Crystal Weimer v. County of Fayette

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 19-1823

______

CRYSTAL DAWN WEIMER

v.

COUNTY OF FAYETTE, PENNSYLVANIA;

OFFICE OF THE FAYETTE COUNTY OF DISTRICT

ATTORNEY;

NANCY D. VERNON, in her official and individual

capacities;

RONALD HAGGERTY, JR.; THOMAS CESARIO;

THOMAS W. PATTON;

BEVERLY ASHTON, in their individual capacities; CITY

OF CONNELLSVILLE

County of Fayette; Nancy Vernon,

Appellants

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D. C. No. 2-17-cv-01265)

Magistrate Judge: Honorable Maureen P. Kelly

______

Argued April 22, 2020

Before: HARDIMAN, RENDELL and FISHER, Circuit

Judges.

(Filed: August 25, 2020)

Marie M. Jones [ARGUED]

Maria N. Pipak

Michael R. Lettrich

JonesPassodelis

707 Grant Street

Gulf Tower, Suite 3410

Pittsburgh, PA 15219

Counsel for Appellants

Joseph E. Culleiton [ARGUED]

Blank Rome

501 Grant Street, Suite 850

Pittsburgh, PA 15219

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Crystal Dawn Weimer spent more than eleven years in

prison for murder. After her convictions were vacated, all

charges against her were dismissed with prejudice. Weimer

then filed suit under 42 U.S.C. § 1983, alleging that the County

of Fayette, Pennsylvania; its former District Attorney, Nancy

2

Vernon; the City of Connellsville; and several city and state

police officers violated her rights under the U.S. Constitution

and Pennsylvania law. In this interlocutory appeal, we address

only a narrow sliver of this sweeping case: whether absolute

immunity or, where raised, qualified immunity shields District

Attorney Vernon from proceeding to discovery on certain of

Weimer’s claims. 1

After assuring ourselves of our jurisdiction, we address

each immunity argument in turn. We conclude that, aside from

Vernon’s approval of the criminal complaint, because Weimer

alleges Vernon engaged in investigatory conduct, absolute

immunity does not protect Vernon from suit. However, we also

hold that Vernon is entitled to qualified immunity as to

Weimer’s failure to intervene claim and as to Vernon’s alleged

conduct in directing officers to investigate bite-mark evidence.

Thus, we will affirm in part, reverse in part, and remand for

further proceedings.

I

In reviewing a district court’s “rulings on Federal Rule

of Civil Procedure 12(b)(6) motions to dismiss, our recitation

1

As we explain below, our jurisdiction is premised on the

interlocutory appealability of a denial of immunity. We may

not, and do not, address issues that are unrelated to immunity.

At oral argument, counsel for Fayette County and Vernon

conceded that we lack jurisdiction to review the County’s

appeal because a county “may not raise absolute immunity as

a defense to a claim of municipal liability.” See Fogle v. Sokol,

957 F.3d 148, 156 (3d Cir. 2020) (citing Owen v. City of

Independence, 445 U.S. 622, 638 (1980)). For the same reason,

counsel also conceded that we lack jurisdiction to review

Vernon’s challenge to Weimer’s supervisory liability claim.

3

of the facts is limited to” the plaintiff’s well-pleaded

allegations. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008).

“We accept those facts as true and draw all reasonable

inferences” in her favor. Id.

A. The Initial Investigation into Curtis Haith’s Murder

In the early morning hours of January 27, 2001,

members of the Connellsville Police Department arrived at

Curtis Haith’s apartment to find Haith, who had been beaten

and shot in the face, lying dead outside on the sidewalk. At

officers’ request, Vernon also came to Haith’s apartment to

participate in and help direct the investigation.

During their initial search of the crime scene, officers

recovered DNA samples and found a significant amount of

drug-related evidence inside Haith’s apartment. From speaking

with Haith’s neighbors and friends, police learned that he had

attended parties and had hosted a dozen or more people in his

apartment on the evening of January 26 and into the morning

of January 27.

Officers soon began interviewing people who had

attended these parties, including Weimer. When officers

arrived at her house, Weimer was still dressed in the clothes

she had been wearing the night before. She had minor injuries

to her face and foot, and officers observed what looked like

mud and blood on her clothes. Weimer told officers that she,

Haith, and others had attended a party the night before and that

she had given Haith a ride from that party and dropped him off

at another party. She then spent the rest of the night at the

housing community where her mother and sisters lived. Her

cousin, sisters, and then-boyfriend Michael Gibson confirmed

her story. Weimer and Gibson also told officers that Weimer

injured her foot when they were “horseplaying” a few days

earlier. App. 87 ¶ 31. And Weimer said that the blood on her

4

shirt and the injury to her eye were caused by a fight with

Gibson. DNA testing later confirmed that the blood on

Weimer’s clothes belonged to Gibson, and none of the DNA

samples collected from the crime scene matched Weimer—in

fact, the samples suggested a male DNA profile.

B. Weimer Is Implicated

In October 2002—over twenty months after the

murder—Thomas Beal, whom Weimer had dated before

Gibson, told police that Weimer and Gibson killed Haith.

According to Beal, Weimer had told him that the blood on her

clothes belonged to Haith (which, based on the DNA testing,

could not have been correct) and that she and Gibson shot

Haith.

Around the same time, the Pennsylvania State Police

Cold Case Squad began to assist with the investigation. When

reviewing Haith’s autopsy photos, a state investigator saw

what she believed to be a bite mark on Haith’s hand. A Fayette

County dentist analyzed the injury. The dentist first concluded

that Gibson bit Haith, but after examining teeth impressions for

Weimer, she reported she could not identify which set of teeth

caused the mark.

