James Dennis v. City of Philadelphia

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

____________

No. 19-2390
____________

JAMES DENNIS

v.

CITY OF PHILADELPHIA; DETECTIVE FRANK
JASTRZEMBSKI; DETECTIVE MANUEL SANTIAGO;
OFFICERS JOHN DOE(S), INDIVIDUALLY AND AS
POLICE OFFICERS FOR THE CITY OF PHILADELPHIA

FRANK JASTRZEMBSKI; MANUEL SANTIAGO,

Appellants

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-18-cv-02689)
District Judge: Honorable Eduardo C. Robreno

Argued on January 20, 2021
 Before: SMITH, Chief Judge, HARDIMAN and ROTH,
Circuit Judges

(Opinion filed: November 23, 2021)

Shane Haselbarth (ARGUED)
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street
Suite 2300
Philadelphia, PA 19103
Counsel for Appellants

Craig R. Gottlieb
City of Philadelphia
Law Department
17th Floor
1515 Arch Street
Philadelphia, PA 19102
Counsel for Appellee City of
Philadelphia

Paul M. Messing (ARGUED)
David Rudovsky
Kairys Rudovsky Messing Feinberg & Lin
718 Arch Street
Suite 501 South
Philadelphia, PA 19106
Counsel for Appellee James Dennis

2
 O P I N I ON

ROTH, Circuit Judge:

This is an interlocutory appeal from the Order of the
District Court for the Eastern District of Pennsylvania, denying
defendant-appellants’ Motion to Dismiss James Dennis’s
Section 1983 claims. Defendant-appellants are police
detectives with the Philadelphia Police Department, who
investigated Dennis for charges relating to the murder of a
young high-school student in 1991, a crime for which Dennis
was convicted. In 2013, the District Court granted Dennis’s
habeas petition and vacated his murder conviction; that
decision was affirmed by our Court en banc in 2016.1 Shortly
thereafter, Dennis brought the present action, asserting Section
1983 claims against the defendants and alleging, inter alia, the
violation of his constitutional rights under the Fourteenth
Amendment. Defendants moved to dismiss the complaint,
arguing, among other things, that they are entitled to qualified
immunity and that the suit is barred by Heck v. Humphrey.2
After the District Court denied their motion, the detectives
filed this interlocutory appeal.

I.

1
Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 269 (3d
Cir. 2016) (en banc).
2
512 U.S. 477 (1994).

3
 Dennis was charged with the 1991 robbery and first-
degree murder of a young woman, Chedell Williams; he was
convicted and sentenced to death. In 2013, the United States
District Court for the Eastern District of Pennsylvania granted
Dennis’s habeas petition, vacated his conviction, and ordered
a new trial on all charges, finding that Dennis’s prosecutors
withheld material impeachment evidence.3 In August 2016,
our Court, sitting en banc, affirmed the District Court’s
decision and remanded the case to state court.4

On remand, Dennis was offered a deal, in exchange for
a time-served sentence, to plead nolo contendere to reduced
charges of third-degree murder, robbery, carrying a firearm
without a license, possession of an instrument of crime with
the intent to employ it criminally, and conspiracy to commit
robbery. Rather than risk a new trial and the possibility of
further imprisonment, Dennis accepted the deal and was
sentenced to 12½ to 25 years imprisonment; he was given
credit of 9,162 days for the time he had already served in prison
for those crimes, and he was then released.

Shortly thereafter, Dennis brought this action against
Detective Frank Jastrzembski, Detective Manuel Santiago
(collectively, the detectives), Officer John Doe(s), and the City
of Philadelphia for fabrication of evidence and for deliberate
deception under the Fourteenth Amendment of the
Constitution and 42 U.S.C. § 1983 (Count I), civil rights
conspiracy (Count II), failure to intervene (Count III),
supervisory liability against Detective Jastrzembski (Count

3
Dennis v. Wetzel, 966 F. Supp. 2d 489 (E.D. Pa. 2013).
4
Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d at 269.

