NICOLE SCHNEYDER, v. GINA SMITH, Appellant v. LAURA DAVIS; DEFENDER ASSOCIATION OF PHILADELPHIA
No. 10-2367
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 29, 2011
PRECEDENTIAL. On Appeal from the United States District Court for the Eastern District of Pennsylvania. District Court No. 2-06-cv-04986. District Judge: The Honorable Jan E. Dubois. Argued January 26, 2011.
Before: McKEE, Chief Judge, SMITH, Circuit Judge, and STEARNS, District Judge*
(Filed: July 29, 2011)
Alison J. Guest
Todd M. Mosser
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107
Counsel for Appellant
Daniel Silverman (Argued)
Silverman & Associates, P.C.
1429 Walnut Street, Suite 1001
Philadelphia, PA 19102
Counsel for Appellee
OPINION
SMITH, Circuit Judge.
The
I
Nicole Schneyder was an essential witness in Pennsylvania‘s effort to bring Michael
Overby‘s third trial—at which Schneyder‘s live testimony would be absolutely necessary—was set to begin on February 2, 2005. Schneyder went into hiding as the trial date approached, leaving the police unable to serve her with a subpoena despite several attempts. Schneyder‘s mother informed police on one of these occasions that her daughter had no intention of coming into court.
On January 26, 2005, Philadelphia assistant district attorney Gina Smith applied to Judge Rayford Means of the Philadelphia Court of Common Pleas for a warrant authorizing Schneyder‘s arrest as a material witness pursuant to what is now
Judge Means scheduled a bail hearing for the next day and appointed public defender Laura Davis3 to represent Schneyder. Before the hearing, Judge Means met with Smith and Davis in camera. At this off-the-record meeting, Judge Means advised Smith that he intended to authorize Schneyder‘s detention until trial, but instructed Smith to inform him in the event that the trial was pushed back from the scheduled date.4 On the record, Judge Means expressed distaste for “setting bail on people who are not accused of a crime,” but nevertheless ordered Schneyder imprisoned when she could not put up a $300,000 surety. The court also advised the parties (the language in the transcript leaves unclear precisely whom he was addressing): “If the case breaks down, let
I only intend to keep you on this bail until you testify or the trial is concluded if you did have it on February 2nd and the Commonwealth says, we don‘t need you anymore, we‘re done with you, okay, then I will want them to come back to me and say, look, we don‘t have any need for her. If they make a decision at some point on January 31st, we changed our mind, we don‘t even need this lady, come back to me so I can bring her down and remove this.
The court ordered an informal status conference for February 14, 2005 to facilitate reassessment of the situation in the event that the trial remained ongoing. According to Judge Means’ affidavit, he “explicitly placed the onus on Ms. Smith to notify me if for any reason the case was continued or broke down, as it was my clear intention that, in that event, I would immediately release Ms. Schneyder from custody.” Further, he averred that, “[h]ad I been notified that the Overby case had been continued, I would have immediately ordered Ms. Schneyder‘s release.”
When February 2 arrived, the Overby trial (over which Judge Means was not presiding) was continued until May 25, 2005. Smith did not inform Judge Means of this fact,5 and Schneyder remained in jail. Smith did not appear for the scheduled February 14 status conference, which led Judge Means to assume that the issue of Schneyder‘s detention had been mooted by her release. Over the course of the next several weeks, members of Schneyder‘s family contacted Smith “approximately 25 times” to inquire as to why she was still in jail and to ask when she would be let go. Schneyder‘s father died on February 28, and on March 1 Schneyder‘s sister contacted Paul Conway, chief of the Philadelphia Defender Association‘s Homicide Unit,6 in the hopes that he could obtain Schneyder‘s release for the funeral. Conway was able to secure only an order allowing the plaintiff to visit the funeral home in handcuffs for a few minutes; Schneyder was denied permission to attend the funeral itself.
