                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-2173


JAMES OWENS,

                 Plaintiff - Appellant,

           v.

BALTIMORE CITY STATE’S ATTORNEYS OFFICE; MARVIN BRAVE,
Individually and in his Official Capacity as an Assistant of
the Baltimore City State’s Attorneys Office; BALTIMORE CITY
POLICE DEPARTMENT; GARY DUNNIGAN, Individually and in his
Official Capacity as an Officer and Detective of the
Baltimore City Police Department; JAY LANDSMAN, Individually
and in his Official Capacity as an Officer and Detective of
the Baltimore City Police Department; THOMAS PELLIGRINI,
Individually and in his Official Capacity as an Officer and
Detective of the Baltimore City Police Department,

                 Defendants - Appellees,

           and

MAYOR AND CITY COUNCIL OF BALTIMORE,

                 Defendant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell III, District Judge.
(1:11-cv-03295-GLR)


Argued:   January 28, 2014            Decided:   September 24, 2014


Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion.   Judge Motz wrote the opinion, in which Chief Judge
Traxler concurs as to Parts III., IV.A., and V. and dissents as
to Parts II. and IV.B., and Judge Wynn concurs, except for Part
III.   Chief Judge Traxler and Judge Wynn each wrote a separate
opinion concurring in part and dissenting in part.


ARGUED: Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore,
Maryland; Laura Ginsberg Abelson, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellant.   Daniel C. Beck, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland; Michele J. McDonald,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees.   ON BRIEF: Joshua R. Treem, BROWN, GOLDSTEIN &
LEVY, LLP, Baltimore, Maryland, for Appellant.       Douglas F.
Gansler, Attorney General, H. Scott Curtis, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland; George A. Nilson, BALTIMORE CITY LAW DEPARTMENT,
Baltimore, Maryland, for Appellees.




                               2
DIANA GRIBBON MOTZ, Circuit Judge:

      James    Owens       brought    this       action       under   42    U.S.C.    § 1983

against      the     Baltimore       City    State’s           Attorney’s        Office,   an

assistant       State’s        Attorney,          the     Baltimore         City      Police

Department, and several Baltimore City police officers.                               In his

complaint,      Owens      alleges     that       the     defendants        violated       his

constitutional rights by intentionally withholding exculpatory

evidence     during     his    1988    trial       for    the     rape     and    murder   of

Colleen Williar.           The district court dismissed the complaint in

its   entirety       against   all    defendants          on    statute-of-limitations

grounds.      In the alternative, the court held that the Baltimore

City State’s Attorney’s Office enjoyed sovereign immunity, the

individual      police      officers        enjoyed       qualified        immunity,       and

Owens’s      cause    of    action     against      the        Baltimore     City     Police

Department failed to state a claim on which relief could be

granted.      For the reasons that follow, we affirm in part, vacate

in part, and remand the case for further proceedings consistent

with this opinion.



                                             I.

      Owens appeals the dismissal of his complaint for failure to

state a claim.         Accordingly, we recount the facts as alleged by

Owens   in    his     complaint,      accepting          as    true   all    well-pleaded



                                             3
facts.     See Minor v. Bostwick Labs., Inc., 669 F.3d 428, 430 n.1

(4th Cir. 2012).

                                       A.

     In    the   early    morning    hours    of   August    2,    1987,    Colleen

Williar    was   raped,   robbed,    and     murdered   in   the     second-floor

bedroom of her Baltimore City apartment.              The following day, one

of   Williar’s     neighbors,   James       Thompson,   contacted         the   city

police department to inquire about a reward it had offered for

information relating to Ms. Williar’s death.                  Thompson claimed

that he had found a knife outside of Ms. Williar’s apartment the

previous evening, which he had carried home and cleaned before

realizing    its   connection   to    the    crime.     Over       the    course   of

Thompson’s conversation with police, however, it became apparent

that Thompson had not simply “happened” on the knife, as he

originally claimed.         Rather, in response to questioning from

Officers    Thomas   Pelligrini,      Gary    Dunnigan,      and    Jay    Landsman

(collectively, “the Officers”), Thompson asserted that he had

retrieved the knife at the behest of his friend, James Owens.

The Officers executed a search warrant at Owens’s apartment, but

found no physical evidence linking Owens to the crime.                          Even

though the search was fruitless, police arrested Owens on the

basis of Thompson’s statement.          A grand jury then indicted Owens

for Ms. Williar’s murder, rape, and burglary.



                                        4
     On the eve of Owens’s trial, Assistant State’s Attorney

(“ASA”) Marvin Brave, the prosecutor assigned to Owens’s case,

began to question the veracity of Thompson’s version of events.

When ASA Brave raised these concerns with Thompson, the witness

retracted his statement and offered another explanation for the

knife’s acquisition.        This time, Thompson stated that the knife

belonged to him, but he claimed that it had gone missing after

Owens visited Thompson at his home.                The day after Ms. Williar’s

murder, Owens assertedly returned the knife to Thompson, who

noticed blood on the weapon’s blade and handle.                         When Thompson

questioned Owens about the origin of the blood, Owens denied

using the weapon and told Thompson to keep quiet about it.

     At trial, ASA Brave presented only this third version of

events to the jury.         Brave never informed defense counsel about

Thompson’s    earlier      accounts,       and    thus,    when     cross-examining

Thompson,    defense      counsel    was       unaware    that    the    witness    had

changed     his   story    several       times     over     the    course     of    the

investigation.

     Nevertheless, defense counsel apparently cast enough doubt

on   Thompson’s    testimony        to   prompt      ASA    Brave       to   seek   out

additional evidence of Owens’s guilt.                    To this end, mid-trial,

ASA Brave ordered testing of a pubic hair found on Ms. Williar’s

body.     When the results were returned, however, they indicated

that Thompson -- not Owens -- matched the sample.                            Concerned

                                           5
that Thompson was involved in the crimes, ASA Brave instructed

the Officers to reinterrogate Thompson.

        At ASA   Brave’s   direction,         Officers    Pelligrini,     Dunnigan,

and     Landsman    brought    Thompson         into     the     stationhouse     and

questioned him for two hours.             The Officers accused Thompson of

lying on the witness stand, warned him that he “was in a lot of

trouble,” and asserted that he could be charged with a crime for

his    misrepresentations      to   the       jury.      After    receiving     their

warnings, Thompson stated that he wanted to change his story yet

again.     In fact, over the course of the two-hour interview,

Thompson changed his story five additional times.

        In his first new attempt, Thompson told the Officers that

he and Owens had broken into Ms. Williar’s apartment on the day

of the murder only to find Ms. Williar already dead in her

bedroom.     When the Officers replied that they did not believe

him,     Thompson    offered    another        iteration.          This   time,   he

contended that Owens had raped and murdered Ms. Williar upstairs

while    Thompson    waited    downstairs        in    the     living   room.     The

Officers responded that there was evidence that Thompson had

been on the second floor, and thus, his amended account could

not be true.        After this prompt, Thompson admitted that he had

been on the second floor, but insisted that he had hidden in the

bathroom during Owens’s crimes.                 The Officers again rejected

Thompson’s story, stating that investigators had found physical

                                          6
evidence of Thompson’s presence in Ms. Williar’s bedroom.                                      In

response,      Thompson      admitted      that       he    had   been     in    the    bedroom

while Owens raped and killed Ms. Williar, but he insisted that

he had refused to participate in any assault.                               At this point,

the   Officers        informed       Thompson       that    his    pubic    hair       had   been

found     on    Ms.    Williar.          Faced       with    the    forensic       evidence,

Thompson offered a fifth version of events.                              In this account,

Thompson claimed that he and Owens had broken into Ms. Williar’s

apartment with the intent to steal her jewelry.                              When the pair

found the victim alone in her bedroom, Owens raped and killed

her, while Thompson masturbated at the foot of her bed.

