PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-2367
_____________
NICOLE SCHNEYDER,
v.
GINA SMITH,
Appellant
v.
LAURA DAVIS;
DEFENDER ASSOCIATION OF PHILADELPHIA
_____________
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)
Peter Carr (Argued)
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 Fourth Amendment guarantees the right of the
*
The Honorable Richard G. Stearns, United States District
Judge for the District of Massachusetts, sitting by designation.
2
people to be secure against unreasonable searches and
seizures. This case is about a seizure and presents questions
of whether and how the Constitution‘s guarantee applies in
the case of a material witness who was jailed for weeks on
end, even though the date of the trial in which she was to
testify had been pushed back several months. We hold that
the Fourth Amendment applies to such a detention, and that it
requires a prosecutor responsible for such a detention to
inform the judge who ordered the witness‘s incarceration of
any substantial change in the underlying circumstances. We
also conclude that the prosecutor in this case had ―fair
warning‖ of the constitutional right she is accused of
violating, and that she is therefore not shielded from liability
by the doctrine of qualified immunity. Finally, we reaffirm
our earlier holding that absolute prosecutorial immunity does
not apply. We will therefore affirm the District Court‘s order
denying summary judgment to the defendant.
I
Nicole Schneyder was an essential witness in
Pennsylvania‘s effort to bring Michael Overby to justice for
rape, robbery, and murder. After apparently being threatened
by Overby‘s family, Schneyder refused to testify, going so far
as to pull a knife on a police detective as he attempted to
arrest her for the purpose of compelling her appearance in
court. Schneyder successfully avoided capture for the
duration of Overby‘s first two trials, so the prosecution
offered her prior recorded statements in lieu of her live
testimony. This procedure presented obvious Confrontation
Clause problems, and Overby‘s conviction in the second trial
3
(the first ended in a hung jury) was overturned on appeal.
Commonwealth v. Overby, 809 A.2d 295 (Pa. 2002).1
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 Pa. R. Crim. P. 522.2 Rule 522(A) allows a
court to ―issue process‖ and ―set bail for any material
witness‖ for whom there is ―adequate cause for the court to
conclude that the witness will fail to appear when required if
not held in custody or released on bail.‖ Once process has
issued and the witness has been brought into court, Rule
522(B) directs that ―the court shall commit the witness to jail‖
if she is unable to fulfill the bail conditions—provided that
the court must release the witness if at any time thereafter she
1
On the fourth try, the Commonwealth succeeded in
convicting Overby of murder, robbery, and criminal conspiracy.
Schneyder apparently testified at that proceeding.
2
Rule 522 was formerly codified as Rule 4017. The text of
the Rule has not changed, although a new Comment was added in
2006 (after the events giving rise to this appeal) directing that
―[w]hen a material witness is to be detained, the court should
impose the least restrictive means of assuring that witness‘s
presence.‖
4
satisfies the court‘s demands. Smith‘s warrant application
averred that Schneyder‘s testimony was ―critical,‖ that she
―ha[d] been threatened by someone in the defendant‘s
family,‖ and that ―[g]iven her previous several failure[s] to
appear . . . it is highly unlikely that she will appear for trial.‖
Judge Means issued the warrant, and a police officer
apprehended Schneyder that night.
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 me know early and I‘ll let you out.‖ Judge
Means then went on:
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
3
Davis is named as a third-party defendant in this suit, but
she is not a party to this appeal.
4
Smith concedes this fact for purposes of the instant
motion but would contest it at trial.
5
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
5
Smith concedes this point only for purposes of the motion
that has given rise to this appeal; she testified in her deposition that
she had appeared in Judge Means‘s courtroom more than once
between February 2 and February 14, and that she had informed
the judge and his staff of the continuance.
6
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 by telling him that Schneyder was still in custody.
Judge Means ordered Schneyder discharged shortly
thereafter. By this time it was March 21, and Schneyder had
6
Prior opinions in this case have indicated that Conway
was a hired attorney when he was in fact a public defender
approached for assistance by Schneyder‘s family. See Odd v.