4
IV), and municipal liability against the City of Philadelphia
(Count V).

Dennis’s complaint alleges that the detectives’
investigation of Williams’ 1991 murder involved conduct that
violated his due process rights. First, Dennis alleges that the
detectives concealed information about other individuals, who
had confessed their involvement with the murder or who knew
who was involved, and that the detectives coerced/concealed
certain other witnesses. Specifically, Dennis alleges that the
detectives never followed up on inconsistencies in statements
made by Zahra Howard, who was with Williams on the day of
her murder. Ms. Howard originally told the detectives that she
never saw the assailants but later told her aunt and uncle that
she recognized the assailants from Olney High School, a
school that Dennis had never attended. Howard’s aunt and
uncle informed the detectives about her statement; it was also
corroborated by the victim’s aunt. This information, which
was recorded in the detectives’ activity logs, was concealed
from Dennis for ten years.

In addition, Dennis alleges that several days after the
murder, Montgomery County law enforcement advised the
Philadelphia Police Department that an inmate in their County
Prison spoke with a man who confessed his involvement in
Williams’s murder. A signed statement from the inmate
included details about all three men involved in the murder and
identified the source of the information. However, defense
trial counsel never received any materials relating to the
investigation of these three individuals; the information was

5
only revealed 10 years later during Post Conviction Relief Act
(PCRA)5 discovery.

Second, Dennis alleges that the detectives fabricated
evidence to secure his conviction. Specifically, Dennis alleges
that the detectives falsely claimed to have found certain
clothing items that matched those of the shooter, as described
by eyewitnesses to the murder. He further alleges that
Detective Jastrzembski falsely testified that the clothing was
found at Dennis’s residence but later “disappeared” from
police headquarters prior to trial. He also alleges that the
detectives coerced and threatened Charles Thompson to testify
falsely at trial that he saw Dennis with a gun the night of the
murder.

Third, Dennis alleges that the detectives concealed
evidence that would have supported his alibi. Specifically,
Dennis’s alibi that he was elsewhere at the time of the murder
would have been corroborated by a witness’s time-stamped
welfare receipt. When questioned by the detectives, the
witness based her time estimates on the receipt’s military-style
timestamp of 13:03 (1:03 PM), which she mistook to mean
3:03 PM. The detectives did not correct the witness when she
misread the receipt’s military-style timestamp while they were
interviewing her; instead, they took the only copy of the receipt
and never shared it with Dennis or the prosecutors. Dennis’s
trial counsel never obtained a copy; the witness testified based
on her earlier misreading of the receipt; and it was not until
direct appeal that a copy of the receipt revealed the witness’s
mistake.

5
42 Pa. Cons. Stat. §§ 9541 et seq.

6
 Dennis also alleges that only four of the nine
eyewitnesses identified by Philadelphia Police had selected
him from the lineup; three of those four testified for the
Commonwealth at Dennis’s trial. After learning this
information, Dennis’s counsel requested a new lineup with all
nine eyewitnesses. The new lineup never occurred.

Defendants moved to dismiss Dennis’s claims under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. They
argued, among other things, that the action is barred by Heck
v. Humphrey6 and that they are entitled to qualified immunity
because Dennis has failed to allege a constitutional violation of
clearly established law. On May 15, 2019, the District Court
partially granted the motion as to the City and denied the
motion as to the detectives. The detectives appealed.

II. SCOPE OF REVIEW

“We exercise de novo review of a district court’s denial
of a motion to dismiss on qualified immunity grounds as it
involves a pure question of law.”7 In reviewing a denial of
qualified immunity at the Rule 12(b)(6) stage of litigation, we
must accept Dennis’s allegations as true and draw all
inferences in his favor.8

6
512 U.S. 477 (1994); Appx. 1–35 (Memorandum Opinion of
the District Court).
7
James v. City of Wilkes–Barre, 700 F.3d 675, 679 (3d Cir.
2012) (citation omitted).
8
George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013).

7
 III. APPELLATE JURISDICTION

The District Court has subject matter jurisdiction over
Dennis’s federal claims under 28 U.S.C. § 1331.9 “Ordinarily
we do not have jurisdiction to review district court orders
denying motions to dismiss . . . because there is no final order
within the meaning of 28 U.S.C. § 1291.”10 However,
in Ashcroft v. Iqbal,11 “the Supreme Court held that a district
court order denying a motion to dismiss based on qualified
immunity [can be] appealable under the collateral order
doctrine.”12 To review a collateral order, the order must
conclusively determine the disputed question.13 A refusal to

