United States Court of Appeals
For the First Circuit
No. 98-2293
WILLIAM BRADY AND THERESA BRADY,
Plaintiffs, Appellees,
v.
MARYANN DILL, ET AL.,
Defendant, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Pollak,* Senior District Judge.
Joseph P. Kittredge, with whom Timothy M. Burke was on brief,
for appellants.
Scott Harshbarger, Attorney General, and Michelle A.
Kaczynski, Assistant Attorney General, on brief for Commonwealth of
Massachusetts, amicus curiae.
Philip A. Tracey, Jr., with whom Paul T. Prew and Dimento &
Sullivan were on brief, for appellees.
July 22, 1999
*Of the Eastern District of Pennsylvania, sitting by designation. SELYA, Circuit Judge. This appeal poses an intriguing
question of constitutional law. Suppose that the following
scenario exists: (1) the police arrest a person pursuant to a
facially valid warrant, supported by probable cause; (2) the
person, though named in the warrant, asserts that he is actually
innocent; and (3) the police come to believe that claim. In those
circumstances, can the officers be held liable under 42 U.S.C.
1983 for their refusal unilaterally to release the person whom they
have arrested? The district court answered this question
unconditionally in the affirmative. We reverse.
I. BACKGROUND
This case had its genesis in an arrest that occurred in
Middleboro, Massachusetts, on September 17, 1994, when a state
trooper stopped David Buckley for driving under the influence of
alcohol. Buckley (who had no driver's license or other
identification on his person) palmed himself off to the arresting
officer as William Brady and supplemented this misidentification
with Brady's authentic address, date of birth, and social security
number. When the imposter failed to appear in court to respond to
the charge, a warrant issued in Brady's name.
That warrant was still outstanding on Saturday evening,
March 4, 1995, when the Rockland police department received word of
a brawl. The officer who responded to the scene encountered
plaintiff-appellee William Brady and detained him because of the
outstanding warrant, unaware that he had nabbed the real William
Brady, not the poseur whose default had inspired the issuance of
process.
Informed that the warrant had borne fruit, a
Massachusetts state trooper, Thomas Majenski, made a beeline for
the Rockland station house and assisted in transporting Brady to
the state police barracks in Bourne. There, other troopers placed
him in a holding cell. From the outset, Brady proclaimed his
innocence, insisting that he had not been stopped for drunk driving
in Middleboro the previous year.
Shortly after Brady's arrival, his new custodians began
looking into his protested innocence. An examination of the
original arrest report (Report No. 1), transmitted by facsimile
from Middleboro, revealed certain discrepancies when compared with
the Rockland arrest report (Report No. 2) (e.g., Report No. 1
indicated that Brady had a tattoo and that his mother's maiden name
was "Kowalski," whereas Report No. 2 noted no tattoos and listed
the detainee's mother's maiden name as "Kozloski"). Moreover, the
particulars concerning height, weight, hair and eye color did not
correlate precisely. Trooper Steven Vrona proceeded to contact the
officer who had cited the allegedly inebriated motorist, and this
conversation provided further reason to believe that Brady probably
was not the person who had been stopped in Middleboro.
Suspecting that they might have the wrong man
(notwithstanding the exact match between the name that appeared on
the warrant and the name of the person in custody), the troopers
unsuccessfully attempted to glean information from Brady about who
might have preempted his identity. They then essayed to arrange
his release on bail. At around midnight, a bail commissioner
arrived at the barracks in response to the troopers' importuning
and offered to turn Brady loose on personal recognizance upon his
(Brady's) execution of an agreement to appear voluntarily for
arraignment. Brady declined, apparently fearing that he might
somehow inculpate himself by signing the paper. On Sunday, March
5, the troopers tried to involve an attorney on Brady's behalf, but
their efforts came to naught. The next day, Brady was taken to the
first available court session, arraigned, and released. He had
spent a day and a half in custody. The charges against him
eventually were dismissed.
Brady sued under 42 U.S.C. 1983, claiming that the
troopers had violated his right to be free from unreasonable
seizures and wrongful detention. See U.S. Const. amends. IV & XIV,
1. Although he did not challenge either the validity of the
default warrant or the propriety of the initial arrest, he
contended that the troopers had a constitutional obligation to
release him from custody, despite the command of the facially valid
warrant, once it had become apparent to them that they were holding
the wrong person.
The defendants moved for summary judgment, asseverating
that their handling of the situation had not violated Brady's
rights, and that, in all events, the doctrine of qualified immunity
shielded them from liability for money damages. The district court
granted brevis disposition in favor of Colonel Charles Henderson
(the state police superintendent) and Majenski (whose only
involvement had been in ferrying Brady from Rockland to Bourne),
but it denied similar relief to the four troopers who served as
Brady's principal custodians at the Bourne barracks (Vrona,
Sergeant Maryann Dill, and Troopers Kenneth J. Hudson, Jr., and
Douglas Mendes). See Brady v. Dill, 24 F. Supp.2d 129 (D. Mass.
1998). The quartet of disappointed troopers then prosecuted this
interlocutory appeal. See Camilo-Robles v. Zapata, F.3d ,
(1st Cir. 1999) [1999 WL 223051, at *4] (explaining the basis
on which public officials may bring interlocutory appeals from
pretrial orders rejecting assertions of qualified immunity).
II. DISCUSSION
When qualified immunity is at issue, an inquiring court
first must ask whether the Constitution recognizes the right
asserted by the plaintiff. See Conn v. Gabbert, 119 S. Ct. 1292,
1295 (1999). In this instance, Brady argues that the Fourth
Amendment's prohibition against unreasonable seizures obligates
officers who have made a "matched" arrest pursuant to a facially
valid warrant (i.e., an arrest in which the suspect's identity
matches the stated identity of the person denominated in the
warrant) to release the person unilaterally if and when they come
to believe that he is innocent. We think that this claim, as it
relates to the facts of this case, is foreclosed by Baker v.
McCollan, 443 U.S. 137 (1979).
Like this case, Baker involved the "matched" arrest, over
vigorous protest, of a victim of mistaken identities pursuant to
what was, on its face, a valid warrant. The sheriff's office
detained McCollan for several days, releasing him only after
comparing his visage to a photograph of the wanted man (McCollan's
brother, who, as matters turned out, had used McCollan's
identification when originally apprehended). See id. at 140-41.