A bite-mark expert then reviewed Beal’s statement,

photos of the injury to Haith’s hand, and teeth impressions

from Gibson and Weimer. He concluded the bite mark matched

Weimer. Later in the investigation, questions arose as to the

timing of the bite mark and whether it could have occurred

hours or days before the murder. Vernon directed officers to

investigate the timing issue, and the expert was asked to update

his opinion. Without reviewing additional evidence, he

determined the bite occurred seven to ten minutes before

Haith’s death.

After securing the bite-mark evidence, investigators

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again spoke with Beal. Although he had previously claimed

that Weimer had told him that she and Gibson had killed Haith,

he now claimed “a black man named Lonnie” participated in

the murder. App. 92 ¶ 47. Investigation into this new story,

conducted at the direction of the police and Vernon, revealed

that “Lonnie” was incarcerated at the time of Haith’s murder.

Despite these puzzling changes to his story, Beal remained a

key witness.

In August 2003—now over two and a half years since

the murder—Conrad Blair contacted police from prison and

said that a fellow inmate, Joseph Stenger, had confessed that

he was involved in Haith’s murder. Vernon and a Connellsville

police officer interviewed Blair who told them that Stenger,

Weimer, and Beal killed Haith. Blair also gave the interviewers

a statement he claimed Stenger had written. The written

statement, however, diverged from Blair’s account of

Stenger’s supposed confession—instead of claiming Stenger

was involved in the murder, the written statement said he

merely helped dispose of evidence in a pond.

Based on this interview and the written statement,

Vernon assisted police in assembling a dive team to search the

pond. Vernon and several officers also met with Stenger’s

attorney, who denied that his client wrote the statement.

C. Proceedings Against Weimer

In late December 2003, despite the conflicting

statements from Beal, Blair, and Stenger, officers prepared a

criminal complaint charging Weimer with Haith’s murder,

which Vernon approved. In January 2004—three years after

Haith’s death—Weimer was arrested.

The case against Weimer fell apart almost immediately.

During a preliminary hearing, the Commonwealth called Beal

as a fact witness. While on the stand, Beal recanted his

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previous statements implicating Weimer in Haith’s murder.

Instead, he testified that an officer “kind of like coaxed me

along on how to do it.” App. 94 ¶ 57. Following Beal’s

revelation, the judge dismissed the charges, and Weimer was

released.

Nevertheless, investigators continued to focus their

efforts on Weimer. In July 2004, Stenger told police he would

implicate Weimer in exchange for a lighter sentence for his

unrelated convictions. Based on Stenger’s new statement,

officers again arrested and charged Weimer with Haith’s

murder.

Eventually, Weimer was brought to trial in Fayette

County. On April 7, 2006, a jury convicted her of third-degree

murder and conspiracy to commit murder. She was sentenced

to fifteen to thirty years in prison.

D. Weimer Is Exonerated

On October 1, 2015, a judge vacated Weimer’s

convictions and granted her request for a new trial. Weimer

alleges that, at this point, the police officers and Vernon

“continued to act in concert to cover up and suppress the

wrongful actions that led to . . . Weimer’s wrongful

convictions” and worked to “re-prosecute[] [her] for . . . [the]

murder.” App. 100–01 ¶ 86.

During Weimer’s postconviction relief and 2016

pretrial proceedings, a great deal of exculpatory evidence came

to light. For example, Stenger recanted his prior stories,

conceding he knew nothing about Haith’s murder and that

police had walked him through his testimony. The bite-mark

expert also disavowed his trial testimony, stating that his

opinion that the bite mark was Weimer’s was based on “junk

science.” App. 102 ¶ 94. In addition, Weimer’s counsel

discovered letters in Vernon’s files from several jailhouse

7

informants. Although the informants had testified at trial that

they were not receiving deals in exchange for their testimony

against Weimer, the letters revealed that they had indeed asked

for deals and may have received them. Finally, an expert

reviewed Haith’s autopsy report and photos of Weimer’s

injuries on the morning of Haith’s murder. He concluded

Weimer’s injuries were consistent with her story that she and

Gibson had been “horseplaying” a few days before the murder.

App. 103 ¶ 95. On June 27, 2016, the charges against Weimer

were “dropped with prejudice.” App. 103 ¶ 96.

E. Weimer’s Civil Rights Case

In September 2017, Weimer filed a civil rights suit in

the District Court, naming as defendants Fayette County, the

Office of the Fayette County District Attorney, the City of

Connellsville, several Connellsville police officers, one

Pennsylvania State Police officer, and Vernon.

As relevant to this appeal, Weimer’s First Amended

Complaint alleged that Vernon maliciously prosecuted her in

violation of her Fourth and Fourteenth Amendment rights,

conspired with police to violate her civil rights, and failed to

intervene to prevent officers from violating her constitutional

rights. 2 Vernon moved to dismiss, arguing that Weimer failed

to state claims for relief and, in any event, that she is entitled

2

Weimer also asserted claims against Vernon for deprivation

of liberty without due process in violation of the Fourteenth

Amendment and malicious prosecution under Pennsylvania

law. The District Court dismissed both claims with prejudice,

and those rulings are not at issue in this appeal. Further, as

mentioned above, Vernon conceded that we lack jurisdiction

to review her challenge to Weimer’s supervisory liability

claim, and, therefore, we do not discuss that claim here.

8

to absolute immunity. Vernon also argued that, if the District

Court determined that Weimer pleaded valid claims and

absolute immunity was not available, she was entitled to

qualified immunity regarding the failure to intervene claim and

for allegedly directing police to investigate the timing of the

bite mark.

