E. D. v. Daniel Sharkey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 18-1688

____________

E. D.

v.

DANIEL SHARKEY; BERKS COUNTY RESIDENTIAL

CENTER IMMIGRATION FAMILY CENTER, (BCRC-

IFC); COUNTY OF BERKS, PENNSYLVANIA; DIANE

EDWARDS, DIRECTOR OF BCRC-IFC; JOHN BEHM;

JAMIE HIMMELBERGER; BRITTNEY ROTHERMEL;

ERIKA TAYLOR; MATTHEW MALINOWSKI;

JEREMIAH/JOSH PETRY, ICE EMPLOYEE

COUNTY OF BERKS, PENNSYLVANIA; DIANE

EDWARDS, DIRECTOR OF BCRC-IFC; JAMIE

HIMMELBERGER; BRITTNEY ROTHERMEL; ERIKA

TAYLOR; MATTHEW MALINOWSKI,

Appellants

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-16-cv-02750)

District Judge: Honorable Edward G. Smith

____________

Argued March 6, 2019

Before: SMITH, Chief Judge, AMBRO and RESTREPO,

Circuit Judges.

(Opinion Filed: July 1, 2019)

Matthew J. Connell [ARGUED]

Tricia M. Ambrose

MacMain Law Group

433 West Market Group

Suite 200

West Chester, PA 19382

Counsel of Appellant

Su Ming Yeh [ARGUED]

Angus R. Love

Pennsylvania Institutional Law Project

718 Arch Street

Suite 304 South

Philadelphia, PA 19106

Matthew J. Archambeault

Law Office of Matthew J. Archambeault

1420 Walnut Street

Suite 1188

Philadelphia, PA 19102

Counsel of Appellee

Sandra S. Park

American Civil Liberties Union

Women's Rights Project

125 Broad Street

18th Floor

New York, NY 10004

Mary Catherine Roper

American Civil Liberties Union of Pennsylvania

P.O. Box 60173

Philadelphia, PA 19106

Counsel for Amicus Appellees

2

___________

OPINION OF THE COURT

____________

RESTREPO, Circuit Judge

E.D., a female immigration detainee at the Berks

County Residential Center -Immigration Family Center

(BCRC), brought a § 1983 action against employee Daniel

Sharkey, alleging that he violated her Fourteenth Amendment

right to bodily integrity after the two had sexual relations.

Included in the suit were Sharkey’s co-workers and supervisor

at BCRC (collectively, the “Defendants”), who E.D. alleged

were deliberately indifferent to the violation, as well as Berks

County, which allegedly failed to implement policies to

prevent the violating conduct. The Defendants and Berks

County moved for summary judgment, arguing that the

individual staff members were entitled to qualified immunity

and that E.D. could not prove a municipal liability claim

against the County. The District Court denied their motion,

and they have filed this interlocutory appeal.1

In determining whether to affirm the denial of qualified

immunity, we necessarily address whether immigration

detainees are entitled to the same constitutional protections

afforded by the Due Process Clause of the Fourteenth

Amendment as pre-trial detainees. We hold that immigration

detainees are entitled to such protections and, for the reasons

that follow, will dismiss the appeal pertaining to Berks County

for lack of appellate jurisdiction and will affirm the denial of

the Defendants’ request for qualified immunity.

I. Factual and Procedural Background

1

In the same order, the District Court granted summary

judgment in favor of Defendants John Behm and the BCRC,

and granted judgment in favor of Berks County with regard to

claims for punitive damages against the County. No appeal

arose from these rulings.

3

E.D. entered the United States with her three-year-old

son in or around May 2014, seeking refuge from domestic

violence and sexual assault in Honduras. She and her son were

transferred from an immigration facility in Texas to the BCRC,

which detains approximately ninety women and children

pursuant to a contract with United States Immigration and

Customs Enforcement (ICE).