      After the Officers elicited this latest account, Officer

Landsman       told    ASA     Brave     about       Thompson’s       final      version       of

events.        None     of     the    Officers       disclosed       that       Thompson      had

offered several other accounts of what happened, all of which

differed dramatically from the version of events related to ASA

Brave as well as from the physical evidence.

      Following        his     conversation         with    the    Officers,       ASA       Brave

immediately called Thompson back to the witness stand and had

him   share     with     the    jury     his    new    account       of    what    happened.

However, because only the Officers knew of the inconsistencies

in Thompson’s statements, neither ASA Brave nor defense counsel

questioned Thompson about the four inconsistent versions of the

story that the witness had offered before he settled on his

                                                7
final account.        Moreover, neither ASA Brave nor the Officers

told defense counsel about the discovery of Thompson’s pubic

hair.    Indeed, when defense counsel inquired about whether there

had been forensic testing of the hair, ASA Brave represented to

the court that “there [hadn’t] been any match made” between the

sample and a suspect. 1

     The jury convicted Owens of burglary and felony murder, and

the trial court sentenced him to life imprisonment without the

possibility of parole.       Owens filed an unsuccessful appeal, and,

over the course of the next two decades, several unsuccessful

state-court    petitions    for     post-conviction   relief.       In   2006,

however,   a   state     court    granted   Owens’s   request      for   post-

conviction DNA testing.          The results were returned some months

later and indicated that Owens’s DNA did not match the blood and

semen evidence found at the scene of the crime.

     On June 4, 2007, a state court granted Owens’s “petition to

reopen   his   Post    Conviction    Proceeding”   and   ordered    that   “by

agreement of Counsel and this Honorable Court, . . . Petitioner


     1
       Owens also alleges that ASA Brave withheld impeachment
evidence with respect to a different witness:      Larry Oliver,
Owens’s cellmate.    Specifically, Owens asserts that ASA Brave
intentionally withheld the fact that he had promised leniency to
Oliver, who testified that Owens confessed to him in their jail
cell.      Because  the    issues  involved   in this   asserted
nondisclosure are identical to those involved in ASA Brave’s
nondisclosures regarding Thompson and the DNA evidence, we focus
only on those facts for the sake of simplicity.

                                       8
shall be granted a new trial.”                     During the next sixteen months,

Owens remained in state prison awaiting retrial.                        On October 15,

2008, the State’s Attorney entered a nolle prosequi, dropping

the charges against him.                 On that date, after Owens had spent

more than twenty years in prison, the state court ordered him

released from incarceration.

                                               B.

     On    October      12,     2011,     a    few     days    before   the    three-year

anniversary of the nolle prosequi, Owens filed this action under

42   U.S.C.      § 1983        against    the        Mayor     and   City     Council   of

Baltimore,       the   Baltimore      City      State’s       Attorney’s      Office,   ASA

Brave,     the    Baltimore       City        Police     Department     (“BCPD”),       and

Officers Pelligrini, Dunnigan, and Landsman.                         In his complaint,

Owens alleges that the defendants violated his constitutional

rights by intentionally and in bad faith withholding exculpatory

and impeachment evidence at his 1988 trial.

     All     defendants         moved     to       dismiss     the   complaint.         The

Baltimore City State’s Attorney’s Office asserted that it was

not an entity amenable to suit, and that even if it were, it was

an “arm of the State,” immune from liability.                           The individual

Officers,     the      BCPD,    and   ASA      Brave     all    moved   to    dismiss   on

statute-of-limitations grounds.                     Alternatively, the individual

Officers asserted that qualified immunity protected them from



                                               9
suit, and the BCPD maintained that Owens failed to state a claim

on which relief could be granted.

       After Owens voluntarily dismissed the claims against the

Mayor and City Council of Baltimore, the district court, in an

oral ruling, dismissed the claims against the other defendants.

The court initially determined that Owens’s claims were time

barred because the limitations period for his causes of action

commenced when the state court granted Owens’s request for a new

trial,    not    (as   Owens    claimed)       on   the   date   that   prosecutors

entered    the   nolle   prosequi.         Although       the    limitations   issue

disposed of all of Owens’s claims, the court went on to briefly

address the defendants’ alternative grounds for dismissal.                     In a

series of rulings, the court determined that the Baltimore City

State’s Attorney’s Office was entitled to sovereign immunity,

that   the   individual        Officers    and      the   BCPD   were   entitled   to

qualified immunity, and that Owens’s complaint failed to state a

claim against the BCPD.          Owens noted a timely appeal.

       We review a district court’s grant of a motion to dismiss

de novo.     Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th

Cir. 1993).       At this stage in the proceedings, we “accept as

true all of the factual allegations contained in the complaint,”

and “draw all reasonable inferences in favor of the plaintiff.”

E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d

435, 440 (4th Cir. 2011).           To prevail, Owens must “state a claim

                                          10
to relief that is plausible on its face.”                    Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (emphasis added and internal quotation

marks    omitted).       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.”          Id.



                                         II.

       We    first     consider      whether     the     applicable     statute   of

limitations bars all of Owens’s claims.

       Section 1983 does not contain a statute of limitations.

Thus, to determine the timely filing of a § 1983 claim, courts

borrow the statute of limitations from the most analogous state-

law cause of action.                See 42 U.S.C. § 1988(a).            For § 1983

suits, that cause of action is a personal-injury suit.                            See

Owens   v.    Okure,    488   U.S.     235,    249–50    (1989).      Maryland    law

affords plaintiffs three years to file a personal-injury action.

See Md. Code Ann., Cts. & Jud. Proc. § 5-101.                      Hence, a three-

year limitations period applies to Owens’s claims.

       The parties agree that Owens had three years to file his

§ 1983 action.         They disagree, however, as to the date on which

this    three-year     limitations      period     began    to   run.     Appellees

contend that the three-year clock on Owens’s claims began to run

on June 4, 2007, the date on which the state court vacated his

                                          11
conviction and granted him a new trial.                           Appellees’ Br. 24.

Because Owens filed suit more than three years after this date

(on    October      12,    2011),      the   Appellees      maintain         that    all     of

Owens’s     claims    are       time    barred.       Id.        Owens,      by    contrast,

maintains that the statute of limitations for his claims did not

begin   to    run    until      October      15,    2008    --    the       date   on   which

prosecutors        filed    a     nolle      prosequi,      finally         resolving       the

proceedings against him.                Appellant’s Br. 22.             Because he filed

suit within three years of this date, Owens contends that he met

the operative deadline.

       Although     state       law    determines     the    applicable           statute    of

limitations for § 1983 claims, federal law governs the date on

which that limitations period begins to run.                           Wallace v. Kato,

549 U.S. 384, 388 (2007).               Federal law, in turn, “conform[s] . .

to common-law tort principles” for purposes of determining this

date.       Id.     “Under those principles, it is the standard rule

that    accrual      occurs      when     the    plaintiff       has    a    complete       and

present cause of action” against a defendant –- that is, when

the plaintiff knows or has reason to know of his injury.                                    Id.

(internal quotation marks and brackets omitted).

       In    Wallace,      however,       the    Supreme    Court       recognized        that

limitations on common-law torts do not always begin on the date

that a plaintiff knows or has reason to know of his injury.

Wallace,     549    U.S.    at    388.          Accordingly,      it    found      that     the

                                             12
“standard        rule”     does    not    always       control       the    start       of    the

limitations period for a § 1983 claim.                       Id.; see also Devbrow v.

Kalu, 705 F.3d 765, 767 (7th Cir. 2013) (relying on Wallace to

hold   that       there    is     no   “single       accrual      rule     for    all   § 1983

claims”).