On September 14, 2018, the District Court issued an

opinion granting the motion in part and denying it in part. See

Weimer v. County of Fayette (Weimer I), No. 17-1265, 2018

WL 4404049, at *16–17 (W.D. Pa. Sept. 14, 2018). First,

noting that a prosecutor enjoys absolute immunity when she

functions as an advocate, the District Court dismissed

Weimer’s claims with prejudice to the extent they were

premised upon Vernon’s alleged prosecutorial misconduct. 3

The District Court dismissed the claims without prejudice,

however, to the extent they were premised on Vernon’s

investigatory acts. In doing so, the Court granted Weimer leave

to amend her complaint to allege specific investigatory

misconduct by Vernon. Finally, the Court denied the motion to

dismiss the malicious prosecution claim only to the extent the

claim was premised on Vernon’s investigation into the timing

of the bite mark. The record, the Court explained, would have

to be “further developed as it relates to the bite mark and

Vernon’s conduct concerning the [bite-mark] investigation . . .

before it c[ould] be determined whether she is entitled to

qualified immunity on this issue.” Id. at *9.

3

Specifically, the Court held that Vernon was entitled to

absolute immunity for prosecuting Weimer using false

statements and bite-mark evidence, failing to disclose evidence

to defense counsel, allowing or encouraging witnesses to

testify falsely, and making misleading statements during

closing arguments. Weimer I, 2018 WL 4404049, at *9 n.3.

9

Following the issuance of the September 2018 order,

Weimer filed a Second Amended Complaint. The new

complaint also asserted malicious prosecution, civil rights

conspiracy, and failure to intervene claims against Vernon, and

Weimer added additional factual allegations to support these

claims. Vernon again moved to dismiss, arguing that Weimer

failed to plead Vernon’s involvement in the police

investigation to support the claims the District Court had

dismissed without prejudice. Vernon also argued that if

Weimer’s Second Amended Complaint adequately stated a

failure to intervene claim against her, it should be barred by

qualified immunity.

On April 5, 2019, the District Court denied the second

motion to dismiss the civil rights conspiracy and failure to

intervene claims. 4 Weimer v. County of Fayette (Weimer II),

No. 17-1265, 2019 WL 1509664 (W.D. Pa. Apr. 5, 2019).

First, it held that Weimer stated a claim for civil rights

conspiracy because the Second Amended Complaint

sufficiently alleged Vernon’s involvement in the police

investigation and her awareness of conflicting evidence

throughout the investigation. Second, the Court held that

Weimer pleaded facts to support a failure to intervene claim

against Vernon and that Vernon was not entitled to qualified

immunity on this claim.

Vernon now appeals aspects of both the September

4

The District Court did not address the malicious prosecution

claim in the April 2019 order. As we explain in further detail

below, the Court’s failure to address whether the newly

pleaded allegations in the Second Amended Complaint could

also serve as factual bases for the malicious prosecution claim

seems to us an oversight.

10

2018 and April 2019 orders.

II

Before turning to the merits, we must address an

antecedent challenge to our jurisdiction. See Montanez v.

Thompson, 603 F.3d 243, 248 (3d Cir. 2010) (“We necessarily

exercise de novo review over an argument alleging a lack of

appellate jurisdiction.”). The District Court had subject-matter

jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Weimer

argues that we lack appellate jurisdiction under 28 U.S.C. §

1291 because neither of the District Court’s orders are

reviewable under the collateral order doctrine. According to

Weimer, the District Court did not rule on Vernon’s

entitlement to absolute immunity in the April 2019 order, nor

did the determinations in that order turn on issues of law. The

rulings in the September 2018 order are not properly before us,

Weimer argues, because Vernon failed to appeal any adverse

determinations in that order within thirty days as required by

Federal Rule of Appellate Procedure 4(a). As we explain

below, we hold that we may properly exercise jurisdiction over

all issues Vernon raises on appeal.

We have jurisdiction to review “appeals from all final

decisions of the district courts.” 28 U.S.C. § 1291. District

court orders that finally and conclusively “determine claims of

right separable from, and collateral to, rights asserted in the

[underlying] action” are final for purposes of § 1291 and are

immediately appealable. Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949). “[A] district court’s denial of

a claim of [official] immunity, to the extent that it turns on an

issue of law, is an appealable ‘final decision’” under the

collateral order doctrine because official immunity is an

entitlement to avoid the costs of trial and the burdens of broad-

reaching discovery. Mitchell v. Forsyth, 472 U.S. 511, 526,

11

530 (1985); see also Kulwicki v. Dawson, 969 F.2d 1454,

1460–61, 1461 n.7 (3d Cir. 1992) (noting that, unlike a factual

claim, such as “the ‘I didn’t do it’ defense,” which “relates

strictly to the merits of the plaintiff’s claim,” a claim of official

immunity is immediately appealable under the collateral order

doctrine). An interlocutory order appealable under the

collateral order doctrine must be appealed within thirty days of

its entry. Fed. R. App. P. 4(a)(1)(A); see also In re Montgomery

County, 215 F.3d 367, 372 (3d Cir. 2000) (“The Rule 4(a)

deadline for civil cases applies to all appealable orders,

including collateral orders, specifically orders denying

immunity.” (internal quotation marks and citation omitted)).

Our jurisdiction over the immunity determinations in

the April 2019 order, which Vernon appealed within thirty

days of its entry, is fairly straightforward.

