James Dennis v. City of Philadelphia

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-2390

____________

JAMES DENNIS

v.

CITY OF PHILADELPHIA; DETECTIVE FRANK

JASTRZEMBSKI; DETECTIVE MANUEL SANTIAGO;

OFFICERS JOHN DOE(S), INDIVIDUALLY AND AS

POLICE OFFICERS FOR THE CITY OF PHILADELPHIA

FRANK JASTRZEMBSKI; MANUEL SANTIAGO,

Appellants

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-18-cv-02689)

District Judge: Honorable Eduardo C. Robreno

Argued on January 20, 2021

Before: SMITH, Chief Judge, HARDIMAN and ROTH,

Circuit Judges

(Opinion filed: November 23, 2021)

Shane Haselbarth (ARGUED)

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street

Suite 2300

Philadelphia, PA 19103

Counsel for Appellants

Craig R. Gottlieb

City of Philadelphia

Law Department

17th Floor

1515 Arch Street

Philadelphia, PA 19102

Counsel for Appellee City of

Philadelphia

Paul M. Messing (ARGUED)

David Rudovsky

Kairys Rudovsky Messing Feinberg & Lin

718 Arch Street

Suite 501 South

Philadelphia, PA 19106

Counsel for Appellee James Dennis

2

O P I N I ON

ROTH, Circuit Judge:

This is an interlocutory appeal from the Order of the

District Court for the Eastern District of Pennsylvania, denying

defendant-appellants’ Motion to Dismiss James Dennis’s

Section 1983 claims. Defendant-appellants are police

detectives with the Philadelphia Police Department, who

investigated Dennis for charges relating to the murder of a

young high-school student in 1991, a crime for which Dennis

was convicted. In 2013, the District Court granted Dennis’s

habeas petition and vacated his murder conviction; that

decision was affirmed by our Court en banc in 2016.1 Shortly

thereafter, Dennis brought the present action, asserting Section

1983 claims against the defendants and alleging, inter alia, the

violation of his constitutional rights under the Fourteenth

Amendment. Defendants moved to dismiss the complaint,

arguing, among other things, that they are entitled to qualified

immunity and that the suit is barred by Heck v. Humphrey.2

After the District Court denied their motion, the detectives

filed this interlocutory appeal.

I.

1

Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 269 (3d

Cir. 2016) (en banc).

2

512 U.S. 477 (1994).

3

Dennis was charged with the 1991 robbery and first-

degree murder of a young woman, Chedell Williams; he was

convicted and sentenced to death. In 2013, the United States

District Court for the Eastern District of Pennsylvania granted

Dennis’s habeas petition, vacated his conviction, and ordered

a new trial on all charges, finding that Dennis’s prosecutors

withheld material impeachment evidence.3 In August 2016,

our Court, sitting en banc, affirmed the District Court’s

decision and remanded the case to state court.4

On remand, Dennis was offered a deal, in exchange for

a time-served sentence, to plead nolo contendere to reduced

charges of third-degree murder, robbery, carrying a firearm

without a license, possession of an instrument of crime with

the intent to employ it criminally, and conspiracy to commit

robbery. Rather than risk a new trial and the possibility of

further imprisonment, Dennis accepted the deal and was

sentenced to 12½ to 25 years imprisonment; he was given

credit of 9,162 days for the time he had already served in prison

for those crimes, and he was then released.

Shortly thereafter, Dennis brought this action against

Detective Frank Jastrzembski, Detective Manuel Santiago

(collectively, the detectives), Officer John Doe(s), and the City

of Philadelphia for fabrication of evidence and for deliberate

deception under the Fourteenth Amendment of the

Constitution and 42 U.S.C. § 1983 (Count I), civil rights

conspiracy (Count II), failure to intervene (Count III),

supervisory liability against Detective Jastrzembski (Count

3

Dennis v. Wetzel, 966 F. Supp. 2d 489 (E.D. Pa. 2013).

4

Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d at 269.

4

IV), and municipal liability against the City of Philadelphia

(Count V).