9
HIRA Educ. Servs. N. Am. v. Augustine, 991 F.3d 180, 187
(3d Cir. 2021).
10
Acierno v. Cloutier, 40 F.3d 597, 605 (3d Cir. 1994) (citation
omitted).
11
556 U.S. 662, 672–75 (2009).
12
Rehiel, 738 F.3d at 570–71.
13
Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 208 (3d
Cir. 2001) (explaining that collateral orders become
reviewable when they “(1) conclusively determine the disputed
question, (2) resolve an important issue completely separate
from the merits of the action, and (3) be effectively
unreviewable on appeal”); L.R. v. Sch. Dist. of Philadelphia,
836 F.3d 235, 240–41 (3d Cir. 2016) (“[A] district court’s
denial of a claim of qualified immunity, to the extent that it
turns on an issue of law, is an appealable ‘final decision’ within
the meaning of 28 U.S.C. § 1291 notwithstanding the absence
of a final judgment.”).

8
dismiss is a ruling “conclusive as to this right,” for which
immediate appeal is available.14

Before the District Court, the defendants argued that
qualified immunity attaches to any Brady v. Maryland15 claim
because (1) in 1992, when the alleged violations occurred, no
reasonable detective could have known that she could be sued
for a Brady violation by a plaintiff that pled guilty or nolo
contendere, and (2) the police’s Brady obligations were not
clearly established in 1992. The District Court denied the
motion.

In analyzing qualified immunity, the District Court
found that the defendants’ arguments improperly characterized
Dennis’s claims. It found that Dennis had not asserted any
claims involving Brady violations against the detectives, only
claims for fabrication of evidence and deliberate deception.
That said, the District Court left open the opportunity for the
defendants to reassert their qualified immunity defense at a
later date.

Despite leaving open the opportunity for the defendants
to re-raise their qualified immunity defense at a later date, the
District Court’s express denial of qualified immunity is a
conclusive determination of an important issue that is
completely separable from the merits and is unreviewable on
appeal from final judgment.16 This is sufficient to give rise to

14
Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017) (quoting
Behrens v. Pelletier, 516 U.S. 299, 308 (1996)).
15
373 U.S. 83 (1963).
16
Mitchell v. Forsyth, 472 U.S. 511, 512 (1985).

9
appellate jurisdiction over the qualified immunity ruling to the
extent it turns on an issue of law.

Our jurisdiction over this interlocutory appeal does not,
however, extend to the question of whether Dennis’s claims are
barred by Heck. We have discretion to exercise jurisdiction
over a decision that is not independently appealable where (1)
it is “‘inextricably intertwined’” with an appealable decision or
(2) review of the ordinarily non-appealable decision is
“necessary to ensure a meaningful review” of an appealable
decision.17 However, jurisdiction does not exist over a non-
appealable decision simply because it arises out of “‘the same
factual matrix’” of an appealable decision, even if considering
the decisions together would serve judicial efficiency.18

The District Court’s Heck ruling is not inextricably
intertwined with its qualified-immunity ruling, nor is
reviewing the Heck ruling necessary to ensure a meaningful
review of the qualified-immunity ruling. A Heck inquiry turns
on “whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence.”19 By contrast, a qualified immunity inquiry turns
on “(1) whether the plaintiff sufficiently alleged the violation
of a constitutional right, and (2) whether the right was ‘clearly
established’ at the time of the official’s conduct.”20 These

17
Reinig v. RBS Citizens, N.A., 912 F.3d 115, 130 (3d Cir.
2018) (quoting CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc.,
381 F.3d 131, 136 (3d Cir. 2004)).
18
Id. (quoting Hoxworth v. Blinder, Robinson & Co., 903 F.2d
186, 209 (3d Cir. 1990)).
19
512 U.S. at 487.
20
L.R., 836 F.3d at 241.

10
inquiries are distinct and separable. In addition, the Heck issue
“is effectively reviewable on appeal. . . . [U]nlike immunity
rights where the right is lost if the case goes to trial, an
appellate court can reverse the district court after entry of a
final judgment without departing from the holding or purpose
of Heck.”21 Accordingly, a number of our sister Courts of
Appeals have held that they lack jurisdiction to consider Heck
on an interlocutory appeal from denial of qualified immunity.22

The detectives try to bring Heck within our jurisdiction
by shoehorning Heck into the qualified immunity analysis.
They cite Ashcroft v. Iqbal, where the Supreme Court held that
“whether a particular complaint sufficiently alleges a clearly
established violation of law cannot be decided in isolation from
the facts pleaded. In that sense, the sufficiency of [a] pleading
is both ‘inextricably intertwined with,’ and ‘directly implicated
by,’ the qualified-immunity defense.”23 The detectives
essentially argue that, if Heck bars Dennis’s claims, he has
failed to state a claim upon which relief can be granted, and