Malone, 538 F.3d 202, 206 (3d Cir. 2008); Schneyder v. Smith, 709
F. Supp. 2d 368, 373 (E.D. Pa. 2010).
7
been locked up for 54 days—48 of them after the February 2
continuance.
Schneyder sued Smith and the Philadelphia District
Attorney‘s office, filing a complaint which included claims
under 42 U.S.C. § 1983 and state law. Only the § 1983 claim
against Smith remains in the case; it alleges that Smith
violated Schneyder‘s Fourth Amendment rights ―by failing to
notify Judge Means or take any steps to have plaintiff
released from custody knowing that she would not be needed
as a witness in the underlying criminal case for several more
months.‖ The District Court initially granted Smith‘s Rule 12
motion to dismiss the § 1983 claim on the basis that she was
entitled to absolute prosecutorial immunity, but a panel of this
court reversed. Odd v. Malone, 538 F.3d 202 (3d Cir. 2008).7
After remand and discovery, Smith invoked both absolute and
qualified immunity and moved for summary judgment. The
District Court rejected Smith‘s arguments and denied the
motion. Schneyder v. Smith, 709 F. Supp. 2d 368 (E.D. Pa.
2010). This appeal ensued.
II
We have appellate jurisdiction under the collateral
order doctrine: ―28 U.S.C. § 1291 confers appellate
jurisdiction over the District Court‘s denial, at the summary-
judgment stage, of [a] defendant[‘s] claim that [she is]
entitled to absolute or qualified immunity, to the extent that
denial turns on questions of law.‖ Bayer v. Monroe Cnty.
Children & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009)
(citations omitted). There are no material factual disputes,
7
Schneyder‘s appeal was consolidated with the case of one
Korvell Odd; the caption on our prior opinion bears his name.
8
Smith having conceded various of the plaintiff‘s factual
averments for purposes of this motion.
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. ---, 129 S. Ct.
808, 815 (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, 42 U.S.C. § 1983,
provides that ―[e]very person who, under color of [state law],
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured‖ in an appropriate action. Setting aside the
availability of immunity, the basic cause of action requires
9
that a § 1983 plaintiff prove two essential elements: (1) that
the conduct complained of was committed by a person acting
under color of state law; and (2) that the conduct deprived the
plaintiff of rights, privileges, or immunities secured by the
Constitution or laws of the United States. Kost v.
Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993) (citing Parratt v.
Taylor, 451 U.S. 527, 535 (1981)). There is no question that
Smith, who acted in her capacity as an assistant district
attorney, did so under color of state law. The question under
§ 1983 is therefore whether Smith‘s failure to advise Judge
Means of the continuance in Overby deprived Schneyder of a
constitutionally protected right. This inquiry can be
subdivided into the questions (1) whether Schneyder‘s
imprisonment violated one or more of her constitutional
rights, and, if so, (2) whether Smith‘s conduct caused the
illegal imprisonment.
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 Fourth
Amendment‘s proscription of unreasonable seizures.
Superficially, at least, Schneyder‘s imprisonment meets the
Supreme Court‘s definition of a ―seizure‖: ―a Fourth
Amendment seizure [occurs] . . . when there is a
governmental termination of freedom of movement through
means intentionally applied.‖ Scott v. Harris, 550 U.S. 372,
381 (2007) (quoting Brower v. Cnty. of Inyo, 489 U.S. 593,
596–97 (1989)). Schneyder‘s freedom of movement was
obviously terminated, and there is ample evidence that Smith
intended that result. See Ashcroft v. al-Kidd (al-Kidd II), 563
10
U.S. ---, 131 S. Ct. 2074, 2080 (2010) (―An arrest, of course,
qualifies as a ‗seizure‘ of a ‗person‘ . . . , and so must be
reasonable under the circumstances.‖) (citation omitted).
There was, however, some suggestion at oral argument, and
in the briefs, that the Fourteenth Amendment‘s Due Process
Clause applies instead.8
The question of which Amendment applies is
answered, at least in this Circuit, by citation to Gallo v. City
of Philadelphia, 161 F.3d 217, 222–24 (3d Cir. 1998),
wherein we adopted Justice Ginsburg‘s ―continuing seizure‖
interpretation of the Fourth Amendment. See Albright v.