In the process of obtaining the funeral home release, Conway learned that the trial for which Schneyder was being held was not set to start until late May. In Conway‘s view, “it wasn‘t right to keep her there” for such a long time, so he began an effort to free Schneyder from jail. He started by contacting Smith, but she initially refused to agree to Schneyder‘s release. His next step was to ask that Schneyder be allowed out on house arrest. In the course of preparing that request, Conway made contact with Davis, the public defender who had been assigned to Schneyder at the January 27 bail hearing. Davis provided him with her notes of that hearing, and upon reading them Conway became convinced that Judge Means had meant for Schneyder to be released in the event that the Overby trial did not start on February 2. Put in that context, the fact that Schneyder was still locked up made Conway “really angry.” He hustled to Judge Means’ courtroom and (according to Conway‘s account) “astonished” the judge
Schneyder sued Smith and the Philadelphia District Attorney‘s office, filing a complaint which included claims under
II
We have appellate jurisdiction under the collateral order doctrine: ”
We review the District Court‘s denial of summary judgment de novo, applying the same test that the District Court should have applied and viewing the facts in the light most favorable to the nonmoving party. Id.
III
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There are two related but distinct inquiries in a qualified immunity case. One is whether the defendant‘s conduct violated the plaintiff‘s civil rights; the other is whether the right in question was clearly established at the time of the violation. We conclude that both of these questions should be answered affirmatively, and that Smith is therefore not shielded by qualified immunity.
A
The Civil Rights Act of 1871,
1
To determine whether Schneyder has made out a violation of her constitutional rights, we first must determine what right she is asserting and whence in the Constitution that right springs. The parties and the District Court have all discussed the right at issue primarily in terms of the
At common law, an arrested person‘s seizure was deemed to continue even after release from official custody. See, e.g., 2 M. Hale, Pleas of the Crown *124 (“he that is bailed, is in supposition of law still in custody, and the parties that take him to bail are in law his keepers“); 4 W. Blackstone, Commentaries *297
(bail in both civil and criminal cases is “a delivery or bailment, of a person to his sureties, . . . he being supposed to continue in their friendly custody, instead of going to gaol“).
Id. at 277–78. The purpose of the arrest, regardless of the nature of the case, “was ‘only to compel an appearance in court,’ and ‘that purpose is equally answered, whether the sheriff detains [the suspect‘s] person, or takes sufficient security for his appearance, called bail.‘” Id. at 278 (citing 3 Blackstone, supra, at *290 (discussing civil cases); 4 id., at *297 (explaining that the nature of bail is the same in criminal and civil cases)). Pre-trial restrictions of liberty aimed at securing a suspect‘s court attendance are all “seizures” on this view; the difference between detention in jail, release on bond, and release subject to compliance with other conditions is in the degree of restriction on the individual‘s liberty, not in the kind of restriction. Id. Justice Ginsburg went on to argue that “[t]his view of the definition and duration of a seizure comports with common sense and common understanding.” Id. A person who is “required to appear in court at the state‘s command,” who may be (for instance) “subject . . . to the condition that he seek formal permission from the court . . . before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction,” and who may suffer diminished employment prospects, reputational harm, and “the financial and emotional strain of preparing a defense” continues to labor under a restriction of his liberty interests even though he is not in custody. Id. Thus even a defendant who is released pending trial “is scarcely at liberty; he remains apprehended, arrested in his movements, indeed ‘seized’ for trial, so long as he is bound to appear in court and answer the state‘s charges. He is equally bound to appear, and is hence ‘seized’ for trial, when the state employs the less strong-arm means of a summons in lieu of arrest to secure his presence in court.” Id. at 279. On Justice Ginsburg‘s theory, the plaintiff in Albright (also suing under
We followed this analysis in Gallo, stating that it was both “compelling and supported by Supreme Court case law.” 161 F.3d at 223. Applying Justice Ginsburg‘s reasoning, we held that the plaintiff had been seized where he “had to post a $10,000 bond, . . . had to attend all court hearings including his trial and arraignment, . . . was required to contact Pre-trial Services on a weekly basis, and . . . was prohibited from traveling outside New Jersey and Pennsylvania.” Id. Similarly, in Johnson v. Knorr, 477 F.3d 75, 85 n.14 (3d Cir. 2007), we held that the plaintiff‘s detention in a cell for two days, the requirement that he post bail, and the fact that he was required to appear in court for a hearing constituted a
