Michele Black v. County of Montgomery

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3399
____________
MICHELE OWEN BLACK,
Appellant
v.
MONTGOMERY COUNTY; DET. JOHN T. FALLON;
LOWER MERION TOWNSHIP; DET. GREGORY
HENRY; BRYAN GARNER; CHIEF FIRE OFF. CHARLES
MCGARVEY; DEPUTY FIRE MARSHALL FRANK
HAND; STATE TROOPER ROBERT POMPONIO
____________
Appeal from the United States District Court for the Eastern
District of Pennsylvania
(E.D. Pa. No. 2-14-cv-06702)
District Judge: Honorable Anita B. Brody
____________
Argued on June 8, 2016
Before: CHAGARES, KRAUSE, and SCIRICA, Circuit
Judges
(Filed: August 30, 2016)
Michael C. Schwartz [ARGUED]
James, Schwartz & Associates
1500 Walnut Street
21st Floor
Philadelphia, PA 19102
Counsel for Appellant
Carol A. Vanderwoude [ARGUED]
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street
18th Floor
Suite 2300
Philadelphia, PA 19103
Counsel for Appellees Township of Lower Merion,
Detective Gregory Henry, Bryan A. Garner, Chief Fire
Off. Charles McGarvey and Deputy Fire Marshal
Frank Hand
Philip W. Newcomer [ARGUED]
Montgomery County
Solicitor’s Office
One Montgomery Plaza, Suite 800
P.O. Box 311
Norristown, PA 19404-0311
Counsel for Appellees Montgomery County and
Detective John T. Fallon
Claudia M. Tesoro [ARGUED]
John G. Knorr, III
Office of the Attorney General
21 South 12th Street
Third Floor
Philadelphia, PA 19107
Counsel for Appellee State Trooper Robert Pomponio
____________
OPINION
____________
CHAGARES, Circuit Judge.
Plaintiff Michele Black filed a lawsuit under 42 U.S.C.
§ 1983 and state law alleging that various police and fire
officials, as well as a county and township, violated her
constitutional rights in connection with criminal proceedings
against her. The defendants moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6) and the District Court
granted these motions.
2
Two issues are now before us on appeal from the order
granting the motions to dismiss. The first issue is whether the
District Court erred in determining that Black was not
“seized” as required for a Fourth Amendment malicious
prosecution claim. The second issue is whether the District
Court erred in finding that Black’s Fourteenth Amendment
due process claim for fabricated evidence required that she be
convicted at trial, since she was acquitted. We hold that the
answer is yes for both issues. Accordingly, we will vacate the
District Court’s order and remand for further proceedings.
I.1
On November 21, 2012, a fire broke out at the home
where Black had grown up in Lower Merion Township,
Montgomery County, Pennsylvania. Black’s mother had sold
the home two days before. Originally, the closing date was
set for November 30, 2012, but it was moved up so the buyers
could upgrade the wiring before they moved in. The buyers
could not obtain homeowner’s insurance unless the old wiring
was upgraded because it was viewed as a fire hazard. Black’s
mother entered into a post-settlement possession addendum
which allowed her to remove her possessions from the home
while the buyer’s contractors upgraded the wiring.
The fire broke out in the third floor of the home.
Black was in the home helping her mother remove
possessions,2 while the buyer’s electricians were upgrading
the wiring. The fire resulted in a “V” pattern of fire damage
extending from a 220-volt electrical outlet. The electricians
extinguished the fire before they called the fire department.
After arriving at the home, the Gladwyne Fire Chief called
the dispatcher to report an electrical fire.
1
These facts come from Black’s Second Amended Complaint
and are construed in the light most favorable to her. See
Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002).
2
The fact that Black was in the home when the fire occurred
does not appear to be specifically alleged in the complaint.
But both parties state it in their briefs, Black Br. 3;
Montgomery County Br. 3, and it is implied by subsequent
events.
3
Defendant Deputy Fire Marshal Frank Hand and his
supervisor defendant Chief Fire Officer Charles McGarvey
arrived at the scene. Hand was not an electrical expert, but he
disassembled the electrical outlet where the fire had started.
Hand could not determine that the fire was accidental, so he
called the District Attorney’s Office and the state police for
help. Hand concluded that the fire was intentionally started
and was not an electrical fire. Despite fire damage on the
electrical outlet, Hand did not preserve the outlet, supporting
brackets, electrical box, or the outlet cover. Hand
intentionally misrepresented his findings that the wire to the
outlet had been cut 18 inches from the outlet to support the
proposition that there was no power source for the outlet. His
supervisor, defendant McGarvey, witnessed the fire scene and
assisted Hand with his investigation.
Defendant State Trooper Thomas Pomponio, an
alternate deputy fire marshal, arrived at the scene. After he
learned that the wire had already been cut, Pomponio
concluded the fire was caused by an open flame, ruling out
that the outlet caused the fire. Pomponio did not inspect the
electrical panel in the basement as he normally would because
he heard that it had already been inspected. Had he done so,
he would have discovered that the fire was an electrical one.