First, the April 2019 order conclusively determined that

Vernon is not entitled to absolute immunity. In the September

2018 order, the District Court set out the standard, stating that

a prosecutor enjoys absolute immunity “[i]n initiating a

prosecution and in presenting the State’s case” but not for

“investigative evidence-gathering.” Weimer I, 2018 WL

4404049, at *8 (citations omitted). The Court then permitted

Weimer to amend her complaint to allege that Vernon engaged

in investigatory misconduct, which would not be protected by

prosecutorial immunity. When Weimer amended her

complaint, Vernon again moved to dismiss, arguing Weimer

was granted limited leave to amend to allege specific

investigatory wrongdoing by Vernon but failed to do so. In

rejecting her argument, the District Court conclusively denied

Vernon’s entitlement to absolute immunity at the motion-to-

dismiss stage. 5 See Weimer II, 2019 WL 1509664, at *9–10,

5

Specifically, the District Court stated that Weimer’s Second

12

12.

Second, the April 2019 order conclusively denied

qualified immunity on the failure to intervene claim. Although

the District Court said it might revisit Vernon’s entitlement to

immunity at a later stage in the litigation, the practical effect of

the order was to require Vernon to proceed to discovery on this

claim, despite her argument that she should not be required to

do so. See Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017);

George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013).

Our jurisdiction over the September 2018 order is more

complicated, but we need not decide whether that order,

granting leave to amend, was immediately appealable. Even if

the District Court’s conclusion regarding the bite-mark

investigation in its September 2018 order was immediately

appealable under the collateral order doctrine, Vernon’s failure

to appeal within thirty days did not deprive her of the

opportunity to appeal the order’s adverse rulings because

another appealable order—the April 2019 order—was

subsequently entered and timely appealed. Indeed, “several

courts of appeals have held explicitly, across a wide range of

Amended Complaint “makes multiple allegations of Vernon’s

involvement in the police investigation” and, therefore, Vernon

is not entitled to absolute immunity on the civil rights

conspiracy or failure to intervene claims. Weimer II, 2019 WL

1509664, at *9–10. To support this holding the District Court

cited a list of paragraphs in the Second Amended Complaint.

See Odd, 539 F.3d at 210. Here, we conclude we have

jurisdiction to review the District Court’s denial of absolute

immunity, and, below, in Part III.A, we proceed to parse the

Second Amended Complaint to determine whether Weimer

alleges investigative conduct, to which absolute immunity

would not apply.

13

collateral order appeal circumstances, that failure to take an

available collateral order appeal does not forfeit the right to

review the order on appeal from a final judgment,” as long as

the issue has not become moot. 15A Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure § 3911 & n.78 (2d ed. 2020) (collecting cases).

One of our sister circuits has taken this concept a step

further, holding it had jurisdiction to review two interlocutory

orders—both of which effectively denied sovereign immunity

to Iran—even though Iran failed to appeal the earlier of the two

orders within thirty days. Rubin v. Islamic Republic of Iran,

637 F.3d 783, 790–92 (7th Cir. 2011). The court stated that

“[t]he failure to timely appeal an immunity order under the

collateral-order doctrine . . . postpones review until another

appealable order”—including an interlocutory order—“is

entered.” Id. at 791. Therefore, “Iran’s timely appeal of [the

later-in-time collateral] order permit[ted] review of the

earlier—and closely related—immunity decision.” Id. We, too,

have suggested that if the Rule 4(a) deadline is missed, the

order is not immediately appealable and the party “must then

wait until another appealable order . . . is entered, upon appeal

of which [s]he can challenge any interlocutory order that has

not become moot.” In re Montgomery County, 215 F.3d at 372

(citation omitted). Here, we have jurisdiction over the

immunity rulings in the September 2018 order because the

April 2019 order—which dealt with closely related immunity

questions at the motion-to-dismiss stage—was an appealable

order, Vernon appealed within the thirty-day window, and the

immunity issue was not moot.

A contrary holding would contravene “the historic

federal policy against piecemeal appeals.” Sears, Roebuck &

Co. v. Mackey, 351 U.S. 427, 438 (1956); see also Fed. Home

Loan Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 438

14

(3d Cir. 2003) (the “finality requirement of 28 U.S.C. § 1291

is grounded ‘not in merely technical conceptions of finality,’

but rather on a long-recognized policy ‘against piecemeal

litigation’” (quoting Catlin v. United States, 324 U.S. 229,

233–34 (1945))). Under the circumstances of this case,

requiring Vernon to either file two separate appeals at the

motion-to-dismiss stage or risk forfeiting her appellate rights

would be inconsistent with this long-recognized tradition. 6

6

Weimer argues that Vernon waived her opportunity to appeal

the denial of qualified immunity for her alleged conduct in

directing police to investigate the bite mark. In her motion to

dismiss the Second Amended Complaint, Vernon stated that

several of Weimer’s claims should be dismissed and Weimer

“should only be permitted to proceed on her malicious

prosecution claim against Vernon for [Vernon’s] alleged

involvement in securing bite[-]mark evidence.” App. 136–37.

Given the unique circumstances of this case, the procedural

posture before the District Court, and the rule we describe

above, we do not see this statement or Vernon’s failure to re-

raise the issue of qualified immunity regarding the bite-mark

investigation in her second motion to dismiss as fatal to her

appeal of that issue. Because the District Court granted

Vernon’s first motion to dismiss in large measure but gave

Weimer limited leave to amend her complaint, Vernon would

have reasonably understood that her arguments in the second

motion to dismiss should have been directed only to those

issues for which Weimer had been granted leave to amend.

Accordingly, Vernon’s acknowledgement in her motion before

the District Court that she would not relitigate issues the

District Court had already decided in the September 2018 order

did not amount to a waiver of her appellate rights over this

argument.