We acknowledge that this theory may be in tension with our statement in Torres v. McLaughlin, 163 F.3d 169, 174 (3d Cir. 1998), that “the limits of
We agree with Gallo‘s assessment of Justice Ginsburg‘s theory, and therefore reaffirm what Gallo at least strongly implied: When the state places constitutionally significant12 restrictions on a person‘s
This theory concerning the “definition and duration of a seizure,” Albright, 510 U.S. at 278 (Ginsburg, J., concurring), implies that when a material witness is subjected to constitutionally significant restrictions of her liberty for the purpose of securing her appearance at trial, those restrictions are governed by the
2
As we noted above, Schneyder‘s incarceration plainly meets the Supreme Court‘s definition of a
We are not, however, presented with an ordinary criminal case, and despite the parties’ arguments and the District Court‘s opinion (all of which are couched in terms of probable cause), probable cause is an inapposite concept for assessing whether the detention of a material witness was constitutionally reasonable. The phrase “probable cause” appears, on its face, to prescribe only a burden of proof, and the
Bacon actually read the federal material witness statute to require “probable cause to believe (1) that the testimony of a person is material and (2) that it may become impracticable to secure his presence by subpoena.” 449 F.2d at 943 (citation and internal quotation marks omitted). The Ninth Circuit‘s opinion thus arguably redefined a preexisting constitutional term of art, and to the extent it does so its persuasiveness (along with the persuasiveness of those cases relying on it) is badly undercut. See Bascuas, supra, 58 Vand. L. Rev. at 715–19 (criticizing Bacon and “the idea that ‘probable cause’ can be redefined from case to case“). But see Cochran, supra, 18 Geo. Mason L. Rev. at 20–21 (noting that “probable cause is a two-prong concept, possessing both a burden-of-proof component and a substantive component,” and arguing that in material witness cases the substantive component is not guilt of a crime but “the risk that a miscarriage of justice will occur” absent the witness‘s testimony). The Ninth Circuit panel that decided al-Kidd I interpreted Bacon as having only imported the burden-of-proof element of probable cause, which it then applied to the federal material witness statute‘s substantive requirements. 580 F.3d at 967–68.
3
So while the
Amendment rights were therefore violated only to the extent that her detention as a material
The “key principle of the
In Villanova v. Abrams, 972 F.2d 792 (7th Cir. 1992), Judge Posner offered a method of analysis for considering the reasonableness of a civil commitment: “In mathematical terms, the test of a reasonable commitment can be expressed by the inequality C<PH, where C is the cost of confinement to the person confined, H is the harm he might do if released, and P is the probability of his doing that harm if released.” Id. at 796. The premise of this formula is that detention is reasonable where the expected cost to the public of releasing the detainee exceeds the expected cost to the individual of being imprisoned. So as the cost to the plaintiff of being confined increases (e.g., as the incarceration grows longer), so too must the magnitude of the harm to be prevented, or the likelihood of that harm (or both), if PH is to keep pace with C and thus continue to justify confinement. This analysis resembles Learned Hand‘s famous negligence test, see United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947), for good reason: “The test of negligence at common law and of an unlawful search or seizure challenged under the
Here, the alleged problem with Schneyder‘s detention is that it went on for an unreasonable length of time—i.e., longer than the facts of the case warranted. On the “cost to the plaintiff” side of the ledger we have Schneyder‘s obvious and quite substantial interest, as a citizen not accused of any crime, in being free from incarceration. On the other side, we have the significant harm that might have been done to the Commonwealth‘s case against Overby, and thus to the overall justice system, by the failure of a critical witness to testify. At the time Schneyder was arrested, the likelihood of that harm was high, as she clearly did not intend to appear in court. Given the relatively brief period of time that she would have had to spend in jail (a maximum of some 19 days, had Schneyder been released on the date of Judge Means’ scheduled informal status hearing) in order to remain available for a February 2 trial, we may suppose that her initial arrest and detention were reasonable: the potential cost to Schneyder was not terribly high in comparison with the risk that the prosecution would fall apart in her absence.16