Dennis’s complaint alleges that the detectives’

investigation of Williams’ 1991 murder involved conduct that

violated his due process rights. First, Dennis alleges that the

detectives concealed information about other individuals, who

had confessed their involvement with the murder or who knew

who was involved, and that the detectives coerced/concealed

certain other witnesses. Specifically, Dennis alleges that the

detectives never followed up on inconsistencies in statements

made by Zahra Howard, who was with Williams on the day of

her murder. Ms. Howard originally told the detectives that she

never saw the assailants but later told her aunt and uncle that

she recognized the assailants from Olney High School, a

school that Dennis had never attended. Howard’s aunt and

uncle informed the detectives about her statement; it was also

corroborated by the victim’s aunt. This information, which

was recorded in the detectives’ activity logs, was concealed

from Dennis for ten years.

In addition, Dennis alleges that several days after the

murder, Montgomery County law enforcement advised the

Philadelphia Police Department that an inmate in their County

Prison spoke with a man who confessed his involvement in

Williams’s murder. A signed statement from the inmate

included details about all three men involved in the murder and

identified the source of the information. However, defense

trial counsel never received any materials relating to the

investigation of these three individuals; the information was

5

only revealed 10 years later during Post Conviction Relief Act

(PCRA)5 discovery.

Second, Dennis alleges that the detectives fabricated

evidence to secure his conviction. Specifically, Dennis alleges

that the detectives falsely claimed to have found certain

clothing items that matched those of the shooter, as described

by eyewitnesses to the murder. He further alleges that

Detective Jastrzembski falsely testified that the clothing was

found at Dennis’s residence but later “disappeared” from

police headquarters prior to trial. He also alleges that the

detectives coerced and threatened Charles Thompson to testify

falsely at trial that he saw Dennis with a gun the night of the

murder.

Third, Dennis alleges that the detectives concealed

evidence that would have supported his alibi. Specifically,

Dennis’s alibi that he was elsewhere at the time of the murder

would have been corroborated by a witness’s time-stamped

welfare receipt. When questioned by the detectives, the

witness based her time estimates on the receipt’s military-style

timestamp of 13:03 (1:03 PM), which she mistook to mean

3:03 PM. The detectives did not correct the witness when she

misread the receipt’s military-style timestamp while they were

interviewing her; instead, they took the only copy of the receipt

and never shared it with Dennis or the prosecutors. Dennis’s

trial counsel never obtained a copy; the witness testified based

on her earlier misreading of the receipt; and it was not until

direct appeal that a copy of the receipt revealed the witness’s

mistake.

5

42 Pa. Cons. Stat. §§ 9541 et seq.

6

Dennis also alleges that only four of the nine

eyewitnesses identified by Philadelphia Police had selected

him from the lineup; three of those four testified for the

Commonwealth at Dennis’s trial. After learning this

information, Dennis’s counsel requested a new lineup with all

nine eyewitnesses. The new lineup never occurred.

Defendants moved to dismiss Dennis’s claims under

Rule 12(b)(6) of the Federal Rules of Civil Procedure. They

argued, among other things, that the action is barred by Heck

v. Humphrey6 and that they are entitled to qualified immunity

because Dennis has failed to allege a constitutional violation of

clearly established law. On May 15, 2019, the District Court

partially granted the motion as to the City and denied the

motion as to the detectives. The detectives appealed.

II. SCOPE OF REVIEW

“We exercise de novo review of a district court’s denial

of a motion to dismiss on qualified immunity grounds as it

involves a pure question of law.”7 In reviewing a denial of

qualified immunity at the Rule 12(b)(6) stage of litigation, we

must accept Dennis’s allegations as true and draw all

inferences in his favor.8

6

512 U.S. 477 (1994); Appx. 1–35 (Memorandum Opinion of

the District Court).

7

James v. City of Wilkes–Barre, 700 F.3d 675, 679 (3d Cir.

2012) (citation omitted).

8

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

7

III. APPELLATE JURISDICTION

The District Court has subject matter jurisdiction over

Dennis’s federal claims under 28 U.S.C. § 1331.9 “Ordinarily

we do not have jurisdiction to review district court orders

denying motions to dismiss . . . because there is no final order

within the meaning of 28 U.S.C. § 1291.”10 However,

in Ashcroft v. Iqbal,11 “the Supreme Court held that a district

court order denying a motion to dismiss based on qualified

immunity [can be] appealable under the collateral order

doctrine.”12 To review a collateral order, the order must

conclusively determine the disputed question.13 A refusal to

9

HIRA Educ. Servs. N. Am. v. Augustine, 991 F.3d 180, 187

(3d Cir. 2021).

10

Acierno v. Cloutier, 40 F.3d 597, 605 (3d Cir. 1994) (citation

omitted).