       Instead, the Wallace Court held that to determine the date

of accrual for a particular § 1983 claim, a court must look to

the common-law tort that is most analogous to the plaintiff’s

§ 1983 claim and determine the date on which the limitations

period for this most analogous tort claim would begin to run.

Id.; see also Varnell v. Dora Consol. Sch. Dist., -- F.3d --,

2014   WL   2937039        (10th       Cir.    2014)    (noting       that       “[f]ollowing

Wallace, we determine the accrual date of Plaintiff’s claim by

looking     to     the     accrual      date    for     the       common-law      tort       most

analogous     to     her    § 1983       claim”);      Devbrow,       705    F.3d       at    767

(holding that a court “use[s] the [accrual] rule that applies to

the common-law cause of action most similar to the kind of claim

the    plaintiff          asserts”).           For     most       common-law       torts,      a

plaintiff’s cause of action accrues, and the limitations period

commences, when the plaintiff knows or has reason to know of his

injury (hence, the “standard rule”).                             But if the common law

provides      a     “distinctive          rule”       for        determining       when       the

limitations period for a particular tort begins to run, a court

must   “consider[]”         this       “refinement”         in    determining       when     the

                                               13
limitations     period        for    the    plaintiff’s      analogous       claim   under

§ 1983 should commence.             Wallace, 549 U.S. at 388.

       In    Wallace,    the    Supreme          Court    addressed    a    § 1983   claim

alleging an unconstitutional detention by police officers.                                549

U.S.    at   388.       The    Court       recognized      the   “standard     rule”      for

accrual, but because it found the tort of false imprisonment to

be the tort most analogous to the plaintiff’s § 1983 claim, it

considered the “common law’s distinctive treatment” of that tort

in   determining    the       start     of       the   limitations     period      for    the

plaintiff’s § 1983 claim.              Id.

       The Court noted that Wallace could have brought his claim

under § 1983 “immediately upon his false arrest.”                             Id. at 390

n.3.     This was so because Wallace’s injury commenced at that

date, and “a person falsely imprisoned has the right to sue on

the first day of his detention.”                       Id. (citation omitted).            The

Supreme Court went on to explain, however, that under the common

law, the statute of limitations for false imprisonment does not

begin to run at the outset of a plaintiff’s false imprisonment;

rather,      limitations        begin       to     run    only   at    the    end    of     a

plaintiff’s false imprisonment.                    Id. at 389.        Deferring to the

common law’s “distinctive rule,” the Court selected the date on

which   Wallace’s       false       imprisonment         ended   –-   not    the   date    on

which it began -– as the start of the operative limitations

period.      Id. at 391-92.            With this start date established, the

                                              14
Court held that Wallace’s § 1983 claim accrued on the date that

he was arraigned by a magistrate, i.e., the date on which his

false imprisonment ended.           Id.

      Here,    the    parties    acknowledge     that,    unlike    in    Wallace,

false imprisonment is not the tort “most analogous” to Owens’s

§ 1983 claims.        Instead, they properly agree that the tort of

malicious prosecution, which the Wallace Court recognized as an

“entirely     distinct”      tort,    provides     the    closest     analogy        to

Owens’s Brady-like claim.            See Brady v. Maryland, 373 U.S. 83

(1963).       Malicious prosecution redresses injuries a plaintiff

sustains as a result of a defendant’s improper initiation or

maintenance of formal proceedings against him.                   See Lambert v.

Williams, 223 F.3d 257, 260 (4th Cir. 2000).                       Because Owens

contends that the Appellees violated due process by maintaining

proceedings against him without disclosing exculpatory evidence,

malicious prosecution provides the closest analogy to his § 1983

claims.     Thus, following Wallace, we must determine the start

date of Owens’s § 1983 claims by looking to the start date of

the   common-law      tort   most    analogous    to     his   claims    –-     here,

malicious prosecution.

      Under     the   common     law,     the   limitations      period       for    a

plaintiff’s     malicious       prosecution      claim    commences      when       the

proceedings brought against him are resolved in his favor.                          W.

Page Keeton, et al., Prosser & Keeton on Torts § 119 (5th ed.

                                          15
1984); see also 3 Dan B. Dobbs, et al., The Law of Torts § 590

(2d ed. 2011); 8 Stuart M. Speiser, et al., The American Law of

Torts § 28.5 (2011); 1 Fowler V. Harper, et al., Harper, James,

and Gray on Torts § 4.4 (3d ed. rev. 2006).                                 To satisfy this

favorable-termination          requirement,          a       plaintiff      must       show     that

the proceedings against him were favorably terminated “in such

manner that [they] cannot be revived.”                        Keeton, et al. at § 119.

“This      is   true,   for    example,      of      an       acquittal          in    court,     a

discharge . . . upon preliminary hearing, [or] the entry of a

nolle   prosequi.”          Id.;   see    also       Speiser,         et    al.       at   § 28.5;

Harper, et al. at § 4.4.              It is not true of “[a]ny disposition

of the criminal action which does not terminate it but permits

it to be renewed.”            Keeton, et al. at § 119 (emphasis added).

Under the common law, such terminations “cannot serve as the

foundation for [a malicious prosecution] action,” and thus, the

limitations      period     for    malicious      prosecution              claims      does      not

begin to run until a truly final disposition is achieved.                                  Id.

      The grant of a new trial does not terminate the proceedings

against a defendant “in such a manner that [they] cannot be

revived.”        Keeton, et al. at § 119.                       Rather, it provides a

procedural       victory,     which      simply      postpones             the    proceedings’

ultimate outcome.         See Harper, et al. at § 4.4 (“The termination

in   the    plaintiff’s       favor   must      be       a    final    one,       and      if   the

proceedings are immediately renewed for the same offense, they

                                           16
are    sufficient         to    bar       plaintiff’s         action     for       malicious

prosecution until they are finally determined.”).

       Because      the   grant      of   a   new   trial      does    not   trigger       the

limitations         period     for    a    malicious       prosecution         claim,      the

statute of limitations on Owens’s § 1983 claims did not begin to

run on      the    date   he    was   granted       a   new    trial.        Instead,      the

operative         limitations     period      began      to     run    on    the    date     a

malicious prosecution claim became ripe at common law, i.e., the

date on which the nolle prosequi was entered.                           It was only on

this       date    that      proceedings       against        Owens     were       favorably

terminated        in   such    manner      that     they      could    not   be     revived.

Because Owens filed suit within three years of this date, the

statute of limitations does not bar his present cause of action. 2

       Contrary to the Appellees’ suggestion, Heck v. Humphrey,

512 U.S. 477 (1994), does not require a different result.                               Heck

held that a prisoner may not file suit under § 1983 as long as a

§ 1983 judgment in his favor would imply the invalidity of his

       2
       This is not to say that Owens could not have filed suit
immediately upon his discovery of the Appellees’ asserted
suppression of material exculpatory evidence.   See Wallace, 549
U.S. at 390 n.3; but see Heck v. Humphrey, 512 U.S. 477, 486-87
(1994) (holding that the date of accrual for a § 1983 claim is
delayed if a § 1983 judgment in a plaintiff’s favor would imply
the   invalidity  of  the   plaintiff’s  criminal   conviction).
Although the statute of limitations did not begin to run until
the proceedings against Owens were favorably and finally
terminated, because he knew of his alleged injury before then,
he was entitled to seek relief earlier.    Wallace, 549 U.S. at
390 n.3.

                                              17
criminal conviction.             See id. at 487.              In this case, as the

Appellees point out, the Heck bar to suit was removed as soon as

the state court invalidated Owens’s conviction and granted him a

new trial.      But contrary to the Appellees’ contention, removal

of the Heck bar did not compel Owens immediately to proceed

under § 1983.       This is so because the statute of limitations for

the most analogous common-law tort, malicious prosecution, did

not   begin    to   run    until       the    proceedings          against        Owens   were

finally     terminated     in    his    favor       and    could       not    “be    revived,”

Keeton, et al. at § 119, i.e., when the prosecutor filed the

nolle prosequi.        Up until this point, Owens remained imprisoned,

and   the   prosecutor      could      –-     and    for     sixteen         months    did    –-

proceed against him without the need to seek reindictment.