Defendant John Fallon, a certified fire inspector,
arrived at the home, examined the outlet and concluded the
damage was caused by an open flame, not by the electrical
outlet. Fallon determined that the outlet was not energized
when the fire occurred. In arriving at his conclusion, Fallon
relied on the word of one of the electricians, rather than
personally inspecting the panel box in the basement as
required by protocol.
A box of matches was found on another windowsill in
the room where the fire started, and Fallon, Pomponio, and
Hand assumed these matches were used to start the fire,
despite evidence that this was an electrical fire. These three
defendants never tested the box of matches for DNA or
fingerprints, or analyzed whether the match strike pad had
been used.
4
Shortly after the fire broke out, Fallon, Pomponio,
Hand, as well as defendant Detectives Gregory Henry and
Bryan Garner, first questioned the electricians. Black “was
advised that she was not free to leave the premises until she
was questioned by police, and was escorted by police to and
from the bathroom.” Appendix (“App.”) A41. These
defendants did not check the veracity of the electricians’
story. During the interrogation of Black, the officers
immediately accused Black of setting the fire. Black also
alleges that at the end of her interrogation, Fallon told her that
if she did not surrender herself to them at a later date, a
warrant would be issued for her arrest, the defendants would
have her hometown District Attorney’s Office in California
send a police officer to arrest her, she would remain in
custody until extradited, and remain in jail until her
arraignment.
Black alleges that Fallon made several material
falsehoods and omissions in an affidavit of probable cause to
arrest her. These falsehoods and omissions included: failing
to report that the fire started at an electrical outlet; failing to
mention that the Gladwyne Fire Chief first reported an
electrical fire; failing to mention that electricians were at the
scene to fix the wiring; failing to mention that the circuit
panel was never checked in the basement; and failing to
mention that the outlet and live wires were never tested.
Black returned home to California after the fire. On
December 17, 2012, Pennsylvania authorities issued an arrest
warrant for Black for arson endangering persons, risking
catastrophe, criminal mischief, and recklessly endangering
another person. Black flew to Pennsylvania on December 18,
2012 for her arraignment. She was arraigned and was
released on $50,000 unsecured bail.3 A condition of her bail
was that Black was required to appear at all subsequent
3
Release on unsecured bail bond means “[r]elease
conditioned upon the defendant’s written agreement to be
liable for a fixed sum of money if he or she fails to appear as
required or fails to comply with the conditions of the bail
bond. No money or other form of security is deposited.” Pa.
R. Crim. P. 524(C)(3).
5
proceedings. Black was then required to be fingerprinted and
photographed at a police station, which took over an hour.
Black again returned to her home in California. On
January 24, 2013, Black flew from California to Pennsylvania
to attend her preliminary hearing. She flew from California
to Pennsylvania for twelve out of fourteen pre-trial
conferences because the Court Notices for each conference
said that if she did not appear a bench warrant would be
issued for her arrest.
Prior to trial, Black retained a fire expert, John J.
Lentini, who concluded that the fire was unequivocally an
electrical one, not an arson. Lentini reached out to Hand to
discuss his findings and to review the photographs of the fire
with Hand. Lentini never received a response from Hand.
Black’s counsel emailed the assistant district attorney
assigned to the case to advise him about Lentini’s findings
and to offer to meet the prosecutor and his expert. The
assistant district attorney never responded to this offer.
On April 23, 2014, Black’s trial began. Fallon and
Hand offered evidence at trial that the outlet was not
energized and that the wire was cut. Photographs offered by
Black, however, taken the day of the fire show the wire was
intact. The photographs offered and explained by Fallon and
Hand appear to have been taken later. Black presented
evidence that the defendants fabricated and suppressed
exculpatory evidence. On April 24, 2014, she was found not
guilty of all charges. The jury deliberated for less than forty
minutes.
Subsequently, Black filed this lawsuit on November
21, 2014. She filed the Second Amended Complaint on June
11, 2015. Black named as defendants Montgomery County,
Detective John T. Fallon, Lower Merion Township, Detective
Gregory Henry, Detective Bryan Garner, Chief Fire Officer
Charles McGarvey, Deputy Fire Marshall Frank Hand, and
State Trooper Robert Pomponio. The complaint was brought
pursuant to 42 U.S.C. § 1983 and alleged, inter alia, malicious
prosecution in violation of the Fourth Amendment, violation
of her Fourteenth Amendment due process rights due to
fabrication, suppression, and destruction of evidence,
6
conspiracy claims under Monell v. Department of Social
Services, 436 U.S. 658 (1978), against the defendant
government entities, and various state law claims.
