Nicole Schneyder v. Gina Smith , 653 F.3d 313 ( 2011 )


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  •                             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 CId. at 796
    . The premise of this formula is that detention is
    reasonable where the expected cost to the public of releasing
    the detainee exceeds the expected cost to the individual of
    being imprisoned. So as the cost to the plaintiff of being
    confined increases (e.g., as the incarceration grows longer),
    so too must the magnitude of the harm to be prevented, or the
    likelihood of that harm (or both), if PH is to keep pace with C
    and thus continue to justify confinement. This analysis
    resembles Learned Hand‘s famous negligence test, see United
    States v. Carroll Towing Co., 
    159 F.2d 169
    , 173 (2d Cir.
    1947), for good reason: ―The test of negligence at common
    law and of an unlawful search or seizure challenged under the
    Fourth Amendment is the same: unreasonableness in the
    circumstances.‖ Villanova, 
    972 F.2d at 796
    ; see also
    Awadallah, 
    349 F.3d at 59
     (balancing a material witness‘s
    liberty interests against the government‘s interest in a
    successful terrorism prosecution). However helpful Judge
    Posner‘s approach may be, of course, courts must in the end
    bear in mind that ―the application of standards that can be
    expressed in algebraic terms still requires the exercise of
    judgment, implying elements of inescapable subjectivity and
    intuition in the decisional calculus.‖ Villanova, 
    972 F.2d at
    23
    796 (citing Abbott Labs. v. Mead Johnson & Co., 
    971 F.2d 6
    (7th Cir. 1992)).
    Here, the alleged problem with Schneyder‘s detention
    is that it went on for an unreasonable length of time—i.e.,
    longer than the facts of the case warranted. On the ―cost to
    the plaintiff‖ side of the ledger we have Schneyder‘s obvious
    and quite substantial interest, as a citizen not accused of any
    crime, in being free from incarceration. On the other side, we
    have the significant harm that might have been done to the
    Commonwealth‘s case against Overby, and thus to the overall
    justice system, by the failure of a critical witness to testify.
    At the time Schneyder was arrested, the likelihood of that
    harm was high, as she clearly did not intend to appear in
    court. Given the relatively brief period of time that she would
    have had to spend in jail (a maximum of some 19 days, had
    Schneyder been released on the date of Judge Means‘
    scheduled informal status hearing) in order to remain
    available for a February 2 trial, we may suppose that her
    initial arrest and detention were reasonable: the potential cost
    to Schneyder was not terribly high in comparison with the
    risk that the prosecution would fall apart in her absence.16
    This balance, Schneyder argues (or should have
    argued, had she framed her complaint in terms of
    reasonableness rather than probable cause), was upset when
    the trial was pushed back more than three months. While the
    potential harm to the prosecution‘s case remained the same,
    16
    Schneyder‘s counsel conceded at oral argument that
    ―there was probable cause to detain [Schneyder] initially‖; we
    assume that he would likewise concede that the arrest and
    detention until February 2 were ―reasonable‖ under the framework
    that we have set out.
    24
    the weight of Schneyder‘s liberty interest grew considerably:
    instead of the twelve days that were left before the scheduled
    status hearing on the date of the continuance, she was
    suddenly looking at some 131 days in jail before the trial
    would even start.17 Even if the risk to the public interest
    remained high, a jury could find that the cost to Schneyder of
    being imprisoned outweighed the state‘s interest in holding
    her for that extra time. Moreover, a jury could conclude that
    the risk of harm (that is, P) was not as great as the
    government would have it. Schneyder seems not to have
    been especially difficult to apprehend (an officer picked her
    up on the same night that the warrant issued), and there is
    evidence that being arrested had impressed on her the gravity
    of the situation and had thus made it more likely that she
    would show up for court. A reasonable jury could find that
    Schneyder‘s prolonged detention became unreasonable once
    the case had been continued.18
    17
    In point of fact, Schneyder‘s wait could well have been
    much longer: Overby‘s third trial ended in a hung jury on
    November 1, 2006, and he was not finally convicted until February
    20, 2007—more than two years after Schneyder‘s initial arrest.
    18
    It is a mistake to argue that Smith‘s failure to comply
    with Judge Means‘ order was the essence of the alleged Fourth
    Amendment violation. A state judge‘s order cannot have created a
    federal constitutional right where none otherwise existed. The
    Fourth Amendment‘s reasonableness standard is an objective one,
    see Scott, 
    550 U.S. at
    381 (citing Graham v. Connor, 
    490 U.S. 386
    ,
    388 (1989)), that relies on a balancing of competing interests, as
    discussed above. Judge Means‘ words cannot have had any
    bearing on the relative weights of those interests, although it may
    have altered Schneyder‘s subjective (and therefore irrelevant)
    expectations. See al-Kidd II, 
    131 S. Ct. at 2080
     (―Fourth
    Amendment reasonableness is predominantly an objective inquiry.
    . . . This approach recognizes that the Fourth Amendment
    25
    4
    Schneyder has thus made out a prima facie case that
    she suffered a Fourth Amendment violation. Section 1983
    also requires her to show that Smith was a legal cause of her
    unreasonable detention. See Martinez v. California, 
    444 U.S. 277
    , 284–85 (1980); Rivas v. City of Passaic, 
    365 F.3d 181
    ,
    regulates conduct rather than thoughts; and it promotes
    evenhanded, uniform enforcement of the law.‖) (citations and
    internal quotation marks omitted); Whren, 
    517 U.S. at 814
     (―[T]he
    Fourth Amendment‘s concern with ‗reasonableness‘ allows certain
    actions to be taken in certain circumstances, whatever the
    subjective intent.‖).
    Nor can Judge Means‘ statements constitute a ruling that
    further detention in the event of a delay in trial would be
    unreasonable. Such an ex ante assessment cannot take into
    account all of the circumstances surrounding a given incident:
    Judge Means cannot have known at the time of Schneyder‘s bail
    hearing how long the delay would be; nor could he have taken into
    account the possibility that the likelihood that Schneyder would
    appear if freed might change. At most, Judge Means‘ assessment
    might have provided some rule-of-thumb guidance. It was not a
    binding determination of Fourth Amendment reasonableness.
    Finally, we note that while Judge Means‘ order may have
    placed an obligation upon Smith, that obligation was one that she
    owed to the court rather than to Schneyder. The proper remedy for
    the violation of such an order is a disciplinary proceeding or a
    contempt charge, not a § 1983 suit by a third party. That is, Smith
    owed two overlapping duties: One to the court, which obligated
    her to obey the judge‘s order and which the court may enforce in
    the same manner as any other order; and another to Schneyder,
    which obligated Smith not to violate any constitutional rights and
    which Schneyder may seek to enforce through civil-rights
    litigation.
    26
    193 (3d Cir. 2004); Bodine v. Warwick, 
    72 F.3d 393
    , 400 (3d
    Cir. 1995) (citing Restatement (Second) of Torts §§ 431,
    440–53, and finding no proximate causation in a § 1983
    excessive-force case). In tort law a person‘s action is a legal
    cause of another‘s injury if ―his conduct is a substantial factor
    in bringing about the harm.‖ Restatement (Second) of Torts §
    431. ―Lurk[ing]‖ in this understanding of causation is ―the
    idea of responsibility‖; the real question is whether an