This balance, Schneyder argues (or should have argued, had she framed her complaint in terms of reasonableness rather than probable cause), was upset when the trial was pushed back more than three months. While the potential harm to the prosecution‘s case remained the same, the weight of Schneyder‘s liberty interest grew considerably: instead of the twelve days that were left before the scheduled status hearing on the date of the continuance, she was suddenly looking at some 131 days in jail before the trial would even start.17 Even if the risk to the public interest remained high, a jury could find that the cost to Schneyder of being imprisoned outweighed the state‘s interest in holding her for that extra time. Moreover, a jury could conclude that the risk of harm (that is, P) was not as great as the government would have it. Schneyder seems not to have been especially difficult to apprehend (an officer picked her up on the same night that the warrant issued), and there is evidence that being arrested had impressed on her the gravity of the situation and had thus made it more likely that she would show up for court. A reasonable jury could find that Schneyder‘s prolonged detention became unreasonable once the case had been continued.18
Schneyder has thus made out a prima facie case that she suffered a
On the facts before us, we conclude that Schneyder has made her case. The District Court summarized much of the relevant evidence in the course of making a slightly different point:
[There was] deposition testimony: (1) that the duty to notify Judge Means of a trial continuance did not rest [on] the Sheriff‘s Office, the Philadelphia prison system, or the court administration; (2) from Public Defender Paul Conway that defendant “was the only one that ha[d] the information that [Judge Means] needed for him to make the decision” on plaintiff‘s continued detention; (3) from court personnel working in the chambers of Judges Poserina19 and Means that defendant‘s failure to notify Judge Means would not comport with their understanding of usual court practice and procedure; and (4) that following the release of Korvel Odd on January 13, 2005—who was kept in custody for 37 days after the criminal case for which he was detained as a material witness was dismissed—assistant district attorneys were briefed on safeguards to ensure that no material witnesses were detained improperly. These safeguards included centralizing procedures that required assistant district attorneys to seek a supervisor‘s approval of a material witness petition before presenting it to the judge; to present the petition to the judge assigned to the underlying
criminal case; and to monitor the status of witnesses through the computer system to ensure that they were released promptly. Both Homicide Unit Chief Edward McCann and his assistant, Ann Ponterio, agreed that they “indicated to the unit” in January 2005 “that when a witness is in custody and a case is either over, or is continued, or is guilty, or anything that we must make sure that the witness is released from custody.”
709 F. Supp. 2d. at 381-82 (citations omitted). In addition to this evidence, Judge Means’ various statements, in chambers and on the record, are relevant in that they indicate that he was reliant on Smith to keep him apprised of Overby‘s status so that he could monitor the continued reasonableness of Schneyder‘s detention. Perhaps most importantly, Smith was the only official who was in a position to do anything about Schneyder‘s incarceration. She was responsible for the issuance of the warrant and Schneyder‘s subsequent arrest, and there does not appear to be anyone else she can point to
as being obligated to take steps to aid the court in monitoring the continued reasonableness of the detention—including by informing the court that the trial date had changed. As Smith should have been well aware, it is the court‘s role—not a prosecutor‘s—to assess the legality of an incarceration, and to do so on a continuing basis and in light of changes in the underlying facts. Smith also should have known that the court would be unable to fulfill this function without a good-faith effort on her part to keep Judge Means abreast of developments in the Overby case. Schneyder has presented sufficient evidence from which a jury could conclude that Smith‘s failure to advise the court of the continuance was a substantial factor in causing her
Smith‘s duty as a state official not to cause the violation of anyone‘s constitutional rights demanded that she advise the court of any substantial change in the circumstances justifying Schneyder‘s seizure as a material witness. Smith was not required to advocate for Schneyder‘s release; she was obligated to provide the court with the information it needed to properly perform its adjudicative function. A jury could find that she breached this duty, and thereby proximately caused a violation of Schneyder‘s
5
To summarize what we have said so far: The liberty interests of a detained material witness are protected by the
B
Because the foregoing discussion takes place in the context of qualified immunity, our inquiry is not complete. We still must decide whether the duty we have just identified was clearly established at the time the violation occurred. Ordinarily a constitutional duty is not clearly established simply because of the existence of a broad imperative like the one against “unreasonable . . . seizures.” “[I]f the test of ‘clearly established law’ were to be applied at this level of generality, it would bear no relationship to the ‘objective legal reasonableness’ that is the touchstone of Harlow.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). Thus the usual rule is that “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 640.