11

556 U.S. 662, 672–75 (2009).

12

Rehiel, 738 F.3d at 570–71.

13

Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 208 (3d

Cir. 2001) (explaining that collateral orders become

reviewable when they “(1) conclusively determine the disputed

question, (2) resolve an important issue completely separate

from the merits of the action, and (3) be effectively

unreviewable on appeal”); L.R. v. Sch. Dist. of Philadelphia,

836 F.3d 235, 240–41 (3d Cir. 2016) (“[A] district court’s

denial of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’ within

the meaning of 28 U.S.C. § 1291 notwithstanding the absence

of a final judgment.”).

8

dismiss is a ruling “conclusive as to this right,” for which

immediate appeal is available.14

Before the District Court, the defendants argued that

qualified immunity attaches to any Brady v. Maryland15 claim

because (1) in 1992, when the alleged violations occurred, no

reasonable detective could have known that she could be sued

for a Brady violation by a plaintiff that pled guilty or nolo

contendere, and (2) the police’s Brady obligations were not

clearly established in 1992. The District Court denied the

motion.

In analyzing qualified immunity, the District Court

found that the defendants’ arguments improperly characterized

Dennis’s claims. It found that Dennis had not asserted any

claims involving Brady violations against the detectives, only

claims for fabrication of evidence and deliberate deception.

That said, the District Court left open the opportunity for the

defendants to reassert their qualified immunity defense at a

later date.

Despite leaving open the opportunity for the defendants

to re-raise their qualified immunity defense at a later date, the

District Court’s express denial of qualified immunity is a

conclusive determination of an important issue that is

completely separable from the merits and is unreviewable on

appeal from final judgment.16 This is sufficient to give rise to

14

Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017) (quoting

Behrens v. Pelletier, 516 U.S. 299, 308 (1996)).

15

373 U.S. 83 (1963).

16

Mitchell v. Forsyth, 472 U.S. 511, 512 (1985).

9

appellate jurisdiction over the qualified immunity ruling to the

extent it turns on an issue of law.

Our jurisdiction over this interlocutory appeal does not,

however, extend to the question of whether Dennis’s claims are

barred by Heck. We have discretion to exercise jurisdiction

over a decision that is not independently appealable where (1)

it is “‘inextricably intertwined’” with an appealable decision or

(2) review of the ordinarily non-appealable decision is

“necessary to ensure a meaningful review” of an appealable

decision.17 However, jurisdiction does not exist over a non-

appealable decision simply because it arises out of “‘the same

factual matrix’” of an appealable decision, even if considering

the decisions together would serve judicial efficiency.18

The District Court’s Heck ruling is not inextricably

intertwined with its qualified-immunity ruling, nor is

reviewing the Heck ruling necessary to ensure a meaningful

review of the qualified-immunity ruling. A Heck inquiry turns

on “whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or

sentence.”19 By contrast, a qualified immunity inquiry turns

on “(1) whether the plaintiff sufficiently alleged the violation

of a constitutional right, and (2) whether the right was ‘clearly

established’ at the time of the official’s conduct.”20 These

17

Reinig v. RBS Citizens, N.A., 912 F.3d 115, 130 (3d Cir.

2018) (quoting CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc.,

381 F.3d 131, 136 (3d Cir. 2004)).

18

Id. (quoting Hoxworth v. Blinder, Robinson & Co., 903 F.2d

186, 209 (3d Cir. 1990)).

19

512 U.S. at 487.

20

L.R., 836 F.3d at 241.

10

inquiries are distinct and separable. In addition, the Heck issue

“is effectively reviewable on appeal. . . . [U]nlike immunity

rights where the right is lost if the case goes to trial, an

appellate court can reverse the district court after entry of a

final judgment without departing from the holding or purpose

of Heck.”21 Accordingly, a number of our sister Courts of

Appeals have held that they lack jurisdiction to consider Heck

on an interlocutory appeal from denial of qualified immunity.22

The detectives try to bring Heck within our jurisdiction

by shoehorning Heck into the qualified immunity analysis.

They cite Ashcroft v. Iqbal, where the Supreme Court held that

“whether a particular complaint sufficiently alleges a clearly

established violation of law cannot be decided in isolation from

the facts pleaded. In that sense, the sufficiency of [a] pleading

is both ‘inextricably intertwined with,’ and ‘directly implicated

by,’ the qualified-immunity defense.”23 The detectives

essentially argue that, if Heck bars Dennis’s claims, he has

failed to state a claim upon which relief can be granted, and

21

Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000).