The defendants filed motions to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6). On September 21, 2015, the District
Court granted the motions to dismiss all of the federal claims
and declined jurisdiction over the remaining state law claims.
In particular, the District Court dismissed Black’s malicious
prosecution claim because it determined Black never
experienced the types of liberty restrictions that constitute a
Fourth Amendment seizure. Next, the District Court
determined that the Fourteenth Amendment due process claim
for fabricated evidence could not succeed because our
decision in Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014),
requires a conviction for such a claim, and Black was
acquitted at trial. Finally, the District Court dismissed the
conspiracy and Monell claims because Black could not
succeed on the underlying malicious prosecution or due
process claims. Black filed a timely appeal.
II.4
Our review of the granting of a motion to dismiss
under Rule 12(b)(6) is plenary. McGovern v. City of Phila.,
554 F.3d 114, 115 (3d Cir. 2009). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation and quotation marks omitted). We must
“accept all factual allegations as true, construe the complaint
in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief.” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quotation
marks omitted).
4
The District Court had federal question jurisdiction over the
section 1983 claims pursuant to 28 U.S.C. § 1331, and we
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
7
III.
A plaintiff seeking relief under 42 U.S.C. § 1983 must
demonstrate “that the defendants, acting under color of law,
violated the plaintiff’s federal constitutional or statutory
rights, and thereby caused the complained of injury.” Elmore
v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005). Accordingly,
section 1983 is not a source of substantive rights but rather a
mechanism to vindicate rights afforded by the Constitution or
a federal statute. Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979). Black argues that the District Court erred in
dismissing her Fourth Amendment malicious prosecution
claim and her Fourteenth Amendment procedural due process
claim for fabrication of evidence. We agree.
A.
To prove a Fourth Amendment malicious prosecution
claim, a plaintiff must show: “(1) the defendant initiated a
criminal proceeding; (2) the criminal proceeding ended in his
favor; (3) the defendant initiated the proceeding without
probable cause; (4) the defendant acted maliciously or for a
purpose other than bringing the plaintiff to justice; and (5) the
plaintiff suffered deprivation of liberty consistent with the
concept of seizure as a consequence of a legal proceeding.”
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007) (emphasis
added). Black challenges the District Court’s dismissal of her
Fourth Amendment malicious prosecution claim based on its
determination that she was not “seized” by the defendants.
1.
The Fourth Amendment to the Constitution guarantees
“[t]he right of the people to be secure in their persons . . .
against unreasonable searches and seizures.” U.S. Const.
amend. IV. The Supreme Court in Terry v. Ohio, forged a
general definition of the meaning of seizure: “when [an]
officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen.” 392 U.S. 1,
19 n.16 (1968). The restraint by an officer must be “through
means intentionally applied” as opposed to an unknowing act.
Brower v. Cty. of Inyo, 489 U.S. 593, 597 (1989). A
8
traditional arrest by an officer is a commonly understood type
of seizure. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)
(“An arrest, of course, qualifies as a ‘seizure’ of a ‘person’ . .
. .”). But the scope of what may be considered a seizure is
broader than this common example and the Supreme Court
has supplied some helpful guidance as to the parameters of
the term. See generally Terry, 392 U.S. at 16 (“It is quite
plain that the Fourth Amendment governs ‘seizures’ of the
person which do not eventuate in a trip to the station house
and prosecution for crime . . . .”).
An actual physical touching is not required to
constitute a seizure of a person, but in the absence of a
physical touching, there must be a submission to an officer’s
show of authority. California v. Hodari D., 499 U.S. 621, 626
(1991). As a corollary, the deprivation or restraint of a
person’s liberty may be physical, or it may be that “in view of
all of the circumstances surrounding the incident, a
reasonable person would have believed he was not free to
leave.” United States v. Mendenhall, 446 U.S. 544, 554
(1980) (plurality). Cf. Brendlin v. California, 551 U.S. 249,
255 (2007) (“[T]he ‘coercive effect of the encounter’ can be
measured . . . by asking whether ‘a reasonable person would
feel free to decline the officers’ requests or otherwise
terminate the encounter.’” (quoting Florida v. Bostick, 501
U.S. 429, 435-36 (1991)). So, while an officer merely asking
a citizen questions may not be a seizure, circumstances
indicating a seizure might include “the threatening presence
of several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance with
the officer’s request might be compelled.” Mendenhall, 446
U.S. at 554 (plurality); see, e.g., Brendlin, 551 U.S. at 255(“The law is settled that in Fourth Amendment terms a traffic
stop entails a seizure of the driver even though the purpose of
the stop is limited and the resulting detention quite brief.”