    ordinary person would regard the act in question as having
    caused the harm, ―in the popular sense.‖ Id. cmt. a.
    On the facts before us, we conclude that Schneyder has
    made her case. The District Court summarized much of the
    relevant evidence in the course of making a slightly different
    point:
    [There was] deposition testimony: (1) that the
    duty to notify Judge Means of a trial
    continuance did not rest [on] the Sheriff‘s
    Office, the Philadelphia prison system, or the
    court administration; (2) from Public Defender
    Paul Conway that defendant ―was the only one
    that ha[d] the information that [Judge Means]
    needed for him to make the decision‖ on
    plaintiff's continued detention; (3) from court
    personnel working in the chambers of Judges
    Poserina19 and Means that defendant‘s failure to
    notify Judge Means would not comport with
    their understanding of usual court practice and
    procedure; and (4) that following the release of
    Korvel Odd on January 13, 2005—who was
    kept in custody for 37 days after the criminal
    19
    Judge John J. Poserina presided in Overby.
    27
    case for which he was detained as a material
    witness was dismissed—assistant district
    attorneys were briefed on safeguards to ensure
    that no material witnesses were detained
    improperly.        These safeguards included
    centralizing procedures that required assistant
    district attorneys to seek a supervisor‘s approval
    of a material witness petition before presenting
    it to the judge; to present the petition to the
    judge assigned to the underlying criminal case;
    and to monitor the status of witnesses through
    the computer system to ensure that they were
    released promptly. Both Homicide Unit Chief
    Edward McCann and his assistant, Ann
    Ponterio, agreed that they ―indicated to the unit‖
    in January 2005 ―that when a witness is in
    custody and a case is either over, or is
    continued, or is guilty, or anything that we must
    make sure that the witness is released from
    custody.‖
    709 F. Supp. 2d. at 381–82 (citations omitted). In addition to
    this evidence, Judge Means‘ various statements, in chambers
    and on the record, are relevant in that they indicate that he
    was reliant on Smith to keep him apprised of Overby‘s status
    so that he could monitor the continued reasonableness of
    Schneyder‘s detention. Perhaps most importantly, Smith was
    the only official who was in a position to do anything about
    Schneyder‘s incarceration. She was responsible for the
    issuance of the warrant and Schneyder‘s subsequent arrest,
    and there does not appear to be anyone else she can point to
    as being obligated to take steps to aid the court in monitoring
    the continued reasonableness of the detention—including by
    28
    informing the court that the trial date had changed. As Smith
    should have been well aware, it is the court‘s role—not a
    prosecutor‘s—to assess the legality of an incarceration, and to
    do so on a continuing basis and in light of changes in the
    underlying facts. Smith also should have known that the
    court would be unable to fulfill this function without a good-
    faith effort on her part to keep Judge Means abreast of
    developments in the Overby case. Schneyder has presented
    sufficient evidence from which a jury could conclude that
    Smith‘s failure to advise the court of the continuance was a
    substantial factor in causing her Fourth Amendment injury.20
    Smith‘s duty as a state official not to cause the
    violation of anyone‘s constitutional rights demanded that she
    advise the court of any substantial change in the
    circumstances justifying Schneyder‘s seizure as a material
    witness. Smith was not required to advocate for Schneyder‘s
    release; she was obligated to provide the court with the
    information it needed to properly perform its adjudicative
    function. A jury could find that she breached this duty, and
    20
    We recognize the potential here for a superseding cause
    argument: Judge Means‘ independent will stood in between
    Smith‘s disclosure of the continuance and Schneyder‘s liberation,
    so Smith‘s omission cannot have been a proximate cause of
    Schneyder‘s injuries. See, e.g., Troup v. Sarasota Cnty., 
    419 F.3d 1160
    , 1166 (11th Cir. 2005) (finding no causation in a § 1983 case
    where ―the continuum between Defendant‘s action and the ultimate
    harm is occupied by the conduct of deliberative and autonomous
    decision-makers‖) (citation and internal quotation marks omitted).
    Proximate cause is, however, generally a question for the jury, see
    Rivas, 
    365 F.3d at 193
    , and there is ample evidence that Judge
    Means would have released Schneyder without hesitation had
    Smith lived up to her obligations.
    29
    thereby proximately caused a violation of Schneyder‘s Fourth
    Amendment rights.
    5
    To summarize what we have said so far: The liberty
    interests of a detained material witness are protected by the
    Fourth Amendment, because this court adheres to Justice
    Ginsburg‘s ―continuing seizure‖ theory.            Schneyder‘s
    detention was a seizure, but because she was not arrested as a
    criminal suspect ―probable cause‖ is the wrong lens through
    which to examine the case. Instead, to determine whether her
    rights were violated we must assess whether the seizure was
    ―reasonable‖ within the Fourth Amendment‘s meaning. This
    requires balancing Schneyder‘s interests against the
    government‘s, and a jury could conclude that Schneyder‘s
    interest in going free outweighed the government‘s interest in
    keeping her locked up until the new trial date. If Schneyder‘s
    rights were violated, Smith was the only official in a position
    to prevent it—by keeping Judge Means informed of
    significant changes in the facts underlying the detention
    order. Smith‘s duty not to cause a violation of Schneyder‘s
    constitutional rights required her to promptly report the
    continuance in the Overby case to Judge Means—though she
    would have been free to argue that continued detention was
    warranted even in light of the new facts. Because Smith did
    not fulfill this obligation, Schneyder has made out a prima
    facie case for recovery of damages under § 1983.
    B
    Because the foregoing discussion takes place in the
    context of qualified immunity, our inquiry is not complete.
    We still must decide whether the duty we have just identified
    30
    was clearly established at the time the violation occurred.
    Ordinarily a constitutional duty is not clearly established
    simply because of the existence of a broad imperative like the
    one against ―unreasonable . . . seizures.‖ ―[I]f the test of
    ‗clearly established law‘ were to be applied at this level of
    generality, it would bear no relationship to the ‗objective
    legal reasonableness‘ that is the touchstone of Harlow.‖
    Anderson v. Creighton, 
    483 U.S. 635
    , 639 (1987). Thus the
    usual rule is that ―the right the official is alleged to have
    violated must have been ‗clearly established‘ in a more
    particularized, and hence more relevant, sense: The contours
    of the right must be sufficiently clear that a reasonable
    official would understand that what he is doing violates that
    right.‖ 
    Id. at 640
    .
    Although Anderson appears to require a relatively high
    degree of specificity before a rule can be called ―clearly
    established,‖ the Court was at pains to emphasize that ―[t]his
    is not to say that an official action is protected by qualified
    immunity unless the very action in question has previously
    been held unlawful, but it is to say that in the light of pre-
    existing law the unlawfulness must be apparent.‖ 
    Id.
     (citation
    omitted). The Court further expounded this principle in a line
    of cases beginning with United States v. Lanier, 
    520 U.S. 259
    (1997). The ultimate question, the Court explained, is
    whether the defendant had ―‗fair warning‘ that his conduct
    deprived his victim of a constitutional right.‖ Hope v. Pelzer,
    