21
Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000).
22
See id. at 1285; Sayed v. Virginia, 744 F. App’x 542, 547–
49 (10th Cir. 2018) (collecting cases); Harrigan v. Metro Dade
Police Dep't Station No. 4, 636 F. App’x 470, 476 (11th Cir.
2015); Norton v. Stille, 526 F. App’x 509, 515 (6th Cir. 2013);
Scott v. City of Pasadena, 373 F. App’x 759 (9th Cir. 2010).
To be sure, circuit courts have not been unanimous on this
issue. However, courts that have considered Heck on an
interlocutory appeal have generally done so without explaining
in detail the basis for their jurisdiction. See, e.g., Poole v. City
of Shreveport, 13 F.4d 420, 426–27 (5th Cir. 2021); Lucier v.
City of Ecorse, 601 F. App’x 372, 376 (6th Cir. 2015).
23
556 U.S. at 673.

11
thus failed to allege sufficiently the violation of a constitutional
right.

The detectives’ argument fails because it papers over
the difference between Heck and the typical analysis under
Rule 12(b)(6) that was contemplated by Iqbal. The typical
analysis requires a court to measure the alleged facts against
the elements of a claim. This analysis clearly and substantially
overlaps with the process of determining whether a plaintiff
has sufficiently alleged the violation of a constitutional right.
By contrast, the Heck analysis requires a court to compare the
asserted claims and requested relief with a preexisting
conviction or sentence; the plaintiff must demonstrate that the
prior conviction or sentence has been “reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such a determination, or
called into question by a federal court’s issuance of a writ of
habeas corpus.”24 This analysis involves different facts, and a
different legal framework, than the process of determining
whether a plaintiff has sufficiently alleged the violation of a
constitutional right. For that reason, the typical analysis under
Rule 12(b)(6) is inextricably intertwined with a denial of
qualified immunity, but under Heck it is not.

Accordingly, although we have jurisdiction in this
interlocutory appeal to consider the District Court’s denial of
the detectives’ qualified immunity defense, we do not have
jurisdiction at this time to consider their arguments under
Heck.

24
Heck, 512 U.S. at 486–87.

12
 IV. DISCUSSION

Turning to the merits of the qualified immunity defense,
the detectives present two arguments aside from the one they
advance under Heck. First, the detectives contend that Dennis
failed to allege a constitutional violation because he does not
assert a Fourth Amendment claim. Second, they argue that
qualified immunity attaches because the constitutional claims
asserted do not involve rights that were clearly established in
1992, when the alleged violations took place.

Qualified immunity shields officials from civil liability
“insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”25 As noted, when analyzing a qualified
immunity claim, we consider “(1) whether the plaintiff
sufficiently alleged the violation of a constitutional right, and
(2) whether the right was ‘clearly established’ at the time of the
official’s conduct.”26 The detectives challenge both these
holdings. We address each in turn.

A. Violation of a Constitutional Right

1. Fourth Amendment

The detectives first assert that Dennis failed to
sufficiently allege a constitutional violation because he did not
plead a Fourth Amendment claim. In response, Dennis
contends that the detectives waived this argument by failing to

25
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
26
L.R., 836 F.3d at 241.

13
raise it before the District Court and by raising it for the first
time in this appeal. We agree with Dennis.

Generally, appellate courts refuse to consider issues not
raised by the parties below.27 To preserve an argument, a party
must “unequivocally put its position before the trial court at a
point and in a manner that permits the court to consider its
merits.”28 Although the parties are precluded from raising
new arguments, they may “place greater emphasis” on an
argument or “more fully explain an argument on
appeal.”29 The parties may even “reframe”
their argument “within the bounds of reason.” That is not
30

what the detectives did in this case.

Only now, before this Court, the detectives argue for the
first time in this litigation that Dennis cannot sufficiently allege
a constitutional violation because his claims are cognizable
only under the Fourth Amendment. Specifically, the detectives
contend that a claim for deprivation of liberty, when premised
on “the fabrication of evidence by a government officer,” has
only been recognized under the Fourteenth Amendment where
the government officer involved was a prosecuting attorney
and not a police officer. Accordingly, they argue that Dennis’s
Section 1983 claims for fabricated evidence and deliberate
deception by police officers can only be brought under the
Fourth Amendment, and not the Fourteenth Amendment.