(quotation makes omitted)); Brower, 489 U.S. at 598 (noting
that officers’ use of a roadblock to stop petitioner’s car
constituted a seizure of the petitioner and explaining “a
roadblock is not just a significant show of authority to induce
a voluntary stop, but [it] is designed to produce a stop by
physical impact if voluntary compliance does not occur”);
Mendenhall, 446 U.S. at 555 (plurality) (holding that no
9
seizure occurred when agents approached a person to ask
questions in a public place, and the agents identified
themselves but did not display weapons, did not place
demands upon the person, and were not wearing uniforms);
Terry, 392 U.S. at 19 (“In this case there can be no question,
then, that Officer McFadden ‘seized’ petitioner . . . when he
took hold of him and patted down the outer surfaces of his
clothing.”).
In Albright v. Oliver, a plurality of the Supreme Court
concluded that a party essentially claiming an officer
maliciously prosecuted him cannot rely upon a substantive
due process theory and held specifically that “it is the Fourth
Amendment, and not substantive due process, under which
petitioner Albright’s claim must be judged.” 510 U.S. 266,
271 (1994). Although the Court posited that Albright’s
“surrender to the State’s show of authority constituted a
seizure for purposes of the Fourth Amendment,” id., the
Court did not rule upon whether Albright’s claim would
succeed under the Fourth Amendment because he failed to
raise the issue, id. at 275.5
Justice Ginsburg wrote a concurrence in Albright
discussing the meaning of seizure and, in particular, what we
have termed a “continuing seizure.” See, e.g., Schneyder v.
Smith, 653 F.3d 313, 319 (3d Cir. 2011); DiBella v. Borough
of Beachwood, 407 F.3d 599, 602 (3d Cir. 2005). Justice
Ginsburg first noted that consideration of the common law
may assist today’s understanding of what constitutes a Fourth
Amendment seizure. Albright, 510 U.S. at 277 (Ginsburg, J.,
concurring). She acknowledged that, “[a]t common law, an
arrested person’s seizure was deemed to continue even after
5
We have recognized that the lack of a decision on the merits
of a Fourth Amendment claim in Albright “as well as the
splintered views on the constitutional implications of
malicious prosecution claims expressed in the various
concurrences, has created great uncertainty in the law.” Gallo
v. City of Phila., 161 F.3d 217, 222 (3d Cir. 1998) (citing
Taylor v. Meacham, 82 F.3d 1556, 1561 n.5 (10th Cir. 1996)
(noting that “Albright muddied the waters rather than
clarified them”); Reed v. City of Chi., 77 F.3d 1049, 1053
(7th Cir. 1996) (alluding to the “Albright minefield”)).
10
release from official custody.” Id. at 277-78. Noting that the
common law purposes of arrest and other means such as bail
are to compel a person to appear in court, Justice Ginsburg
recognized that “[t]he common law thus seems to have
regarded the difference between pretrial incarceration and
other ways to secure a defendant’s court attendance as a
distinction between methods of retaining control over a
defendant’s person, not one between seizure and its
opposite.” Id. at 278. Justice Ginsberg determined that this
concept of seizure comports with “common sense” as well as
“common understanding,” and explained:
A person facing serious criminal charges is hardly
freed from the state’s control upon his release from a
police officer’s physical grip. He is required to appear
in court at the state’s command. He is often subject, as
in this case, to the condition that he seek formal
permission from the court (at significant expense)
before exercising what would otherwise be his
unquestioned right to travel outside the jurisdiction.
Pending prosecution, his employment prospects may
be diminished severely, he may suffer reputational
harm, and he will experience the financial and
emotional strain of preparing a defense.
A defendant incarcerated until trial no doubt suffers
greater burdens. That difference, however, should not
lead to the conclusion that a defendant released pretrial
is not still “seized” in the constitutionally relevant
sense. Such a defendant 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 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 278-79.
We have described the analysis in Justice Ginsburg’s
Albright concurrence as “compelling and supported by
11
Supreme Court case law,”6 Gallo v. City of Phila., 161 F.3d
217, 223 (3d Cir. 1998), and have expressly adopted her
concept of “continuing seizure,” Schneyder, 653 F.3d at 319.
Further, we have explained that under this view, “[p]re-trial
restrictions of liberty aimed at securing a suspect’s court
attendance are all ‘seizures’ . . . [because] 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. at 320.
We subsequently applied Justice Ginsburg’s analysis
to determine whether a person was seized for Fourth
Amendment purposes. In Gallo v. City of Philadelphia, we
held that a plaintiff seeking section 1983 relief for violation
of his Fourth Amendment rights was seized post-indictment
because he had to post a $10,000 bond, attend court hearings
including his trial and arraignment, contact Pretrial Services
on a weekly basis, and was prohibited from travelling outside
of two states, New Jersey and Pennsylvania. 161 F.3d at 222.
Noting that we had adopted “a broad approach in considering
what constitutes a seizure,” id. at 224, we concluded “that the
combination of restrictions imposed upon Gallo, because they
intentionally limited his liberty, constituted a seizure,” id. at
225.