22

See id. at 1285; Sayed v. Virginia, 744 F. App’x 542, 547–

49 (10th Cir. 2018) (collecting cases); Harrigan v. Metro Dade

Police Dep't Station No. 4, 636 F. App’x 470, 476 (11th Cir.

2015); Norton v. Stille, 526 F. App’x 509, 515 (6th Cir. 2013);

Scott v. City of Pasadena, 373 F. App’x 759 (9th Cir. 2010).

To be sure, circuit courts have not been unanimous on this

issue. However, courts that have considered Heck on an

interlocutory appeal have generally done so without explaining

in detail the basis for their jurisdiction. See, e.g., Poole v. City

of Shreveport, 13 F.4d 420, 426–27 (5th Cir. 2021); Lucier v.

City of Ecorse, 601 F. App’x 372, 376 (6th Cir. 2015).

23

556 U.S. at 673.

11

thus failed to allege sufficiently the violation of a constitutional

right.

The detectives’ argument fails because it papers over

the difference between Heck and the typical analysis under

Rule 12(b)(6) that was contemplated by Iqbal. The typical

analysis requires a court to measure the alleged facts against

the elements of a claim. This analysis clearly and substantially

overlaps with the process of determining whether a plaintiff

has sufficiently alleged the violation of a constitutional right.

By contrast, the Heck analysis requires a court to compare the

asserted claims and requested relief with a preexisting

conviction or sentence; the plaintiff must demonstrate that the

prior conviction or sentence has been “reversed on direct

appeal, expunged by executive order, declared invalid by a

state tribunal authorized to make such a determination, or

called into question by a federal court’s issuance of a writ of

habeas corpus.”24 This analysis involves different facts, and a

different legal framework, than the process of determining

whether a plaintiff has sufficiently alleged the violation of a

constitutional right. For that reason, the typical analysis under

Rule 12(b)(6) is inextricably intertwined with a denial of

qualified immunity, but under Heck it is not.

Accordingly, although we have jurisdiction in this

interlocutory appeal to consider the District Court’s denial of

the detectives’ qualified immunity defense, we do not have

jurisdiction at this time to consider their arguments under

Heck.

24

Heck, 512 U.S. at 486–87.

12

IV. DISCUSSION

Turning to the merits of the qualified immunity defense,

the detectives present two arguments aside from the one they

advance under Heck. First, the detectives contend that Dennis

failed to allege a constitutional violation because he does not

assert a Fourth Amendment claim. Second, they argue that

qualified immunity attaches because the constitutional claims

asserted do not involve rights that were clearly established in

1992, when the alleged violations took place.

Qualified immunity shields officials from civil liability

“insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.”25 As noted, when analyzing a qualified

immunity claim, we consider “(1) whether the plaintiff

sufficiently alleged the violation of a constitutional right, and

(2) whether the right was ‘clearly established’ at the time of the

official’s conduct.”26 The detectives challenge both these

holdings. We address each in turn.

A. Violation of a Constitutional Right

1. Fourth Amendment

The detectives first assert that Dennis failed to

sufficiently allege a constitutional violation because he did not

plead a Fourth Amendment claim. In response, Dennis

contends that the detectives waived this argument by failing to

25

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

26

L.R., 836 F.3d at 241.

13

raise it before the District Court and by raising it for the first

time in this appeal. We agree with Dennis.

Generally, appellate courts refuse to consider issues not

raised by the parties below.27 To preserve an argument, a party

must “unequivocally put its position before the trial court at a

point and in a manner that permits the court to consider its

merits.”28 Although the parties are precluded from raising

new arguments, they may “place greater emphasis” on an

argument or “more fully explain an argument on

appeal.”29 The parties may even “reframe”

their argument “within the bounds of reason.” That is not

30

what the detectives did in this case.

Only now, before this Court, the detectives argue for the

first time in this litigation that Dennis cannot sufficiently allege

a constitutional violation because his claims are cognizable

only under the Fourth Amendment. Specifically, the detectives

contend that a claim for deprivation of liberty, when premised

on “the fabrication of evidence by a government officer,” has

only been recognized under the Fourteenth Amendment where

the government officer involved was a prosecuting attorney

and not a police officer. Accordingly, they argue that Dennis’s

Section 1983 claims for fabricated evidence and deliberate

deception by police officers can only be brought under the

Fourth Amendment, and not the Fourteenth Amendment.