15

Finally, although Vernon’s notice of appeal designates

only the April 2019 order as the order on appeal, we may still

consider the District Court’s bite-mark rulings in the

September 2018 order. Federal Rule of Appellate Procedure

3(c)(1)(B) requires that a notice of appeal “designate the

judgment, order, or part thereof being appealed.” However, we

“liberally construe[] notices of appeal.” Sulima v. Tobyhanna

Army Depot, 602 F.3d 177, 184 (3d Cir. 2010) (citation

omitted). We may “exercise jurisdiction over orders not

specified in the [n]otice of [a]ppeal if: (1) there is a connection

between the specified and unspecified orders; (2) the intention

to appeal the unspecified order is apparent; and (3) the

opposing party is not prejudiced and has a full opportunity to

brief the issues.” Id. (internal quotation marks and citation

omitted). Here, there is a connection between the September

2018 order addressing Vernon’s first motion to dismiss on

immunity grounds and the April 2019 order, in which the

District Court conclusively determined that, for the balance of

Weimer’s claims, Vernon was not entitled to dismissal based

on immunity. Vernon’s intent to appeal the District Court’s

denial of qualified immunity regarding her investigation into

the bite mark is clear from her opening brief. And Weimer was

not prejudiced because she had the opportunity to respond, and

did respond, to Vernon’s argument on the merits in her

answering brief.

III

Having assured ourselves of our jurisdiction, we turn to

the merits. Vernon argues that the District Court erred in failing

to dismiss certain of Weimer’s claims against her because she

is entitled to (A) absolute immunity on all of Weimer’s § 1983

claims and (B) qualified immunity on the failure to intervene

claim and for her alleged involvement in directing officers to

investigate the timing of the bite-mark evidence. Our review of

16

these issues is plenary. Yarris v. County of Delaware, 465 F.3d

129, 134 (3d Cir. 2006).

A. Absolute Immunity

Section 1983 “provides that every person who acts

under color of state law to deprive another of a constitutional

right shall be answerable to that person in a suit for damages.”

Imbler v. Pachtman, 424 U.S. 409, 417 (1976) (internal

quotation marks and alteration omitted). However, the

Supreme Court “has consistently recognized” that the statute

“was not meant to abolish wholesale all common-law

immunities” available at the time of its enactment in 1871.

Burns v. Reed, 500 U.S. 478, 484 (1991) (internal quotation

marks and citation omitted). Thus, some officials are entitled

to “absolute protection from damages liability” because they

“perform special functions” similar “to functions that would

have been immune when Congress enacted § 1983.” Fogle,

957 F.3d at 158 (internal quotation marks and citation omitted).

Noting both “a common law tradition of prosecutorial

immunity and strong policy considerations that supported

extending immunity to the § 1983 context,” the Supreme Court

has held that prosecutors are immune from suit when they

perform prosecutorial functions. Odd, 538 F.3d at 208 (citing

Imbler, 424 U.S. at 420–21, 424). The defense does not protect

a prosecutor’s actions wholesale merely because she is a

prosecutor. Fogle, 957 F.3d at 159. Rather, absolute immunity

“attaches [only] to actions intimately associated with the

judicial phases of litigation, . . . not to administrative or

investigatory actions unrelated to initiating and conducting

judicial proceedings.” Odd, 538 F.3d at 208 (internal quotation

marks and citation omitted). The prosecutor “seeking absolute

immunity bears the burden of showing that such immunity is

justified for the [specific] function in question.” Fogle, 957

17

F.3d at 159 (quoting Burns, 500 U.S. at 486). “[T]o earn the

protections of absolute immunity” at the motion-to-dismiss

stage, “a defendant must show that the conduct triggering

absolute immunity ‘clearly appear[s] on the face of the

complaint.’” Id. at 161 (second alteration in original) (quoting

Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989)).

Determining which of a prosecutor’s actions were

prosecutorial in nature “is a fact-specific” inquiry. Id. at 160.

We must “ascertain just what conduct forms the basis for the

plaintiff’s cause of action” and “[t]hen . . . determine what

function (prosecutorial, administrative, investigative, or

something else entirely) that act served.” Id. at 161 (internal

quotation marks and citation omitted). Importantly, “while we

tend to discuss prosecutorial immunity based on alleged acts,

our ultimate analysis is whether a defendant has established

absolute prosecutorial immunity from a given claim.” Id.

As relevant to this appeal, Weimer asserts three claims

against Vernon: malicious prosecution, civil rights conspiracy,

and failure to intervene. The September 2018 order held that

all the allegations in support of these claims (aside from

Vernon’s participation in the bite-mark investigation) involved

prosecutorial misconduct. However, in the April 2019 order,

the District Court broadly concluded that Weimer’s Second

Amended Complaint “makes multiple allegations of Vernon’s

involvement in the police investigation,” so Vernon’s

entitlement to absolute immunity was not clear on the face of

the complaint. 7 Weimer II, 2019 WL 1509664, at *9.

7

The April 2019 order addressed only whether the Second

Amended Complaint pleaded investigative acts to support the

civil rights conspiracy and failure to intervene claims. It did not

address the malicious prosecution claim. To be sure, the

18

To support this holding, the District Court cited

numerous paragraphs in the Second Amended Complaint.

However, it failed to “dissect[]” Vernon’s alleged actions to

determine whether they were prosecutorial or investigative in

nature. Odd, 538 F.3d at 210. Thus, we must now “defin[e]

[each] act” that Weimer added to her Second Amended

Complaint to determine whether the District Court erred in

September 2018 order had already held that the malicious

prosecution claim remained viable to the extent it was

premised upon Vernon’s investigation into the bite mark. But

that order also, as for the other claims, granted Weimer “leave

to file a second amended complaint to identify specific

wrongful investigatory acts by Vernon” to further support the

malicious prosecution claim. Weimer I, 2018 WL 4404049, at

*10. Vernon’s motion to dismiss the Second Amended

Complaint reasserted absolute immunity as to all claims for

which Weimer was granted leave to amend, including the

malicious prosecution claim. It seems to us an oversight that

the District Court failed to address whether the newly pleaded

allegations in the Second Amended Complaint could also serve

as factual bases for the malicious prosecution claim.