In contrast, in DiBella v. Borough of Beachwood, we
held that the plaintiffs were not seized when “only issued a
summons; they were never arrested; they never posted bail;
they were free to travel; and they did not have to report to
Pretrial Services.” 407 F.3d at 603. We noted that unlike the
“significant pretrial restrictions”7 imposed in Gallo, the
6
For instance, we have noted that in Justices of Boston
Municipal Court v. Lyon, 466 U.S. 294, 300-01 (1984), the
Supreme Court held that release on personal recognizance
falls within the definition of “in custody” under the federal
habeas corpus statute, and have reasoned that this holding “is
relevant given that both seizure and custody concern
governmental restriction of the freedom of those suspected of
crime.” Gallo, 161 F.3d at 223.
7
We reiterate here that “[w]e hold open the possibility that
some conditions of pre-trial release may be so insignificant as
12
plaintiffs’ liberty in DiBella was restricted only during their
municipal court trial and that merely attending trial does
amount to a seizure for Fourth Amendment purposes. Id. We
further explained that “[p]retrial custody and some onerous
types of pretrial, non-custodial restrictions constitute a Fourth
Amendment seizure.” Id.
2.
Turning to the facts alleged in this case and applying
pertinent case law, we conclude that Black was seized for
Fourth Amendment purposes. Black, insofar as she was
charged with arson and other crimes, meets Justice
Ginsburg’s threshold of “[a] person facing serious criminal
charges.” Albright, 510 U.S. at 278 (Ginsburg, J.,
concurring). Black’s liberty was subject to constitutionally
significant restraints by the defendants, according to the
complaint.
Less than one month after being interrogated by police
and accused of committing arson,8 Black flew from her home
in California to Pennsylvania for her arraignment because an
arrest warrant had been issued and she had been directed to
return. See Gallo, 161 F.3d at 223 (“When he was obliged to
go to court and answer the charges against him, Gallo, like
the plaintiff in Terry, was brought to a stop. . . . [I]t is difficult
to distinguish this kind of halt from the exercise of authority
deemed to be a seizure in Terry.”). She spent more than an
hour being fingerprinted and photographed at a police station
— and she was clearly not free to leave. See Mendenhall,
446 U.S. at 554 (plurality). Black was required to post
unsecured bail of $50,000. She was told that the bond would
be forfeited if she did not attend all court proceedings —
compelling her to travel across the United States to attend
pre-trial hearings. Even though Black was never
incarcerated, that “should not lead to the conclusion that a
to not implicate constitutionally protected liberty interests.”
Schneyder, 653 F.3d at 321 n.12.
8
We note that after Black was interrogated, Fallon warned
Black that if she did not surrender at a later date she would be
arrested in California, remain in custody until extradited, and
remain in jail until arraignment.
13
defendant released pretrial is not still ‘seized’ in the
constitutionally relevant sense.” Albright, 510 U.S. at 279(Ginsburg, J., concurring). Further, the cloud of very serious
charges demonstrates that Black was “hardly freed from the
state’s control upon [her] release from a police officer’s
physical grip.” Id. at 278.
The defendants seek to distinguish this case from other
similar cases by pointing out that the Pennsylvania state court
handling Black’s criminal proceedings did not impose a
formal limitation on her travel. However, in Gallo, we
determined that the plaintiff’s “liberty was restrained through
travel restrictions and mandatory court appearances.” 161
F.3d at 225 (emphasis added); see also id. at 224-25(“[C]onstraints on Gallo’s freedom were not limited to
restrictions on his travel, he was also compelled to attend all
court hearings.”). Accordingly, it is significant that Black
was required to fly from California to Pennsylvania for
twelve pre-trial conferences in just a year “to appear in court
at the state’s command.” Albright, 510 U.S. at 278(Ginsburg, J., concurring); see Swartz v. Insogna, 704 F.3d
105, 112 (2d Cir. 2013) (“We have consistently held that a
post-arraignment defendant who is ‘obligated to appear in
court in connection with [criminal] charges whenever his
attendance [i]s required’ suffers a Fourth Amendment
deprivation of liberty.” (quoting Murphy v. Lynn, 118 F.3d
938, 946 (2d Cir. 1997)). Black was forced to travel this
great distance — presumably at great expense — a dozen
times to defend herself. This demonstrates that Black was
“scarcely at liberty; [s]he remain[ed] apprehended, arrested in
[her] movements, indeed ‘seized’ for trial, so long as [s]he
[was] bound to appear in court and answer the state’s
charges.” Albright, 510 U.S. at 279 (Ginsburg, J.,
concurring). In contrast to Gallo and DiBella, Black did not
live in the jurisdiction where she was tried and if she did not
travel, she faced serious charges and a possibility of
incarceration. Further, Black’s life was presumably disrupted
by the compulsion that she travel out of state a dozen times.