27

Gen. Refractories Co. v. First State Ins. Co., 855 F.3d 152,

162 (3d Cir. 2017).

28

Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d

Cir. 1999).

29

United States v. Joseph, 730 F.3d 336, 341 (3d Cir. 2013).

30

Id.

14

Because the detectives did not present this argument to the

District Court, we decline to reach its merits.31

B. Clearly Established Law

The detectives argue that none of Dennis’s claims assert

the violation of a right that was clearly established in 1992.

They group Dennis’s claims into three categories: (1) a

catchall improper investigation claim, (2) a deliberate

deception claim, and (3) an evidence fabrication claim.

However, the improper investigation grouping does not

accurately reflect Dennis’s complaint; the complaint does not

contain a catchall claim for improper investigation. Indeed,

Count I, at issue here, contains claims for the detective’s

deliberate deception and for evidence fabrication.

Accordingly, the issue we must consider is the following:

whether the violation of due process by evidence fabrication

and by deliberate deception as alleged in Counts I(A) and I(B)

was clearly established in 1992.

A clearly established right is one that is so apparent that

“every reasonable official would understand that what he is

doing is unlawful.”32 Absent existing precedent that places

“the statutory or constitutional question beyond debate,” such

31

If we had reached the merits, we would have permitted the

types of claims presented here to be pursued under the

Fourteenth Amendment. See, e.g., Black v. Montgomery Cty,

835 F.3d 358, 370 (3d Cir. 2016); Halsey v. Pfeiffer, 750 F.3d

273, 294 (3d Cir. 2014).

32

James v. N.J. State Police, 957 F.3d 165, 169 (3d Cir. 2020)

(quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018)).

15

an understanding will not be attributed to an official.33 As the

Supreme Court has emphasized, the right must be defined with

a “high ‘degree of specificity’” to be clearly established.34

That said, we do not require that the prior precedent have

indistinguishable facts.35

Only controlling precedent in the relevant jurisdiction

can place a constitutional question beyond debate.36

Nevertheless, context matters when qualified immunity is at

issue and the “inquiry ‘must be undertaken in light of the

specific context of the case, not as a broad general

proposition.’”37

First, citing McDonough v. Smith,38 the detectives

contend that a fabrication of evidence claim has been

recognized under the Fourteenth Amendment only where the

government officer involved in fabricating evidence was a

prosecuting attorney. Not so. In Halsey v. Pfeiffer, we

concluded that it was axiomatic that “those charged with

upholding the law are prohibited from deliberately fabricating

evidence and framing individuals for crimes they did not

33

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

34

Wesby, 138 S. Ct. at 590 (quoting Mullenix v. Luna, 577 U.S.

7, 13 (2015) (per curiam)).

35

al-Kidd, 563 U.S. at 741. (“We do not require a case directly

on point, but existing precedent must have placed the statutory

or constitutional question beyond debate.”).

36

Wilson v. Layne, 526 U.S. 603, 617 (1999).

37

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

38

139 S. Ct. 2146, 2155 (2019).

16

commit.”39 Halsey involved an evidence fabrication claim

under the Fourteenth Amendment brought against police

officers. We emphasized that the Supreme Court decades ago

had established that the Constitution forbids those tasked with

upholding the law from knowingly using falsified evidence to

secure a criminal conviction.40

The detectives argue that Halsey cannot govern here

because it is not particularized to the facts of this case. They

claim that Halsey dealt with police officers coercing a false

statement via a forceful and relentless interrogation of the

suspect for more than eight hours, during which the

investigators inserted non-public information into the

confession. But a case that is directly on point is not required

so long as the precedent placed the constitutional question

beyond debate. Halsey did so, recognizing prior precedent that

held the fabrication of evidence by law enforcement officers

violates the Fourteenth Amendment and that such a right had

been established since at least 1985.41 No more need be said

as to the stand-alone fabrication of evidence claim than:

39

750 F.3d 273, 296 (3d Cir. 2014) (quoting Limone v.

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

40

Id.

41

Halsey, 750 F.3d at 296 (citing Pyle v. Kansas, 317 U.S. 213,

216 (1942), which held that the defendant alleged a violation

of his due process rights where his conviction was secured by

the use of perjured testimony and the refusal of defense

witnesses to testify obtained through threats made by local

policing authorities); see also Miller v. Pate, 386 U.S. 1, 7

(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.”).