McCollan subsequently sued the sheriff under section 1983, seeking
damages for the deprivation of his liberty. See id. at 141. The
district court directed a verdict in the sheriff's favor, but the
court of appeals reversed and remanded for a new trial. See
McCollan v. Tate, 575 F.2d 509, 511 (5th Cir. 1978). The Supreme
Court then granted the sheriff's certiorari petition. See Baker v.
McCollan, 439 U.S. 1114 (1979).
Although McCollan had framed his suit in terms of the
Fourteenth Amendment, the Court began by considering whether the
arrest itself had violated the Fourth Amendment. See Baker, 443
U.S. at 142-43 (noting that the Fourth Amendment has been
incorporated into the Fourteenth). The Court concluded that
because the warrant naming McCollan was valid on its face, probable
cause existed for the arrest and, hence, the Fourth Amendment was
not implicated. See id. at 143-44; see also Graham v. Connor, 490
U.S. 386, 396 (1989) (observing that, even if the wrong person is
arrested, there is no Fourth Amendment violation as long as the
arrest is based on probable cause) (citing cases).
Once the Fourth Amendment had dropped out of the
equation, the Court considered whether McCollan had been deprived
of any of the specific subset of procedural guarantees,
incorporated into the Fourteenth Amendment's Due Process Clause,
that come into play after completion of an arrest (e.g., the
prohibition against excessive bail, the guarantee of a speedy
trial, and the like). See Baker, 443 U.S. at 144-46 & n.3.
Because McCollan had not been deprived of any such rights, the
Court concluded that the complainant had failed to prove a
constitutional wrong. See id. at 145-47. While conceding that a
lengthy detainment in the face of repeated claims of innocence
might in extreme circumstances furnish the basis for a
constitutional violation, the Court was "quite certain that a
detention of three days over a New Year's weekend does not and
could not amount to such a deprivation." Id. at 145. In the
bargain, the Court also rejected, at least implicitly, any claim
that the detainment constituted a substantive due process
violation. See id. at 147-49 (Blackmun, J., concurring).
Baker is compelling here. Given that Brady does not
challenge the validity of the arrest itself he was, after all,
the very person named in the outstanding warrant the Fourth
Amendment (which governs the legitimacy of the arrest and its
incidents) is not at issue. See id. at 143-44. The question,
then, is whether Brady's post-arrest procedural guarantees were
abridged. To prevail on such a battleground, Brady must do more
than show that the troopers made a mistake. See id. at 145
(treating the fact that McCollan was innocent of the charges
underlying the warrant as "largely irrelevant to his claim of
deprivation of liberty without due process of law").
In all events, the answer to the question is in the
negative. The record shows beyond peradventure of doubt that the
appellants afforded Brady more than the full panoply of post-arrest
rights that the Constitution demands: despite the fact that he was
the person designated in the default warrant, the troopers went to
great pains to gather information bearing on his situation, tried
to assist in securing his prompt release, and arraigned him before
an impartial magistrate at the earliest opportunity. Under these
circumstances, there is no foundation for a claim that Brady's
post-arrest rights were abridged.
Viewed through the Baker prism, this conclusion
effectively ends the matter. Because, under parallel
circumstances, the Supreme Court pronounced a three-day detention
as failing to constitute a deprivation of liberty without due
process, it would take circumstances much more egregious than
Brady's for us to conclude that a weekend detention of
approximately thirty-six hours, accompanied by a concerted effort
on the part of the police to secure the detainee's release,
resulted in a wrong of constitutional dimensions. Accord Sanchez
v. Swyden, 139 F.3d 464, 468-69 (5th Cir. 1998) (rejecting section
1983 claim premised on similar factual circumstances on the
authority of Baker).
In an effort to escape Baker's deadly embrace, Brady
urges us to read the Court's words narrowly. In his view, Baker
stands only for the rule that when a person in custody protests his
innocence, police officers have no affirmative obligation to
investigate. Baker, Brady maintains, does not address situations
in which police officers, after an arrest, do investigate and come
to possess "actual knowledge" that the detained person, though
named in an outstanding warrant, is a victim of mistaken
identities. In such an eventuality, Brady posits, the Constitution
requires the officers to release the detainee without further ado.
The district court endorsed this cramped reading of Baker and
refused to grant the appellants' motion for summary disposition
because it perceived a factual dispute as to whether they had
actual knowledge of Brady's innocence. See Brady, 24 F. Supp.2d
at 134-35.
To support this ruling, Brady cites to Gay v. Wall, 761
F.2d 175 (4th Cir. 1985). There, a warrant had issued for Gay's
arrest after two eyewitnesses had identified him as the perpetrator
of a crime. See id. at 176. Acting upon the warrant, the police
arrested Gay, kept him in custody for several weeks, and released
him only after they had arrested someone else. See id. Gay sued
under section 1983, alleging that, as early as the day of the
arrest, the police officers were certain that he was innocent and
had so stated, yet nonetheless kept him in custody for several
weeks. See id. Thus, Gay asserted, the officers had "knowingly,
unlawfully, violently, and without probable cause" arrested him,
depriving him of an array of constitutional rights. See id.
(internal quotation marks omitted).
Although the district court had granted summary judgment
in favor of the defendants on the authority of Baker, a panel of
the Fourth Circuit reversed, maintaining that Baker does "not
involve actual knowledge of the defendant's innocence, but rather
the failure to take affirmative steps to determine his innocence."
Id. at 178-79. Thus, the panel concluded, if the plaintiff's
factual allegations could be proven, "the defendants' conduct may
well be actionable under 1983." Id. at 179.
We do not believe that Brady's reliance on Gay removes
his case from Baker's compass. Brady's minor premise is unarguably
correct: the Baker Court declined to impose upon police officers
an affirmative duty of investigating every claim of innocence
raised during a relatively short period of detention. See Baker,
443 U.S. at 145-46. But his major premise that the police must
unilaterally release a person detained pursuant to a facially valid
warrant directing his arrest if they conclude that he is innocent
is too much of a stretch.
Gay is distinguishable, for the detention there lasted
much longer and the arrest itself was on shaky ground. Equally as
important, the Fourth Circuit has backed away from Gay. In Brooks
v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996), the court,
characterizing Gay as a case that stands for the proposition "that
a defendant is deprived of substantive due process by continued
prosecution in the absence of probable cause," stated that Gay's
foundation had been irretrievably compromised by more recent
Supreme Court decisions. See Brooks, 85 F.3d at 184 n.6 (citing,
inter alia, Albright v. Oliver, 510 U.S. 266 (1994)).