27
Gen. Refractories Co. v. First State Ins. Co., 855 F.3d 152,
162 (3d Cir. 2017).
28
Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d
Cir. 1999).
29
United States v. Joseph, 730 F.3d 336, 341 (3d Cir. 2013).
30
Id.

14
Because the detectives did not present this argument to the
District Court, we decline to reach its merits.31

B. Clearly Established Law

The detectives argue that none of Dennis’s claims assert
the violation of a right that was clearly established in 1992.
They group Dennis’s claims into three categories: (1) a
catchall improper investigation claim, (2) a deliberate
deception claim, and (3) an evidence fabrication claim.
However, the improper investigation grouping does not
accurately reflect Dennis’s complaint; the complaint does not
contain a catchall claim for improper investigation. Indeed,
Count I, at issue here, contains claims for the detective’s
deliberate deception and for evidence fabrication.
Accordingly, the issue we must consider is the following:
whether the violation of due process by evidence fabrication
and by deliberate deception as alleged in Counts I(A) and I(B)
was clearly established in 1992.

A clearly established right is one that is so apparent that
“every reasonable official would understand that what he is
doing is unlawful.”32 Absent existing precedent that places
“the statutory or constitutional question beyond debate,” such

31
If we had reached the merits, we would have permitted the
types of claims presented here to be pursued under the
Fourteenth Amendment. See, e.g., Black v. Montgomery Cty,
835 F.3d 358, 370 (3d Cir. 2016); Halsey v. Pfeiffer, 750 F.3d
273, 294 (3d Cir. 2014).
32
James v. N.J. State Police, 957 F.3d 165, 169 (3d Cir. 2020)
(quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018)).

15
an understanding will not be attributed to an official.33 As the
Supreme Court has emphasized, the right must be defined with
a “high ‘degree of specificity’” to be clearly established.34
That said, we do not require that the prior precedent have
indistinguishable facts.35

Only controlling precedent in the relevant jurisdiction
can place a constitutional question beyond debate.36
Nevertheless, context matters when qualified immunity is at
issue and the “inquiry ‘must be undertaken in light of the
specific context of the case, not as a broad general
proposition.’”37

First, citing McDonough v. Smith,38 the detectives
contend that a fabrication of evidence claim has been
recognized under the Fourteenth Amendment only where the
government officer involved in fabricating evidence was a
prosecuting attorney. Not so. In Halsey v. Pfeiffer, we
concluded that it was axiomatic that “those charged with
upholding the law are prohibited from deliberately fabricating
evidence and framing individuals for crimes they did not

33
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
34
Wesby, 138 S. Ct. at 590 (quoting Mullenix v. Luna, 577 U.S.
7, 13 (2015) (per curiam)).
35
al-Kidd, 563 U.S. at 741. (“We do not require a case directly
on point, but existing precedent must have placed the statutory
or constitutional question beyond debate.”).
36
Wilson v. Layne, 526 U.S. 603, 617 (1999).
37
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
38
139 S. Ct. 2146, 2155 (2019).

16
commit.”39 Halsey involved an evidence fabrication claim
under the Fourteenth Amendment brought against police
officers. We emphasized that the Supreme Court decades ago
had established that the Constitution forbids those tasked with
upholding the law from knowingly using falsified evidence to
secure a criminal conviction.40

The detectives argue that Halsey cannot govern here
because it is not particularized to the facts of this case. They
claim that Halsey dealt with police officers coercing a false
statement via a forceful and relentless interrogation of the
suspect for more than eight hours, during which the
investigators inserted non-public information into the
confession. But a case that is directly on point is not required
so long as the precedent placed the constitutional question
beyond debate. Halsey did so, recognizing prior precedent that
held the fabrication of evidence by law enforcement officers
violates the Fourteenth Amendment and that such a right had
been established since at least 1985.41 No more need be said
as to the stand-alone fabrication of evidence claim than:

39
750 F.3d 273, 296 (3d Cir. 2014) (quoting Limone v.
Condon, 372 F.3d 39, 45 (1st Cir. 2004)).
40
Id.
41
Halsey, 750 F.3d at 296 (citing Pyle v. Kansas, 317 U.S. 213,
216 (1942), which held that the defendant alleged a violation
of his due process rights where his conviction was secured by
the use of perjured testimony and the refusal of defense
witnesses to testify obtained through threats made by local
policing authorities); see also Miller v. Pate, 386 U.S. 1, 7
(1967) (“More than 30 years ago this Court held that the
Fourteenth Amendment cannot tolerate a state criminal
conviction obtained by the knowing use of false evidence.”).