      The partial dissent recognizes that Heck does not resolve

the   statute-of-limitations            issue       before       us.         It   nonetheless

maintains that Owens’s claims are time barred because, in the

dissent’s view, the statute of limitations on Owens’s § 1983

claims began to run when he was granted a new trial, or                               when he

possessed sufficient facts to know about the Appellees’ illegal

suppression of evidence, i.e., whenever Owens could have brought

his Brady-like claim.

      The    dissent      both   acknowledges             that,    in    determining         the

start   date   of   Owens’s       §    1983    claims,       a    court       must    look    to

malicious prosecution as the closest “common law analogue,” and

                                             18
recognizes that the date of favorable termination is the date

triggering the onset of limitations for a malicious prosecution

claim.     But the dissent maintains that we adhere too closely to

the malicious prosecution analogue.                     In the dissent’s view, a

court should consider the “underlying purpose of the elements of

the common law analogue” and borrow this onset date for a § 1983

claim only    if     doing   so     would     serve     that   underlying   purpose.

Because the dissent concludes that borrowing the onset date for

malicious prosecution would not serve this underlying purpose,

it believes we should not borrow its onset date here.

     We recognize the important distinctions between malicious

prosecution torts and Owens’s Brady-like claims.                       But we cannot

agree with the dissent that those distinctions somehow permit us

to jettison the common law date on which limitations begin to

run in determining the date on which limitations begin to run

for an analogous § 1983 claim.                     Neither precedent nor logic

permits this result.

     The    common    law    does      act    as   a    mere   “starting   point”    in

“defining    the   elements       of    damages        and   the   prerequisites    for

their recovery” under § 1983.                 Carey v. Piphus, 435 U.S. 247,

257-58 (1978) (emphasis added).                   But the dissent cites no case

in which the Supreme Court has used the common law as merely the

“starting point” in resolving a statute-of-limitations question

in a § 1983 action.           This is so because the Court has never

                                             19
sanctioned such an approach.               Rather, in resolving the precise

question at issue here -- when the statute of limitations for a

§ 1983 claim begins to run -- the Wallace Court applied the

distinctive common law rule for the most analogous tort.                           549

U.S. at 388-89 (“[T]o determine the beginning of the limitations

period     in   this     [§     1983]      case,    we     must   determine     when

petitioner’s false imprisonment came to an end.”).                      Moreover, in

Heck, the majority expressly relied on malicious prosecution’s

favorable termination requirement to delay the accrual of the

plaintiff’s Brady-based § 1983 claim.                    Heck, 512 U.S. at 484.3

That the Supreme Court would require courts to analogize to the

tort of malicious prosecution for purposes of delaying the onset

of a Brady claim, yet eschew the very same analogy for purposes

of    calculating     the     onset   of   limitations      for   a   Brady    claim,

strikes    us   as    exceedingly       unlikely.        Accordingly,     we   cannot

endorse the partial dissent’s analysis.

       Furthermore, even if, as the dissent argues, a court should

consider the policy and “underlying purpose of the elements of

the    common   law    analogue”      to    determine      when   the    statute    of

limitations begins to run, we would reach the same result.                         For

       3
       In doing so, the Supreme Court majority expressly rejected
the suggestion in Justice Souter’s concurring opinion that the
Court had adhered too closely to the common law analogue. Heck,
512 U.S. at 484 n.4.     Yet it is precisely this argument from
Justice Souter, rather than the majority’s reasoning, on which
the dissent relies in criticizing us.

                                           20
the “strong judicial policy against the creation of conflicting

resolutions arising out of the same or identical transaction”

furthered        by     malicious       prosecution’s             favorable         termination

requirement, Heck, 512 U.S. at 484, is also implicated in the

Brady context.           By setting different dates for the beginning of

the limitations period for a claimant’s § 1983 Brady claim on

the one hand, and his malicious prosecution claim on the other,

the    dissent        would    permit       a   claimant     to     bring      a    state    claim

(based on the same conduct) long after the time for bringing the

§ 1983 claim had expired.                   The limitations period on the § 1983

claim might even have run before the state claim ever ripened,

forcing a claimant to bring separate actions that could produce

different        and     potentially            conflicting       results.            Thus    the

dissent’s approach would hardly accord with the “strong judicial

policy against the creation of conflicting resolutions.”                                Id.

        In    sum,     we     take    the       Supreme     Court    at     its      word.      We

determine       when     the    statute         of    limitations      on      a    plaintiff’s

§ 1983 claim begins to run by looking to the common-law tort

most    analogous        to    the    plaintiff’s           claim.        In       general,    the

limitations       period        for   common          law   torts    commences         when   the

plaintiff knows or has reason to know of his injury.                                 But if the

common law provides a “distinctive rule” for determining the

start date of the limitations period for the analogous tort, a

court        should     consider       this       rule      in    determining         when    the

                                                 21
limitations      period     for    the   plaintiff’s        claim   begins    to    run.

Wallace,      549    U.S.   at    388-89.        Application    of   this     rule   to

Owens’s claims sets the start of the limitations period at the

date of the nolle prosequi.                 Because Owens filed suit within

three years of this date, his claims were timely filed.



                                         III.

       Even if Owens’s suit is timely, the Baltimore City State’s

Attorney’s Office contends that the suit must be dismissed as to

it because it is not an entity capable of being sued. 4

       The Federal Rules of Civil Procedure provide that the law

of the state in which the district court sits determines an

entity’s capacity to be sued.               Fed. R. Civ. P. 17(b).            Maryland

courts have had no occasion to address whether the Baltimore

City       State’s   Attorney’s     Office       may   be   sued.     But     Maryland

courts’       treatment     of    analogous       agencies    confirms       that    the


       4
        Relatedly, in his appellate brief, Assistant State’s
Attorney Brave contends that absolute prosecutorial immunity
requires dismissal of the claims against him. Brave waived this
defense, however, by failing to raise it in the district court.
See Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010); Collyer
v. Darling, 98 F.3d 211, 222 (6th Cir. 1996). Moreover, because
absolute immunity attaches to functions, not offices, see Harlow
v. Fitzgerald, 457 U.S. 800, 808-09 (1982), the district court
must determine whether Brave was performing prosecutorial
functions at the time he allegedly committed the asserted
constitutional violations, cf. Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993) (holding that absolute immunity does not attach
to prosecutors performing “investigatory functions”).

                                            22
“Baltimore    City      State’s   Attorney’s    Office”    is   not   a     suable

entity.

     In   Boyer    v.    State,   Maryland’s    highest    court     made    clear

that, absent a statutory or constitutional provision creating a

government agency, an “office” or “department” bears no unique

legal identity, and thus, it cannot be sued under Maryland law.

See 594 A.2d 121, 128 n.9 (Md. 1991).                  In Boyer, the court

considered whether the “Charles County Sheriff’s Department” was

an entity amenable to suit.         Id.    It concluded:

     We are unaware of any statute, public general or
     public local, establishing an entity known as the
     Charles County “Sheriff’s Department.”     The sheriff
     for each county is a constitutional officer under Art.
     IV, § 44, of the Constitution of Maryland.       [But]
     [n]either the Constitution nor any other provision of
     law creates a governmental agency known as the
     “Sheriff’s Department.”  Consequently, the motion for
     summary judgment on behalf of the Charles County
     ‘Sheriff’s Department’ correctly asserted that the
     ‘Sheriff’s Department’ is not an entity capable of
     being sued.

Id. (emphasis added).