See generally id. at 278 (“Pending prosecution, [her]
employment prospects may be diminished severely, [s]he
may suffer reputational harm, and [s]he will experience the
financial and emotional strain of preparing a defense.”).
Black’s circumstances demonstrate that she experienced
14
“constitutionally significant restrictions on [her] freedom of
movement for the purpose of obtaining h[er] presence at a
judicial proceeding” and she was “seized within the meaning
of the Fourth Amendment.” Schneyder, 653 F.3d at 321-22.
Considering the totality of the circumstances alleged,
Black has sufficiently alleged that her liberty was
intentionally restrained by the defendants. Accordingly, we
will vacate the District Court’s determination that she was not
seized as is required for a Fourth Amendment malicious
prosecution claim.
B.
We next consider Black’s Fourteenth Amendment due
process claim for fabrication of evidence. Black has alleged
that defendants Fallon and Hand conspired with the other
defendants and deliberately fabricated, suppressed, and
destroyed evidence from the inception of their investigation
through the trial of the criminal case against her. Relying on
our opinion in Halsey v. Pfeiffer, the District Court ruled that
Black’s Fourteenth Amendment due process claim for
fabricated evidence must fail because Halsey requires a
conviction for such a claim, and she was acquitted at trial.
The legal question before us is whether a plaintiff may
pursue a fabricated evidence9 claim against state actors under
the due process clause of the Fourteenth Amendment even if
the plaintiff was never convicted. While we held in Halsey
that a fabricated evidence claim could proceed when a
plaintiff was convicted at trial, we explicitly left open the
question of whether such a claim would be viable if a plaintiff
was acquitted. Consistent with other Courts of Appeals that
have considered this question, as well as our reasoning in
Halsey, we now hold that such a stand-alone fabrication of
evidence claim can proceed if there is no conviction.
9
We acknowledge that Black has alleged a variety of
wrongful acts including fabrication, suppression, and
destruction of evidence. For the ease of reference, we will
refer to her allegations collectively as fabrication of evidence.
15
We begin our analysis by examining our decision in
Halsey. Much of our discussion in that decision centered
upon which constitutional right was implicated by a
fabricated evidence claim and, ultimately, whether there
could be a stand-alone claim for fabrication of evidence. 750
F.3d at 288-96. The defendants rightly conceded that
fabrication of evidence would deny a defendant due process
of law,10 but they argued that a plaintiff could only seek
redress through a Fourth Amendment malicious prosecution
action, as “the two claims are intertwined and . . . the former
[a due process claim] can only exist as a portion of the latter
[a Fourth Amendment malicious prosecution claim].” Id. at
290. The plaintiff countered that the Fourteenth Amendment
due process clause protects the right to be free from evidence
that is fabricated by state actors and is independent of a
Fourth Amendment malicious prosecution claim. Id. at 290-
91. Viewing both types of claims, we recognized that not all
of the plaintiff’s allegations may “fall under the traditional
definition of a Fourth Amendment malicious prosecution
claim.” Id. at 292. Further, we observed the untenable
possibility “that there would not be a redressable
constitutional violation when a state actor used fabricated
evidence in a criminal proceeding if the plaintiff suing the
actor could not prove the elements of a malicious prosecution
case, such as the lack of probable cause for the prosecution.”
Id. We also observed that “[w]hen falsified evidence is used
as a basis to initiate the prosecution of a defendant, or is used
to convict him, the defendant has been injured regardless of
whether the totality of the evidence, excluding the fabricated
evidence, would have given the state actor a probable cause
defense in a malicious prosecution action that a defendant
later brought against him.” Id. at 289. As a result, we
rejected the defendants’ argument that claims of evidence
fabrication must be tied to malicious prosecution cases. Id. at
10
Indeed, we observed that “[t]o the best of our knowledge,
every court of appeals that has considered the question of
whether a state actor has violated [a] defendant’s right to due
process of law by fabricating evidence to charge or convict
the defendant has answered the question in the affirmative.
See Whitlock v. Brueggemann, 682 F.3d 567, 585 (7th Cir.
2012) (collecting court of appeals cases).” Halsey, 750 F.3d
at 292.
16
292.11 We supported this view by noting “that no sensible
concept of ordered liberty is consistent with law enforcement
cooking up its own evidence.” Id. at 292-93.
Addressing the issue presented in Halsey we held,
accordingly, that “if a defendant has been convicted at a trial
at which the prosecution has used fabricated evidence, the
defendant has a stand-alone claim under section 1983 based
on the Fourteenth Amendment if there is a reasonable
likelihood that, without the use of that evidence, the
defendant would not have been convicted.” Id. at 294.
Nonetheless, we explicitly left open the question we face
today. Id. at 294 n.19 (“Nor do we decide whether a
defendant acquitted at a trial where fabricated evidence has
been used against him has an actionable section 1983 claim.”