Oliver, 510 U.S. 266, 277–80 (1994) (Ginsburg, J.,
concurring). In her Albright concurrence, Justice Ginsburg
wrote:
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
8
In order to argue that the Fourth Amendment is not
applicable—or at least that its applicability was not clearly
established—Smith‘s briefs distinguish ―seizures‖ from
―detentions,‖ arguing that at some point after the arrest
Schneyder‘s incarceration became a ―detention‖ not subject to the
Fourth Amendment. The unspoken corollary must be that
―detentions‖ are governed directly by the Due Process Clause;
otherwise Smith‘s proposed distinction would leave a ―detained‖
material witness without any constitutionally protected liberty
interest whatsoever.
11
*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
12
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
§ 1983 for a Fourth Amendment violation), ―remained
effectively ‗seized‘ for trial for so long as the prosecution
against him remained pending.‖ Id. The rationale is that a
government-imposed restriction on a person‘s liberty is a
seizure governed by the Fourth Amendment if its purpose is
to ensure that he appears in court. In contrast, if a pre-trial
detainee suffers a deprivation amounting to punishment, his
claim is governed by the Due Process Clause: ―[A] detainee
may not be punished prior to an adjudication of guilt in
accordance with due process of law.‖ Bell v. Wolfish, 441
U.S. 520, 535 (1979). And once a person has been convicted
and sentenced, his liberty may be restricted provided that he
received the process he was due and that the conditions and
duration of his punishment are not ―cruel‖ or ―unusual‖ under
the Eighth Amendment.9 But when the government restricts
the liberty of a person who has not been convicted of a crime
for the purpose of securing her court appearance, that
restriction is a Fourth Amendment seizure.
9
Similar reasoning explains why the detention of a person
who has been involuntarily committed, as well as the conditions of
his confinement, are governed by the Due Process Clause. See
Youngberg v. Romeo, 457 U.S. 307, 315–16 (1982). While the
initial arrest of such a person to compel his appearance at the
commitment proceeding might be governed by the Fourth
Amendment, once commitment has been ordered he is no longer
being detained for the purpose of ensuring that he will appear in
court. Thus he is no longer ―seized‖ for Fourth Amendment
purposes, and the requirements of due process take over.
13
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
Fourth Amendment seizure. See also DiBella v. Borough of
Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (―Pre-trial
custody and some onerous types of pre-trial, non-custodial
restrictions constitute a Fourth Amendment seizure.‖). The
theory undergirding these decisions and Justice Ginsburg‘s
Albright concurrence is that substantial pre-trial restrictions
on liberty—most prominently, custodial detentions—are
―seizures‖ when they are imposed in order to compel a court
appearance.
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 Fourth Amendment
protection relate to the boundary between arrest and pre-trial
detention‖—the implication being that once the state‘s
conduct ceases to be an arrest and begins to constitute pre-
trial detention (wherever that line may be drawn), the seizure
ends and the Fourth Amendment no longer applies.10 The
10
We also acknowledge that other circuits have declined to
adopt Justice Ginsburg‘s theory. See, e.g., Harrington v. City of
Nashua, 610 F.3d 24, 33 n.4 (1st Cir. 2010); Reed v. City of
14
Torres court‘s statement is not, however, binding on us here.
For one thing, Torres was decided after Gallo, leaving its
precedential value on this point in serious doubt.11 See
Holland v. N.J. Dep’t of Corr., 246 F.3d 267, 278 n.8 (3d Cir.
2001) (―[T]o the extent that [a case within this Circuit] is read
to be inconsistent with earlier case law, the earlier case law . .
