reviewing at least a few pages of the statement that appellees

had drafted, though he could not recall how many pages he had

read by 11:00 p.m., when he began drafting the criminal

complaint. 23 Hancock indicated in his deposition that if he had

not believed that Halsey had made an oral confession, he would

not have charged him “that night probably,” a decision that was

consistent with his normal practice of waiting to see a

confession when he knows one is forthcoming. J.A. 793, 799.

Hancock also testified that evidence was not uncovered later

that would have convinced him to prosecute Halsey.

Moreover, the contents of Halsey’s purported confession

encouraged Hancock to initiate Halsey’s prosecution. Hancock

testified in his deposition that Halsey’s knowledge of the

nonpublic facts about the crime—facts that a rational jury now

could conclude appellees inserted into the confession—

influenced his decision to charge Halsey because those details

corroborated the confession. In fact, Hancock testified that he

23

This testimony also undercuts Lynch’s suggestion that he had

a qualified immunity defense to Halsey’s malicious prosecution

and coercion claims on the theory that he had not been present

prior to Halsey’s oral confession to Pfeiffer. Lynch’s br. at 3-5,

12-13. Halsey has maintained that he never orally confessed,

and that he admitted to the crime only when he signed his third

statement. Thus, at this stage of the proceedings, we regard

Lynch as having been in the room during the most critical time

of the interrogation for purposes of all three claims—when he

could have coerced Halsey, fabricated a confession, and

contributed to the initiation of the prosecution.

49

“wouldn’t authorize a complaint against someone if they

confessed to something that could not be corroborated by other

evidence. An uncorroborated statement by a defendant, in my

estimation, is worthless.” J.A. 752-53.

One reasonable—and compelling—view of all of this

evidence is just the opposite of the one the District Court

reached: Hancock charged Halsey precisely because he thought

Halsey had confessed. Hancock’s testimony shows that

appellees’ fabrication potentially influenced his decision in two

ways: first, by appellees’ summary of Halsey’s purported oral

confession, and second by their inclusion of nonpublic facts in

the confession—facts known only to the murderer or, even more

significantly, to the police. The record does not support the

District Court’s conclusion that Hancock was “unaware of

[Halsey’s] alleged oral confession.” Halsey, 2013 WL 646200,

at *5. Moreover, the Court on the summary judgment motions

unjustifiably held that Hancock “used independent judgment in

deciding to prosecute [Halsey],” id., a conclusion that it should

not have reached as the evidence reasonably could have

supported a finding that Hancock’s judgment was very much

influenced by the detailed confession, which at this stage of

these proceedings, we must treat as fabricated.

Our holding also requires us to reject the District Court’s

separate conclusion that, even if Hancock lacked probable cause

for initiation of the case against Halsey, Hancock alone should

be liable for malicious prosecution. As we have observed, on

the record before us, a rational jury could decide that appellees

tainted the probable-cause inquiry: the officers allegedly handed

Hancock a critical piece of fabricated evidence (the confession)

50

that, when combined with other information known to Hancock

well might have been enough to lead him to file the criminal

complaint. Halsey’s malicious prosecution case against

appellees therefore should have survived a causation inquiry on

the motions for summary judgment. Consequently, we next will

address the question of whether, in the absence of the

confession, there would have been probable cause to proceed

against Halsey.

2. Probable Cause

We are convinced that the District Court improperly

resolved factual disputes and weighed the evidence to reach its

conclusion that there would have been probable cause to charge

Halsey even without his confession. “While ‘the probable-cause

standard is incapable of precise definition or quantification,’ all

interpretations of probable cause require a belief of guilt that is

reasonable, as opposed to certain.” Wright v. City of

Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (internal

citations omitted) (quoting Maryland v. Pringle, 540 U.S. 366,

371, 124 S.Ct. 795, 800 (2003)). “[T]he evidentiary standard for

probable cause is significantly lower than the standard which is

required for conviction.” Id. at 602. It is therefore irrelevant in

a probable cause inquiry “whether a person is later acquitted of

the crime for which she or he was arrested.” Id.