(emphasis added)). The defendants seem to argue, inter alia,
that because we cautioned that courts in our circuit should not
use the Halsey decision “beyond the scope of our holding,”
id. at 295, we have already foreclosed the question.
We see no reason to require a conviction as a
prerequisite to a stand-alone due process claim against a state
actor for fabrication of evidence. The harm we were
concerned with in Halsey — corruption of the trial process —
occurs whether or not one is convicted. It would be indeed
anomalous if an attentive jury correctly saw through
fabricated evidence, and its acquittal categorically barred later
11
Noting that the boundary between the Fourteenth and
Fourth Amendments “is, at its core, temporal,” we observed
in Halsey that the Fourth Amendment’s protection against
unlawful seizure extends until trial whereas the due process of
law guarantee “is not so limited as it protects defendants
during an entire criminal proceeding through and after trial.”
Id. at 291. We determined, however, drawing a precise line
between claims invoking the two rights was unnecessary in
Halsey (as in the present case) because the fabrication of
evidence allegedly infected the entirety of the criminal
proceeding, from securing the indictment through trial. Id.;
see also id. (“Wherever the boundary between the Fourth and
Fourteenth Amendment claims lies, it is in the rear view
mirror by the end of trial, when Fourth Amendment rights no
longer are implicated.”).
17
relief to the criminal defendant. Such a result would insulate
the ineffective fabricator of evidence while holding
accountable only the skillful fabricator. Fabricated evidence
is an affront to due process of law, and state actors seeking to
frame citizens undermine fundamental fairness and are
responsible for “corruption of the truth-seeking function of
the trial process.” United States v. Agurs, 427 U.S. 97, 104
(1976); see Napue v. People of Ill., 360 U.S. 264, 269 (1959)
(acknowledging the principle that state actors “may not
knowingly use false evidence . . . [is] implicit in any concept
of ordered liberty”). The Supreme Court has explained that
section 1983 is intended “to deter state actors from using the
badge of their authority to deprive individuals of their
federally guaranteed rights and to provide relief to victims if
such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161
(1992). A contrary holding would contravene the purposes of
section 1983. There is no meaningful reason why due process
protections precluding fabricated evidence should turn on
whether or not one is convicted at trial.
Our reasoning in Halsey makes no distinction between
fabricated evidence leading to a wrongful conviction and
wrongful criminal charges. For example, we repeatedly
referred to the injury of falsified evidence leading to wrongful
initiation of prosecution. See, e.g., 750 F.3d at 289 (“When
falsified evidence is used as a basis to initiate the prosecution
of a defendant, or is used to convict him, the defendant has
been injured . . . .” (emphasis added)); id. at 294 n.19 (“[I]f
fabricated evidence is used as a basis for a criminal charge
that would not have been filed without its use the defendant
certainly has suffered an injury.”). Furthermore, when we
explained in Halsey why the injury violated due process, we
focused on the corruption of the trial process. See id. at 293
(“[W]e think it self-evident that a police officer’s fabrication
and forwarding to prosecutors of known false evidence works
an unacceptable corruption of the truth-seeking function of
the trial process.” (quotation marks omitted and emphasis
added)). It is challenging to square away Halsey’s broad
language about “law and fundamental justice,” id., with a
requirement that one be convicted for a fabricated evidence
claim to be viable; the harm of the fabrication is corrupting
regardless of the outcome at trial or the particular time in the
proceeding that the corruption occurs. We stressed in Halsey
18
that we were not suggesting that “there is nothing wrong with
the fabricating of evidence if it does not affect the final
verdict.” Id. at 295 n.20.
Others Courts of Appeals have permitted plaintiffs to
pursue due process claims predicated on the fabrication of
evidence notwithstanding the fact, as here, that the plaintiff
was not convicted of criminal charges. See, e.g., Cole v.
Carson, 802 F.3d 752 (5th Cir. 2015); Weiland v. Palm Beach
Cty. Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015); Zahrey
v. Coffey, 221 F.3d 342 (2d Cir. 2000); Ricciuti v. N.Y.C.
Transit Auth., 124 F.3d 123 (2d Cir. 1997). For instance, in
Cole, the Court of Appeals for the Fifth Circuit recognized “a
due process right not to have police deliberately fabricate
evidence and use it to frame and bring false charges against a
person.” 802 F.3d at 771. The court noted that deliberate
framing by officials “offends the most strongly held values of
our nation.” Id. at 772. Accordingly, the court determined
that “even when a trial functions properly to vindicate a
person’s innocence,” fabrication of evidence deprives a
person of his or her due process rights. Id. at 767. The court
“held that a victim of intentional fabrication of evidence by
officials is denied due process when he is either convicted or
acquitted.” Id. at 768 (emphasis added); see also id. (“[A]
conviction [is] a requirement we have not insisted upon.”).12
12
Two Courts of Appeals appear to require a conviction as a
prerequisite to a stand-alone due process claim. See
Saunders-El v. Rohde, 778 F.3d 556, 562 (7th Cir. 2015)
(“[A] police officer does not violate an acquitted defendant’s
due process rights when he fabricates evidence.”); Massey v.