17
Halsey established that sufficiently particularized precedent
placed these detectives on notice that fabricating evidence to
convict a criminal defendant is unconstitutional, regardless of
whether that evidence is inserted into a confession to “bring
about” his prosecution or to help secure his conviction. 42

Second, turning to Dennis’s deliberate deception claim,
the detectives contend that this claim is based on the right not
to be framed by law enforcement agents, which is too broadly
worded and was not established until 1995, when the Supreme
Court decided Kyles v. Whitley.43

The right not to be convicted on perjured testimony used
by prosecutors at trial has been clearly established by the
Supreme Court since at least 1935 in Mooney v. Holohan.44
Seven years later, in Pyle v. Kansas, 317 U.S. 213, 216 (1942),
the Court extended this right by recognizing as a due process
violation the conviction of a defendant through perjured
testimony and the deliberate suppression of evidence favorable
to the accused.

Moreover, “general statements of the law are not
inherently incapable of giving fair and clear warning, and in
other instances a general constitutional rule already identified

42
Halsey, 750 F.3d at 296 (recognizing stand-alone claim).
43
514 U.S. 419 (1995).
44
294 U.S. 103, 112 (1935) (holding due process not satisfied
where “a state has contrived a conviction through the pretense
of a trial which in truth is but used as a means of depriving a
defendant of liberty through a deliberate deception of court and
jury by the presentation of testimony known to be perjured”);
Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004).

18
in the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in
question has not previously been held unlawful.”45 We
conclude that the constitutional rule that framing criminal
defendants through use of fabricated evidence, including false
or perjured testimony, violates their constitutional rights
applies with such obvious clarity that it is unreasonable for us
to conclude anything other than that the detectives were on
sufficient notice that their fabrication of evidence violated
clearly established law. Thus, the District Court did not err in
denying the motion to dismiss on qualified immunity grounds
as to the due process claim in Count I(A) for the detective’s
fabricated evidence—here their false statements and testimony
as to Dennis’s clothing, Thompson’s false testimony procured
by threats and coercion, and their concealment of evidence that
they knew revealed a witness’s trial testimony as false.

As to the detectives’ citation to Gibson v.
Superintendent,46 that case provides some guidance on the
claim in Count I(B) for deliberate deception, but it does not
support reversing the District Court’s denial of the motion to
dismiss this claim on qualified immunity grounds. Gibson
stated that the Supreme Court did not settle the principle that
evidence in the hands of police could be imputed to the
prosecutor until 1995, when it decided Kyles v. Whitley.47 This
principle, however, is separate from the right not to be framed

45
United States v. Lanier, 520 U.S. 259, 271 (1997) (internal
quotations and brackets omitted).
46
411 F.3d 427 (3d Cir. 2005) , overruled on other grounds as
recognized by Dique v. N.J. State Police, 603 F.3d 181, 182
(3d Cir. 2010).
47
514 U.S. 419 (1995).

19
by the use of perjured witness testimony at trial that was
recognized by the Supreme Court in Mooney48 or by the
detectives’ own perjured testimony at trial recognized by our
Court in Curran v. Delaware.49

The detectives contend that they are entitled to qualified
immunity from the deliberate deception claim because they
could not reasonably anticipate what the prosecutors might fail
to turn over at trial. This argument brings us back to the
detectives’ argument that their Brady obligation was not
clearly established in 1992. Such an argument
mischaracterizes Dennis’s claim as one for Brady violations—
not, as it was pled, a claim for violation of Dennis’s due process
rights to a fair trial caused by the detectives’ deliberate
deception. We decline to mischaracterize Dennis’s deliberate
deception claim in such a manner.

Dennis did not limit his deliberate deception claim to
a mere failure to disclose exculpatory and impeachment
evidence; rather, he claims the detectives violated his due
process rights to a fair trial by “concealing and/or suppressing
relevant and material evidence”50 as part of a larger scheme to
deliberately deceive the court and frame him for Williams’s
murder. As the District Court noted, Dennis does not seek
relief from the detectives for Brady violations. To
recharacterize Dennis’s claims simply as Brady claims would
run afoul of the longstanding principle that the plaintiff, as the
master of the complaint, is free to choose between legal

48
294 U.S. at 103.
49
259 F.2d 707, 713 (3d Cir. 1958).
50
App’x 72 (Complaint ¶¶ 94, 96).