. controls.‖) (citation omitted). Moreover, the above
quotation from Torres is dicta: the case involved the question
whether Torres‘ post-conviction incarceration was a Fourth
Amendment seizure. The answer to that question is ―no,‖
even under the Ginsburg-Gallo theory. The Torres panel
therefore had no need to opine on the limits of the Fourth
Amendment‘s pre-conviction application. Finally, Torres left
open the possibility that ―there may be some circumstances
during pre-trial custodial detention that implicate Fourth
Amendment rights,‖ 169 F.3d at 174, and if that is the case
then surely the very fact of a pre-trial detention would
implicate the right against unreasonable seizures.
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 freedom of movement
Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996). As we have
explained, Gallo would require us to adhere to the continuing
seizure theory even if we were otherwise disposed to reject it.
11
The majority opinion in Torres does not cite Gallo—
though the dissent does. See 163 F.3d at 179 (Debevoise, Dist. J.,
dissenting).
12
We hold open the possibility that some conditions on
pre-trial release may be so insignificant as not to implicate
constitutionally protected liberty interests. See, e.g., Kingsland v.
City of Miami, 382 F.3d 1220, 1236 (11th Cir. 2004) (concluding
15
for the purpose of obtaining his presence at a judicial
proceeding, that person has been seized within the meaning of
the Fourth Amendment.
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 Fourth Amendment. That Amendment is
not limited to criminal suspects, but protects ―[t]he right of
the people to be secure . . . against unreasonable searches and
seizures.‖ U.S. Const. amend. IV (emphasis added).
Accordingly, the Supreme Court defines ―seizure‖ in general
terms: ―a person has been ‗seized‘ within the meaning of the
Fourth Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.‖ California v. Hodari
D., 499 U.S. 621, 627–28 (1991) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)) (emphasis added).
The Fourth Amendment‘s protection against unreasonable
seizures extends to all of ―the people,‖ and the guarantees of
the Bill of Rights extend to a person detained as a material
witness just as they would extend to anyone else. See al-Kidd
II, 131 S. Ct. at 2080–83 (applying Fourth Amendment
analysis to the arrest and detention of a material witness); al-
Kidd v. Ashcroft (al-Kidd I), 580 F.3d 949, 965 (9th Cir.
2009) (―[M]aterial witness arrests are ‗seizures‘ within the
meaning of the Fourth Amendment and are therefore subject
to its reasonableness requirement.‖) (citing Bacon v. United
States, 449 F.2d 933, 942 (9th Cir. 1971)), rev’d on other
that conditions of release not amounting to a ―significant
deprivation of liberty‖ did not implicate the Fourth Amendment).
16
grounds, 563 U.S. ---, 131 S. Ct. 2074. A person who is
subjected to conditions that would constitute a seizure if she
had been arrested for a crime is still seized even though she is
not a criminal suspect but a material witness. She has been
arrested and deprived of liberty for precisely the same
purpose as a pre-trial detainee in a criminal case: to ensure
that she shows up in court as required by the state. See
Albright, 510 U.S. at 278–79 (Ginsburg, J., concurring). The
Fourth Amendment therefore governs our inquiry into the
constitutionality of Schneyder‘s detention.
2
As we noted above, Schneyder‘s incarceration plainly
meets the Supreme Court‘s definition of a Fourth Amendment
―seizure.‖ But that is not the end of the story, for ―what the
Constitution forbids is not all searches and seizures, but
unreasonable searches and seizures.‖ Elkins v. United States,
364 U.S. 206, 222 (1960) (emphasis added); United States v.
Ritter, 416 F.3d 256, 261 (3d Cir. 2005). In the ordinary
criminal case, arrest and detention of a suspect is reasonable
if it is supported by probable cause, as determined by the
judge who either issues an arrest warrant or conducts a
preliminary hearing. See, e.g., Gerstein v. Pugh, 420 U.S.
103, 111–14 (1975). Gerstein explained that the probable
cause standard ―represents a necessary accommodation
between the individual‘s right to liberty and the State‘s duty
to control crime‖—that is, it is a particular instance of the
Fourth Amendment‘s more general inquiry into overall
reasonableness. Id. at 112. This point is further reflected in
the fact that while a pre-arrest probable cause determination is
to be made by a ―neutral and detached magistrate whenever
possible,‖ the Fourth Amendment admits of ―practical
compromise‖ allowing police to make an on-the-scene
17
probable cause assessment so long as any prolonged restraint
of liberty is supported by a prompt post-arrest judicial
determination that probable cause does in fact exist. Id. at
112–14.