Unlike the causation question, a probable cause inquiry is

entirely objective. 24 See, e.g., Kulwicki v. Dawson, 969 F.2d

24

The District Court appeared to engage in a subjective analysis

by focusing not just on Hancock’s perspective, but also on his

51

1454, 1468 (3d Cir. 1992). Thus, Hancock’s view of the

evidence is relevant only to the extent it explains what facts

were available to him when he made his discretionary decision

to initiate the proceedings against Halsey. See Devenpeck v.

Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 593 (2004) (“[A]n

arresting officer’s state of mind (except for the facts that he

knows) is irrelevant to the existence of probable cause.”); see

also Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663,

668 (1978) (explaining that, so long as there is probable cause, a

decision to charge or prosecute “rests entirely in [the

prosecutor’s] discretion”).

Courts should exercise caution before granting a

defendant summary judgment in a malicious prosecution case

when there is a question of whether there was probable cause for

the initiation of the criminal proceeding because, “[g]enerally,

the existence of probable cause is a factual issue.” Groman v.

Twp. of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995). It

certainly is inappropriate for a court to grant a defendant

officer’s motion for summary judgment in a malicious

prosecution case if there are underlying factual disputes bearing

on the issue or if “reasonable minds could differ” on whether he

had probable cause for the institution of the criminal

judgment. Thus, the Court indicated that “Plaintiff's signature

and adoption of the Third Statement only served to reinforce

Assistant Prosecutor Hancock’s decision to prosecute Plaintiff,

as Hancock believed that the signatures represented that Plaintiff

was adopting the Third Statement voluntarily and that they were

Plaintiff’s words.” Halsey, 2013 WL 646200, at *6.

52

proceedings based on the information available to him. Deary v.

Three Un-Named Police Officers, 746 F.2d 185, 192 (3d Cir.

1984). Here, by entering summary judgment on the malicious

prosecution claim, the District Court, effectively, if not

explicitly, held that a reasonable jury could not conclude that the

appellees lacked probable cause to charge Halsey even without

the confession. We disagree with that conclusion.

The District Court pointed to several pieces of evidence

(apart from the confession) available to Hancock when he

decided to charge Halsey: (1) “the results of the autopsy”; (2)

“Hancock’s review of the crime scene”; (3) “inconsistencies

between [Halsey’s] first and second statements”; (4) “the fact

that the children were left in [Halsey’s] care”; and (5) Halsey’s

failure of the polygraph exam. Halsey, 2013 WL 646200, at *6.

In analyzing the evidence, we begin with the polygraph

results because we agree with the District Court that they

counseled in favor of finding that there was probable cause to

institute the proceedings against Halsey, and the use of the

polygraph results is a central matter in this case. We, of course,

are aware that Halsey points to Honts’s unchallenged expert

opinion prepared years after the murders that concluded that

Halsey registered “the strongest truthful score possible” on the

relevant scale, J.A. 820, a result so unequivocal that, according

to the report, a reasonable polygrapher, even using 1985

standards, could not have concluded that Halsey had failed the

test. But, notwithstanding Honts’s opinion, one polygrapher,

Peter Brannon, did conclude immediately after the murders that

Halsey failed the test. Halsey argues that given the

uncontroverted current evidence about the results of the test, as

53

we now know them, and the fact that Brannon discussed the

polygraph results with appellees, a jury should be free to infer

that “Pfeiffer and Lynch were aware that Halsey had passed the

polygraph.” Appellant’s br. at 40. Obviously, if they had that

knowledge during their investigation of the crimes, the

polygraph results could not have supported a conclusion that

they had probable cause to initiate the prosecution.

But Halsey, in contending that a jury could conclude that

the appellees knew that he passed the polygraph examination, is

asking us to permit a jury to engage in pure speculation. After

all, inasmuch as Brannon’s November 16, 1985 report stated

that it was “the opinion of the Polygraph Examiner, based on the

Polygraph Recordings, that the subject exhibited evidence of

attempts at deception,” it is unreasonable to believe on the

present record that appellees thought that Halsey passed the

test. 25 D.A. 93-94. In this regard, we point out that we see

nothing in the record that suggests that appellees did not believe

that Brannon’s conclusions were accurate. Accordingly, a

reasonable prosecutor in the position of appellees would have

believed Halsey failed the polygraph exam and would have

considered that those results supported a conclusion that there

was probable cause for the prosecution. See Cervantes v. Jones,

188 F.3d 805, 813 n.9 (7th Cir. 1999) (collecting cases)

(“[P]olygraph results are one of many factors which may be

used in determining whether, from an objective viewpoint,

probable cause for an arrest existed under the Fourth

25

Again we are making no comment on what the record

developed later may reveal to a jury.