17

Halsey established that sufficiently particularized precedent

placed these detectives on notice that fabricating evidence to

convict a criminal defendant is unconstitutional, regardless of

whether that evidence is inserted into a confession to “bring

about” his prosecution or to help secure his conviction. 42

Second, turning to Dennis’s deliberate deception claim,

the detectives contend that this claim is based on the right not

to be framed by law enforcement agents, which is too broadly

worded and was not established until 1995, when the Supreme

Court decided Kyles v. Whitley.43

The right not to be convicted on perjured testimony used

by prosecutors at trial has been clearly established by the

Supreme Court since at least 1935 in Mooney v. Holohan.44

Seven years later, in Pyle v. Kansas, 317 U.S. 213, 216 (1942),

the Court extended this right by recognizing as a due process

violation the conviction of a defendant through perjured

testimony and the deliberate suppression of evidence favorable

to the accused.

Moreover, “general statements of the law are not

inherently incapable of giving fair and clear warning, and in

other instances a general constitutional rule already identified

42

Halsey, 750 F.3d at 296 (recognizing stand-alone claim).

43

514 U.S. 419 (1995).

44

294 U.S. 103, 112 (1935) (holding due process not satisfied

where “a state has contrived a conviction through the pretense

of a trial which in truth is but used as a means of depriving a

defendant of liberty through a deliberate deception of court and

jury by the presentation of testimony known to be perjured”);

Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004).

18

in the decisional law may apply with obvious clarity to the

specific conduct in question, even though the very action in

question has not previously been held unlawful.”45 We

conclude that the constitutional rule that framing criminal

defendants through use of fabricated evidence, including false

or perjured testimony, violates their constitutional rights

applies with such obvious clarity that it is unreasonable for us

to conclude anything other than that the detectives were on

sufficient notice that their fabrication of evidence violated

clearly established law. Thus, the District Court did not err in

denying the motion to dismiss on qualified immunity grounds

as to the due process claim in Count I(A) for the detective’s

fabricated evidence—here their false statements and testimony

as to Dennis’s clothing, Thompson’s false testimony procured

by threats and coercion, and their concealment of evidence that

they knew revealed a witness’s trial testimony as false.

As to the detectives’ citation to Gibson v.

Superintendent,46 that case provides some guidance on the

claim in Count I(B) for deliberate deception, but it does not

support reversing the District Court’s denial of the motion to

dismiss this claim on qualified immunity grounds. Gibson

stated that the Supreme Court did not settle the principle that

evidence in the hands of police could be imputed to the

prosecutor until 1995, when it decided Kyles v. Whitley.47 This

principle, however, is separate from the right not to be framed

45

United States v. Lanier, 520 U.S. 259, 271 (1997) (internal

quotations and brackets omitted).

46

411 F.3d 427 (3d Cir. 2005) , overruled on other grounds as

recognized by Dique v. N.J. State Police, 603 F.3d 181, 182

(3d Cir. 2010).

47

514 U.S. 419 (1995).

19

by the use of perjured witness testimony at trial that was

recognized by the Supreme Court in Mooney48 or by the

detectives’ own perjured testimony at trial recognized by our

Court in Curran v. Delaware.49

The detectives contend that they are entitled to qualified

immunity from the deliberate deception claim because they

could not reasonably anticipate what the prosecutors might fail

to turn over at trial. This argument brings us back to the

detectives’ argument that their Brady obligation was not

clearly established in 1992. Such an argument

mischaracterizes Dennis’s claim as one for Brady violations—

not, as it was pled, a claim for violation of Dennis’s due process

rights to a fair trial caused by the detectives’ deliberate

deception. We decline to mischaracterize Dennis’s deliberate

deception claim in such a manner.

Dennis did not limit his deliberate deception claim to

a mere failure to disclose exculpatory and impeachment

evidence; rather, he claims the detectives violated his due

process rights to a fair trial by “concealing and/or suppressing

relevant and material evidence”50 as part of a larger scheme to

deliberately deceive the court and frame him for Williams’s

murder. As the District Court noted, Dennis does not seek

relief from the detectives for Brady violations. To

recharacterize Dennis’s claims simply as Brady claims would

run afoul of the longstanding principle that the plaintiff, as the

master of the complaint, is free to choose between legal

48

294 U.S. at 103.

49

259 F.2d 707, 713 (3d Cir. 1958).

50

App’x 72 (Complaint ¶¶ 94, 96).