Approximately a month after E.D.’s arrival, BCRC

employee Daniel Sharkey began giving food and treats to E.D.

and her son. His overtures escalated to allowing E.D. to use

his cell phone and promising to help with her immigration

status. Within weeks Sharkey began to touch and kiss E.D.,

who refused to reciprocate. He turned angry, insulted E.D.,

and told her she would be deported if she told anyone about his

advances.

In July 2014, Sharkey began forcing E.D. to engage in

sexual intercourse. On one occasion they had intercourse in a

bathroom and a seven-year-old girl witnessed the encounter.

In August 2014, E.D. and Sharkey were having intercourse in

another resident’s room when the resident returned. Within the

month, Sharkey either left or was terminated from his

employment at BCRC. He was later arrested and convicted of

institutional sexual assault under Pennsylvania statute 18

Pa.C.S.A. § 3124.2, which was enacted in February 2012.

E.D. alleges that, by August 2014, staff members at the

BCRC were aware of Sharkey’s conduct but failed to take steps

to protect her. Eventually detainees complained and BCRC

Director Diane Edwards was notified of the relationship. An

investigation was launched. When questioned by staff

members, E.D. denied Sharkey had sexually assaulted her

because she feared deportation. E.D. eventually told her

immigration attorney about Sharkey’s conduct, and her

attorney relayed the incidents to ICE officials. E.D. alleges

that, after the relationship was reported, the defendant BCRC

staff members retaliated by denying her and her son privileges

and instituting a restrictive clothing policy that led to other

detainees isolating her.

According to E.D., ICE policies and standards prohibit

staff from sexually abusing immigration detainees and define

4

any sexual contact, regardless of whether it is consensual, as

sexual abuse. Moreover, ICE standards require that the Field

Office Director be notified any time an employee, contractor,

or volunteer is alleged to be a perpetrator of sexual abuse

against a detainee. The ICE/DRO (Detention and Removal

Operations) Residential Standards require residential facilities

holding immigration detainees to affirmatively act to prevent

sexual abuse and sexual assault of the residents, which includes

providing staff training and prompt, effective intervention.

In June 2017, E.D. filed her third amended complaint in

District Court against Daniel Sharkey, Berks County, the

BCRC, the center’s director Diane Edwards, and staff

members John Behm, Janie Himmelberger, Brittany

Rothermel, Erika Taylor, and Matthew Malinowski.2 E.D.

claimed, inter alia, that her Fourteenth Amendment due

process rights were violated by the employees and supervisor

who were deliberately indifferent to Sharkey’s conduct and by

Berks County for failing to implement policies and procedures

to prevent sexual abuse at the residential center. She further

alleged that the Defendants retaliated against her after she

reported the sexual abuse, thereby violating her due process

and First Amendment rights. After the completion of

discovery, all the defendants except for Daniel Sharkey moved

for summary judgment.

The District Court granted the defendants’ joint motion

with regard to claims against the BCRC, ruling that it was not

a proper defendant under 42 U.S.C. § 1983 because it did not

have an existence separate from Berks County. The Court also

granted summary judgment in favor of BCRC employee John

Behm and rejected E.D.’s claims for punitive damages against

Berks County, but otherwise denied the motion. The

remaining defendants filed an interlocutory appeal challenging

the District Court’s conclusion that E.D. pled the violation of a

known constitutional right, that the BCRC employees and

supervisor were not entitled to qualified immunity, and that a

2

E.D.’s third complaint included Immigration and Customs

Enforcement (ICE) agent Josh Petry as a defendant, but the

District Court granted Petry’s motion to dismiss on August 11,

2017.

5

factfinder could reasonably find Berks County liable for

Sharkey’s conduct.

II. Jurisdiction and Standard of Review

Generally, our appellate jurisdiction under 28 U.S.C. §

1291 is limited to appeals of District Courts’ final orders. The

denial of a motion for summary judgment, which allows an

issue to proceed to trial, is generally not considered a final

order. Hamilton v. Leavy, 322 F.3d 776, 781-82 (3d Cir. 2003).