54

Amendment.”).

In reviewing the disposition of this action against

appellees, as distinguished from how we would view a

malicious prosecution case against Hancock, 26 we set the

confession aside when considering the probable cause issue,

because, for purposes of this case, we find that the confession

was invalid inasmuch as appellees fabricated it. In the absence

of the confession, the evidence supporting the case against

Halsey was thin. Aside from the polygraph results, the District

Court pointed to evidence of the crime scene and the results of

the autopsy to support the filing of the charges against Halsey,

but neither tied Halsey to the crimes. Halsey did alter some of

the details of his account of his activities during the night of the

murders when he gave his second statement, but he volunteered

those changes, which, in any event, were minor and non-

incriminating. Moreover, as Hancock seemed to recognize, the

inconsistencies could have been due to Halsey’s consumption of

alcoholic beverages on the night of the murders. 27 Thus, at his

deposition Hancock testified that “[p]art of the issue dealt with

how much [Halsey] had to drink that night and whether he might

26

We do not see why Hancock would not have been able to rely

on the confession in contending that he had probable cause to

initiate the prosecution because as far as the record shows he

was not involved in or aware of the fabrication of the

confession.

27

We also note that Halsey had used marijuana before he went to

the bars on the night of the murders and this use also could have

contributed to his confusion.

55

have been intoxicated and not have the ability to recall certain

events.” J.A. 797. Finally, though Halsey had the opportunity

to commit the crimes because the children had been left in his

care, a defendant’s mere presence at a crime scene is not a basis

for his arrest. See Harris v. Bornhorst, 513 F.3d 503, 515 (6th

Cir. 2008)

We recognize that a court makes a probable cause

determination on the “totality of the circumstances,” United

States v. Yusuf, 461 F.3d 374, 390 (3d Cir. 2006), meaning that

a court should not isolate pieces of evidence when it determines

whether there was probable cause for a prosecution. Rather, a

court should measure the cumulative weight of all of the

evidence and account for reasonable inferences that can be

drawn from it. But, taking into account the totality of the

evidence other than the confession, appellees do not point to

evidence sufficient for us to affirm the summary judgments in

the malicious prosecution action on the theory that they had

probable cause to initiate the prosecution.

The circumstance that Halsey was thought to have failed

the polygraph exam coupled with the fact that he had the

opportunity to commit the crimes did not so clearly establish that

there was probable cause for the initiation of the criminal

proceedings that no reasonable jury could conclude otherwise.

We reach this conclusion even after we consider other factors

that could contribute to a finding that there was probable cause

for institution of the prosecution that the District Court did not

mention, namely Halsey’s admitted failure to call the police or

delay in calling Urquhart when he discovered that the children

were missing as well as the statements that other persons

56

originally made that contradicted Halsey’s account of his

activities on the night of the murders.

Our determination is in line with that stated by another

court of appeals recently in a case involving facts strikingly

similar to those here. In Fox v. Hayes, 600 F.3d 819, 835 (7th

Cir. 2010), the Court of Appeals for the Seventh Circuit held

that an officer’s mere “hunch” was not elevated to the level of a

reasonable belief necessary for probable cause to institute

criminal proceedings, and affirmed a district court’s order

sustaining the jury’s verdict against the defendant in a malicious

prosecution case. In that case, the suspect, Kevin Fox, who was

the father of a three-year old female murder victim, was, like

Halsey, the last known adult present with the victim. 28 When

Fox realized that his daughter was missing from the family

residence, he did not call immediately the police or the victim’s

mother, who was away from the family home in a different city,

and, instead, unsuccessfully searched for her for 40 minutes. He

called the police only when his search had not been successful

and even then called a number that he knew was not a police

emergency number. Subsequently, Fox took a polygraph

examination which the police told him that he had failed. Even

though Fox first denied being involved in the murder, he

28

We say that Halsey was the last known adult present with the

children because Halsey said that Urquhart went out for the

evening on the night of the murders before he did and when

Halsey later went out he locked the door and told the children

not to let anyone in. As far as we are aware, appellees did not

know during the investigation that Hall saw the children after

Halsey left the apartment for the evening.