To be sure, Brady does not cast his argument in terms of
substantive due process; instead, he endeavors to use Gay as a
wedge to extend the Fourth Amendment's protections to the post-
arrest context. We doubt that Gay, fairly read, supports this
gloss (although it is difficult to tell, for Gay leaves us guessing
as to what act by the police officers the panel thought was
wrongful and which specific constitutional provision the panel
suspected the officers might have violated). If, however, Gay is
to be construed in this free-wheeling manner, we must reject it as
antithetical both to the teachings of Baker and to this court's
pronouncements in Thompson v. Olson, 798 F.2d 552 (1st Cir. 1986).
We begin with Baker. Brady's position clashes head-on
with the Baker Court's conclusion that once a "matched" arrest
pursuant to a facially valid warrant supported by probable cause
has been completed, a detainee's protections from unlawful custody
no longer repose in the Fourth Amendment. See Baker, 443
U.S. at 143-44; see also Brothers v. Klevenhagen, 28 F.3d 452, 455-
56 (5th Cir. 1994) (explaining that once an arrest is complete, a
criminal defendant's protection no longer emanates from the Fourth
Amendment, but from other rights recognized by the Due Process
Clause); Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir. 1992)
(similar); cf. Brooks, 85 F.3d at 184 (concluding that the Fourth
Amendment does not require a police officer to attempt to halt
criminal proceedings when he concludes that the criminal defendant
is innocent). As Baker teaches, "[t]he Constitution does not
guarantee that only the guilty will be arrested." 443 U.S. at 145.
This disclaimer is not as harsh as it might seem.
Persons who are arrested enjoy "manifold procedural protections,"
quite apart from those embodied in the Fourth Amendment, that allow
them to establish their innocence. Id. Our legal system
effectuates these procedural protections in a manner that adds
further safeguards for the innocent by placing the "ultimate
determination of [the arrestee's] claims of innocence . . . in the
hands of the judge and the jury." Id. at 146. Baker thus
venerates the separation of functions among various government
actors. See id. at 145 (endorsing a "reasonable division of
functions between law enforcement officers, committing magistrates,
and judicial officers" as "entirely consistent with 'due process of
law'"). This respect for the separation of functions, the
significance of which the Court has noted in related contexts, see,
e.g., Gerstein v. Pugh, 420 U.S. 103, 117-18 (1975), largely
explains why the Baker Court declined to impose on police officers
an affirmative duty of investigating claims of innocence. The
same principle also bears on why the Court deemed adherence to the
archetypical post-arrest due process guarantees sufficient to
protect McCollan's rights (and, ultimately, to defeat his section
1983 claim).
We hewed to this very line in Thompson which, as a
precedent of this court, further binds us in our consideration of
the case at hand. See Williams v. Ashland Eng'g Co., 45 F.3d 588,
592 (1st Cir. 1995) (outlining the parameters of the law of the
circuit doctrine). Thompson involved a warrantless arrest in which
the police officer himself had made the initial probable cause
determination. The plaintiff then filed a section 1983 suit
founded on a theory of substantive due process, coupled with a
pendent state-law false imprisonment claim. In discussing the
latter, we noted the general rule, which we considered applicable
to cases of warrantless arrests, that "once the arrest has been
properly effected, it is the magistrate and not the policeman who
should decide whether probable cause has dissipated to such an
extent following arrest that the suspect should be released." Id.
at 556; accord Romero v. Fay, 45 F.3d 1472, 1481 (10th Cir. 1994)
(rejecting a section 1983 claim based on the police's refusal to
release an individual who maintained his innocence after a
warrantless arrest in light of Baker's "recognition that the
judicial system represents the proper forum in which to determine
the innocence of an arrestee"). If the rule we recognized in
Thompson applies to a warrantless arrest, it must apply, a
fortiori, to an arrest of a person named in a facially valid
warrant.
Important considerations undergird the separation of
functions recognized in Baker and Thompson, and those
considerations are at their zenith when a person who is named in a
facially valid warrant, supported by probable cause, is arrested
pursuant to that warrant. When such a person asserts that he is a
victim of mistaken identities, he in effect is pressing a claim of
innocence in fact a claim not analytically distinct from any
other factual defense (say, an alibi defense or a defense premised
on a lack of specific intent) tendered by a person whom the police
arrest in pursuance of a warrant issued by a judge or magistrate.
Regardless of the merits of the defense, our legal system simply
does not rely on police officers to determine its bona fides, even
though they may have information bearing on that ultimate question
and even though they may harbor strong and informed opinions one
way or the other. To the contrary, once probable cause has been
established, a warrant issued, and an arrest perfected, the
ordinary course is for the prosecutor to decide whether to go
forward, and if he elects to proceed, for the judicial branch to
make the final ascertainment of guilt or innocence not for the
police to take matters into their own hands.
One reason for this allocation of decisionmaking
responsibility is that the prosecutor, the judge, and the jury are
institutionally better equipped to make such determinations. The
prosecutor, as the official responsible for proving guilt, has the
capacity and the armamentarium to assemble and assess all the
existing evidence and to evaluate whether there is proof enough to
press charges. The judge, as a neutral and detached factfinder,
benefits from the formal mechanisms of introduction and
consideration of proof (not the least of which is cross-
examination) that give his ultimate determination the degree of
reliability that our system of justice deems essential to ensure
fairness. The jury, similarly, is positioned to make informed
judgments as to guilt or innocence upon receipt of tested proof and
legal instructions.
The police officer assumes a different posture. Though
a trained investigator, he often receives information over time in
bits and pieces, and does not have available the same means for
marshaling the evidence or the same tools for assessing conflicting
evidence ex post. Consequently, in a situation in which a warrant
has issued upon probable cause, a police officer is not called upon
either to exercise discretion or to weigh the proof. Rather, his
obligation is more straightforward: to execute the warrant which
is, after all, a judicially-approved order according to its tenor
and terms, detaining the individual named therein. To place on
police officers the additional burden of determining, after a
legitimate arrest pursuant to a facially valid warrant, whether the
person detained is or is not the guilty party would blur the usual
separation of functions. The Constitution imposes no such burden
on the police. Cf. Thompson, 798 F.2d at 556 (stating that "having
once determined that there is probable cause to arrest, an officer
should not be required to reassess [this] probable cause conclusion
at every turn, whether faced with the discovery of some new
evidence or a suspect's self-exonerating explanation from the back
of a squad car").
It is, moreover, impossible to subscribe to the wistful
supposition (shared by Brady, the district court, and our
concurring brother) that police officers who must make conclusions
from conflicting evidence gathered during a post-arrest
investigation may come to "know" that an arrestee is innocent.