    536 U.S. 730
    , 740 (2002) (quoting Lanier, 
    520 U.S. at
    270–
    71). The Court went on:
    [G]eneral statements of the law are not
    inherently incapable of giving fair and clear
    warning, and . . . a general constitutional rule
    already identified in the decisional law may
    31
    apply with obvious clarity to the specific
    conduct in question, even though ―the very
    action in question has [not] previously been
    held unlawful.‖
    Lanier, 
    520 U.S. at 271
     (quoting Anderson, 
    533 U.S. at 640
    ).
    Most recently, the Court has reiterated:
    To be established clearly . . . there is no need
    that ―the very action in question [have]
    previously been held unlawful.‖ . . .
    [O]utrageous conduct obviously will be
    unconstitutional, this being the reason, as Judge
    Posner has said, that ―[t]he easiest cases don‘t
    even arise.‖ But even as to action less than an
    outrage, ―officials can still be on notice that
    their conduct violates established law . . . in
    novel factual circumstances.‖
    Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. ---, 
    129 S. Ct. 2633
    , 2643 (2009) (quoting Wilson v. Layne, 
    526 U.S. 603
    , 615 (1999); K.H. ex rel. Murphy v. Morgan, 
    914 F.2d 846
    , 851 (7th Cir. 1990); Hope, 
    536 U.S. at 741
    ).
    ―To determine whether a new scenario is sufficiently
    analogous to previously established law to warn an official
    that his/her conduct is unconstitutional, we ‗inquir[e] into the
    general legal principles governing analogous factual
    situations . . . and . . . determin[e] whether the official should
    have related this established law to the instant situation.‘‖
    Burns v. Pa. Dep’t of Corr., 
    642 F.3d 163
    , 177 (3d Cir. 2011)
    (quoting Hicks v. Feeney, 
    770 F.2d 375
    , 380 (3d Cir. 1985))
    (alterations in original). In extraordinary cases, a broad
    principle of law can clearly establish the rules governing a
    32
    new set of circumstances if the wrongfulness of an official‘s
    action is so obvious that ―every objectively reasonable
    government official facing the circumstances would know
    that the official‘s conduct did violate federal law when the
    official acted.‖ Vinyard v. Wilson, 
    311 F.3d 1340
    , 1351 (11th
    Cir. 2002). A plaintiff ―can demonstrate that the right was
    clearly established by presenting a closely analogous case that
    establishes that the Defendants‘ conduct was unconstitutional
    or by presenting evidence that the Defendant‘s conduct was
    so patently violative of the constitutional right that reasonable
    officials would know without guidance from a court.‖ Estate
    of Escobedo v. Bender, 
    600 F.3d 770
    , 779–80 (7th Cir. 2010)
    (citing Hope, 
    536 U.S. at
    739–40). ―There has never been a
    section 1983 case accusing welfare officials of selling foster
    children into slavery; it does not follow that if such a case
    arose, the officials would be immune from damages liability
    because no previous case had found liability in those
    circumstances.‖ K.H., 
    914 F.2d at 851
    .
    Although we are aware of no decision predating
    Smith‘s actions that involved the sort of claim that Schneyder
    has raised here, we are nevertheless convinced that this is one
    of those exceedingly rare cases in which the existence of the
    plaintiff‘s constitutional right is so manifest that it is clearly
    established by broad rules and general principles. That is,
    this ought to have been a member of that class of ―easiest
    cases‖ that, according to Judge Posner, ―don‘t even arise.‖
    Id.; Redding, 129 S. Ct. at 2643. One of the ―point[s] of the
    Fourth Amendment‖ is to require that decisions involving
    citizens‘ security from searches and seizures be made
    wherever practicable by a ―neutral and detached magistrate‖
    rather than by a police officer or prosecutor possessed of a
    natural bias towards uncovering crime and obtaining
    33
    convictions. Johnson v. United States, 
    333 U.S. 10
    , 13–14
    (1948). Thus the Court has established that a criminal suspect
    is entitled to a prompt judicial determination that his arrest
    and detention is justified by probable cause. Cnty. of
    Riverside v. McLaughlin, 
    500 U.S. 44
    , 56 (1991); Gerstein,
    