However, section 1291 does allow interlocutory review of

certain collateral orders because they “finally determine claims

of right . . . too important to be denied review and too

independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated.”

Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.

2002) (quoting Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949)).

Orders denying qualified immunity are eligible for

review under the “collateral-order doctrine” because qualified

immunity entitles the defendant to “immunity from suit rather

than a mere defense to liability and [the entitlement] is

effectively lost if a case is erroneously permitted to go to trial.”

Id. (quoting Mitchell v. Forsyth, 572 U.S. 511, 526-27 (1985))

(emphasis in original and alterations omitted). However, the

denial of qualified immunity can be reviewed only to the extent

that the analysis denying the defense turns on an issue of law.

Id.; Bistrian v. Levi, 696 F.3d 352, 364 (3d Cir. 2012). In these

instances, where the issue appealed concerns not whether the

parties might be able to prove given facts but rather whether

the facts show a violation of clearly established law, we have

jurisdiction “but we must adopt the facts assumed by the

District Court.” Walker v. Horn, 286 F.3d 705, 710 (3d Cir.

2002) (citing Johnson v. Jones, 515 U.S. 304, 319 (1995)). In

deciding the summary judgment motion, the District Court

must accept as true the nonmovant’s evidence and draw all

reasonable inferences from the record in the nonmovant’s

favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255

(1986); see also Tolan v. Cotton, 572 U.S. 650, 656-57 (2014).

a. Jurisdiction to review denial of Defendants’

qualified immunity.

6

In deciding that Sharkey’s co-workers and supervisor

were not entitled to qualified immunity, the District Court

concluded that E.D. sufficiently alleged a violation of a

constitutional right and that the right was clearly established.

See L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 240-41 (3d Cir.

2016). On appeal, the Defendants challenge the conclusion

that E.D.’s evidence of Sharkey’s conduct raised such a

violation. In so doing, they raise an appealable issue of law.

We exercise plenary review over questions of law raised by the

denial of qualified immunity. Schieber v. City of Philadelphia,

320 F.3d 409, 415 (3d Cir. 2003) (citing Eddy v. Virgin Islands

Water & Power Auth., 256 F.3d 204, 208 (3d Cir. 2001)).

b. No jurisdiction to review denial of summary

judgment for Berks County.

We do not have jurisdiction to review the District

Court’s order denying summary judgment in favor of Berks

County. Unlike the individual Defendants, Berks County

cannot assert a qualified immunity defense, and the denial of

summary judgment to Berks County therefore does not trigger

collateral order doctrine review. See Owner v. City of

Independence, Mo., 445 U.S. 622, 650 (1980) (under § 1983, a

municipality is not entitled to qualified immunity from liability

for violations of constitutional rights). The District Court

denied summary judgment because it determined that the

County’s liability depended on the resolution of issues of

material fact, which must be determined by a fact-finder. To

the extent the County asserts the District Court erred in

identifying facts to support its order denying summary

judgment, this argument must be made in an appeal following

the conclusion of the case. Forbes v. Twp. of Lower Merion,

313 F.3d at 147-48 (citing Ziccardi v. City of Phila., 288 F.3d

57, 61 (3d Cir. 2002)).

III. The Denial of Qualified Immunity for the Individual

Defendants

Having ascertained that we have jurisdiction to review

the denial of qualified immunity insofar as it raises a question

of law, we now assess whether the District Court properly

concluded that E.D. sufficiently pled the violation of a known

constitutional right of which a reasonable person would be

7

aware. Saucier v. Katz, 533 U.S. 194, 201-02 (2001) (citations

omitted). While the plaintiff must sufficiently plead a

violation, the burden is on the defendants to establish they are

entitled to qualified immunity. Beers-Capitol v. Whetzel, 256

F.3d 120, 142 n. 15 (3d Cir. 2001). Officials demonstrate they

are entitled to qualified immunity only if they can show that a

reasonable person in their position at the relevant time could

have believed, in light of clearly established law, that their

conduct comported with recognized legal standards. Id.