     Like    the   “Sheriff’s     Department”     at   issue    in    Boyer,    no

constitutional or statutory provision establishes a “Baltimore

City State’s Attorney’s Office.”               The “State’s Attorney” for

each county and Baltimore City is a constitutional officer, but

Maryland law creates no “State’s Attorney’s Office.”                      Cf. Md.

Const. art. V, § 7 (“There shall be an Attorney for the State in

each county and the City of Baltimore, to be styled ‘the State’s


                                      23
Attorney.’”); Md. Ann. Code, Crim. Proc. § 15-102 (“[A] State’s

Attorney shall, in the county served by the State’s Attorney,

prosecute and defend on the part of the State all cases in which

the State may be interested.”).

      Indeed,     Maryland     law    delegates      many      of   the     functions     a

hypothetical      “State’s     Attorney’s         Office”      would    perform      to   a

separate “Office of the State’s Attorney’s Coordinator.”                               See

id. § 15-302       (describing       the   functions      of    the    Office     of   the

State’s Attorney’s Coordinator, including training each State’s

Attorney’s      professional     staff      and    performing       legal      research).

Unlike    the     “Baltimore     City      State’s    Attorney’s          Office,”     the

“Office   of     the   State’s    Attorney’s         Coordinator”         is   expressly

created by statute.       See id. § 15-301(a)(1) (“There is an office

of State’s Attorney’s Coordinator.”).                 That the Maryland General

Assembly knew how to create such an office, yet failed to do so

with respect to the “entity” here, confirms that the “Baltimore

City State’s Attorney’s Office” bears no unique legal identity.

Cf.   Sosa   v.    Alvarez-Machain,         542    U.S.     692,      711   n.9   (2004)

(“[W]hen the legislature uses certain language in one part of

the statute and different language in another, the court assumes

different    meanings     were    intended.”         (internal        quotation      marks

omitted)).

      Owens notes that Title 15 of the Maryland Code of Criminal

Procedure, which establishes the duties of a State’s Attorney,

                                           24
is entitled “Office of the State’s Attorney.”                              Based on this

title, Owens contends that the Maryland General Assembly has

established a “State’s Attorney’s Office,” which may be sued

under Maryland law.            Reply Br. at 2.                 This argument fails,

however, for two reasons.             First, as the Supreme Court has long

held, a statute’s title provides little assistance to courts

interpreting     statutory      provisions.             See,   e.g.,       Bhd.    of   R.R.

Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947)

(“[T]he title of the statute and the heading of a section cannot

limit the plain meaning of the text.                    For interpretive purposes,

they are of use only when they shed light on some ambiguous word

or phrase.”).         Second, even if we were to consider the title

heading, it is clear that the title refers to the position of

the   State’s         Attorney,       not     a        separate,      suable       office.

Undoubtedly, a plaintiff may sue the State’s Attorney, i.e., the

person who holds the position.                   See S.C. State Ports Auth. v.

Fed. Mar. Comm’n, 243 F.3d 165, 170 (4th Cir. 2001) (“[S]tate

officers   may    be    sued    for    money      damages      in    their    individual

capacities,      so    long    as    relief       is    sought      from    the    officer

personally.”),        aff’d,   535    U.S.       743    (2002).      But     the   heading

fails to establish the legal identity -– and thus the suability

-- of a “State’s Attorney’s Office,” separate and apart from the

person who occupies the position or office.



                                            25
     Our    friend’s        partial    dissent        suggests      that    the      Maryland

Constitution         creates    a     “Baltimore        City     State’s         Attorney’s

Office” amenable to suit under Maryland law.                               But, in fact,

nearly     every     provision        of     law     cited    for    this       proposition

regulates the State’s Attorney, not a State’s Attorney’s Office.

See, e.g., Md. Const. art. V, § 9 (“The State’s Attorney shall

perform    such      duties     and        receive    such     salary      as     shall   be

prescribed      by    the    General       Assembly.”        (emphasis      added));      id.

(“[T]he State’s Attorney for Baltimore City shall have the power

to appoint a Deputy and such other Assistants as the Supreme

Judicial     Bench     of    Baltimore        City     may    authorize         or   approve

. . . . ” (emphasis added)); see also Md. Code Ann., Crim. Proc.

§ 15-102 (“[A] State’s Attorney shall, in the county served by

the State’s Attorney, prosecute and defend on the part of the

State all cases in which the State may be interested.” (emphasis

added)).        Far from establishing a State’s Attorney’s Office,

these provisions create and administer the position of State’s

Attorney –- a position Owens could have reached, but did not, by

suing the Baltimore City State’s Attorney in his individual or

official capacity.

     To    be    sure,      close   inspection        of     Maryland’s      Constitution

does reveal a passing reference to “the office of the State’s

Attorney.”       Md. Const. art. V, § 9 (“[E]xpenses for conducting

the office of the State’s Attorney . . . shall be paid by the

                                              26
Mayor and City Council of Baltimore to the extent that the total

of them exceeds the fees of his office.”).                       But this passing

reference to an “office” seems to us nothing more than shorthand

for the position of State’s Attorney.                 Moreover, the reference

fails to distinguish the case at hand from Boyer.                        For there,

although     the   Maryland    Code   made      a   passing      reference    to   the

Charles County “Sheriff’s department,” Maryland’s highest court

held that Maryland law failed to “establish[] an entity known as

the Charles County ‘Sheriff’s Department.’”                      594 A.2d at 128

n.9; see Md. Code Ann., Local Gov’t § 12-203(b)(1) (formerly Md.

Code, art. 25, § 3) (“The County Commissioners of Charles County

shall establish a separate pension plan for sworn employees of

the   Charles      County    Sheriff’s        department      . . . .”      (emphasis

added)).     To remain faithful to the court’s analysis in Boyer,

we    must   similarly      hold   that       the   “Baltimore       City    State’s

Attorney’s Office” is not a suable entity.

      In conclusion, we hold that the “Baltimore City State’s

Attorney’s Office” is a term of convenience only.                     It refers to

the   collection     of     government    employees        who    work   under     the

supervision of the Baltimore City State’s Attorney.                      It is not

an entity amenable to suit. 5


      5
       Because we hold that the Baltimore City State’s Attorney’s
Office is not a suable entity, we do not address its alternative
argument, i.e., that the State’s Attorney’s Office is an arm of
(Continued)
                                         27
                                    IV.

     We next consider the qualified-immunity defense asserted by

Officers Pelligrini, Dunnigan, and Landsman.

     Qualified    immunity    protects    government       officials   from

liability for “civil damages insofar as their conduct does not

violate clearly established . . . rights of which a reasonable

person   would   have   known.”     Harlow,   457   U.S.   at   818.   The

doctrine is designed to square two important interests:                “the

need to hold public officials accountable when they exercise

[their] power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform

their duties reasonably.”         Pearson v. Callahan, 555 U.S. 223,

231 (2009).




the State entitled to sovereign immunity.     We note, however,
that the partial dissent focuses its arm-of-the-State analysis
on a single factor –- whether a judgment against the Baltimore
City State’s Attorney’s Office would be paid by the City of
Baltimore –- to conclude that the State’s Attorney’s Office
lacks immunity from suit.      Although the Supreme Court had
previously regarded this factor as the most important, it has
subsequently abandoned this view.   See Fed. Maritime Comm’n v.
S.C. Port Auth., 535 U.S. 743, 765 (2002); U.S. ex rel. Oberg v.
Ky. Higher Educ. Student Loan Corp., 681 F.3d 575, 580 n.3 (4th
Cir. 2012).   Accordingly, when engaging in an arm-of-the-State
analysis, a court must also consider at least three other
factors -- the degree of autonomy exercised by an entity,
whether an entity is involved with state concerns, and how an
entity is treated under state law –- without giving preeminence
to any single factor. See Oberg, 681 F.3d at 580.