Accordingly, even though, as we explain in Part III.B.2,

Vernon is entitled to qualified immunity on the malicious

prosecution claim to the extent the claim is premised on her

investigation into the bite-mark evidence, we think the

malicious prosecution claim may remain viable to the extent it

is premised on other investigative activities—including, as we

describe above, Vernon’s involvement at the crime scene and

investigation into witness statements—to which absolute

immunity does not apply and for which qualified immunity

was not requested.

19

concluding that these actions were investigative. 8 See Fogle,

957 F.3d at 161 (alterations in original) (quoting Odd, 538 F.3d

at 212).

1. Involvement at the Crime Scene

According to the Second Amended Complaint, Vernon

arrived at Haith’s apartment a few hours after the Connellsville

Police Department because a Connellsville detective

“requested [her presence at] the crime scene so that she could

be involved in and help to direct the murder investigation from

the onset of the investigation.” App. 86 ¶ 23. During their

initial search of the crime scene, officers recovered DNA

samples, found drug-related evidence, and learned that Haith

had attended parties the night before and morning of his

murder. The initial crime-scene investigation led police to

interview Weimer because she had attended one of these

parties. And, although “DNA testing performed at the crime

scene” and later “on . . . Weimer’s clothing” confirmed

Weimer’s account of her whereabouts from the night before

and suggested “an unidentified male” was involved in Haith’s

murder, App. 88 ¶ 32, investigators zeroed in on Weimer,

ignoring evidence from the crime scene and other potential

leads.

Vernon’s alleged role in the initial crime-scene

investigation was investigative in nature. Although we must be

8

Vernon appears to concede that she was functioning as an

investigator when she investigated the bite-mark evidence. In

her opening brief, she argues that she is entitled only to

qualified immunity, not absolute immunity, for her alleged

participation in the bite-mark investigation. Therefore, we will

not separately parse out this conduct to assess whether it was

prosecutorial or investigative in nature.

20

wary of “bright-line rules that would treat the timing of the

prosecutor’s action” as dispositive, Vernon’s alleged act of

helping to direct the crime-scene investigation occurred long

before a criminal complaint had been drafted and before any

suspect had even been identified. See Odd, 538 F.3d at 210.

Thus, these allegations “point[] more convincingly to

‘investigation’ than to ‘prosecution.’” See Kulwicki, 969 F.2d

at 1466.

2. Participation in Interviews of and Reliance on

Statements by Beal, Blair, and Stenger

The Second Amended Complaint alleges that Vernon

and the police investigators manipulated evidence and

knowingly continued to investigate contradictory witness

statements in the period leading up to Weimer’s arrest.

Specifically, Vernon and the police continued to rely on Beal’s

statements, despite the fact that one of his versions of Haith’s

murder involved a man named “Lonnie,” who was incarcerated

at the time of the murder. In addition, Vernon and several

officers interviewed Blair at Vernon’s office, and, based on

that interview and the contradictory statement allegedly written

by Stenger, Vernon helped assemble a dive team to search a

pond for evidence and interviewed Stenger’s counsel. Even

though the written statement contradicted Blair’s account of

Stenger’s involvement, and even though Stenger’s counsel

denied that Stenger had authored the statement, the

investigators continued to rely on the written statement in their

investigation into Weimer.

Given these allegations (which we assume here to be

true), Vernon cannot show that the defense of absolute

immunity appears clearly on the face of the complaint. See

Fogle, 957 F.3d at 161. This alleged conduct—investigating

leads before criminal charges have been filed—is more akin to

21

“the detective’s role in searching for the clues and

corroboration that might give h[er] probable cause to

recommend that a suspect be arrested” than “the advocate’s

role in evaluating evidence and interviewing witnesses as [s]he

prepares for trial.” Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993); see id. at 274–75 (holding prosecutors were acting as

detectives rather than advocates when they investigated a

bootprint because, at the time, they lacked probable cause to

arrest or initiate judicial proceedings against the suspect). And,

again, although we resist bright-line rules based on the timing

of the prosecutor’s alleged activities, the Second Amended

Complaint alleges that this misconduct occurred months before

Weimer was charged with Haith’s murder.

3. Approval of the Criminal Complaint

Weimer’s Second Amended Complaint alleges that

“nearly three years after . . . Haith’s murder,” the investigation

had “uncovered statements made by three different persons—

Beal, Blair and Stenger—that were patently inconsistent, and .

. . contradicted by known DNA evidence.” App. 93 ¶ 53.

Nevertheless, Vernon and several officers “agreed to proceed

with filing criminal charges against” Weimer. App. 93 ¶ 54.

The officers then prepared a criminal complaint, which Vernon

approved.

Vernon’s approval of the criminal complaint is

protected by prosecutorial immunity. We have long maintained

that “[t]he decision to initiate a prosecution is at the core of a

prosecutor’s judicial role.” Kulwicki, 969 F.2d at 1463; see

also Kalina v. Fletcher, 522 U.S. 118, 129 (1997) (holding a

prosecutor’s “activities in connection with the preparation and

filing” of a criminal information and motion for arrest were

protected by absolute immunity).