Although Anderson appears to require a relatively high degree of specificity before a rule can be called “clearly established,” the Court was at pains to emphasize that “[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id. (citation omitted). The Court further expounded this principle in a line of cases beginning with United States v. Lanier, 520 U.S. 259 (1997). The ultimate question, the Court explained, is whether the defendant had “‘fair warning’ that his conduct deprived his victim of a constitutional right.” Hope v. Pelzer, 536 U.S. 730, 740 (2002) (quoting Lanier, 520 U.S. at 270-71). The Court went on:
[G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and . . . a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though “the very action in question has [not] previously been held unlawful.”
Lanier, 520 U.S. at 271 (quoting Anderson, 533 U.S. at 640). Most recently, the Court has reiterated:
To be established clearly . . . there is no need that “the very action in question [have] previously been held unlawful.” . . . [O]utrageous conduct obviously will be unconstitutional, this being the reason, as Judge Posner has said, that “[the easiest cases don‘t even arise.” But even as to action less than an outrage, “officials can still be on notice that their conduct violates established law . . . in novel factual circumstances.”
Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. ---, 129 S. Ct. 2633, 2643 (2009) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990); Hope, 536 U.S. at 741).
“To determine whether a new scenario is sufficiently analogous to previously established law to warn an official that his/her conduct is unconstitutional, we ‘inquir[e] into the general legal principles governing analogous factual situations . . . and . . . determin[e] whether the official should have related this established law to the instant situation.‘” Burns v. Pa. Dep‘t of Corr., 642 F.3d 163, 177 (3d Cir. 2011) (quoting Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir. 1985)) (alterations in original). In extraordinary cases, a broad principle of law can clearly establish the rules governing a new set of circumstances if the wrongfulness of an official‘s action is so obvious that “every objectively reasonable government official facing the circumstances would know that the official‘s conduct did violate federal law when the official acted.” Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). A plaintiff “can demonstrate that the right was clearly established by presenting a closely analogous case that establishes that the Defendants’ conduct was unconstitutional or by presenting evidence that the Defendant‘s conduct was so patently violative of the constitutional right that reasonable officials would know without guidance from a court.” Estate of Escobedo v. Bender, 600 F.3d 770, 779-80 (7th Cir. 2010) (citing Hope, 536 U.S. at 739-40). “There has never been a
Although we are aware of no decision predating Smith‘s actions that involved the sort of claim that Schneyder has raised here, we are nevertheless convinced that this is one of those exceedingly rare cases in which the existence of the plaintiff‘s constitutional right is so manifest that it is clearly established by broad rules and general principles. That is, this ought to have been a member of that class of “easiest cases” that, according to Judge Posner, “don‘t even arise.” Id.; Redding, 129 S. Ct. at 2643. One of the “point[s] of the
Smith took it upon herself to decide that Schneyder ought to be incarcerated well past the point at which explicit judicial authorization had expired. Whether to keep Schneyder in jail should have been the court‘s decision, and Smith knew it. Judge Means had announced his intention to let Schneyder go if the trial date were moved, but Smith took the position that “she should be held until she testified.” Actually, to say that she “took the position” is too generous, because Smith never presented the court with any such argument. She “advocated” her position by failing to reveal an obviously pertinent fact, thereby preventing the judge from doing his job. Moreover, the stance Smith purports to have taken is so patently erroneous as a matter of constitutional law as to be frivolous. No reasonable prosecutor would think that she could indefinitely detain an innocent witness pending trial without obtaining reauthorization. And there can be no doubt that is what Smith intended. The trial at which Schneyder was to testify did not take place until more than a year and a half after her arrest, and there is no indication that Smith would ever have taken steps of her own volition to free her key witness or even to have her status reviewed. If the initial continuance was not something Smith felt a need to report, there is no reason to think that she would have advised Judge Means of any of the subsequent developments. Were it not for the persistence of Schneyder‘s family and the generous efforts of a public defender with cases of his own and no prior connection to the plaintiff, there can be no telling how long she would have remained locked up.21
“When properly applied, [qualified immunity] protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” al-Kidd II, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The self-evident wrongfulness of Smith‘s conduct is sufficient to place her in either category. She is not entitled to qualified immunity.