                                    28
        Qualified immunity protects public officials from suit when

the state of the law is such that they would not have known that

their        conduct   violates        statutory        or    constitutional         rights.

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).                             See, e.g.,

Pinder v. Johnson, 54 F.3d 1169, 1177–78 (4th Cir. 1995) (en

banc).        The defense does not shield officials, however, when

they have acted “incompetent[ly]” or have “knowingly violate[d]

the law.”          Malley v. Briggs, 475 U.S. 335, 341 (1986).                           See,

e.g., Occupy Columbia v. Haley, 738 F.3d 107, 125 (4th Cir.

2013); Brockington v. Boykins, 637 F.3d 503, 507–08 (4th Cir.

2011); Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292,

321 (4th Cir. 2006).

        To     establish    a      qualified-immunity             defense,       a     public

official must demonstrate that (1) a plaintiff has not alleged

or shown facts that “make out a violation of a constitutional

right,”       or   that   (2)    “the     right    at    issue    was    [not]       ‘clearly

established’ at the time of” its alleged violation.                                  Pearson,

555 U.S. at 232.

        A qualified immunity defense can be presented in a Rule

12(b)(6)       motion,    but,    as    the   Second         Circuit    has   noted,    when

asserted at this early stage in the proceedings, “the defense

faces    a     formidable       hurdle”    and     “is   usually       not    successful.”

Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 191–92 (2d

Cir. 2006).        This is so because dismissal under Rule 12(b)(6) is

                                              29
appropriate only if a plaintiff fails to state a claim that is

plausible on its face.              Iqbal, 556 U.S. at 678.               A claim has

“facial plausibility when the pleaded factual content allows the

court to draw the reasonable inference that the defendant is

liable   for    the    misconduct      alleged.”            Id.      To   satisfy    the

standard, a plaintiff must do more than allege facts that show

the “sheer possibility” of wrongdoing.                       Id.     The plaintiff’s

complaint      will    not     be    dismissed    as        long    as    he    provides

sufficient detail about his claim to show that he has a more-

than-conceivable chance of success on the merits.                              Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2006).

     On the one hand, Owens alleges that Officers Pelligrini,

Dunnigan,      and     Landsman       violated        his     clearly      established

constitutional        rights    by    acting     in    bad        faith   to    suppress

material evidence supporting his innocence.                       On the other hand,

the Officers maintain, and the district court held, that Owens

has not pled a plausible claim, Appellees’ Br. at 41–42, and

that even if he has, the rights he asserts were not clearly

established in 1988 -- the date of their alleged violation, id.

at 29–40.      We address each argument in turn.

                                         A.

     In 1963, the Supreme Court held in Brady v. Maryland, 373

U.S. 83, 87 (1963), that prosecutors’ suppression of evidence

“favorable to an accused” violates the Due Process Clause when

                                         30
the evidence proves “material either to guilt or to punishment.”

A   year       after    Brady,         we      concluded      that     police      officers’

suppression of evidence also violates the Constitution.                                    See

Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846–47 (4th

Cir. 1964).          Specifically, in Barbee, we found that a police

officer’s         failure     to       disclose       exculpatory        evidence     to     a

prosecutor violates a defendant’s due process rights.                                Id. at

847.     “It makes no [constitutional] difference,” we explained,

“if the withholding [of evidence] is by officials other than the

prosecutor.         The police are also part of the prosecution and the

taint on the trial is no less if they, rather than the State’s

Attorney, were guilty of the nondisclosure.”                             Id. at 846; see

also Strickler v. Greene, 527 U.S. 263, 280–81 (1999) (“[Brady]

encompasses evidence known only to police investigators and not

to the prosecutor.” (internal quotation marks omitted)).                                   In

Goodwin      v.    Metts,     885      F.2d    157,   163–64     (4th    Cir.     1989),    we

reaffirmed our Barbee decision, holding that a police officer

violates       a    criminal           defendant’s       constitutional          rights     by

withholding exculpatory evidence from prosecutors.

        To   make      out    a     claim      that     the    Officers        violated    his

constitutional rights by suppressing exculpatory evidence, Owens

must allege,         and     ultimately        prove,    that    (1)     the    evidence    at

issue    was      favorable       to    him;    (2)   the     Officers    suppressed       the



                                                31
evidence in bad faith; 6 and (3) prejudice ensued.                         See Monroe v.

Angelone,        323   F.3d    286,    299–300      (4th    Cir.   2003).        Prejudice

ensues     if    “there   is      a   reasonable     probability”         that   the    jury

would     have    reached     a    different       result    had   the    evidence      been

properly disclosed.            United States v. Bagley, 527 U.S. 667, 682

(1985).          The    adjective         “reasonable”      is     important     in    this

context.         See Kyles v. Whitley, 514 U.S. 419, 434 (1995).                          As

the Supreme Court has explained, “[t]he question is not whether

the   defendant        would      more     likely    than    not     have    received     a

different        verdict”      had     the   evidence       been    disclosed.          Id.

Rather, the question is whether, in the absence of disclosure,

the   defendant        “received      a    fair    trial,   understood      as    a    trial

resulting in a verdict worthy of confidence.”                       Id.

      Owens       alleges      that       Officers    Pelligrini,         Dunnigan,     and

Landsman, at the direction of ASA Brave, subjected Thompson, the

State’s star witness, to a lengthy mid-trial interrogation, in

      6
       As recognized in Jean v. Collins, 221 F.3d 656, 660 (4th
Cir. 2000) (“Jean II”) (Wilkinson, C.J., concurring), police
officers and prosecutors have different obligations with respect
to the disclosure of exculpatory evidence.        Under Brady, a
prosecutor violates the Constitution whenever he fails to
disclose   material,   exculpatory    evidence,   even   if   the
nondisclosure was purely accidental.    See 373 U.S. at 87.   The
Sixth Circuit has applied this same absolute standard to police
officers. See Moldowan v. City of Warren, 578 F.3d 351, 388-89
(6th Cir. 2009).    But other courts have followed the lead of
Jean II to conclude that police officers commit constitutional
violations only when they suppress exculpatory evidence in bad
faith.   See Porter v. White, 483 F.3d 1294, 1308 (11th Cir.
2007); Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004).

                                              32
which they threatened and cajoled him to change his testimony

repeatedly      so   as      to    strengthen        the    State’s    then-“failing

prosecution.”        Owens asserts that the Officers elicited from

Thompson a succession of vastly different accounts of his and

Owens’s involvement in Ms. Williar’s rape and murder.                               These

accounts ranged from Thompson’s insistence that he had nothing

to do with the crimes, to his admission that he had broken into

Ms.    Williar’s      apartment       (but       stayed     downstairs),       to    his

contention that he had remained in the upstairs bathroom and

only heard the assault on Ms. Williar, to his final story, in

which he asserted that he had masturbated at the foot of the bed

while Owens raped and killed Ms. Williar.

       Moreover,     Owens    alleges    that        Thompson   repeatedly      changed

his story only because the Officers provided additional details

about the crime, which they pressured Thompson to incorporate so

as    to    incriminate   Owens      more     directly.         When   the    interview

ended, the Officers told ASA Brave only about the witness’s last

version of events.            That is, Owens alleges that ASA Brave did

not know (and so could not and did not tell defense counsel)

that Thompson had offered several other accounts of the crimes,

all of which conflicted with the iteration Thompson ultimately

told the jury.

       We     have   little         difficulty        concluding       that    Owens’s

allegations      state    a       plausible      §   1983   claim.       First,       the

                                            33
information      Officers       Pelligrini,        Dunnigan,       and     Landsman

assertedly withheld from ASA Brave was favorable to Owens.                         Had

the   Officers    properly        disclosed      Thompson’s      statements,       his

inconsistencies        would   have       lent   support    to    the     contention

advanced by Owens’s defense that Thompson, not Owens, had raped

and murdered Ms. Williar.             At a minimum, the inconsistencies

would have aided Owens in his attempt to discredit Thompson’s

testimony and sow reasonable doubt in the minds of the jurors.