57

eventually confessed that he had been involved, but then, almost

immediately, disavowed the confession.

The case against Fox was perhaps stronger than the case

against Halsey because it arguably had incriminating aspects

without a parallel here. In this regard, there was potentially

incriminatory evidence against Fox because a surveillance video

appeared to show a vehicle similar to his being driven during a

time he claimed to have been sleeping on the night of the

murder. But the court concluded that, when viewed in the light

most favorable to Fox, the facts did not so strongly establish that

there was probable cause for the institution of criminal

proceedings against Fox that the state actor defendant in Fox’s

malicious prosecution action was entitled to a reversal of the

judgment against him entered on a jury verdict. We likewise

reject appellees’ claim that they are entitled to summary

judgment on whether there was probable cause to initiate the

proceedings against Halsey. The presence vel non of probable

cause was a jury question that the District Court could not

resolve on motions for summary judgment.

Accordingly, because a reasonable jury could conclude

that: (1) by fabricating Halsey’s confession, appellees infected

Hancock’s decision to charge Halsey, and (2) in the absence of

the invalid confession, the facts of the case did not demonstrate

conclusively that there was probable cause for Halsey’s

prosecution, we will reverse the District Court’s grant of

summary judgment on Halsey’s malicious prosecution claim.

C. Coercion Claim

58

The final aspect of the disposition of appellees’ motions

for summary judgment that we address is the dismissal of

Halsey’s claim that appellees coerced him into adopting a

confession that they fabricated and by doing so denied him due

process of law. The parties sharply dispute how we should

resolve the appeal on this issue because, on one hand, the record

contains evidence that appellees forced Halsey to sign the

incriminating statement by overwhelming his will to continue

denying his involvement in the crime but, on the other hand,

there is no indication that appellees physically abused Halsey or

even tricked him into signing the statement. Our review of the

record, considered in the light most favorable to Halsey,

convinces us that there is enough of a factual issue to warrant

the conclusion that the District Court should have denied the

motions for summary judgment on the coercion claim.

We have recognized that “an involuntary confession may

result from psychological, as well as physical, coercion.” Miller

v. Fenton, 796 F.2d 598, 603 (3d Cir. 1986). In deciding

whether the evidence in the record compels a conclusion that, as

the District Court believed, Halsey could not have been coerced

into confessing, we look to the totality of the circumstances. Id.

at 604. We, however, do not employ a “but-for” test in

addressing this issue. Id. Thus, the circumstance that a suspect

would not have confessed if he had not been interrogated does

not mean that his confession was involuntary. Id. at 604-05.

Accordingly, to sustain a coercion claim in an effort to have his

confession excluded from admission into evidence at trial, a

criminal defendant must point to some link between police

misconduct and the confession. United States v. Jacobs, 431

F.3d 99, 108 (3d Cir. 2005).

59

A coercion inquiry requires a court to “consider the

specific tactics utilized by the police in eliciting the admissions,

the details of the interrogation, and the characteristics of the

accused.” Miller, 796 F.2d at 604 (quoting Rachlin v. United

States, 723 F.2d 1373, 1377 (8th Cir. 1983)) (internal quotation

marks omitted). Specifically, in making that inquiry, we have

looked at:

the youth of the accused; his lack of education or

his low intelligence; the lack of any advice to the

accused of his constitutional rights; the length of

detention; the repeated and prolonged nature of

questioning; and the use of physical punishment

such as the deprivation of food or sleep.

Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93

S.Ct. 2041 (1973)). This list of factors, however, is not

exhaustive, and we also have stated that a court should consider

the suspect’s familiarity with the criminal justice system when

determining whether he was coerced into confessing. Jacobs,

431 F.3d at 108.

In considering these factors we are mindful that the

ultimate question is “whether the defendant’s will was

overborne when he confessed.” Miller, 796 F.2d at 604. This

question frequently is difficult to answer because “the line

between proper and permissible police conduct and techniques

and methods offensive to due process is, at best, a difficult one

to draw, particularly . . . where it is necessary to make fine

judgments as to the effect of psychologically coercive pressures

and inducements on the mind and will of an accused.” Haynes

60

v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344 (1963);

see also Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct.