IV
The final issue we must address is whether Smith, as a prosecutor, is entitled to absolute immunity from liability. The court has already answered this question in the negative, Odd, 538 F.3d at 214, so the “law of the case” doctrine would ordinarily preclude this panel from reconsidering it. Pub. Interest Research Grp. v. Magnesium Elektron, 123 F.3d 111, 116 (3d Cir. 1997). But because this is a rule of discretion rather than a limit on authority, it does not apply in “extraordinary circumstances.” Id. These “include situations in which: (1) new evidence is available; (2) a supervening new law has been announced; or (3) the earlier
A
Before considering Smith‘s arguments, we briefly rehearse the rationale for denying absolute immunity that we set forth in Odd. The basic premise behind the immunity doctrine is that prosecutors should not be encumbered by the threat of civil liability while performing judicial or quasi-judicial functions. See Odd, 538 F.3d at 208. But a person is not immune from suit for every wrong he commits just because he happens to be employed as a prosecutor: the “inquiry focuses on ‘the nature of the function performed, not the identity of the actor who performed it.‘” Id. (quoting Light v. Harris, 472 F.3d 74, 78 (3d Cir. 2007)). Analysis of prosecutorial immunity questions thus has two basic steps, though they tend to overlap. The court must ascertain just what conduct forms the basis for the plaintiff‘s cause of action, and it must then determine what function (prosecutorial, administrative, investigative, or something else entirely) that act served. See id.
The first stage “focuses on the unique facts of each case and requires careful dissection of the prosecutor‘s actions.” Id. at 210 (citations omitted). Thus in Odd we “carefully defin[ed] the act (or rather omission) that gave rise to Schneyder‘s suit” as a “failure to notify Judge Means (per his order and per local custom) that the Overby case had been continued.” Id. at 212. Elsewhere we described it as an omission to “inform[] the court about the status of a detained witness.” Id. at 213. From these definitions, “it follow[ed] that Smith is not entitled to absolute prosecutorial immunity,” because her obligation “was primarily administrative, especially in light of Judge Means‘s explicit order that he be advised of any delay in the Overby proceedings. Smith‘s duty to advise Judge Means of these facts required no advocacy on her part.” Id.
We then raised three additional points to bolster our conclusion. First, because of the continuance in Overby, “Smith‘s failure to act occurred during [a] period of judicial inactivity“—a fact that “cast[] serious doubt on Smith‘s claims that her actions [were] ‘intimately associated with the judicial phase’ of the litigation.” Id. at 213-14 (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Second, in light of Judge Means’ alleged orders that Smith inform him of changes in Overby‘s status, the court stated: “We can imagine few circumstances under which we would consider the act of disobeying a court order or directive to be advocative, and we are loath to grant a prosecutor absolute immunity for such disobedience.” Id. at 214. Finally, we pointed out that the custom and practice of the Philadelphia courts was to assign sole responsibility for monitoring material witnesses to the District Attorney‘s Office and to individual prosecutors, and that the gist of this obligation (consistent with
B
We now turn to Smith‘s arguments for setting our prior decision aside. First, she proffers “new evidence” in the form of the transcript of Schneyder‘s bail hearing. On Smith‘s reading, the colloquy between Judge Means, Smith, and Schneyder contains no explicit directive that Smith advise the court in the event of a continuance. Smith claims that in the absence of a clear order, her decision regarding what to tell the court was discretionary and thus not administrative.
Even were we to accept Smith‘s interpretation of the evidence (contrary to the rules governing adjudication of her own motion for summary judgment), her argument is mistaken in its dependence on the Odd panel‘s references to the alleged order as the source of an administrative duty. While the order was a relevant and supporting consideration, it was not determinative of the court‘s conclusion. As explained above, see supra note 18, the duty being enforced in this lawsuit arises from the Constitution, not from the authority of a state judge‘s order. Thus we must ask whether Smith‘s violation of that constitutional obligation constituted an administrative act or an advocative one. Whether or not the judge issued an order therefore does not control the case, and Smith‘s new evidence is unavailing.