    420 U.S. at
    124–25. And numerous courts have reached the
    almost tautological conclusion that an individual in custody
    has a constitutional right to be released from confinement
    ―after it was or should have been known that the detainee was
    entitled to release.‖ Cannon v. Macon Cnty., 
    1 F.3d 1558
    ,
    1563 (11th Cir. 1993); see also Fairley v. Luman, 
    281 F.3d 913
    , 917–18 (9th Cir. 2002); Armstrong v. Squadrito, 
    152 F.3d 564
    , 573–76 (7th Cir. 1998); Gray v. Cuyahoga Cnty.
    Sheriff’s Dep’t, 
    150 F.3d 579
    , 582–83 (6th Cir. 1998);
    Sanders v. English, 
    950 F.2d 1152
    , 1162 (5th Cir. 1992); cf.
    Baker v. McCollan, 
    443 U.S. 137
    , 144–45 (1979) (assuming
    that ―mere detention pursuant to a valid warrant but in the
    face of repeated protests of innocence will after the lapse of a
    certain amount of time deprive the accused of ‗liberty . . .
    without due process of law‘‖). It should have required little
    thought about these cases, in light of background knowledge
    of the operation of the Bill of Rights within the justice
    system, to have given a reasonable prosecutor ―fair warning‖
    that she had a duty to ensure that the incarceration of an
    innocent person was at all times approved by a judicial
    officer.
    Smith took it upon herself to decide that Schneyder
    ought to be incarcerated well past the point at which explicit
    judicial authorization had expired.       Whether to keep
    Schneyder in jail should have been the court‘s decision, and
    Smith knew it. Judge Means had announced his intention to
    let Schneyder go if the trial date were moved, but Smith took
    34
    the position that ―she should be held until she testified.‖
    Actually, to say that she ―took the position‖ is too generous,
    because Smith never presented the court with any such
    argument. She ―advocated‖ her position by failing to reveal
    an obviously pertinent fact, thereby preventing the judge from
    doing his job. Moreover, the stance Smith purports to have
    taken is so patently erroneous as a matter of constitutional
    law as to be frivolous. No reasonable prosecutor would think
    that she could indefinitely detain an innocent witness pending
    trial without obtaining reauthorization. And there can be no
    doubt that is what Smith intended. The trial at which
    Schneyder was to testify did not take place until more than a
    year and a half after her arrest, and there is no indication that
    Smith would ever have taken steps of her own volition to free
    her key witness or even to have her status reviewed. If the
    initial continuance was not something Smith felt a need to
    report, there is no reason to think that she would have advised
    Judge Means of any of the subsequent developments. Were it
    not for the persistence of Schneyder‘s family and the
    generous efforts of a public defender with cases of his own
    and no prior connection to the plaintiff, there can be no telling
    how long she would have remained locked up.21
    ―When properly applied, [qualified immunity] protects
    ‗all but the plainly incompetent or those who knowingly
    violate the law.‘‖ al-Kidd II, 
    131 S. Ct. at 2085
     (quoting
    Malley v. Briggs, 
    475 U.S. 335
    , 341 (1986)). The self-
    evident wrongfulness of Smith‘s conduct is sufficient to place
    21
    The judges comprising this panel—all three former
    prosecutors—feel secure in declaring that any reasonable attorney
    in Smith‘s position would have known that her course of action
    was so outrageous as to be unconstitutional, even in the absence of
    a case telling her so.
    35
    her in either category.    She is not entitled to qualified
    immunity.
    IV
    The final issue we must address is whether Smith, as a
    prosecutor, is entitled to absolute immunity from liability.
    The court has already answered this question in the negative,
    Odd, 
    538 F.3d at 214
    , so the ―law of the case‖ doctrine would
    ordinarily preclude this panel from reconsidering it. Pub.
    Interest Research Grp. v. Magnesium Elektron, 
    123 F.3d 111
    ,
    116 (3d Cir. 1997). But because this is a rule of discretion
    rather than a limit on authority, it does not apply in
    ―extraordinary circumstances.‖ 
    Id.
     These ―include situations
    in which: (1) new evidence is available; (2) a supervening
    new law has been announced; or (3) the earlier decision was
    clearly erroneous and would create manifest injustice.‖ 
    Id.
    (citations omitted). Smith of course thinks that our earlier
    adverse ruling was wrongly decided; she bolsters this position
    by asserting that both newly developed facts and the Supreme
    Court‘s intervening decision in Van de Kamp v. Goldstein,
    555 U.S. ---, 
    129 S. Ct. 855
     (2009), have sufficiently altered
    the landscape that our earlier decision should be disregarded.
    Notwithstanding these changes in context, we remain of the
    view that granting prosecutorial immunity would be
    inappropriate in this case.
    A
    Before considering Smith‘s arguments, we briefly
    rehearse the rationale for denying absolute immunity that we
    set forth in Odd. The basic premise behind the immunity
    doctrine is that prosecutors should not be encumbered by the
    threat of civil liability while performing judicial or quasi-
    36
    judicial functions. See Odd, 
    538 F.3d at 208
    . But a person is
    not immune from suit for every wrong he commits just
    because he happens to be employed as a prosecutor: the
    ―inquiry focuses on ‗the nature of the function performed, not
    the identity of the actor who performed it.‘‖ 
    Id.
     (quoting
    Light v. Harris, 
    472 F.3d 74
    , 78 (3d Cir. 2007)). Analysis of
    prosecutorial immunity questions thus has two basic steps,
    though they tend to overlap. The court must ascertain just
    what conduct forms the basis for the plaintiff‘s cause of
    action, and it must then determine what function
    (prosecutorial, administrative, investigative, or something
    else entirely) that act served. See 
    id.
    The first stage ―focuses on the unique facts of each
    case and requires careful dissection of the prosecutor‘s
    actions.‖ 
    Id. at 210
     (citations omitted). Thus in Odd we
    ―carefully defin[ed] the act (or rather omission) that gave rise
    to Schneyder‘s suit‖ as a ―failure to notify Judge Means (per