See   Bagley,    473    U.S.   at   676     (holding   that      Brady’s    duty    to

disclose evidence encompasses impeachment evidence).

      Second, Owens has offered specific allegations as to the

Officers’ bad faith.           He asserts that these experienced police

officers willfully, consciously, and in bad faith “chose not to

disclose” the multiple revisions to Thompson’s statement that

they elicited from him during their hours-long interrogation.

Further, he alleges that the Officers told ASA Brave about the

final version of the story almost as soon as the witness had

said it.      The temporal proximity between Thompson’s succession

of narratives and the Officers’ report to the prosecutor lends

support     to    the     contention        that    Thompson’s          inconsistent

narratives    were     fresh   in   the    Officers’     minds,    and    thus,    the

Officers’    omissions     were     not    accidental,     but    intentional      and

malicious.



                                           34
     Finally,       Owens’s   allegations     satisfy   Brady’s    materiality

requirement.        Owens asserts that Thompson was the State’s “star

witness,” and that in post-trial proceedings, ASA Brave admitted

that without Thompson, “the case could not have gone forward.”

Certainly,     it    is   plausible    that   impeachment   of    such     a    key

witness could have altered the outcome at trial.                  We emphasize

that Brady does not require that disclosure probably would have

modified a trial’s result.            Strickler, 527 U.S. at 289–90.            On

the contrary, it is enough that the suppression of evidence cast

serious doubt on the proceedings’ integrity.              Id.     If Owens can

prove    his   allegations,      they    would    certainly      satisfy       this

requirement. 7



     7
       The Officers unpersuasively contend that Owens’s Brady
claim fails because he obtained his release from prison on the
basis of newly discovered DNA evidence rather than the
undisclosed Brady material.      But contrary to the Officers’
assertion, courts routinely consider the Brady claims of § 1983
plaintiffs exonerated on the basis of newly discovered DNA
evidence. See, e.g., Holland v. City of Chicago, 643 F.3d 248,
250, 255-56 (7th Cir. 2011).    Moreover, adopting the Officers’
rule would have the perverse effect of discriminating against
innocent plaintiffs.   For although a § 1983 plaintiff need not
establish that he is actually innocent of the crime for which he
was convicted, see Strickler, 527 U.S. at 289-90; Poventud v.
City of New York, 750 F.3d 121, 133 (2d Cir. 2014) (en banc), if
he can prove his innocence –- for example, because DNA evidence
completely exonerates him –- the Officers’ rule would prevent
that plaintiff from recovering for the Brady violation that put
him in prison.    We see no reason to insulate from liability
police officers who withhold exculpatory evidence in bad faith
merely because unrelated DNA evidence later came to light
proving the plaintiff’s innocence.

                                        35
                                            B.

     We    next      turn    to     the       question       of        whether       Owens’s

constitutional rights were “clearly established” in February and

March 1988, when the Officers acted.

                                            i.

     For a right to be clearly established, its contours “must

be sufficiently clear [such] that a reasonable official would

[have] underst[ood] that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).                           “This is not

to   say   that    an    official      action       is   protected        by     qualified

immunity unless the very action in question has previously been

held [to be] unlawful.”                Hope v. Pelzer, 536 U.S. 730, 739

(2002).    Rather, liability obtains if the state of the law is

such that it would have been “apparent” to an officer that his

conduct violated constitutional law.                Anderson, 483 U.S. at 640.

     In evaluating whether qualified immunity exists, we must

keep in mind that it is the plaintiff’s constitutional right

that must be clearly established, not a plaintiff’s access to a

monetary       remedy.      Thus,      a    right    does        not    become       clearly

established only if a plaintiff has successfully enforced it

through    a    § 1983   action.           Hope,   536     U.S.    at    741.        On   the

contrary, a right may be clearly established by any number of

sources,       including    a     criminal         case,     a     statute,          or   the

Constitution      itself.       See,       e.g.,   id.     (relying      on    the    Eighth

                                            36
Amendment to conclude that a right was clearly established);

Collier    v.    Dickinson,            477      F.3d   1306,    1312    (11th       Cir.     2007)

(relying on a statute to determine that a right was clearly

established); Cinelli v. Cutillo, 896 F.2d 650, 655 (1st Cir.

1990) (relying on habeas and criminal cases to determine that a

right was clearly established).

       Furthermore, to be clearly established, a right need not be

one    with   respect           to    which     all    judges    on    all    courts        agree.

Rather, “[i]f the unlawfulness is apparent, the fact that some

court may have reached an incorrect result will not shield a

defendant’s      violation            of    a   clearly     established           right.”      See

Wilson v. Layne, 141 F.3d 111, 122 (4th Cir.), aff’d, 526 U.S.

603    (1999).           Thus,       although     judicial      disagreement         about     the

existence       of       a    right    is     certainly     a   factor       we    consider     in

determining whether a right has been clearly established, see

Pearson, 555 U.S. at 245, disagreement alone does not defeat a

plaintiff’s      claim          in    every     instance.       The    Supreme       Court     has

never sanctioned such a rule, see, e.g., Hope, 536 U.S. at 745-

46    (holding       a       right    was   clearly     established      and       rejecting    a

qualified-immunity defense notwithstanding the contrary views of

three dissenting justices and the court of appeals), and neither

have we, see, e.g., Henry v. Purnell, 652 F.3d 524, 536–37 (4th

Cir.    2011)    (en          banc)    (rejecting      a   qualified-immunity           defense

over a three-judge dissent).

                                                  37
      With    these    principles    in    mind,     we    consider     whether    the

constitutional rights Owens asserts were clearly established as

of February and March 1988, the time of the alleged violations.

                                      ii.

      As outlined above, the Supreme Court held in 1963 that a

prosecutor may not suppress material exculpatory evidence during

a   defendant’s      criminal   trial.         Brady,     373   U.S.    at   87.    In

Barbee, decided a year after Brady, we held that “[t]he police

are also part of the prosecution,” and thus, they too violate

the Constitution if and when they suppress exculpatory evidence.

331 F.2d at 846.

      In     1976,    we   applied        Barbee’s        holding      expressly   to

impeachment evidence.       In both United States v. Sutton, 542 F.2d

1239 (4th Cir. 1976), and Boone v. Paderick, 541 F.2d 447 (4th

Cir. 1976), we overturned a defendant’s criminal conviction on

the ground that police had suppressed exculpatory information

bearing on the veracity of a witness’s testimony.                        See Sutton,

542 F.2d at 1241 n.2, 1243; Boone, 541 F.2d at 453.                            As in

Barbee, we reiterated that where “material evidence which tends

to exculpate the defendant is not disclosed,” the failure to

disclose it “is not neutralized because it was in the hands of

the police rather than the prosecutor.”                 Boone, 541 F.2d at 450–

51.



                                          38
         Finally,      in     Goodwin,    885    F.2d     at   163-64,     we   applied

Barbee’s logic to § 1983 cases.                   See also Carter v. Burch, 39

F.3d 257, 263-64 (4th Cir. 1994).                     In Goodwin, we upheld a jury

award of thousands of dollars against a South Carolina police

officer who, in 1983, failed to disclose exculpatory evidence.

In   doing       so,    we     rejected    the    officer’s       qualified-immunity

defense because we determined that a “reasonable officer [acting

in 1983] would have known that a prosecution carried out without

. . . disclosure of exculpatory information would violate the

constitutional rights of the criminal defendants.”                        885 F.2d at

164. 8       Goodwin thus capped an unbroken chain of circuit precedent

affirming        –-    then    reaffirming       –-    that    criminal    defendants’

rights are violated by police officers’ malicious suppression of

evidence.