See Brady, 24 F. Supp.2d at 134. Absent personal knowledge of
Brady's innocence and Brady does not aver that any of the
appellants were percipient witnesses to the drunk driving or its
immediate aftermath the worst one can say about the troopers who
continued to hold Brady in custody is that they came to believe,
with some degree of subjective certainty, that the man they had
arrested, though named in the warrant, was innocent of the
underlying charge. This is not knowledge, but subjective belief
even when embellished by declarative prepositional phrases. See
post at 30 (suggesting that police officers may "learn to a
certainty" of a detainee's innocence); id. at 36 (suggesting that
officers may "know to a certainty" that they are holding the wrong
man). Regardless of rhetoric, this kind of subjective belief,
without more, is generally insufficient to justify a police
officer's unilateral release of a person who has been lawfully
arrested pursuant to a valid judicial order. Cf., e.g., United
States v. Whren, 517 U.S. 806, 811-13 (1996) (explaining that
police officers' subjective intentions are irrelevant to Fourth
Amendment probable cause analyses); Graham, 490 U.S. at 397
(reiterating that subjective intent plays no role in assessing the
reasonableness of police officers' conduct under the Fourth
Amendment).
To illustrate the point, it is readily apparent that
Brady's claim that the troopers had "actual knowledge" of his
innocence rests on the assumption that the discrepancies between
the two arrest reports, coupled with Vrona's call to the trooper
who had stopped the ostensibly inebriated driver in Middleboro,
were sufficient to demonstrate conclusively that he was a victim of
mistaken identities. What seems like a strong argument with the
benefit of hindsight is much more dubious when matters are viewed
ex ante. The discrepancies involved things like Brady's mother's
maiden name ("Kozloski" as opposed to ""Kowalski"), the evanescent
tattoo, and certain divergent physical traits. But we live in an
age where altering physical features may be accomplished with
facility, see Blackwell v. Barton, 34 F.3d 298, 304 (5th Cir.
1994), where clerical errors in recording, receiving, or
transmitting data are commonplace, see United States v. De Leon-
Reyna, 930 F.2d 396, 398-99 (5th Cir. 1991) (en banc) (per curiam),
and where descriptive inaccuracies can occur easily. Thus, courts
have concluded with some regularity that relatively minor
discrepancies in physical features or other data do not render
unreasonable an arrest pursuant to a facially valid warrant. See
White v. Olig, 56 F.3d 817, 820 (7th Cir. 1995); Rodriguez v.
United States, 54 F.3d 41, 46-47 (1st Cir. 1995); Blackwell, 34
F.3d at 304; Thompson v. Prince William County, 753 F.2d 363, 364-
65 (4th Cir. 1985); Johnson v. Miller, 680 F.2d 39, 41 (7th Cir.
1982).
The logic underlying these pre-arrest cases applies even
more forcefully to discrepancies that come to light only after an
arrest has been accomplished. The analogy therefore buttresses
this court's earlier intuition that the initial determination of
probable cause should not be undone by a police officer's
assessment of post-arrest evidence that bears adversely on that
initial finding. See Thompson, 798 F.2d at 553, 556. Were the law
otherwise, there is a considerable risk that a police officer,
subjectively convinced that he has the wrong person, might turn
loose a wanted criminal.
To complete the picture, we note that Brady's position
presents significant practical problems. To state the obvious, a
warrant is a judicial order authorizing an arrest, and, as long as
the police are acting in compliance with that order, it is
surpassingly difficult to fathom why the proper method of
challenging the ensuing detainment should be something other than
a prompt hearing before a magistrate. Additionally, the
implications of holding the police responsible for not releasing an
individual held under a facially valid warrant that bears his name
as evidence accumulates pointing to others poses such complexities
that it is not constitutionally unreasonable to leave such
decisions to the magistrate. Among other things, a contrary rule
would create an incentive for police officers not to investigate
claims of innocence at all, for fear of incurring liability should
they uncover information that would cast doubt upon the putative
offender's guilt.
Perhaps more insidious, Brady's position has the
potential of turning police stations into tribunals for making
preliminary determinations of guilt or innocence an eventuality
that Baker explicitly disavows. See Baker, 443 U.S. at 145-46
(refusing to recognize a constitutional duty on the police's part
to investigate a detainee's innocence). And, once police feel
pressured to make such decisions, they may encroach upon the
judiciary's functions, denigrating the authority of warrants issued
under the auspices of judicial officers. Should that come to pass,
the concerns about unbridled police action that the Gerstein Court
underscored, 420 U.S. at 117-18, may be realized. Such a
happenstance would pose a much greater danger to an ordered
conception of liberty than the occasional snafu that the separation
of functions regime thus far has produced.
All this is not to say that a police officer may treat
evidence of innocence with impunity. He may not. See Thompson,
798 F.2d at 556 (noting that an officer may not, after the initial
finding of probable cause, "close his eyes to all subsequent
developments"). One standard police function is to provide
information to the prosecutor and the courts. Thus, a police
officer sometimes may be liable if he fails to apprise the
prosecutor or a judicial officer of known exculpatory information.
See Hart v. O'Brien, 127 F.3d 424, 446-47 (5th Cir. 1997), cert.
denied, 119 S. Ct. 868 (1999); Sanders v. English, 950 F.2d 1152,
1162 (5th Cir. 1992); Jones v. City of Chicago, 856 F.2d 985, 992-
94 (7th Cir. 1988); but see Taylor v. Waters, 81 F.3d 429, 435-37
(4th Cir. 1996). In these cases, the constitutional wrong results
from the officer's failure to deliver material information to
competent authorities. In that respect, the cited cases are unlike
the case at bar: when a police officer acts as an information
provider, he may be obliged to reveal exculpatory facts (bearing
either on innocence or on probable cause) to a prosecutor or a
judicial officer, cf. United States v. Agurs, 427 U.S. 97, 111-13
(1976) (concluding that prosecutor has a duty to reveal material
exculpatory evidence even in the absence of a specific request),
but the Constitution imposes no parallel duty on a police officer
to function as a decisionmaker in order to determine the
dissipation vel non of probable cause or the actual innocence of a
person in custody. In such post-arrest cases, it is ordinarily
sufficient for the police officer to bring the relevant information
to the attention of the prosecutor or the proper judicial official
in a timeous fashion.
We say "ordinarily" because we do not mean to suggest
that under no circumstances can such a duty arise. Thus, despite
the Court's recent efforts at containment of substantive due
process initiatives, see, e.g., Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992), we understand Baker to leave open the
possibility that, under extreme circumstances, a plaintiff may be
able to press such a claim. Then-Justice Rehnquist, writing for
the Court in Baker, took pains to note that the Court was not
speaking in absolute terms, as if writing a rule of plane geometry.