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 Fourth Amendment does not provide an obvious answer
to the substantive question, ―probable cause as to what?‖
This is explained by the fact that ―probable cause, since
before the founding, has always been a term of art of criminal
procedure.‖ al-Kidd I, 580 F.3d at 966. The phrase has
meaning, derived from its common-law origins, that is more
than its two words would reveal if read in isolation. That is,
the term itself supplies an answer to the ―as to what?‖
question. Probable cause demands that the police have
reasonably trustworthy knowledge of facts ―sufficient to
warrant a prudent man in believing that the [arrestee] had
committed or was committing an offense.‖ Beck v. Ohio, 379
U.S. 89, 91 (1964) (emphasis added) (quoted in Gerstein, 420
U.S. at 111; al-Kidd I, 580 F.3d at 966). Stated differently,
―[t]he substance of all the definitions of probable cause is a
reasonable ground for belief of guilt.‖ Brinegar v. United
States, 338 U.S. 160, 175 (1949) (emphasis added) (citations
and internal quotation marks omitted) (quoted in Maryland v.
Pringle, 540 U.S. 366, 371 (2003)).13 See also al-Kidd I, 580
13
Smith‘s opening brief, at 39, quotes the Brinegar
formulation (citing Pringle) but conspicuously elides the phrase
18
F.3d at 966–67 (citing, e.g., Whren v. United States, 517 U.S.
806, 811 (1996); Michigan v. DeFillippo, 443 U.S. 31, 37
(1979); Locke v. United States, 11 U.S. (7 Cranch) 339, 348
(1813) (Marshall, C.J.)). ―Probable cause as used in the
Fourth Amendment is a substantive concept of law. . . . Its
meaning embraces not merely a certain quantum of evidence,
but a certain quantum of evidence related to one and only one
specific thing—the commission of a crime. This has always
been so.‖ Ricardo J. Bascuas, The Unconstitutionality of
―Hold Until Cleared‖: Reexamining Material Witness
Detentions in the Wake of the September 11 Dragnet, 58
Vand. L. Rev. 677, 716–19 (2005). For probable cause to
exist, the evidence available must provide police or the
warrant-issuing magistrate with reasonable grounds to believe
that the person to be arrested is guilty of a crime. This
definition of the term renders it irrelevant to an assessment of
the legality of the seizure of a material witness: ―An arrest of
a material witness is not justified by probable cause because
[the facts that justify such an arrest] do not constitute the
elements of a crime.‖ al-Kidd I, 580 F.3d at 967; see also al-
Kidd II, 131 S. Ct. at 2082, 2083 (discussing the justification
for detaining a person as a material witness in terms of
―individualized reasons to believe that he was a material
witness and that he would soon disappear‖ and
―individualized suspicion,‖ rather than probable cause).14
―of guilt‖—apparently to avoid grappling with the fact that
Schneyder was not arrested or detained because anyone thought
her guilty of a crime.
14
The cases cited for the proposition that probable cause is
the appropriate lens through which to view this case do not engage
in any analysis of the issue, and we can set them aside. See Stone
v. Holzberger, 1994 WL 175420, 1994 U.S. App. LEXIS 231 (6th
Cir.) (unpublished) (requiring that a detained material witness be
19
3
afforded a probable cause hearing without discussing what should
be assessed at such a hearing); White v. Gerbitz, 892 F.2d 457,
460–61 (6th Cir. 1989) (concluding that a material witness‘s arrest
―was supported by probable cause‖ without considering the term‘s
applicability); Bacon v. United States, 449 F.2d 933, 942 (9th Cir.
1979) (stating uncritically that a material witness‘s ―arrest and
detention must be based on probable cause‖). See also Donald Q.
Cochran, Material Witness Detention in a Post-9/11 World:
Mission Creep or Fresh Start?, 18 Geo. Mason L. Rev. 1, 18 &
n.105 (2010) (noting that ―[c]ourts have generally relied on the
Bacon ‗probable cause‘ standard without any discussion of its
reasoning‖).