* * *

22

In sum, Vernon is entitled to absolute immunity only for

her alleged conduct in deciding to file and approving the

criminal complaint against Weimer. She is entitled to absolute

immunity neither for her alleged involvement at the crime

scene on the morning of Haith’s murder, nor for her

investigation into statements by Beal, Blair, and Stenger. To

the extent that this investigatory conduct forms the basis of

Weimer’s malicious prosecution, civil rights conspiracy, and

failure to intervene claims against Vernon, we will affirm the

District Court’s denial of Vernon’s motion to dismiss these

claims based on absolute immunity. 9

9

Weimer also alleges that after her convictions were vacated,

“the individual Defendants continued to act in concert to cover

up and suppress the wrongful actions that led to [her] wrongful

convictions,” and they “attempted to create additional evidence

. . . with the intent of re-prosecuting [her] for . . . Haith’s

murder.” App. 100–01 ¶ 86. Vernon argues that any allegations

in the Second Amended Complaint “regarding an after-the-fact

cover-up are not investigatory.” Appellants’ Br. 24. From our

review of the Second Amended Complaint, it appears that

Weimer alleges broadly that all the defendants worked together

to cover up their involvement in the wrongful investigation, but

Weimer does not set out any specific wrongful conduct by

Vernon during this period. Based on the lack of specificity in

the Second Amended Complaint, and based on the fact that

Vernon was, by this point, a sitting Court of Common Pleas

Judge in Fayette County, it is exceedingly difficult for us to

determine whether Vernon would be entitled to absolute

immunity for any alleged conduct after Weimer’s convictions

were vacated and during her pretrial proceedings in 2016.

Therefore, we note only that, insofar as Weimer’s claims

against Vernon remain premised on Vernon’s alleged

23

B. Qualified Immunity

“Prosecutors who are not entitled to absolute immunity

from a plaintiff’s claims may nonetheless be entitled to

qualified immunity from those same claims.” Yarris, 465 F.3d

at 139. Under the now-familiar standard for the judge-created

defense of qualified immunity, a state officer is shielded from

a suit for monetary damages under § 1983 unless “the official

violated a . . . constitutional right,” and “the right was clearly

established at the time of the challenged conduct.” Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011) (internal quotation marks

and citation omitted). “[A] defendant cannot be said to have

violated a clearly established right unless the right’s contours

were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that [s]he was

violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778–79

(2014). That is, the legal rule must have been “dictated by

controlling authority or a robust consensus of cases of

persuasive authority.” District of Columbia v. Wesby, 138 S.

Ct. 577, 589–90 (2018) (internal quotation marks and citation

omitted). The Supreme Court has repeatedly emphasized that

“clearly established law should not be defined at a high level

of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per

curiam) (internal quotation marks omitted). “A rule is too

general if the unlawfulness of the [official’s] conduct does not

follow immediately from the conclusion that the rule was

firmly established.” Wesby, 138 S. Ct. at 590 (alteration,

internal quotation marks, and citation omitted).

Vernon contends she is entitled to qualified immunity

participation in an after-the-fact cover up or an effort to

prosecute Weimer anew, any absolute immunity defense is not

apparent on the face of the Second Amended Complaint. See

Fogle, 957 F.3d at 161.

24

for her failure to intervene in the allegedly unconstitutional

police investigation and for directing police to investigate the

timing of the bite mark on Haith’s hand.

1. Failure to Intervene in the Police Investigation

Weimer alleges that Vernon participated in the reckless

and deliberately indifferent police investigation and “had

reasonable and realistic opportunities to intervene to prevent

the violations of . . . Weimer’s constitutional rights.” App. 109

¶ 123. Vernon responds that she is entitled to qualified

immunity because, “at the time of the allegations, no clearly

established [law] existed to put [her] on notice” that, as a

prosecutor, her failure to intervene in the police investigation

would violate Weimer’s rights. Appellants’ Br. 30. We agree.

It is well established in our Circuit that both police and

corrections officers must “take reasonable steps to protect a

victim from another officer’s use of excessive force.” Smith v.

Mensinger, 293 F.3d 641, 650 (3d Cir. 2002); see also Baker

v. Monroe Twp., 50 F.3d 1186, 1193–94 (3d Cir. 1995). But

we have not extended this duty to prosecutors who fail to

intervene to prevent police from conducting unconstitutional

investigations. Accordingly, we cannot say that “any

reasonable [prosecutor]” investigating Haith’s murder would

have understood that she was violating Weimer’s

constitutional rights in failing to intervene to prevent improper

investigatory conduct by police. See Plumhoff, 572 U.S. at

778–79. Put differently, the facts here are simply too dissimilar

from those in the excessive force cases for us to hold that those

cases would have put Vernon on notice that her actions were

unlawful.

Although the District Court acknowledged that there

was no “case law in the Third Circuit holding a prosecutor

liable for a failure to intervene in the conduct of police

25

officers,” it identified “[a] subsequent decision from the

[Western District of Pennsylvania that] ha[d] extended liability

for a failure to intervene claim to prosecutors who [were]

engaging in investigative conduct.” Weimer II, 2019 WL

1509664, at *10 (citing Fogle v. Sokol, No. 17-194, 2018 WL

6831137 (W.D. Pa. Dec. 28, 2018), aff’d 957 F.3d at 148).10

Thus, the District Court permitted Weimer’s claim to proceed

“[g]iven the recent developments in this area of the law and the

early stage of this case.” Id. at *12. However, a district court

opinion from 2018 cannot serve as a basis for holding that a

prosecutor’s duty to intervene to prevent an unconstitutional

police investigation was clearly established between 2001 and

2006. For a legal principle to be clearly established, it must be

based on precedent existing at the time of the official’s act, and

the holding of one district judge, which “is not controlling

authority in any jurisdiction, much less in the entire United

States,” is insufficient to clearly establish a violation of a

constitutional right. al-Kidd, 563 U.S. at 741–42 (internal

quotation marks omitted); see also Fogle, 2018 WL 6831137,

at *11–12 (defining its holding as an “extension” of our

excessive force case law to prosecutors).11

10

Our opinion on appeal in Fogle merely affirmed the trial

court’s denial of the prosecutors’ motion to dismiss Fogle’s

claims based on absolute immunity. Fogle, 957 F.3d at 165.