20

theories,51 and a defendant cannot create a cause of action from

the fact pattern on behalf of the plaintiff. “It is the party suing,

not the party sued, who enjoys the right to frame the claims

asserted in a complaint.”52

Here, Dennis’s separate claim under Count I(B) for

deliberate deception as a violation of his due process rights

relies in part on the detective’s failure to disclose certain

exculpatory and impeachment evidence, which appears

problematic in the face of a qualified immunity defense.

Specifically, the detectives argue that a plaintiff can only bring

a Brady claim against police officers by alleging that they

affirmatively concealed evidence, i.e., by alleging that police

officers deliberately suppressed the evidence. Thus, to allege

a deliberate deception claim against police officers, the

detectives conclude that a plaintiff must allege a Brady claim.

We disagree and will not restrict Dennis to a simple Brady

claim.53 But the label Dennis chooses also does not answer

whether the detectives are entitled to qualified immunity on the

claim Dennis brought.

A Brady claim, in essence, is a claim by a defendant that

this due process rights were violated by the failure to disclose

exculpatory or impeachment evidence to the defense, while a

claim for deliberate deception in violation of due process must

go beyond the failure to disclose evidence and arises when

imprisonment results from the knowing use of false testimony

or other fabricated evidence or from concealing evidence to

51

Caterpillar, Inc. v. Williams, 482 U.S. 386, 398–99 (1987).

52

Haley v. City of Bos., 657 F.3d 39, 49 (1st Cir. 2011).

53

Haley, 657 F.3d at 49 (quoting Condon, 372 F.3d at 47).

21

create false testimony to secure a conviction.54 To be clear, a

deliberate deception claim against police officers and a Brady

claim are not necessarily coterminous. In other words, a

plaintiff alleging a claim against police officers for violation of

due process rights by deliberate deception to the court need not

bring a Brady claim. Yet, to survive the qualified immunity

defense, the claim brought must involve a right with

sufficiently clear contours that every reasonable officer would

have understood that what he is doing violates that right—and

a generalized notion that deliberate deception violates due

process will not do.55

The case at bar is a paradigm example: Dennis’s

deliberate deception claim not only alleges that the Detectives

withheld exculpatory and impeachment evidence that would

have supported his alibi and defense, but that they also failed

to correct testimony they knew was false and concealed from

the defense the evidence that revealed that trial testimony as

false. These allegations go beyond asserting a mere Brady

violation and allege that, in an effort to secure Dennis’s

conviction, the detectives knowingly deceived the court and

54

See Mooney, 294 at 112.

55

See al-Kidd, 563 U.S. at 741 (“A Government official’s

conduct violated clearly established law when, at the time of

the challenged conduct, ‘the contours of a right are sufficiently

clear’ that every ‘reasonable official would have understood

that what he is doing violates that right.’”) (quoting Anderson

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

22

the jury through false testimony in violation of Dennis’s due

process rights.56

Because Dennis’s claim for violation of his due process

rights by deliberate deception under Count 1(B) encompasses

allegations that the detectives concealed or suppressed the

time-stamped receipt to produce false trial testimony, Gibson

does not control. Instead, Mooney, Halsey, Pyle, and Curran

do. For those reasons, we will affirm the District Court’s

denial of the motion to dismiss Dennis’s deliberate deception

claim on qualified immunity grounds.

V.

Based on the foregoing, we hold that Dennis has alleged

under Count I(A) and Count I(B) the violation of his due

process rights clearly established at the time of the detective’s

conduct on which the claims are based. Accordingly, we will

affirm the District Court’s denial of the detectives’ motion to

dismiss on qualified immunity grounds. Because we do not

have jurisdiction on this interlocutory appeal of the District

Court’s ruling that the Heck bar does not apply, we will dismiss

without prejudice the appeal of that issue. We remand this

action to the District Court.

56

We recognize that the witness falsely testified through no

fault of her own—she misread a welfare receipt’s military-

style time-stamp in making statements to the detectives when

they interviewed her and she repeated that mistake at trial—

but note that the detectives knew of the error and not only did

nothing to correct it, they concealed the evidence that would

have corrected it. This resulted in false testimony at trial.

23