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.
20
So while the Fourth Amendment applies here, the
probable cause requirement cannot. The Amendment
provides only one standard that could govern this situation: a
seizure of an uncharged material witness is constitutionally
prohibited if it is ―unreasonable.‖15 Schneyder‘s Fourth
15
It can be argued that because (i) the Fourth Amendment
requires that warrants be supported by probable cause, and (ii)
―probable cause,‖ as defined above, cannot exist for a person
seized only as a material witness, the entire practice of issuing
warrants for and arresting material witnesses is unconstitutional.
See al-Kidd II, 131 S. Ct. at 2084–85 (suggesting the possibility of
such an argument but noting that plaintiff in that case had not taken
that position); id. at 2085–86 (Kennedy, J., concurring) (observing
that ―[t]he scope of the [material witness] statute‘s lawful
authorization is uncertain‖ because of a possible conflict with the
Warrants Clause, but indicating that ―material witness arrests
might still be governed by the Fourth Amendment‘s separate
reasonableness requirement for seizures of the person‖); Bascuas,
supra, 58 Vand. L. Rev. at 702–19 (Under ―the one and only
definition of ‗probable cause,‘ the practice of detaining witnesses
[can] not . . . survive[] constitutional analysis. Of course, the
seizure of one innocent of any wrongdoing can never be supported
by ‗probable cause‘ because ‗probable cause‘ for an arrest exists
only where there is reason to believe that the prospective arrestee
committed a crime.‖). Like the plaintiff in al-Kidd, Schneyder
does not argue that all material witness arrests are necessarily
unconstitutional; we therefore do not address that question. We
assume, with the plaintiff, that her initial arrest was legal and that
her detention became unlawful, if at all, once the Overby trial had
been continued. For reasons explained above, the only way to
analyze such a claim under the Fourth Amendment is to inquire
into the reasonableness of the detention. We therefore assume for
present purposes that the reasonableness framework applies, while
leaving for another case the possibility that all arrests made
21
Amendment rights were therefore violated only to the extent
that her detention as a material witness was ―unreasonable‖
within the Fourth Amendment‘s meaning, and Smith is liable
under § 1983 only insofar as she caused Schneyder to endure
such an ―unreasonable‖ detention. See al-Kidd I, 580 F.3d at
968 (interpreting Bacon as having held that a material witness
seizure is ―reasonable‖ where the statutory requirements are
established by a ―probable cause‖ burden of proof).
The ―key principle of the Fourth Amendment‖ is the
balancing of various competing interests. Michigan v.
Summers, 452 U.S. 692, 700 n.12 (1981) (citation omitted).
―To determine the constitutionality of a seizure ‗[we] must
balance the nature and quality of the intrusion on the
individual‘s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the
intrusion.‘‖ Tennessee v. Garner, 471 U.S. 1, 8 (1985)
(quoting United States v. Place, 462 U.S. 696, 703 (1983)).
The question is ―whether the totality of the circumstances
justifie[s] a particular sort of search or seizure.‖ Id. at 8–9.
See also United States v. Awadallah, 349 F.3d 42, 58–64 (2d
Cir. 2003) (applying a balancing analysis to determine
whether the length of a material-witness detention comported
with the Fourth Amendment); Donald Q. Cochran, Material
Witness Detention in a Post-9/11 World: Mission Creep or
Fresh Start?, 18 Geo. Mason L. Rev. 1, 22–24 (2010)
(proposing a rule combining ―probable cause‖ to believe that
the elements of the federal material witness statute are met
with a separate reasonable-duration limitation on the length of
a detention); cf. Zadvydas v. Davis, 533 U.S. 678, 689 (2001)
(reading an implicit ―reasonable time‖ limitation into a
without probable cause as to guilt of a crime, including material
witness arrests, are ipso facto unconstitutional.
22
federal alien detention statute in order to avoid the ―serious
constitutional problem[s]‖ that would face an indefinite
detention provision).
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