See Baker, 443 U.S. at 144-45. Depending upon factors such as the
length of the detention, the behavior of the police, the source and
quality of the information available to them, and the nature of the
pretrial procedures afforded by local law, there may be
circumstances so egregious as to ground a substantive due process
claim. See, e.g., Gray v. Cuyahoga County Sheriff's Dep't, 150
F.3d 579, 582-84 (6th Cir. 1998) (concluding that plaintiff had
stated a substantive due process claim when the police had detained
him for 41 days despite their possession of a photograph of the
wanted person "that bore virtually no resemblance" to him and the
ready availability of a physical description of the wanted person
which "detail[ed] certain permanent scars" that the plaintiff did
not have), cert. denied, 67 U.S.L.W. 3625 (May 17, 1999); Rodriguez
v. Roth, 516 F. Supp. 410, 412 (E.D. Pa. 1981) (reaching similar
conclusion where detention had lasted for 30 days). But Brady's
experience, while distasteful, does not sink to such depths.
To summarize, Brady who was targeted in a facially
valid warrant issued by a judicial officer upon probable cause
has no Fourth Amendment claim in respect to a detention that
followed a lawful arrest pursuant to that warrant. At least in
the case of the "matched" warrant here at issue, the officers'
subjective belief as to Brady's innocence does not justify an
"actual knowledge" exception to the general schema that Baker
prescribes. Finally, viewed as a matter of due process, Brady's
circumstances do not go beyond the boundaries of McCollan's (the
plaintiff in Baker). Accordingly, the district court should have
granted the appellants' motion for summary judgment.
We add a coda. Even had we concluded that the record
might support a finding that the troopers infringed on Brady's
constitutional rights, we nonetheless would uphold their request
for summary judgment based on the doctrine of qualified immunity.
We explain briefly.
To determine a defendant's eligibility for qualified
immunity, courts must define the right asserted by the plaintiff at
an appropriate level of generality and ask whether, so
characterized, that right was clearly established when the harm-
inducing conduct allegedly took place. See Anderson v. Creighton,
483 U.S. 635, 639 (1987). This does not mean that a right is
clearly established only if there is precedent of considerable
factual similarity. See id. at 640 (explaining that a general rule
of constitutional law identified by precedent may clearly apply to
the specific conduct at issue, even though "the very action in
question has [not] previously been held unlawful"). It does mean,
however, that the law must have defined the right in a quite
specific manner, and that the announcement of the rule establishing
the right must have been unambiguous and widespread, such that the
unlawfulness of particular conduct will be apparent ex ante to
reasonable public officials. See Wilson v. Layne, S. Ct. ,
(1999) [1999 WL 320817, at *8-*9]; Ringuette v. City of Fall
River, 146 F.3d 1, 4 (1st Cir. 1998); Nereida-Gonzalez v. Tirado-
Delgado, 990 F.2d 701, 704 (1st Cir. 1993). After all, qualified
immunity for public officials serves important societal purposes,
and it is therefore meant to protect "all but the plainly
incompetent or those who knowingly violate the law." Malley v.
Briggs, 475 U.S. 335, 341 (1986).
Here, the troopers scrupulously executed a judicial order
the arrest warrant that bore Brady's name according to its
terms. Their reliance on that warrant appears to have been
objectively reasonable. Cf. id. at 345. Insofar as their failure
to release Brady unilaterally once they began to believe that he
was innocent, that conduct, under the case law discussed supra,
likewise appears to be objectively reasonable. Gay is the only
case that seems to support Brady's assertion of a post-arrest
constitutional right to be released unilaterally by police officers
who come to believe that a person duly apprehended is, in fact,
innocent. That case is in obvious tension with Baker and Thompson,
and its precedential value is highly suspect in the circuit of its
origin. It is, therefore, too slender a reed to ward off a finding
of qualified immunity.
The Supreme Court recently held that an asserted right
was not clearly established where the plaintiffs were unable to
cite "any cases of controlling authority in their jurisdiction at
the time of the incident which clearly established the rule on
which they [sought] to rely," and equally failed to "identif[y] a
consensus of cases of persuasive authority such that a reasonable
officer could not have believed that his actions were lawful."
Wilson, S. Ct. at [1999 WL 320817, at *9]. The Wilson
Court's reasoning is perfectly tailored to the circumstances here.
Thompson, which represents the governing law of this circuit,
plainly did not render the troopers' actions unlawful, and the
tenuous status of Gay falls far short of the "persuasive authority"
that Wilson envisions.
III. CONCLUSION
The Constitution does not guarantee that the police will
never blunder when making arrests, but it establishes certain
procedures to ensure that most mistakes will be detected and
rectified. Those mechanisms worked in this case. Brady was taken
before a judge at the earliest opportunity, promptly released, and
thereafter acquitted of any wrongdoing. While we are mindful of
the indignities that accompany arrest and subsequent detainment, we
are also mindful of the dangers inherent in tipping the delicate
constitutional balance that separates the functions assigned to
different departments of government. Far from eliminating errors,
imposing liability on police officers for honest mistakes of this
kind especially in cases where, from all indications, the
officers acted with reasonable dispatch to compensate for any bevue
not only would have a detrimental impact on effective law
enforcement, but also would threaten the separation of functions
that our constitutional system has deployed as a means of
minimizing the occurrence (and mitigating the adverse effects) of
those very errors.
We need go no further. There is no persuasive authority
to support Brady's contention that he was deprived of liberty
without due process of law as a result of his regrettable thirty-
six hour detention. The appellants are therefore entitled to
summary judgment.
Reversed.
Concurring Opinion follows POLLAK, District Judge (concurring). Plaintiff William
Brady and his wife, co-plaintiff Theresa Brady, have jointly
advanced the federal claim that when law enforcement officers learn
to a certainty that a person they are holding in custody pursuant
to a valid arrest warrant is in fact not the perpetrator of the
offense giving rise to the arrest warrant, the law enforcement
officers then have an obligation under the Constitution to release
that person from custody, an obligation assertable in a law suit
brought pursuant to 42 U.S.C. 1983. (The plaintiffs have also
advanced certain claims under Massachusetts law, but the proper
disposition of those claims is not at issue on this appeal). Since
Theresa Brady's share of the federal claim is entirely derivative
from, and hence contingent on the viability of, the share of the
federal claim put forward by her husband, I will, for convenience
of presentation in the discussion which follows, refer to the
plaintiffs' federal claims in the singular -- "the Brady claim," or
"Brady's claim". Defendant police officers Maryann Dill, Kenneth
J. Hudson, Jr., Douglas Mendes and Steve Vrona have questioned
whether the Brady claim has any constitutional footing; further,
defendants have contended that -- assuming arguendo that the Brady
claim is a cognizable constitutional claim -- the constitutional
principle undergirding that claim was not clearly established at
the time (March 4th to March 6th, 1995) William Brady was arrested
and held in custody, and hence that the defendants would be
shielded from any putative liability by qualified immunity.