C
The next question is whether the Supreme Court‘s decision in Van de Kamp v. Goldstein abrogates the legal conclusion we reached in Odd. Goldstein had been convicted and imprisoned after the prosecution failed to provide defense counsel with important information which could have been used to impeach an informant-witness. After the evidence came to light, Goldstein sued under
The Supreme Court concluded that the defendants were entitled to absolute immunity. After setting out the basic functional approach outlined above, the Court reasoned that while the supervisory, training, and management functions in question were properly characterized as administrative, the obligations they created were “directly connected with the conduct of a trial.” Id. at 862. Writing for a unanimous Court, Justice Breyer first observed that a low-level prosecutor would be immune from suit for the underlying failure to disclose. Id. It followed that supervisory prosecutors would also be immune from a direct attack on their actions relating to a particular trial (i.e., their own failure to find and turn over the evidence in question), because such actions would also be closely associated with the judicial process. Id. From there the Court argued that there is no way to draw a clean line between supervision and training related to a particular case and an office‘s more general policies and practices. Id. at 862-63. Although the development and implementation of such general policies are administrative in nature, the practices in question “concern[ed] how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor‘s basic trial advocacy duties.” Id. at 863. Allowing the suit to go forward would open up prosecutors’
Smith argues, and we agree, that Van de Kamp establishes subcategories within the “administrative” class of official functions. That is, some administrative functions relate directly to the conduct of a criminal trial and are thus protected, while others (“concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like,” id. at 862) are connected to trial only distantly (if at all) and are therefore not subject to immunity. The question is whether Van de Kamp alters the result in Odd.
One thing that Van de Kamp does not change is our characterization of the conduct in question as the nonperformance of a constitutional duty to advise the court of a significant change in the circumstances surrounding the detention of a material witness. We also continue to think that this duty is, broadly speaking, administrative rather than advocative. After Van de Kamp, we must ask the further question whether this is the sort of administrative duty the performance or nonperformance of which is protected by prosecutorial immunity. We hold that it is not.
As we stated in Odd, there was no advocative or discretionary dimension to Smith‘s dereliction of her duty. She was the only person with knowledge of the relevant facts, and she was obligated to ensure that the court had information sufficient to monitor Schneyder‘s status. Smith was not obligated to argue for Schneyder‘s release; she was required only to do what was necessary to allow the court to perform its oversight function. It is true that this was not a paradigmatic, “workplace hiring” type of administrative duty, but neither was it directly connected to the conduct of a trial.
After the continuance, the Overby case was a long way off, and it simply is not the prosecutor‘s prerogative to decide how long to keep a material witness detained. Declining to reveal the change in Overby‘s status was an abdication of Smith‘s responsibility to provide the court with information sufficient for it to decide an issue within its sole competence. As the sole government official in possession of the relevant information, Smith had a duty of disclosure that was neither discretionary nor advocative, but was instead a purely administrative act not entitled to the shield of immunity, even after Van de Kamp.
V
On the record before us, we conclude that Smith is not entitled to either qualified or absolute immunity. Her motion for summary judgment therefore fails, and we will affirm the District Court‘s order.
Schneyder v. Smith, No. 10-2367
McKee, Chief Judge, concurring.
I agree wholeheartedly with the majority‘s opinion and therefore join my colleague‘s analysis in its entirety. I write separately merely to suggest that the issue before us is not as complex as the majority‘s very methodical analysis may imply. Although the rather complex subtlety and
The central inquiry before us is simple: would a reasonable prosecutor have known that detaining a material witness for 48 days after a trial has been continued may have been contrary to the wishes of the authorizing court, and that this additional detention violated the witness’ constitutional rights? See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) It takes neither a panel of federal judges nor a prescient prosecutor to know that the answer to both questions is a resounding “yes.”
I.
There are very important reasons to afford prosecutors immunity from law suits. As the Supreme Court has explained, immunity allows a prosecutor to focus his/her energy and attention on the trial at hand as opposed to having to worry about being forced to “answer in court each time [] a person charged him[/her] with wrongdoing.” Imbler v. Pachtman, 424 U.S. 409, 425 (1976). It is just as clear that there are also very important policies that counsel against allowing prosecutors to act with impunity by taking it upon themselves to determine when, and if, someone who has been properly incarcerated should be released. This is especially true when additional detention may well be contrary to the instructions of the judge who authorized the initial seizure and detention, and when the circumstances suggest that the judge would no longer allow the person to be incarcerated.