The District Court determined that E.D. sufficiently

alleged a plausible violation of her Fourteenth Amendment due

process right to bodily integrity, which it defined as “the right

to have a custodial government officer protect an immigration

detainee from sexual assault of which the officer is aware.” It

further determined this right to be clearly established at the

time of Sharkey’s challenged conduct. The Court denied the

individual Defendants qualified immunity because they failed

to demonstrate their conduct comported with established legal

standards, which would have required proving that they were

either unaware of Sharkey’s conduct or they were aware but

acted reasonably to protect E.D. from the assault. We agree

with the District Court that the Defendants did not meet this

burden, and therefore affirm the denial of summary judgment.

a. Alleged violation of constitutional right.

This Circuit has longed viewed the legal rights of an

immigration detainee to be analogous to those of a pretrial

detainee. 3 We now join a number of our sister Circuits in

expressly holding that immigration detainees are entitled to the

same due process protections. Charles v. Orange County, ---

F.3d ---, 2019 WL 2236391 (2d Cir. May 24, 2019); Chavero-

3

Panels of this Circuit have repeatedly held in unpublished

decisions that an immigration detainee is the equivalent of a

pretrial detainee, and that a pretrial detainee’s constitutional

claims are considered under the Due Process Clause: Adekoya

v. Chertoff, 431 Fed. Appx. 85, 88 (3d Cir. 2011); Contant v.

Sabol, 431 Fed. App’x. 177, 178 (3d Cir. 2011); Foreman v.

Lowe, 261 Fed. App’x. 401, 403 (3d Cir. 2008); Harvey v.

Chertoff, 263 Fed. App’x. 188, 191 (3d Cir. 2008); Dhalan v.

Dep’t of Homeland Sec., 215 F. App’x. 97, 100 (3d Cir. 2007).

8

Linares v. Smith, 782 F.3d 1038, 1041 (8th Cir. 2015);

Belbachir v. County of McHenry, 726 F.3d 975, 979 (7th Cir.

2013); Porro v. Barnes, 624 F.3d 1322, 1326 (10th Cir. 2010);

Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).

“[W]hen pretrial detainees challenge their conditions of

confinement, we must consider whether there has been a

violation of the Due Process Clause of the Fourteenth

Amendment.” Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir.

2008). “In evaluating the constitutionality of conditions or

restrictions of pretrial detention that implicated only the

protection against deprivation of liberty without due process of

law, we think the proper inquiry is whether those conditions

amount to punishment of the detainee.” Bell v. Wolfish, 441

U.S. 520, 535 (1979). Under the Due Process clause, “a

detainee may not be punished prior to an adjudication of guilt.”

Id. To determine whether challenged conditions of

confinement amount to punishment, this Court determines

whether a condition of confinement is reasonably related to a

legitimate governmental objective; if it is not, we may infer

“that the purpose of the governmental action is punishment that

may not be constitutionally inflicted upon detainees qua

detainees.” Hubbard, 538 F.3d at 232 (quoting Bell, 441 U.S.

at 539) (emphasis in original).

The right to “not be sexually assaulted by a state

employee while in confinement” was clearly established at the

time of Sharkey’s conduct. Beers-Capitol, 256 F.3d at 143

n.15 (citing Farmer v. Brennan, 511 U.S. 825, 833-34 (1994),

and Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726

(3d Cir. 1989)). E.D.’s allegations of Sharkey’s sexual assault,

which could not have served a legitimate governmental

objective and thereby constituted impermissible punishment,

set forth a plausible violation of her right to personal bodily

integrity protected by the Due Process Clause of the Fourteenth

Amendment. Stevenson v. Carroll, 495 F.3d 62, 67 (3d Cir.