The District Court, in ruling on defendants' motion for
summary judgment, concluded that Brady's claim is firmly rooted in
the Fourth Amendment: "If a jury finds that defendants knew that
Brady was not really the man wanted by the warrant, then they could
also conclude that the defendants violated Brady's Fourth Amendment
right to be free from unreasonable seizure." Brady v. Dill, 24 F.
Supp. 2d, 129, 135 (D. Mass. 1998). Further, the District Court
found that the Fourth Amendment right sought to be vindicated was
clearly established; the District Court rested this aspect of its
analysis on the Supreme Court's recognition, in Maryland v.
Garrison, 480 U.S. 79, 86-87 (1980), of the obligation of police
officers executing a search warrant to desist from searching
premises lying outside the scope of the search warrant the moment
the officers recognize that they have travelled beyond the
warrant's boundaries. Accordingly, the District Court -- while
granting summary judgment in favor of two defendant officers who
clearly played no role in Brady's allegedly extended detention --
declined to grant summary judgment in favor of Officers Dill,
Hudson, Mendes and Vrona. The question whether there came a time at
which "defendants did know ...that they had the wrong man" was, in
the District Court's view, "the quintessential jury question."
Brady v. Dill, supra, 24 F. Supp. 2d at 135 (emphasis in original).
Disagreeing with both aspects of the District Court's
ruling, this court concludes that (1) Brady has not presented a
viable constitutional claim, and (2) even if the claim were to be
regarded as having persuasive doctrinal footing, the published case
law which can be said to demonstrate some measure of antecedent
credence for the claim is so meager as to be "too slender a reed to
ward off a finding of qualified immunity." In sum, the court is of
the view that defendants are doubly entitled to summary judgment.
(However, this court's reversal of the judgment of the District
Court does not necessarily close this litigation: this court's
opinion is, properly, at pains "to direct the District Court to
dismiss Brady's state-law claims without prejudice for want of
federal jurisdiction," so that any potentially cognizable state-law
claims may be asserted in the Massachusetts courts).
On the question whether Brady has presented a viable
constitutional claim I respectfully disagree with the position
announced by this court. On the question whether defendants are
entitled to qualified immunity, I respectfully disagree with the
position announced by the District Court. This means that I concur
in the judgment of this court but not in the court's opinion. I
write separately to explicate the line of thinking that leads me to
differ with both courts.
I. Is the Brady claim a viable constitutional claim?
i
This court's opinion states: "We believe that [the Brady]
claim...is foreclosed by Baker v. McCollan, 443 U.S. 137 (1979)."
In Baker the Supreme Court held that a person arrested in
conformity with a validly issued warrant who was held in custody
for three days by a sheriff who made no real effort to investigate
the detainee's fully justified and readily documentable insistence
that, although named in the warrant, he was in fact not the person
who committed the offense charged, had no cognizable 1983 claim
against the sheriff for the three days of inappropriate detention.
While deeming Baker to be adversely dispositive of the claim
advanced in the case at bar, this court recognizes that Brady --
and the District Court -- have posited a reading of Baker that is
not preclusive of the Brady claim:
In an effort to escape Baker's deadly
embrace, Brady urges us to read the Court's
words narrowly. In his view, Baker stands
only for the rule that when a person in
custody protests his innocence, police
officers have no affirmative obligation to
investigate. Baker, Brady maintains, does not
address situations in which police officers,
after an arrest, come to possess "actual
knowledge" that the detained person, though
named in an outstanding warrant, is a victim
of mistaken identities. In such an
eventuality, Brady posits, the Constitution
requires the officers to release the detainee
without further ado. The district court
endorsed this cramped reading of Baker and
refused to grant the appellants' motion for
summary judgment disposition because it
perceived a factual dispute as to whether they
had actual knowledge of Brady's innocence.
Turning to what the Supreme Court wrote in Baker in the
paragraph which concludes its Fourteenth Amendment analysis, I find
it difficult to acquiesce in this court's characterization of the
Brady/district court interpretation of Baker as a "cramped
reading." What the Supreme Court wrote was this:
The Fourteenth Amendment does not
protect against all deprivations of liberty.
It protects only against deprivations of
liberty accomplished "without due process of
law." A reasonable division of functions
between law enforcement officers, committing
magistrates, and judicial officers -- all of
whom may be potential defendants in a 1983
action -- is entirely consistent with "due
process of law." Given the requirements that
arrest may be made only on probable cause and
that one detained be accorded a speedy trial,
we do not think a sheriff executing an arrest
warrant is required by the Constitution to
investigate independently every claim of
innocence, whether the claim is based on
mistaken identity or a defense such as lack of
requisite intent. Nor is the official charged
with maintaining custody of the accused named
in the warrant required by the Constitution to
perform an error-free investigation of such a
claim. The ultimate determination of such
claims of innocence is placed in the hands of
the judge and the jury.
443 U.S. at 145-146 (footnote omitted).
The quoted paragraph announces two linked propositions of
constitutional law. These propositions govern claims brought, under
1983, by one arrested pursuant to a valid arrest warrant who,
notwithstanding that he is concededly the person named in the
warrant, promptly and continuously asserts his innocence, but who,
nonetheless, is not promptly released by the law enforcement
officers who arrested and/or subsequently detained him. The
propositions -- rendered in paraphrase -- are these: (1) The
"liberty" clause of the Fourteenth Amendment ("[N]or shall any
State deprive any person of life, liberty, or property without due
process of law") does not obligate a law enforcement officer
carrying out an arrest under a valid warrant to investigate claims
of innocence voiced by or on behalf of the person arrested. (2) The
"liberty" clause does not obligate an officer who, post-arrest, has
custody of a person validly arrested, to conduct an "error free"
(443 U.S. at 146) inquiry into claims of innocence advanced by or
on behalf of the person arrested and subsequently detained. (This
second proposition is not, as a matter of syntax, entirely devoid
of ambiguity: the proposition may be taken to mean that a custodial
officer is under no constitutional obligation to conduct an
inquiry, perfect or otherwise, into claims of innocence; or,
alternatively, the proposition may be taken to mean that, whether
or not there is deemed to be a constitutional obligation to
inquire, a custodial officer who undertakes to inquire has no
constitutional obligation to insure that the findings arrived at
are "error free.")