The Supreme Court has cautioned that, “[t]he public trust of the prosecutor‘s office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages.” Id. at 425-26. However, it is no less certain that public trust of that office as well as of the Constitution that the office is sworn to uphold would suffer if prosecutors were allowed to take it upon themselves to decide when and if someone should be released from incarceration.
Here, Smith clearly took it upon herself to decide when and if Schneyder would be released.1 After Schneyder‘s family repeatedly called Smith asking when Schneyder could leave state custody, Smith informed them, “I‘m not going to let her go until this matter is resolved.” (App. 257) (emphasis added). The umbrella of immunity surely was not intended to shelter such conduct. The power to release Schneyder did not reside in Smith nor in any other prosecutor. It resided in the court, and it continued to reside there after the Overby trial was postponed. Smith may well have been troubled by the prospect of releasing Schneyder and risking an acquittal of Overby, but that was not her decision to make. It is certainly not a novel precept of Anglo-American jurisprudence to suggest that once the Overby trial was continued, Smith should have made any concerns about Schneyder‘s availability known to Judge Means so that the court could then decide whether it was still reasonable to detain Schneyder under the
Smith should have realized that holding Schneyder even after the Overby trial was postponed was contrary to the authority Judge Means had afforded her. At the bail hearing, Judge Means clearly stated on the record that he was uneasy with incarcerating a person who was not accused of any crime in order to obtain her testimony at a subsequent trial. He stated, “I don‘t like setting bail on people who are not accused of a crime.” (App. 55 - 56). He also stated, “if the case breaks down, let me know early and I‘ll let you out, Ms. Schneyder.”3 (App. 55-56).
Judge Means had every reason to believe that Schneyder would only be held in custody for a few weeks because Smith told the court that the trial would begin “six days from today” and that it would be a “ten-day trial at most.” (App. 55-56). Indeed, it is difficult to read this transcript and conclude anything other than that the judge believed that he was only authorizing Schneyder‘s detention for a couple of weeks - the time it would take to start and finish the Overby trial.
Smith‘s actions were also an unreasonable usurpation of the judicial authority to detain a material witness in light of the prevailing custom in the prosecutor‘s office. Judge Means testified that the “practice and custom in the Court of Common Pleas in these situations [involving material witness detentions] is for the prosecutor to bring the matter back to court to address any outstanding issues.” (App. 215). That custom is also evidenced by testimony from Edward McCann, then-Chief of the District Attorney‘s Homicide Unit and Smith‘s own supervisor. He stated that “it‘s a well-known office policy and Homicide Unit policy” that Smith would have a responsibility to notify him if a case had been continued and a material witness was held in custody. (App. 84). The policy existed since McCann “came into the DA‘s office [in 1989].” (App. 84, 90). Thus, a reasonable prosecutor should have realized that she could not take it upon herself to decide when a detained witness would be released from custody.4
III.
Nothing we say here suggests that a judge in this situation would not have the authority to authorize continued incarceration of a material witness if the trial s/he is to testify at is postponed. Had Judge Means been properly informed of the continuance, he could have again considered the circumstances and competing interests (including Schneyder‘s liberty interest) and could have concluded - based upon all the circumstances - that Schneyder‘s continued incarceration was both justified and appropriate.
However, that is not the point. The fact that Schneyder may have remained in custody even if Smith had told the court of the continuance does not mean that Smith is somehow entitled to immunity. Rather, the point of our holding today is quite simply that any reasonable prosecutor should know that the authority to incarcerate belongs to the court, not the prosecutor,5 and that one who disregards that basic tenet violates a clearly established constitutional right. I think it is helpful to look beneath the intricacies and algebraic equations that assist my colleagues’ analysis, because our holding results in nothing more surprising than that extraordinarily unremarkable conclusion. Neither our holding today, nor the reactions of the judges whom I reference in footnote 4 should come as a surprise to anyone with even a rudimentary familiarity with the restrictions imposed on the power of the state by the