    his order and per local custom) that the Overby case had been
    continued.‖ 
    Id. at 212
    . Elsewhere we described it as an
    omission to ―inform[] the court about the status of a detained
    witness.‖ 
    Id. at 213
    . From these definitions, ―it follow[ed]
    that Smith is not entitled to absolute prosecutorial immunity,‖
    because her obligation ―was primarily administrative,
    especially in light of Judge Means‘s explicit order that he be
    advised of any delay in the Overby proceedings. Smith‘s duty
    to advise Judge Means of these facts required no advocacy on
    her part.‖ 
    Id.
    We then raised three additional points to bolster our
    conclusion. First, because of the continuance in Overby,
    ―Smith‘s failure to act occurred during [a] period of judicial
    inactivity‖—a fact that ―cast[] serious doubt on Smith‘s
    claims that her actions [were] ‗intimately associated with the
    37
    judicial phase‘ of the litigation.‖ 
    Id.
     at 213–14 (quoting
    Imbler v. Pachtman, 
    424 U.S. 409
    , 430 (1976)). Second, in
    light of Judge Means‘ alleged orders that Smith inform him of
    changes in Overby‘s status, the court stated: ―We can
    imagine few circumstances under which we would consider
    the act of disobeying a court order or directive to be
    advocative, and we are loath to grant a prosecutor absolute
    immunity for such disobedience.‖ Id. at 214. Finally, we
    pointed out that the custom and practice of the Philadelphia
    courts was to assign sole responsibility for monitoring
    material witnesses to the District Attorney‘s Office and to
    individual prosecutors, and that the gist of this obligation
    (consistent with Fed. R. Crim. P. 46(h)) is ―plainly
    administrative.‖ Id. All this together convinced us that the
    duty Smith failed to fulfill was an administrative one, lacking
    any significant discretionary or advocative component.
    Accordingly, we ruled that absolute immunity was
    inapplicable. Id.
    B
    We now turn to Smith‘s arguments for setting our prior
    decision aside. First, she proffers ―new evidence‖ in the form
    of the transcript of Schneyder‘s bail hearing. On Smith‘s
    reading, the colloquy between Judge Means, Smith, and
    Schneyder contains no explicit directive that Smith advise the
    court in the event of a continuance. Smith claims that in the
    absence of a clear order, her decision regarding what to tell
    the court was discretionary and thus not administrative.
    Even were we to accept Smith‘s interpretation of the
    evidence (contrary to the rules governing adjudication of her
    own motion for summary judgment), her argument is
    mistaken in its dependence on the Odd panel‘s references to
    38
    the alleged order as the source of an administrative duty.
    While the order was a relevant and supporting consideration,
    it was not determinative of the court‘s conclusion. As
    explained above, see supra note 18, the duty being enforced
    in this lawsuit arises from the Constitution, not from the
    authority of a state judge‘s order. Thus we must ask whether
    Smith‘s violation of that constitutional obligation constituted
    an administrative act or an advocative one. Whether or not
    the judge issued an order therefore does not control the case,
    and Smith‘s new evidence is unavailing.
    C
    The next question is whether the Supreme Court‘s
    decision in Van de Kamp v. Goldstein abrogates the legal
    conclusion we reached in Odd. Goldstein had been convicted
    and imprisoned after the prosecution failed to provide defense
    counsel with important information which could have been
    used to impeach an informant-witness. After the evidence
    came to light, Goldstein sued under § 1983, arguing that the
    failure to disclose violated his constitutional rights. Because
    the two defendants in Van de Kamp occupied managerial and
    oversight roles and were not individually responsible for
    withholding the information, Goldstein advanced theories of
    failure to adequately train and supervise the prosecutors who
    worked under them, and of failure to maintain an information
    system about informants. See 129 S. Ct. at 859.
    The Supreme Court concluded that the defendants
    were entitled to absolute immunity. After setting out the
    basic functional approach outlined above, the Court reasoned
    that while the supervisory, training, and management
    functions in question were properly characterized as
    administrative, the obligations they created were ―directly
    39
    connected with the conduct of a trial.‖ Id. at 862. Writing for
    a unanimous Court, Justice Breyer first observed that a low-
    level prosecutor would be immune from suit for the
    underlying failure to disclose.         Id.   It followed that
    supervisory prosecutors would also be immune from a direct
    attack on their actions relating to a particular trial (i.e., their
    own failure to find and turn over the evidence in question),
    because such actions would also be closely associated with
    the judicial process. Id. From there the Court argued that
    there is no way to draw a clean line between supervision and
    training related to a particular case and an office‘s more
    general policies and practices. Id. at 862–63. Although the
    development and implementation of such general policies are
    administrative in nature, the practices in question
    ―concern[ed] how and when to make impeachment
    information available at a trial. They are thereby directly
    connected with the prosecutor‘s basic trial advocacy duties.‖
    Id. at 863. Allowing the suit to go forward would open up
    prosecutors‘ offices to suit in virtually every case in which a
    line prosecutor makes a mistake for which he is personally
    immune. This would have been both anomalous and contrary
    to the purposes of the absolute immunity doctrine. See id.22
    Smith argues, and we agree, that Van de Kamp
    establishes subcategories within the ―administrative‖ class of
    22
    As regards the failure to maintain an adequate
    information system, the Court reasoned that allowing the claim to
    go forward would force courts to inquire not only into whether to
    maintain such a system, but also into the system‘s operation and
    contents. This, in the Court‘s view, would require review of
    prosecutors‘ exercise of legal judgment—exactly the kind of thing
    prosecutorial immunity is meant to prevent. See Van de Kamp,
    
