dissenting.
I respectfully dissent because I believe the district court erred in holding that Kyle was not entitled to punitive damages as a matter of law. At the time the police decided to hold him more than 48 hours without a warrant and without a probable cause hearing, they may well have suspected he was the murderer they sought. And hindsight tells us they were correct. None of this, however, excuses their conduct in holding Kyle beyond the limits clearly defined by the Supreme Court, if they were aware (as surely they must have been) of their obligation to release him after 48 hours. On this record, we know only that the police claim to have held Kyle longer than permitted because the prosecutor’s office did not prepare charges quickly enough. Indeed, the district court found this excuse unacceptable and found that Kyle’s extended detention violated the Constitution.
In Gerstein v. Pugh, the Supreme Court held that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest,” and that this determination must be either before or “promptly after” arrest. 420 U.S. 103, 114, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The Court then took up the meaning of “prompt” in County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). As a general matter, the Court determined, judicial determinations made within 48 hours of arrest would comport with the requirements of Gerstein, and a person wishing to challenge the reasonableness of the delay would bear the burden of proof. The Court also held that when an arrested person does not receive a probable cause determination within 48 hours, the “burden *699shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” 500 U.S. at 56-57, 111 S.Ct. 1661. The district court here found that the government offered no evidence of emergency or extraordinary circumstances justifying the delay, and that the delay was therefore unconstitutional.
Police officers are not allowed to shift the blame for an illegal detention to the prosecutor. If they acted with deliberateness, recklessness or callous indifference to Kyle’s rights, they may be liable for punitive damages. Here, they are admitting they acted deliberately, albeit with a good motive — to keep a suspected murderer behind bars. The majority concludes that the police were at most “negligent in not keeping their eyes on the clock while Kyle was detained.” But that is a fact question which requires a hearing, and is not appropriate for resolution on summary judgment. I agree that Kyle is not a very sympathetic plaintiff, and a judge or jury may well decide not to punish the officers’ conduct. But the majority’s decision today is made on summary judgment, and this ruling could affect a minor offender who is released on his own recognizance after 61 hours of confinement as much as it affects Kyle. After all, the police conduct is the same in each instance. The majority’s ruling fails to deter police misconduct in cases where an innocent person or a person facing minor charges is being held. I would therefore remand for proceedings on the question of punitive damages.