2007) (citing Bell, 441 U.S. at 535); Kane v. Barger, 902 F.3d

185, 192 (3d Cir. 2018).

Regarding Sharkey’s co-workers’ liability, this Court

has recognized a detainee’s right to be protected by state actors

who knew of ongoing violating conduct under the theory that

a reasonable state official “could not believe that [their] actions

9

comported with clearly established law while also believing

that there is an excessive risk to the plaintiffs and failing to

adequately respond to that risk.” Beers-Capitol, 256 F.3d at

143 n.15; see also Ricks v. Shover, 891 F.3d 468, 479 (3d Cir.

2018) (holding that a prison guard who knows of, but fails to

stop, ongoing constitutional violations against a prisoner

violates the prisoner’s Eighth Amendment rights). Supervisor

Diane Edwards’ claim for immunity was properly denied

because this Court has recognized the right to have state

supervisory officials that neither condone nor authorize,

through either their actions or inactions, sexual assault

committed by another state actor. See Stoneking, 882 F.2d at

730-731 (reversing the grant of qualified immunity where

plaintiff proffered a “tenable theory” that supervisors’

practices amounted to condoning teacher’s sexual abuse of

student). We therefore agree with the District Court that E.D.’s

claims against the individual Defendants alleged the violation

of a known constitutional right.

b. Alleged constitutional right clearly established.

We further agree that a detainee’s right to be protected

by state officials aware of ongoing sexual assault was clearly

established at the time of Sharkey’s conduct. “A clearly

established right is one that is sufficiently clear that every

reasonable official would have understood that what he is

doing violates that right.” Kane, 902 F.3d at 194 (citing

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). “[I]t need not

be the case that the exact conduct has previously been held

unlawful so long as the ‘contours of the right’ are sufficiently

clear.” Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Initially, the District Court fittingly recognized that

Sharkey’s conduct was illegal in the state in which it occurred.

He committed institutional sexual assault in violation of

Pennsylvania Statute 18 Pa.C.S. § 3124.2, which forbids an

employee of a “residential facility serving children and youth”

from having sexual intercourse with a “detainee,” regardless of

whether the detainee gave consent. See 18 Pa.C.S. § 3124.2 (a).

That Sharkey’s conduct was illegal renders E.D.’s right to be

free from sexual assault “so ‘obvious’ that it could be deemed

clearly established even without materially similar cases.”

10

Kane, 902 F.3d at 195 (quoting Hope v. Pelzer, 536 U.S. 730,

741 (2002)).

In any event, there is a materially similar case, decided

twelve years before E.D. had entered the country. In 2001 this

Court held that juvenile detention facility employees could be

liable for their co-worker’s sexual conduct with an inmate if

they knew of but ignored the risk their co-worker posed.

Beers-Capitol, 256 F.3d at 135. This same opinion held that

facility supervisors could be liable for implementing deficient

policies that created an unreasonable risk of a violation if they

were aware of but indifferent to the risk, and the injury resulted

from their own deficient policies. Id. Thus, the BCRC

Defendants had notice that Sharkey’s conduct was violative,

and their purported failure to intervene and protect E.D. could

be found to have violated her right to be free of sexual assault,

of which a reasonable person would have been aware.

On appeal, the individual Defendants argue E.D. failed

to allege a constitutional right violation because the sexual

intercourse between Sharkey and E.D. was consensual. They

further claim that the BCRC was “drastically different” from a

prison, and that Sharkey was “not akin to a prison guard.” We

agree with the District Court that the evidence regarding

whether the sexual intercourse was consensual “presents a

sufficient disagreement to require submission to a jury,” and

therefore constitutes a genuine dispute of material fact. Liberty

Lobby, 477 U.S. at 251-52.