20
theories,51 and a defendant cannot create a cause of action from
the fact pattern on behalf of the plaintiff. “It is the party suing,
not the party sued, who enjoys the right to frame the claims
asserted in a complaint.”52

Here, Dennis’s separate claim under Count I(B) for
deliberate deception as a violation of his due process rights
relies in part on the detective’s failure to disclose certain
exculpatory and impeachment evidence, which appears
problematic in the face of a qualified immunity defense.
Specifically, the detectives argue that a plaintiff can only bring
a Brady claim against police officers by alleging that they
affirmatively concealed evidence, i.e., by alleging that police
officers deliberately suppressed the evidence. Thus, to allege
a deliberate deception claim against police officers, the
detectives conclude that a plaintiff must allege a Brady claim.
We disagree and will not restrict Dennis to a simple Brady
claim.53 But the label Dennis chooses also does not answer
whether the detectives are entitled to qualified immunity on the
claim Dennis brought.

A Brady claim, in essence, is a claim by a defendant that
this due process rights were violated by the failure to disclose
exculpatory or impeachment evidence to the defense, while a
claim for deliberate deception in violation of due process must
go beyond the failure to disclose evidence and arises when
imprisonment results from the knowing use of false testimony
or other fabricated evidence or from concealing evidence to

51
Caterpillar, Inc. v. Williams, 482 U.S. 386, 398–99 (1987).
52
Haley v. City of Bos., 657 F.3d 39, 49 (1st Cir. 2011).
53
Haley, 657 F.3d at 49 (quoting Condon, 372 F.3d at 47).

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create false testimony to secure a conviction.54 To be clear, a
deliberate deception claim against police officers and a Brady
claim are not necessarily coterminous. In other words, a
plaintiff alleging a claim against police officers for violation of
due process rights by deliberate deception to the court need not
bring a Brady claim. Yet, to survive the qualified immunity
defense, the claim brought must involve a right with
sufficiently clear contours that every reasonable officer would
have understood that what he is doing violates that right—and
a generalized notion that deliberate deception violates due
process will not do.55

The case at bar is a paradigm example: Dennis’s
deliberate deception claim not only alleges that the Detectives
withheld exculpatory and impeachment evidence that would
have supported his alibi and defense, but that they also failed
to correct testimony they knew was false and concealed from
the defense the evidence that revealed that trial testimony as
false. These allegations go beyond asserting a mere Brady
violation and allege that, in an effort to secure Dennis’s
conviction, the detectives knowingly deceived the court and

54
See Mooney, 294 at 112.
55
See al-Kidd, 563 U.S. at 741 (“A Government official’s
conduct violated clearly established law when, at the time of
the challenged conduct, ‘the contours of a right are sufficiently
clear’ that every ‘reasonable official would have understood
that what he is doing violates that right.’”) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)).

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the jury through false testimony in violation of Dennis’s due
process rights.56

Because Dennis’s claim for violation of his due process
rights by deliberate deception under Count 1(B) encompasses
allegations that the detectives concealed or suppressed the
time-stamped receipt to produce false trial testimony, Gibson
does not control. Instead, Mooney, Halsey, Pyle, and Curran
do. For those reasons, we will affirm the District Court’s
denial of the motion to dismiss Dennis’s deliberate deception
claim on qualified immunity grounds.

V.

Based on the foregoing, we hold that Dennis has alleged
under Count I(A) and Count I(B) the violation of his due
process rights clearly established at the time of the detective’s
conduct on which the claims are based. Accordingly, we will
affirm the District Court’s denial of the detectives’ motion to
dismiss on qualified immunity grounds. Because we do not
have jurisdiction on this interlocutory appeal of the District
Court’s ruling that the Heck bar does not apply, we will dismiss
without prejudice the appeal of that issue. We remand this
action to the District Court.

56
We recognize that the witness falsely testified through no
fault of her own—she misread a welfare receipt’s military-
style time-stamp in making statements to the detectives when
they interviewed her and she repeated that mistake at trial—
but note that the detectives knew of the error and not only did
nothing to correct it, they concealed the evidence that would
have corrected it. This resulted in false testimony at trial.

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