Neither of these two propositions addresses in terms --
or, I submit, by necessary implication -- the question posed in the
case at bar: when (1) law enforcement officers undertake to
investigate claims that a person in custody pursuant to a valid
arrest is innocent, and (2) the investigation produces information
that provides the officers with actual knowledge that the person in
custody is not the person who committed the crime, does the
"liberty" clause impose on the law enforcement officers an
obligation to release that person forthwith -- notwithstanding that
he is the person named in the arrest warrant -- because they know
to a certainty that he is innocent?
It may be urged that in transposing the quoted Baker
paragraph into two paraphrased propositions I have given the
Court's language short shrift by ignoring the paragraph's closing
sentence: "The ultimate determination of such [i.e., the
detainee's] claims of innocence is placed in the hands of the judge
and jury." 443 U.S. at 146. Quoting that sentence, this court
properly observes that "Baker thus venerates the separation of
functions among various government actors." So understood, the
distinction drawn by the Supreme Court between the conventional
role of law enforcement officers and the conventional role of
courts is clearly responsive to the issue posed in Baker -- namely,
whether a law enforcement officer has a constitutional duty to
investigate, and arrive at reliable findings with respect to,
claims that a person properly taken into custody is in fact (as
Baker was in fact) not the person who committed the alleged
offense. The answer to that question is in the negative for the
reason that, in the American scheme of things, it is generally the
case that determining innocence vel non is a judicial function
rather than a police function. But that general description of the
American scene does not answer the question posed by the case at
bar: in a circumstance in which, going beyond their constitutional
duty, law enforcement officers do investigate and in the process
learn that the person detained is indisputably not the perpetrator
of the offense charged, are not the law enforcement officers then
under a constitutional duty forthwith to release the person
detained? In arguing that this is a question that is not, as the
court holds, "foreclosed" by Baker, I would note that Baker's
attribution to the judiciary of institutional responsibility for
"[t]he...determination of...claims of innocence" characterized that
determination as the "ultimate" determination. Assigning to the
judicial branch "ultimate" responsibility for determining innocence
would not appear to preclude an earlier finding of innocence by law
enforcement officers of the executive branch. It might, indeed, be
thought to invite such executive intervention in the circumstance
-- the rare circumstance -- in which agents of the executive branch
acquire actual knowledge (as opposed to information establishing a
high degree of probability yet in some modest measure still open to
further inquiry) of the innocence of the person detained.
ii
In the foregoing subsection of this opinion I have
undertaken to summarize the broad construction of Baker presented
in the court's opinion; and then, to counter that broad
construction, I have undertaken to present, in summary form, a
reconstruction of Baker positing what I think is a plausible,
albeit less spacious, reading. Doubtless some will tend to regard
this revisionist reading as less a reconstruction than a
deconstruction -- or, more charitably, a desiccation. I must
acknowledge that the court has advanced some good arguments in
favor of its broad reading. To do justice to the court's arguments,
which are developed with considerable care, I quote from those
arguments at some length (footnote omitted):
Important considerations undergird the
separation of functions recognized in Baker
and Thompson [v. Olson, 798 F. 2d 552 (1st
Cir. 1986)(see supra, notes 1 and 2)], and
those considerations are at their zenith when
a person who is named in a facially valid
warrant, supported by probable cause, is
arrested pursuant to that warrant. When such
a person asserts that he is a victim of
mistaken identities, he in effect is pressing
a claim of innocence in fact -- a claim not
analytically distinct from any other factual
defense (say, an alibi defense or a defense
premised on a lack of specific intent)
tendered by a person whom the police arrest in
pursuance of a warrant issued by a judge or
magistrate. Regardless of the merits of the
defense, our legal system simply does not rely
on police officers to determine its bona
fides, even though they may have information
bearing on that ultimate question and even
though they may harbor strong and informed
opinions one way or the other. To the
contrary, once probable cause has been
established, a warrant issued, and an arrest
perfected, the ordinary course is for the
prosecutor to decide whether to go forward,
and if he elects to proceed, for the judicial
branch to make the final ascertainment of
guilt or innocence -- not for the police to
take matters into their own hands.
......
It is, moreover, impossible to
subscribe to Brady's (and the district
court's) supposition that police officers who
must make conclusions from conflicting
evidence gathered during a post-arrest
investigation may come to 'know' that an
arrestee is innocent. . . .Absent personal
knowledge of Brady's innocence -- and Brady
does not aver that any of the appellants were
percipient witnesses to the drunk driving or
its immediate aftermath -- the worst one can
say about the troopers who continued to hold
Brady in custody is that they came to believe,
with some degree of subjective certainty, that
the man they had arrested, though named in the
warrant, was innocent of the underlying
charge. This is not knowledge -- and this
kind of subjective belief, without more, is
generally insufficient to justify a police
officer's unilateral release of a person who
has been lawfully arrested pursuant to a valid
judicial order.
These are cogent arguments. But they are not, I think,
incontrovertible.
Let us consider just what it is that Brady contends. He
contends that: (1) the facially valid warrant pursuant to which he
was arrested named him rather than the real culprit because the
real culprit tricked the police by pretending to be Brady; and (2)
in response to Brady's protestations of innocence the police
inquired into the matter and soon came to realize that Brady was
not the man they wanted; but, (3) rather than releasing him at
once, the police kept Brady in custody for thirty-six hours until,
finally, Brady was brought before a magistrate who directed that he
be freed.
Now let us measure Brady's claim of innocence against the
analysis propounded by the court. According to the court, when a
person arrested pursuant to an arrest warrant that names him
"asserts that he is a victim of mistaken identities, he in effect
is pressing a claim of innocence in fact -- a claim not
analytically distinct from any other factual defense (say, an alibi
defense or a defense premised on a lack of specific intent)
tendered by a person whom the police arrest in pursuance of a
warrant issued by a judge or magistrate." I have no quarrel with
the proposition that such claims are not "analytically distinct."