Here, in contrast, Vernon has not only requested absolute

immunity on the failure to intervene claim, but she also claims

that if absolute immunity does not shield her from suit on this

claim, qualified immunity applies.

11

District courts appear to disagree as to whether prosecutors

have a duty to intervene in police investigations. See Patrick v.

City of Chicago, 213 F. Supp. 3d 1033, 1054–55 (N.D. Ill.

2016) (noting courts within its district “are split on whether

26

Finally, Weimer argues that “the proper inquiry is

whether, at the time of the events in 2001 [to] 2004, [she] had

the [c]onstitutional right to be free from a reckless and

deliberately indifferent police investigation.” Appellee’s Br.

24. Yet this obscures the fact that Weimer specifically asserted

a failure to intervene claim. Whatever might be said of the

investigation, the question here is whether Weimer had a

clearly established right to have Vernon take reasonable steps

to protect her from an unconstitutional police investigation.

The Supreme Court has “repeatedly told courts . . . not to define

clearly established law at a high level of generality.” al-Kidd,

563 U.S. at 742. Weimer’s reframing of the constitutional

violation at issue does not change the fact that there was no

clearly established law at the time of Vernon’s allegedly

violative conduct that would have placed the constitutional

question she confronted—to intervene in the police

investigation or not to intervene—“beyond debate.” See

Plumhoff, 572 U.S. at 779 (citation omitted).

2. Investigation into the Timing of the Bite Mark

Weimer alleges that at some point during the

investigation, Vernon told officers to investigate the timing of

the bite mark on Haith’s hand. The bite-mark expert was then

prosecutors have a duty to intervene” and recognizing that

there “are good reasons to be cautious in expanding the law . .

. to include . . . State’s Attorneys”). Disagreement among

district judges may, in and of itself, be a reason to recognize a

qualified immunity defense. See Safford Unified Sch. Dist. #1

v. Redding, 557 U.S. 364, 378 (2009) (noting lower courts had

“reached divergent conclusions regarding how the . . . standard

[at issue] applie[d],” and stating that “these differences of

opinion from our own are substantial enough to require

immunity”).

27

“asked to update his opinions to address and eliminate any

timing concerns.” App. 91 ¶ 45. The expert, without reviewing

additional evidence, concluded that the bite occurred shortly

before Haith’s death. The “Defendants were aware that [the

expert] was not provided any additional evidence or materials

upon which to base his additional opinions, but nevertheless”

continued “to rely upon the manufactured evidence.” App. 91

¶ 45. Vernon argues she is entitled to qualified immunity for

directing further investigation into the bite-mark evidence. We

agree.

During the relevant time period—from late 2002 to

early 2006—the unreliability of bite-mark evidence was not

widely recognized such that “any reasonable official in

[Vernon’s] shoes would have understood that [s]he was

violating” Weimer’s rights by directing officers to investigate

the timing of the bite mark on Haith’s hand. See Plumhoff, 572

U.S. at 778–79. Despite allegations that the bite-mark expert

later referred to such evidence as “junk science” during

Weimer’s postconviction proceedings, see App. 102 ¶ 94, such

evidence was widely used in criminal proceedings during and

after Weimer’s trial, see Erica Beecher-Monas, Reality Bites:

The Illusion of Science in Bite-Mark Evidence, 30 Cardozo L.

Rev. 1369, 1375–87, 1408 (2009) (outlining the scientific

unreliability of bite-mark evidence and arguing that judges

“circumvent[] their gate-keeping responsibilities” by

“continu[ing] to admit bite-mark testimony into evidence”);

see also Brewer v. Hayne, 860 F.3d 819, 824–25 (5th Cir.

2017) (holding forensic odontologists were entitled to qualified

immunity when the plaintiffs showed only that the evidence

the experts presented at trial in the 1990s was no longer

considered trustworthy by later standards and that the experts

may have been negligent in their analysis). Thus, based on the

law as it existed at the time, Vernon was not on notice that her

28

alleged conduct of directing further investigation into the bite-

mark evidence would violate Weimer’s rights.

* * *

In sum, Vernon is entitled to qualified immunity from

Weimer’s failure to intervene claim and from the malicious

prosecution claim insofar as it relies upon Vernon’s direction

to investigate the timing of the bite mark.

IV

For the foregoing reasons, we will affirm in part, reverse

in part, and remand for further proceedings consistent with this

opinion. To the extent that Vernon’s alleged investigatory

conduct, as identified above, forms the basis of Weimer’s

malicious prosecution and civil rights conspiracy claims

against Vernon, we will affirm the District Court’s denial of

Vernon’s motion to dismiss these claims based on absolute

immunity. We will, however, reverse the District Court’s

denial of absolute immunity for Vernon’s approval of the

criminal complaint and its denial of Vernon’s motion to

dismiss the failure to intervene claim on the basis of qualified

immunity. We will also reverse the District Court’s denial of

qualified immunity for Vernon’s alleged conduct in directing

officers to investigate the timing of the bite mark. Because

qualified immunity shields Vernon from suit for her

investigation into the bite-mark evidence, this conduct cannot

be used to support Weimer’s malicious prosecution claim

against Vernon.

29