Ojaniit, 759 F.3d 343, 354 (4th Cir. 2014) (“Fabrication of
evidence alone is insufficient to state a claim for a due
process violation; a plaintiff must plead adequate facts to
establish that the loss of liberty — i.e., his conviction and
subsequent incarceration — resulted from the fabrication.”).
While the Massey court provided very little analysis to
support its holding, the Saunders-El court noted that the only
“‘liberty deprivation’” in a fabricated evidence case where
one is acquitted “‘stems from his initial arrest.’” Id. at 561(quoting Alexander v. McKinney, 692 F.3d 553, 557 (7th Cir.
2012)). The Saunders-El court rejected the view that “‘the
burden of appearing in court and attending trial, in and of
itself, constitute[s] a deprivation of liberty [because] [i]t
19
Accordingly, we hold that an acquitted criminal
defendant may have a stand-alone fabricated evidence claim
against state actors under the due process clause of the
Fourteenth Amendment if there is a reasonable likelihood
that, absent that fabricated evidence, the defendant would not
have been criminally charged. In Halsey, we required a
“reasonable likelihood” that a defendant would not have been
convicted absent the fabricated evidence, and that standard
was merely based on principles of causation. 750 F.3d at 294
n.19. The “reasonable likelihood” standard we employ
simply requires that a plaintiff draw a “meaningful
connection” between her particular due process injury and the
use of fabricated evidence against her. See id.; see also
Lamont v. New Jersey, 637 F.3d 177, 185 (3d Cir. 2011)
(“Like a tort plaintiff, a § 1983 plaintiff must establish both
causation in fact and proximate causation.”).
Aside from the causation requirement, there are other
hurdles facing a plaintiff alleging a due process violation for
fabrication of evidence. For instance, as we cautioned in
Halsey, a civil plaintiff’s fabricated evidence claim should not
survive summary judgment unless he can demonstrate that the
fabricated evidence “was so significant that it could have
affected the outcome of the criminal case.” See Halsey, 750
F.3d at 295. In addition, there is a notable bar for evidence to
be considered “fabricated.” We have noted that “testimony
that is incorrect or simply disputed should not be treated as
fabricated merely because it turns out to have been wrong.”
Id. There must be “persuasive evidence supporting a
conclusion that the proponents of the evidence” are aware that
evidence is incorrect or that the evidence is offered in bad
faith. Id. For these reasons, we reiterate that “we expect that
it will be an unusual case in which a police officer cannot
obtain a summary judgment in a civil action charging him
would be anomalous to hold that attending a trial deprives a
criminal defendant of liberty.’” Id. (quoting Alexander, 692
F.3d at 557 n.2). As explained in Subsection III(A) supra,
however, we take a broader view of the liberty deprivations
occasioned by the criminal process. Further, considering our
Court’s concern in Halsey and in this decision with the
corruption of the truth-seeking process of trial, we disagree
with Saunders-El.
20
with having fabricated evidence used in an earlier criminal
case.” Id. at 295.13
We conclude that Black’s acquittal does not preclude
her claim that the defendants intentionally fabricated evidence
in violation of the due process clause of the Fourteenth
Amendment. Accordingly, we will vacate and remand the
District Court’s dismissal of Black’s fabrication of evidence
claim.14
IV.
13
The procedural posture of this case is a motion to dismiss
for failure to state a claim and we thus assume all of the facts
alleged are true. The evidence may tell a different story and
we express no opinion as to whether summary judgment may
be appropriate at a later time.
14
Black also asks us to vacate the dismissal of her conspiracy
claims and claims under Monell. Because the District Court
reasoned that Black could not succeed on her underlying
Fourth Amendment malicious prosecution or Fourteenth
Amendment due process claims, it correctly determined that
she could not succeed on her conspiracy claims. See, e.g.,
Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (“[T]he
plaintiff is additionally required to prove a deprivation of a
constitutional right or privilege in order to prevail on a § 1983
civil conspiracy claim.”). Similarly, the District Court
correctly reasoned that the Monell claims against defendants
Lower Merion Township and Montgomery County require a
constitutional deprivation, but the District Court already
dismissed the underlying malicious prosecution and due
process claims. See, e.g., Brown v. Pa. Dep’t of Health
Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d
Cir. 2003) (“[F]or there to be municipal liability, there still
must be a violation of the plaintiff’s constitutional rights.”).
Because we vacate the District Court’s determination
regarding both the underlying malicious prosecution and due
process claims, we will vacate on the conspiracy and Monell
claims as well.
21
For the foregoing reasons, we will vacate the District
Court’s order and remand for proceedings consistent with this
opinion.
22