    129 S. Ct. at 864
    .
    40
    official functions. That is, some administrative functions
    relate directly to the conduct of a criminal trial and are thus
    protected, while others (―concerning, for example, workplace
    hiring, payroll administration, the maintenance of physical
    facilities, and the like,‖ 
    id. at 862
    ) are connected to trial only
    distantly (if at all) and are therefore not subject to immunity.
    The question is whether Van de Kamp alters the result in Odd.
    One thing that Van de Kamp does not change is our
    characterization of the conduct in question as the
    nonperformance of a constitutional duty to advise the court of
    a significant change in the circumstances surrounding the
    detention of a material witness. We also continue to think
    that this duty is, broadly speaking, administrative rather than
    advocative. After Van de Kamp, we must ask the further
    question whether this is the sort of administrative duty the
    performance or nonperformance of which is protected by
    prosecutorial immunity. We hold that it is not.
    As we stated in Odd, there was no advocative or
    discretionary dimension to Smith‘s dereliction of her duty.
    She was the only person with knowledge of the relevant facts,
    and she was obligated to ensure that the court had information
    sufficient to monitor Schneyder‘s status. Smith was not
    obligated to argue for Schneyder‘s release; she was required
    only to do what was necessary to allow the court to perform
    its oversight function. It is true that this was not a
    paradigmatic, ―workplace hiring‖ type of administrative duty,
    but neither was it directly connected to the conduct of a trial.
    After the continuance, the Overby case was a long way off,
    and it simply is not the prosecutor‘s prerogative to decide
    how long to keep a material witness detained. Declining to
    reveal the change in Overby‘s status was an abdication of
    Smith‘s responsibility to provide the court with information
    41
    sufficient for it to decide an issue within its sole competence.
    As the sole government official in possession of the relevant
    information, Smith had a duty of disclosure that was neither
    discretionary nor advocative, but was instead a purely
    administrative act not entitled to the shield of immunity, even
    after Van de Kamp.
    V
    On the record before us, we conclude that Smith is not
    entitled to either qualified or absolute immunity. Her motion
    for summary judgment therefore fails, and we will affirm the
    District Court‘s order.
    42
    Schneyder v. Smith, No. 10-2367
    McKee, Chief Judge, concurring.
    I agree wholeheartedly with the majority’s opinion and
    therefore join my colleague’s analysis in its entirety. I write
    separately merely to suggest that the issue before us is not as
    complex as the majority's very methodical analysis may
    imply. Although the rather complex subtlety and nuance of
    the majority opinion is extraordinarily useful in resolving this
    issue, it should not give rise to an argument that a reasonable
    prosecutor could not have anticipated today’s result.
    The central inquiry before us is simple: would a
    reasonable prosecutor have known that detaining a material
    witness for 48 days after a trial has been continued may have
    been contrary to the wishes of the authorizing court, and that
    this additional detention violated the witness’ constitutional
    rights? See Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982))
    It takes neither a panel of federal judges nor a prescient
    prosecutor to know that the answer to both questions is a
    resounding “yes.”
    I.
    There are very important reasons to afford prosecutors
    immunity from law suits. As the Supreme Court has
    explained, immunity allows a prosecutor to focus his/her
    energy and attention on the trial at hand as opposed to having
    to worry about being forced to “answer in court each time [] a
    person charged him[/her] with wrongdoing.” Imbler v.
    Pachtman, 
    424 U.S. 409
    , 425 (1976). It is just as clear that
    there are also very important policies that counsel against
    allowing prosecutors to act with impunity by taking it upon
    themselves to determine when, and if, someone who has been
    properly incarcerated should be released. This is especially
    true when additional detention may well be contrary to the
    instructions of the judge who authorized the initial seizure
    and detention, and when the circumstances suggest that the
    judge would no longer allow the person to be incarcerated.
    The Supreme Court has cautioned that, “[t]he public
    trust of the prosecutor's office would suffer if he were
    1
    constrained in making every decision by the consequences in
    terms of his own potential liability in a suit for damages." 
    Id. at 425-26
    . However, it is no less certain that public trust of
    that office as well as of the Constitution that the office is
    sworn to uphold would suffer if prosecutors were allowed to
    take it upon themselves to decide when and if someone
    should be released from incarceration.
    Here, Smith clearly took it upon herself to decide
    when and if Schneyder would be released.1                 After
    Schneyder’s family repeatedly called Smith asking when
    Schneyder could leave state custody, Smith informed them,
    “I’m not going to let her go until this matter is resolved.”
    (App. 257) (emphasis added). The umbrella of immunity
    surely was not intended to shelter such conduct. The power to
    release Schneyder did not reside in Smith nor in any other
    prosecutor. It resided in the court, and it continued to reside
    there after the Overby trial was postponed. Smith may well
    have been troubled by the prospect of releasing Schneyder
    and risking an acquittal of Overby, but that was not her
    decision to make. It is certainly not a novel precept of Anglo
    American jurisprudence to suggest that once the Overby trial
    was continued, Smith should have made any concerns about
    Schneyder's availability known to Judge Means so that the
    court could then decide whether it was still reasonable to
    detain Schneyder under the Fourth Amendment.2
    1
    Since we are reviewing a motion to dismiss, we must accept
    the evidence in the light most favorable to the plaintiff, and
    draw all reasonable inferences in her favor. See Giuffre v.
    Bissell, 
    31 F.3d 1241
    , 1251 (3d Cir. 1994).
    2
    Nor am I concerned that Smith could not have foreseen a
    Fourth Amendment violation because additional detention