But I would argue that such claims also are -- or at least may be
-- pragmatically very different. Thus -- subscribing in this
respect to the court's argument -- I find it very difficult to
posit a scenario in which a claim of "lack of specific intent"
could, within a few or even several days of dedicated police
investigation, be so painstakingly explored, intricately unraveled
and subtly evaluated as to lead the investigating officers to have
absolute assurance of the innocence of the person in custody. But
I have little difficulty in positing such a scenario with respect
to a claim of "mistaken identities." And I do not have to resort
to putting together a hypothetical case. Our doctrinal raw
materials offer us a real world case -- the case of Baker v.
McCollan. Linnie Carl McCollan -- so the Court narrated -- was
victimized by his brother Leonard. Leonard fabricated a copy of
Linnie's driving license with Leonard's photograph superimposed on
it. With the aid of this counterfeit identification, Leonard, when
arrested in October of 1972 in Potter County, Texas, for a
narcotics offense, orchestrated matters with such fraternal
devotion that he was booked and bailed -- and subsequently failed
to appear -- as Linnie. Wherefore, when, on December 26, 1972,
Linnie was pulled over by a Dallas police officer for going through
a red light, "[a] routine warrant check revealed that Linnie Carl
McCollan was wanted in Potter County, and respondent was taken into
custody over his protests of mistaken identification.." 443 U.S. at
141. For reasons not elaborated on in the Supreme Court's opinion,
or in Justice Stevens's dissent, notwithstanding the fact that the
Dallas Police Department promptly notified the Potter County
Sheriff's Department of Linnie's arrest, four days were to elapse
before Linnie was taken from Dallas to Potter County. What the
transpired, as the Court narrates it, was this:
On December 30, Potter County deputies took
custody of respondent and placed him in the
Potter County Jail in Amarillo. He remained
there until January 2, 1973, when officials
compared his appearance against a file
photograph of the wanted man and, recognizing
their error, released him.
Ibid.
Like the defendant police officers in the case at bar,
those who had Linnie Carl McCollan in charge were not "percipient
witnesses" of the offense charged against the person in custody:
that is, they had no "personal knowledge of [that person's]
innocence." But Linnie Carl McCollan's custodians did not conclude
that they had to wait for a judicial officer to dismiss the charges
and order Linnie released. "[R]ecognizing their error," they
"released him." Of course the Supreme Court did not say that it
was the constitutional duty of McCollan's custodians to release
McCollan on "recognizing their error." That issue -- which Brady's
claim presents to this court -- was not before the Baker Court. But
it is, I think, of at least passing interest that the Supreme
Court's narrative of the way in which McCollan's (belated) release
from custody was accomplished seems to treat it as a matter of
course.
It is my submission that the action Linnie Carl
McCollan's custodians took to release him when they knew to a
certainty that he was not their man was their constitutional duty.
The court disagrees. In terms of ultimate practical difference, the
gap separating my constitutional position from that of the court is
not a wide one, for the reason that, were my position to prevail,
there would, I think, be no more than a handful of cases in which
a plaintiff would be able to demonstrate to a fact-finder that
police officers kept someone in custody beyond a point in time at
which they knew to a certainty that the person in custody was not
the perpetrator of the offense charged. I employ the phrase "knew
to a certainty" advisedly. That would be my translation of the
phrase "actual knowledge" -- the phrase contended for by Brady and
relied upon by the District Court. Moreover, in explicating "knew
to a certainty," I would instruct the fact-finder that the
operative constitutional principle is the following: An affirmative
duty to release arises only if an arresting or custodial officer
ascertains beyond a reasonable doubt that the suspicion (probable
cause) which forms the basis for the privilege of arrest is
unfounded. (I have adapted this formulation -- almost verbatim --
from the formulation employed by this court in Thompson v. Olson,
supra, 798 F. 2d at 556, to describe the duty of an arresting
officer "following a legal warrantless arrest based on probable
cause." The Thompson formulation -- which was drawn from 134,
Comment f, of the Second Restatement of Torts -- is stated by this
court in today's opinion to be a principle of Maine law, not of
federal constitutional law. Possibly so; but, as I explain in
footnote 2, supra, I am not as agile as the court is in tracing,
let alone walking, the fine line between state and federal law
which the court discerns in its examination of Thompson. In any
event, whatever the scope -- just Maine law or also federal law --
of the Thompson formulation, I regard it as a useful source for the
constitutional principle I would deploy in cases such as the case
at bar).
If Brady's case were to go to trial, I would regard it as
highly unlikely that a jury charged in the manner I have just
described would find in his favor. I agree with the court that
"the worst one can say about the troopers who continued to hold
Brady in custody is that they came to believe, with some degree of
subjective certainty, that the man they had arrested, though named
in the warrant, was innocent of the underlying charge." But
although that is my view of the facts of record at the summary
judgment stage, I am persuaded that a jury might conceivably view
the facts differently. Which means that I agree with the District
Court's assessment that this is "the quintessential jury
question."
If the constitutional principle I have proposed were to
be adopted, it would be my expectation that concrete applications
of the principle would turn out to be few and far between. Does
the expectation that the proposed principle would rarely have
occasion to be vindicated mean that the proposed principle would
really be a sort of whimsical superfluity that would trivialize,
not augment, the Constitution? I am persuaded that the answer is
no. And I say this because, so it seems to me, to reject the
proposed principle -- to conclude that there is house room in the
American scene for law enforcement officers to keep a person in
custody for any appreciable length of time after they know to a
certainty that the person is not the culprit -- is to diminish what
is after all the central value of the text and of the spirit of the
Constitution: liberty.
II. Is the constitutional principle underlying Brady's claim
sufficiently clearly established so as to defeat the defendants'
assertion of qualified immunity?
At the end of its opinion, the court examines the
question whether, assuming arguendo the viability of Brady's
constitutional claim, the constitutional principle that Brady has
sought to vindicate is sufficiently clearly established so as to
defeat the defense of qualified immunity deployed by the defendant
law enforcement officers. The court answers that question in the
negative. I agree. The court's analysis seems to me entirely apt.
I would only add that the strength of the court's arguments against
the viability of Brady's claim, coupled with the dearth of case law
supporting my counter-arguments, seem to me to demonstrate
decisively that the Brady claim, even if the court were to accept
its theoretical cognizability, could not properly be pursued in
this case against these defendants. That is to say, when these
defendants did the things of which Brady has complained, they had
little ground for supposing that the Constitution imposed on them
the duty that I have attempted to formulate.
Conclusion
Although I disagree with the court's rejection of the
cognizability of Brady's constitutional claim, I acquiesce in the
court's view that the defendants are, in any event, shielded by
qualified immunity. Accordingly, I concur in the judgment of the
court.