515, 520 (1986) (“[A]s interrogators have turned to more subtle

forms of psychological persuasion, courts have found the mental

condition of the defendant a more significant factor in the

‘voluntariness’ calculus.”).

Yet a confession is not rendered involuntary simply

because the police procured it by using psychological tactics.

See Miller, 796 F.2d at 605. Indeed, even the use of deception

to procure a confession might not result in its exclusion from

admission into evidence at the trial. See, e.g., Frazier v. Cupp,

394 U.S. 731, 739, 89 S.Ct. 1420, 1425 (1969) (“The fact that

the police misrepresented the [co-defendant’s] statements . . . is,

while relevant, insufficient in our view to make this otherwise

voluntary confession inadmissible.”); see also United States v.

Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990) (“[T]he law

permits the police to pressure and cajole, conceal material facts,

and actively mislead – all up to limits . . . .”). By the same

token, the circumstance that the police have advised “a suspect

of his rights does not automatically mean that any subsequent

confession is voluntary.” Livers v. Schenck, 700 F.3d 340, 353

(8th Cir. 2012) (internal quotation marks omitted).

The District Court entered summary judgment against

Halsey on his coercion claim for two overarching reasons. First,

it relied on the presence of factors that it found supported the

conclusion that Halsey’s confession was voluntary: the

investigators gave him his Miranda rights prior to questioning

him and did so again before he signed the confession; the

investigators did not threaten him or promise him anything of

61

value in return for his confession; the investigators did not

physically abuse him or deny him food, drink or breaks; he did

not ask to leave the police headquarters before he confessed; and

he did not ask for an opportunity to consult an attorney.

Second, the District Court found it significant that

appellees were not responsible for reading back Halsey’s

purported confession or for obtaining his signature as that task

fell on Propsner. The Court noted that when Propsner entered

the room in which Halsey was being questioned, Halsey could

have told Propsner about his objections concerning how

appellees obtained his statement or the manner in which he had

been interrogated, but he did not do so. The Court also

discredited Halsey’s claim that he signed the statement because

he feared for his life. Thus, the Court indicated that “[Halsey]

does not provide any evidence of threats or coercion by Pfeiffer

or Lynch to explain his statement that he feared for his life.”

Halsey, 2013 WL 646200, at *4. The Court concluded that

earlier coercion did not cause Halsey to sign the statement, and

explained that:

Since the act of executing the Third Statement

after Propsner read it to [Halsey] is the actual time

when [Halsey] could have been coerced or

manipulated into adopting the confession, and

[Halsey] has agreed to dismiss all claims against

Propsner, then considering the totality of the

circumstances, [Halsey] has failed to show that

either Pfeiffer or Lynch manipulated or coerced

him in a way that deprived him of his ability to

make an unconstrained, autonomous decision to

62

sign the Third Statement.

Id.

The District Court seemed to have viewed the

interrogation process as a string of separated events, beginning

with appellees questioning Halsey, proceeding with Propsner

entering the room to review Halsey’s statement, and culminating

with Halsey signing his confession. It appears that, to the Court,

appellees’ conduct during the first stage of the process had no

bearing on the resolution of the coercion issue because Halsey

signed the confession later without objecting to the process’s

earlier aspects.

Our precedent forecloses the adoption of this

compartmentalized view of the interrogation process in which a

court considers the material events independently or

disjunctively rather than as connected episodes in an ongoing

process. In United States ex rel. Johnson v. Yeager, 327 F.2d

311, 314 (3d Cir. 1963), we reversed the denial of a habeas

corpus petition that a defendant in state custody, Wayne

Godfrey, had filed. Godfrey had been interrogated for many

hours, deprived of sleep and counsel, and, contrary to state law,

had not been taken “promptly” for a hearing before a magistrate

judge following his arrest. The bulk of Godfrey’s interrogation

occurred over a night before he confessed the next morning. Id.

at 313. Several police officers did the questioning, but they

ultimately took Godfrey to a chief detective officer in the

morning to whom Godfrey formally confessed. Id. That

confession “proceeded smoothly and without apparent

reluctance on Godfrey’s part.” Id. We noted that if we

63

considered only the last aspect of the confession process in

addressing the coercion issue, we would have deemed the

confession voluntary as the state court had when it admitted the

confession into evidence. Id. at 315. But we rejected the

conclusion of the state court and held that the “civil manner” in

which the chief detective treated the defendant could not have

“cured or made irrelevant the events of the preceding 21 hours.”