    appeared to be a due process issue. See Bell v Wolfish, 
    441 U.S. 520
    , 535 (1979), and Maj. Op. at 13. Regardless of the
    label, the foundation of the required analysis is surely the
    same under § 1983. Any reasonable prosecutor should have
    known the limits of the prosecutorial function and the
    difference between the role of the prosecutor and the role of
    the judge. And any reasonable prosecutor should have known
    that the Constitution is always implicated when a person is
    deprived of his/her liberty by a state sponsored seizure and
    subsequent detention.
    2
    II.
    Smith should have realized that holding Schneyder
    even after the Oberby trial was postponed was contrary to the
    authority Judge Means had afforded her. At the bail hearing,
    Judge Means clearly stated on the record that he was uneasy
    with incarcerating a person who was not accused of any crime
    in order to obtain her testimony at a subsequent trial. He
    stated, “I don’t like setting bail on people who are not
    accused of a crime.” (App. 55 - 56). He also stated, “if the
    case breaks down, let me know early and I’ll let you out, Ms.
    Schneyder.”3 (App. 55-56).
    Judge Means had every reason to believe that
    Schneyder would only be held in custody for a few weeks
    because Smith told the court that the trial would begin “six
    days from today” and that it would be a “ten-day trial at
    most.” (App. 55-56). Indeed, it is difficult to read this
    transcript and conclude anything other than that the judge
    believed that he was only authorizing Schneyder's detention
    for a couple of weeks - the time it would take to start and
    finish the Overby trial.
    Smith’s actions were also an unreasonable usurpation
    of the judicial authority to detain a material witness in light of
    the prevailing custom in the prosecutor's office. Judge Means
    testified that the “practice and custom in the Court of
    3
    In her brief, Smith contends that this statement suggests that
    the judge placed the onus on Schneyder to notify him about
    delays in the case. The argument is disingenuous. Judge
    Means stated in his subsequent affidavit that he “explicitly
    placed the onus on Ms. Smith to notify [him] if for any reason
    the Overby case was continued or broke down.” (App. 215).
    Moreover, to the extent that the Commonwealth argues that
    the judge intended for Schneyder to contact him, this is an
    issue of fact that must be resolved against the Commonwealth
    at this stage of the proceedings. See Deary v. Three Un-
    Named Officers, 
    746 F.2d 185
     (3rd Cir. 1984).
    3
    Common Pleas in these situations [involving material witness
    detentions] is for the prosecutor to bring the matter back to
    court to address any outstanding issues.” (App. 215). That
    custom is also evidenced by testimony from Edward McCann,
    then-Chief of the District Attorney’s Homicide Unit and
    Smith’s own supervisor. He stated that “it’s a well-known
    office policy and Homicide Unit policy” that Smith would
    have a responsibility to notify him if a case had been
    continued and a material witness was held in custody. (App.
    84). The policy existed since McCann “came into the DA’s
    office [in 1989].” (App. 84, 90). Thus, a reasonable
    prosecutor should have realized that she could not take it
    upon herself to decide when a detained witness would be
    released from custody.4
    I do not, of course, suggest that the policy of a
    prosecutor's office can give rise to a right of constitutional
    import under § 1983.          However, there was nothing
    unreasonable or novel about Judge Means’ request to be told
    of any continuance in the Overby trial because Means was
    only authorizing Schneyder's detention for the brief period he
    had been told was necessary to obtain Schneyder’s testimony
    there.
    III.
    4
    As the majority notes, we previously rejected Smith's claim
    of absolute immunity. In Odd v. Malone¸
    538 F.3d 202
    , 206
    (2008), we considered Smith's appeal along with a similar
    appeal involving an A.D.A. who refused to inform the
    authorizing court that the proceeding in which a material
    witness was to testify had been continued. We noted that the
    judge in the companion case was "[f]urious," upon learning
    she had not been informed, and the judge released the witness
    and "demanded that [the A.D.A.] appear before her to explain
    why the plaintiff had been forced to remain in jail."
    Judge Means' reaction here was similar. Judge Means and
    his staff were "shocked" and "astonished" when they learned
    that Schneyder was still incarcerated, and the judge
    repeatedly apologized to Schneyder. He told her: "again I
    apologize from the bottom of my heart for what happened to
    you." (App. 7).
    4
    Nothing we say here suggests that a judge in this
    situation would not have the authority to authorize continued
    incarceration of a material witness if the trial s/he is to testify
    at is postponed. Had Judge Means been properly informed of
    the continuance, he could have again considered the
    circumstances and competing interests (including Schneyder's
    liberty interest) and could have concluded - based upon all the
    circumstances - that Schneyder's continued incarceration was
    both justified and appropriate.
    However, that is not the point. The fact that
    Schneyder may have remained in custody even if Smith had
    told the court of the continuance does not mean that Smith is
    somehow entitled to immunity. Rather, the point of our
    holding today is quite simply that any reasonable prosecutor
    should know that the authority to incarcerate belongs to the
    court, not the prosecutor,5 and that one who disregards that
    basic tenet violates a clearly established constitutional right.
    I think it is helpful to look beneath the intricacies and
    algebraic equations that assist my colleagues’ analysis,
    because our holding results in nothing more surprising than
    that extraordinarily unremarkable conclusion. Neither our
    holding today, nor the reactions of the judges whom I
    reference in footnote4 should come as a surprise to anyone
    with even a rudimentary familiarity with the restrictions
    imposed on the power of the state by the Fourth Amendment,
    or the distinction between the prosecutorial function and
    judicial authority.
    5
    See Odd, 258 F.3d at 214 ("In short, it is a judicial
    function - the function of the courts - not a prosecutorial
    function, to determine whom to incarcerate and for what
    length of time.").
    5
    