However, given the findings of the District Court,

which we adopt when reviewing the denial of summary

judgment, we question whether the issue of consent will be

deemed relevant at trial. Schieber v. City of Phila., 320 F.3d at

415. The Court found that E.D. was “detained” and that, under

ICE policies and standards, as well as Pennsylvania law, any

sexual contact between a staff member and a detainee

constitutes sexual abuse regardless of consent. We find,

therefore, the Court’s factual findings support its ruling that

E.D. sufficiently pled a due process rights violation by alleging

she and Sharkey had sexual contact, notwithstanding its

finding that whether she consented to the contact is in dispute.

11

IV. Deliberate Indifference Sufficiently Alleged

Having established that E.D. sufficiently alleged the

violation of a known constitutional right, we now assess the

District Court’s finding that she sufficiently established the

Defendants “knowingly and unreasonably disregarded an

objectively intolerable risk of harm” embodied by their co-

worker, Daniel Sharkey. Beers-Capitol, 256 F.3d at 132

(quoting Farmer, 511 U.S. at 837 (1994)). In determining

whether E.D. met her burden in pleading that the Defendants

possessed a culpable state of mind and failed to act reasonably,

she is entitled as the non-movant to the benefit of all reasonable

inferences drawn from the evidence. Hamilton v. Leavy, 117

F.3d 742, 748 (3d. Cir. 1997).

Defendants argue on appeal that the evidence

established they knew nothing of the ongoing sexual

relationship, whereas E.D. argues the record proves the BCRC

staff knew of Sharkey’s violative conduct and they were

therefore required by law to protect her. The District Court

found that the Defendants’ awareness of the alleged violation,

and whether they acted reasonably in response, presents a

genuine dispute of a material fact. Although the Court failed

to make specific factual findings in its order, facts identified in

is previous filings support its ruling that a factfinder could

plausibly conclude the Defendants “must have known” of the

risk to E.D.’s rights. Hamilton, 117 F.3d at 748.

In a memorandum opinion deciding a motion to dismiss,

the District Court cited E.D.’s allegations that the BCRC is a

small facility and the staff has “frequent contact and

interaction” with the detainees, which permitted the

Defendants to observe Sharkey with E.D. and become aware

of their intimate relationship. Moreover, the Court cited E.D.’s

claims that the relationship became “obvious” to the other

detainees, motivating them to complain to the BCRC staff

about Sharkey’s conduct.4 Regarding Supervisor Edwards, the

4

The District Court filed a memorandum opinion in response

to a motion to dismiss filed by defendant Jeremiah Petry, an

ICE deportation officer who worked at the BCRC. The Court

12

Court found that E.D. raised a triable issue of fact as to whether

the policies at the BCRC created an unreasonable risk of sexual

assault, whether Edwards was aware of that risk, and whether

E.D.’s injury was the result of the purported deficient policies.

To support this finding, the Court cited E.D.’s response to the

summary judgment motion, in which she alleged Edwards “has

oversight over everything in the program for the BCRC,

including training,” and that the training consisted of Sharkey

“going through documents and signing them.” She further

alleged that the sexual assault training, the curriculum of which

Edwards approved, consisted of a printed-out slides that

employees read independently before taking a quiz.

Based on these adaptations by the District Court, we

agree there is enough evidence to support an inference that the

Defendants knew of the risk facing E.D., and that their failure

to take additional steps to protect her – acting in their capacity

as either a co-worker or supervisor – “could be viewed by a

factfinder as the sort of deliberate indifference” to a detainee’s

safety that the Constitution forbids. Hamilton, 117 F.3d at 749.

We agree there is a genuine need for trial to determine whether

the Defendants are liable, and that summary judgment was

therefore properly denied. See Big Apple BMW, Inc. v. BMW

of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)) (“In

practical terms, if the opponent has exceeded the ‘mere

scintilla’ threshold and has offered a genuine issue of material

fact, then the court cannot credit the movant’s version of events

against the opponent, even if the quantity of the movant’s

evidence far outweighs that of its opponent”). 5

granted Petry’s motion with prejudice, finding that E.D. failed

to state a claim upon which relief could be granted.