Id.

As we held in Yeager, and as we reaffirm today, the

compartmentalized view of the interrogation process cannot be

squared with settled Supreme Court precedent. “[C]oercion may

have a persisting invalidating effect upon a confession,” even

when the confession is apparently made without “reluctance

[and] in response to civil questioning in pleasant surroundings.”

Id. (citing Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461

(1936) and Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541(1961)).

Thus, “[t]he events preceding the formal confession must be

considered as well as its immediately attendant circumstances.”

Id. at 313. 29 Accordingly, Halsey’s signature did not extinguish

appellees’ alleged misconduct during the interrogation.

Our foregoing conclusion leaves us with the question of

whether appellees’ misconduct could be found to have led

29

Appellees miss this point in their attempt to distinguish

Yeager on its facts, as they fail to account for the principle that

we perceive in that case—that an inquiry into the validity of a

confession cannot be severed from the interrogation that induced

it. See Pfeiffer’s br. at 49.

64

Halsey to make the confession. The pertinent facts on this issue,

viewed in light most favorable to Halsey, are compelling. Over

the course of less than two days, appellees detained Halsey, a

man of limited intelligence and little education, who was

unaccompanied by a friend or an attorney, for about 30 hours

and questioned him almost continuously for about 17 of those

hours, of which about nine were highly confrontational, a period

measured from the time Pfeiffer took what Halsey called a

“forceful” approach continuing to the time that Halsey signed

the confession. Appellees persisted in telling Halsey that he was

guilty, “hollering and screaming” at him, 30 despite being aware

of Halsey’s mental limitations and despite Halsey’s repeated

protestations of his innocence. Furthermore, Halsey cried and,

according to Pfeiffer, went into a trance towards the end of the

interrogation. At that point Halsey, who claims that he feared

for his life, signed a statement in the appellees’ presence even

though it included details that only the police and the murderer

could have known. 31

30

Appellees misconstrue the record when they argue that there is

no evidence that they “hollered and screamed” at Halsey, other

than Halsey’s 1988 statement, which they claim is “contradicted

by Halsey’s deposition testimony.” Pfeiffer’s br. at 54.

Actually, the opposite is true—we see no contradiction in

Halsey’s deposition testimony and find only support: “I just was

arguing with them and going back and forth and no one seemed

to be listening to what I was saying, and there was hollering and

screaming . . . .” J.A. 276.

31

Although the circumstance that Halsey was innocent proves

65

Overall, we are satisfied that Halsey presented enough

he could not have known certain details about the crime that

nevertheless were included in his confession, we reject Halsey’s

broader proposition that his innocence, by itself, could establish

that he had been coerced into confessing. He argues that the

“optics of innocence changes everything” and asks “[w]hy

would the innocent Mr. Halsey, who had repeatedly (and

truthfully) denied any involvement in these horrible crimes, have

ultimately signed the false confession unless defendants had

overborne his will? The obvious answer is he would not have.”

Appellant’s br. at 49. If we accepted this view we would

eviscerate the required causal link between police misconduct

and the confession. Miller, 796 F.3d at 605 (explaining that “it

can almost always be said that the interrogation caused the

confession”). It would mean that any suspect who is

interrogated prior to his conviction—which is to say almost

every suspect—and who confesses but later is absolved of

criminal responsibility would have an actionable coercion claim.

That consequence, in turn, would ignore the investigators’

leeway to use confrontational tactics, including psychological

pressure, to elicit information from suspects. See, e.g., United

States v. Astello, 241 F.3d 965, 968 (8th Cir. 2001) (holding that

a confession was not involuntary where psychological pressure,

false promises, and suspect’s family were used against him). It

also would ignore the unfortunate reality that individuals

sometimes falsely confess under significant but permissible

pressure. Indeed, sometimes individuals confess on a

completely voluntary basis to the commission of crimes that they

did not commit.