Document Info

Docket Number: 10-2367

Citation Numbers: 653 F.3d 313, 2011 U.S. App. LEXIS 15831

Judges: McKEE, Smith, Stearns

Filed Date: 7/29/2011

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (58)

United States v. Osama Awadallah , 2 A.L.R. Fed. 2d 705 ( 2003 )

gamal-johnson-in-no-05-5029-v-parole-agent-david-knorr-individually , 477 F.3d 75 ( 2007 )

Baker v. McCollan , 99 S. Ct. 2689 ( 1979 )

Johnson v. United States , 68 S. Ct. 367 ( 1948 )

Parratt v. Taylor , 101 S. Ct. 1908 ( 1981 )

Wilson v. Layne , 119 S. Ct. 1692 ( 1999 )

Bell v. Wolfish , 99 S. Ct. 1861 ( 1979 )

United States v. Lanier , 117 S. Ct. 1219 ( 1997 )

roy-hicks-v-robert-c-feeney-individually-and-in-his-official-capacity-as , 770 F.2d 375 ( 1985 )

Harrington v. City of Nashua , 610 F.3d 24 ( 2010 )

Graham v. Connor , 109 S. Ct. 1865 ( 1989 )

Scott v. Harris , 127 S. Ct. 1769 ( 2007 )

Pearson v. Callahan , 129 S. Ct. 808 ( 2009 )

Schneyder v. Smith , 709 F. Supp. 2d 368 ( 2010 )

walter-armstrong-v-joseph-squadrito-allen-county-sheriff-henry-e-dill , 152 F.3d 564 ( 1998 )

james-j-gallo-jr-rose-maria-gallo-v-city-of-philadelphia-renald , 161 F.3d 217 ( 1998 )

Gerstein v. Pugh , 95 S. Ct. 854 ( 1975 )

Beck v. Ohio , 85 S. Ct. 223 ( 1964 )

California v. Hodari D. , 111 S. Ct. 1547 ( 1991 )

United States v. Place , 103 S. Ct. 2637 ( 1983 )

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