5

In the order deciding the summary judgment motion, the

District Court found that whether Sharkey’s co-workers

retaliated against E.D. after she reported the offensive conduct

and thereby violated her First Amendment rights was a genuine

issue of material fact. This ruling was not raised by the

Defendants on appeal, rendering any objection to the Court’s

findings waived. The Federal Rules of Appellate Procedure

provide that an appellant’s brief must contain “appellant’s

contentions and the reasons for them.” Fed. R. App. P.

13

V. Conclusion

Given that no final order has been issued with regard to

Berks County, we do not have jurisdiction to review the

decision to deny summary judgment in its favor. We will

affirm the District Court’s decision to deny qualified immunity

for the individual Defendants, and therefore affirm the denial

of their motion for summary judgment. We will remand this

case for trial so that the liability of the parties may be decided

by a factfinder.

28(a)(9)(A). We have held that the absence of any argument

renders the issue waived. United States v. Hoffecker, 530 F.3d

137, 162 (3d. Cir. 2008). See also United States v. DeMichael,

461 F.3d 414, 417 (3d Cir. 2006) (“An issue is waived unless

a party raises it in its opening brief, and for those purposes a

passing reference to an issue will not suffice to bring that issue

before this court.” (citation omitted)); United States v. Irizarry,

341 F.3d 273, 305 (3d Cir. 2003) (“An appellant who falls to

comply with this requirement fails to preserve the arguments

that could otherwise have been raised.”).

14

SMITH, Chief Judge, concurring.

I join my colleagues’ sound reasoning in upholding

the District Court’s denial of qualified immunity and

dismissing the remainder of the appeal. I write separately

to highlight a concern with the structure of the order under

review.

When summary judgment has been denied on

qualified immunity grounds, we have jurisdiction to

“determine whether the facts identified by the District

Court constitute a violation of a clearly established

constitutional right.” Atkinson v. Taylor, 316 F.3d 257,

261 (3d Cir. 2003). Here, the District Court addressed the

summary judgment motion by issuing an order,

unaccompanied by a supporting opinion. Instead, the

order included a lengthy footnote setting forth the District

Court’s reasoning. This “footnote order” practice is

frequently employed by our colleagues in the Eastern

District of Pennsylvania, and it is not my desire to interfere

with a longstanding custom and practice of that district.

Indeed, in my view, there is nothing inherently

problematic with so-called “footnote opinions.” In this

case, however, the footnote neglects to identify a single

undisputed fact, and provides only cursory discussion—

without reference to the evidence of record—to support

the conclusion that disputes of material fact exist.

Because Appellants have raised on appeal relatively

narrow legal claims that are capable of resolution without

the need to closely examine the nuances of the District

Court’s fact-finding, I see no need to remand this matter

for a more comprehensive opinion. Nonetheless, while the

District Court provided just enough detail for us to render

a decision in this case, it cannot be overlooked that

perfunctory treatment of the factual record does not

comport with the spirit of the supervisory rule that we

announced in Forbes v. Township of Lower Merion, 313

F.3d 144 (3d Cir. 2002). In Forbes, we observed that

providing only “spare comments” in a qualified immunity

denial “greatly hampered” our ability to conduct

meaningful appellate review. Id. at 148. We therefore

expressly set forth a rule applicable to all qualified

immunity decisions: “we . . . require the District Courts to

specify those material facts that are and are not subject to

genuine dispute and explain their materiality.” Id. at 146.

Forbes has been the rule of our Court for well over

a decade and a half, and remains so for good reason. A

comprehensive and detailed summary judgment opinion,

specifying those facts that are undisputed as well as those

that are material and subject to genuine dispute, is vital—

and often essential—to our meaningful review on appeal.

I write to underscore the continued importance that our

judges attach to compliance with the Forbes rule, and to

discourage cursory footnote treatment of the factual record

in qualified immunity decisions.

2