66

evidence to withstand the motions for summary judgment on the

coercion issue. It is true, as the District Court noted and as

appellees repeat in their briefs, that Halsey was not beaten,

bribed, or threatened. Furthermore, he was advised of his

Miranda rights, and, at times, he was given breaks when being

questioned. Moreover, given his prior arrests, Halsey had some

familiarity in dealing with the police, though his record of

repeated arrests suggests that he took away very little from those

experiences. In fact, the record does not suggest that he was

particularly comfortable in navigating the criminal justice

system. 32 Cf. Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523,

525 (1967) (explaining that “the fact that the police may have

warned [the suspect] of his right not to speak [was] of little

significance” because he had a third grade education and a

mental capacity that was “decidedly limited”).

But none of these reasons could justify our affirming the

order granting summary judgment. See Schneckloth, 412 U.S.

32

Lynch disagrees and contends that Halsey’s ability to sign the

polygraph stipulation and Miranda waiver demonstrates that he

had adequate intelligence so that his confession was voluntary.

But Lynch makes this contention without pointing to any

evidence that Halsey understood the significance of his acts.

Lynch’s br. at 7. The circumstance that an individual signs a

document does not demonstrate that he understands its content.

Cf. United States v. Velasquez, 885 F.2d 1076, 1087 (3d Cir.

1989) (holding that a Miranda waiver had been knowing and

intelligent in part because the defendant previously had invoked

right to counsel, thereby showing that she “understood the

import of the Miranda warnings”).

67

at 226, 93 S.Ct. at 2047 (“The significant fact about all of [the

cases involving involuntary confessions] is that none of them

turned on the presence or absence of a single controlling

criterion; each reflected a careful scrutiny of all the surrounding

circumstances.”). There is no magic set of considerations that

justifies the granting of summary judgment on a coercion claim,

for “a totality of the circumstances analysis does not permit state

officials to cherry-pick cases that address individual potentially

coercive tactics, isolated one from the other, in order to insulate

themselves when they have combined all of those tactics in an

effort to overbear an accused’s will.” Wilson, 260 F.3d at 953.

When we weigh the factors militating against and favoring a

finding that Halsey’s confession was coerced, we are satisfied

that rational jurors reasonably could find that Halsey was

coerced into signing the confession.

A recent case from the Court of Appeals for the Eighth

Circuit supports our conclusion. Livers, 700 F.3d 340. There,

the court affirmed a denial of the defendants’ motion for

summary judgment that they based on a claim of qualified

immunity in an action in which the plaintiff claimed that he had

been coerced into confessing in a situation involving facts very

similar to those here. The plaintiff, Mathew Livers, who was of

substandard intelligence, was questioned for 6.5 hours without

counsel, was informed that he failed a polygraph examination,

and continued to protest his innocence before finally confessing.

Id. at 352-54.

Halsey contends his case is even more compelling than

Livers’s, pointing to his longer interrogation and to the alleged

fabrication of evidence. Appellant’s br. at 51-52. On the other

68

hand, appellees identify distinctions between the cases: the

denial of food that Livers endured for ten hours; an

“uncomfortably cold” room to which he was first taken;

promises of “help” and threats of execution; and not being

permitted to leave the interrogation room. Pfeiffer’s br. at 55.

Though Livers is not entirely analogous to this case, it

supports our view that the District Court should not have

granted summary judgment on the coercion issue. The physical

discomfort visited on Livers, though not similarly present here

with respect to appellees’ treatment of Halsey, is offset by the

longer detention and interrogation that Halsey withstood.33 The

33

The parties sharply dispute the length of Halsey’s

interrogation. Halsey arrives at a total of 30 hours by counting

all the time he spent in police custody. Appellant’s br. at 47.

Appellees, for their part, contend that there were only 12 hours

of “actual interrogation” time. Pfeiffer’s br. at 51. We have no

need to decide whose calculations are correct for by any

standard appellees subjected Halsey to an extended

interrogation. We do note, however, that Halsey includes in his

30-hour calculation the time consumed when he gave his

voluntary, non-incriminating statements to appellees, the nap

that he took at the police station while waiting for Brannon, the

drive to and from the prosecutor’s office the following morning,

and the polygraph exam—in short, all of the time that he spent

with the police. Though we do not ignore the time that a

defendant is in custody without being interrogated, see, e.g.,

Yeager, 327 F.2d at 315 (taking into account both the length of

detention and of interrogation), such time should not be

conflated with the duration of a continuous interrogation

69

threats and promises made to Livers likewise are balanced by

the visible physical reaction that the interrogation induced in

Halsey. Moreover, as far as we can see from the opinion in

Livers and the record before us, neither Livers nor Halsey would

have had a reasonable belief that he was free to leave the facility

in which he was being interrogated. See, e.g., United States v.

Barnes, 713 F.3d 1200, 1204-05 (9th Cir. 2013) (holding that

the “pressure resulting from a combination of the surroundings

and circumstances” of being in a “police-dominated, confined

environment” did not give a reasonable person the impression

that he was free to leave even though he was not handcuffed,

formally arrested, or physically intimidated). 34

We are also mindful of the expert report of Psychology

Professor Saul M. Kassin regarding the nature of Halsey’s

interrogation and his confession. 35 Cf. Strickland v. Francis,

738 F.2d 1542, 1555 (11th Cir. 1984) (reversing denial of

designed to extract a confession.

34

We are aware that Halsey did not complain to Propsner about

appellees’ treatment of him. But we are not impressed with this

circumstance as we doubt that Halsey viewed Propsner as a

sympathetic figure and we believe that, in the intimidating

surroundings of a police station, Halsey would have been

reluctant to complain to Propsner about his treatment.

35

Neither the District Court nor appellees mentioned Kassin’s

report even though it was part of the record on the summary

judgment motions and even though Halsey has discussed it in

his trial and appellate briefs.

70

habeas petition in part because the jury lacked reason to disagree

with the “unambiguous and uncontradicted opinions” of expert

witnesses regarding defendant’s competence to stand trial). The

report supports Halsey’s position that he was coerced into

signing a false statement.

Dr. Kassin reviewed the coercive aspects of Halsey’s

interrogation as well as Halsey’s attributes and concluded that

“the Halsey statement contained multiple hallmarks of a false

confession.” J.A. 674. Dr. Kassin explained Halsey’s

vulnerabilities as a suspect: his mental limitations, his history of

mental health issues and substance abuse, and his suggestibility

(as reported by a test Halsey took). These are all characteristics

that Kassin explained have been shown to contribute to false

confessions. Kassin also analyzed the interrogation itself and

concluded that its length (much longer than average) and the

tactics used (overwhelming Halsey with supposedly

incriminating evidence) also increased the chances that Halsey

would agree to sign a false confession to end the

confrontation—all suggesting that his will was overborne.

It is important to recognize that, unlike issues requiring a

technical understanding, the question of whether a criminal

defendant was coerced is a matter well within “lay competence”

and thus a jury is not foreclosed from considering whether there

was coercion even if there is “unequivocal, uncontradicted and

unimpeached testimony of an expert” addressing the issue.

Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 76-77 (1st

Cir. 2002). In any event, here we cite the expert’s report only to

support the conclusion that there was a genuine dispute of

material fact on the issue of whether the appellees obtained

71

Halsey’s signature on the confession through coercion. See

Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1270 (9th Cir.

1994) (holding that expert opinion created material dispute

when included with other evidence and noting that it is generally

“itself sufficient to create a genuine issue of disputed fact

sufficient to defeat a summary judgment motion”). For these

reasons, and because appellees do not rely on the absence of

established law in pressing their contention that they had

qualified immunity on Halsey’s coercion claim, we will reverse

the summary judgment in their favor on the coercion claim.

VI. CONCLUSION

For the foregoing reasons, we will reverse the District

Court’s February 21, 2013 order granting appellees summary

judgment on Halsey’s fabrication, malicious prosecution, and

coercion claims. We also will reverse the summary judgment on

Halsey’s parallel state law claims, which appellees concede are

coextensive with his federal claims. Pfeiffer’s br. at 57 (citing

Wildoner v. Borough of Ramsey, 744 A.2d 1146, 1153 (N.J.

2000)). 36 We will reinstate the reversed claims and will remand

the case to the District Court for further proceedings consistent

with this opinion.

36

Because Halsey has not appealed the dismissal of his 42

U.S.C. § 1983 claim based on Brady v. Maryland, the portion of

the February 21, 2013 order dealing with that claim will remain

undisturbed.

72