         The partial dissent offers a different view.                     It maintains

that the law was not clearly established in 1988 because the

cases decided before that date -- Barbee, Sutton, and Boone –-

imposed no independent obligation on police officers to disclose


         8
       We were not alone.    Other circuits have similarly held
that by 1988, police officers violated the Constitution by
suppressing exculpatory evidence in bad faith.        See, e.g.,
McMillian v. Johnson, 88 F.3d 1554, 1569 (11th Cir. 1996)
(discussing 1987 police action); Walker v. City of New York, 974
F.2d 293, 299 (2d Cir. 1992) (discussing 1971 police action);
Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir. 1988)
(discussing 1981-82 police action); Geter v. Fortenberry, 849
F.2d 1550, 1559 (5th Cir. 1988) (discussing 1982 police action).

                                            39
exculpatory evidence.             The dissent insists that Barbee, Sutton,

and   Boone        stand   only    for     the     proposition    that     “a   police

officer’s knowledge of exculpatory evidence will be imputed to

the prosecutor for Brady purposes.”                   This holding, the dissent

contends,          fails     to    notify        police    officers        of    their

susceptibility to suit, and thus, the Officers in the case at

hand enjoy qualified immunity.

      We cannot agree.            Qualified immunity exists to ensure that

“public officials performing discretionary functions [are] free

to act without fear of retributive suits . . . except when they

should have understood that particular conduct was unlawful.”

Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004).                         Ever since

it first articulated the contours of modern qualified-immunity

doctrine,         the   Supreme    Court     has     emphasized     that    qualified

immunity assesses the apparent unlawfulness of conduct.                             See

Harlow, 457 U.S. at 819 (“[W]here an official could be expected

to    know    that      certain     conduct      would    violate     statutory      or

constitutional rights . . . , a person who suffers injury caused

by such conduct may have a cause of action.” (emphasis added));

see also id. (explaining that qualified immunity provides “no

license      to    lawless    conduct”      (emphasis     added));       Mitchell    v.

Forsyth, 472 U.S. 511, 526 (1985) (explaining that qualified

immunity concerns “whether the conduct of which the plaintiff

complains violated clearly established law” (emphasis added)).

                                            40
       Barbee, Sutton, and Boone each held that certain conduct by

police       officers     -–       the    suppression        of    material        exculpatory

evidence –- results in the violation of criminal defendants’

rights.        Whether or not an officer’s knowledge is “imputed” to

the prosecutor does not affect the lawfulness of the officer’s

own    conduct.         See    Limone,       372      F.3d   at   47   (rejecting       police

officers’ argument that law was not clearly established because

cases    announcing       plaintiff’s             constitutional        right       referenced

“the     State’s”       obligations,            not    those      of   police       officers).

Barbee, Sutton, and Boone taught police officers how to conform

their conduct to the law.                       These cases each held that if a

police officer suppresses material exculpatory evidence, courts

will         invalidate        a         defendant’s         criminal         sentence        as

unconstitutional.             A police officer acting after the issuance of

these decisions, like each of the Officers here, could not have

thought that the suppression of material exculpatory evidence

would pass constitutional muster.                      See, e.g., Cinello, 896 F.2d

at     655    (holding        that       police       officers     were       on    notice    of

constitutional          right’s          existence       because       prior        cases    had

invalidated criminal sentences based on similar misconduct).

       Goodwin     recognized            this    reality,      and     held    in    light    of

Barbee, Sutton, and Boone that a police officer’s obligation to

disclose material exculpatory evidence was clearly established

by 1983, five years prior to the Brady violations alleged in

                                                 41
this       case.     Yet    the   dissent    suggests      that   our   reliance    on

Goodwin retroactively subjects the Officers to liability.                          Not

so.    For although Goodwin issued after the Officers in this case

acted,      Goodwin    announced     no     new   rule    of   constitutional      law.

Rather, it         merely   held,   in    light    of    the   constitutional      rule

already established by Barbee, Sutton, and Boone, that a police

officer’s      duty    to   disclose      material      exculpatory     evidence    was

clearly established in 1983.              If a right was clearly established

in 1983 (as Goodwin held), it must have been clearly established

in 1988 (when the Officers acted).                       To hold to the contrary

would directly conflict with Goodwin. 9



       9
       In hopes of convincing us to the contrary, the Officers
rely on Jean v. Collins, 155 F.3d 701 (4th Cir. 1998) (“Jean
I”), vacated, 526 U.S. 1142 (1999), which they contend renders
the state of our precedent uncertain.     That opinion, however,
does not assist them. Jean I addressed conduct that took place
in 1982 –- predating the conduct we held unconstitutional in
Goodwin, and six years before the conduct at issue in this case.
Moreover, soon after the issuance of Jean I, the Supreme Court
vacated the decision for further consideration in light of
Wilson v. Layne, 526 U.S. 603 (1999). See Jean v. Collins, 526
U.S. 1142 (1999).    On remand, because the en banc court was
equally divided, the district court’s denial of relief was
affirmed. Those judges voting to affirm concluded that summary
judgment was appropriate because the plaintiff had failed to
offer sufficient evidence of the Officers’ unconstitutional
conduct.     Jean II, 221 F.3d at 663 (Wilkinson, C.J.,
concurring).    These judges nonetheless left intact Barbee,
Sutton, Boone, and Goodwin, and expressly affirmed that “a
police officer’s actions in failing to turn over materially
exculpatory evidence to a prosecutor” violates a criminal
defendant’s constitutional rights.  Id. at 659 (quotation marks
and alterations omitted).

                                            42
     Indeed, if the dissent is correct and Barbee, Sutton, and

Boone     announced    no    rule    of   constitutional   law    applicable    to

police     officers,        then    Goodwin    was   wrongly     decided.      For

according to the dissent’s view, Goodwin acted in the absence of

any prior circuit precedent to hold that a constitutional right

was clearly established and so a police officer did not enjoy

qualified immunity.            We cannot endorse such an extraordinary

view of our precedent.

     In sum, our precedent unmistakably provides that, by 1988,

a police officer violates clearly established constitutional law

when he suppresses material exculpatory evidence in bad faith.

Accordingly, we hold that the Officers were clearly on notice of

the impermissibility of their conduct in 1988, the time of the

alleged violations. 10


     10
        The Officers unpersuasively rely on three unpublished
post-1988 opinions to bolster their contention that the rights
Owens asserts were not clearly established in 1988. But, as we
have   repeatedly   explained,    unpublished   opinions are  not
precedent in this circuit. See, e.g., Hogan v. Carter, 85 F.3d
1113, 1118 (4th Cir. 1996) (en banc). Thus, these unpublished
opinions cannot alter the clear rule set forth in the published
opinions discussed above.      Nor do they reflect the kind of
judicial disagreement that makes qualified immunity appropriate.
Just as a dissent does not articulate the law of the case,
unpublished opinions do not articulate the law of the circuit.
Both may reflect judicial disagreement about whether a right is
in fact clearly established, but neither can displace the
circuit’s binding authority.     Cf. Brockington, 637 F.3d at 507
(holding   that   unpublished    decisions    suggesting that  no
constitutional right was violated did not entitle a defendant to
qualified immunity).

                                          43
                                      V.

     Finally, we address whether Owens has stated a plausible

claim against the BCPD.

                                      A.

     Section   1983     provides    that    “[e]very    person,”      who,    under

color of state law causes the violation of another’s federal

rights shall be liable to the party injured by his conduct.                    See

42 U.S.C. § 1983.        In Monell v. New York City Department of

Social Services, 436 U.S. 658, 690 (1978), the Supreme Court

held that municipalities qualify as “persons” under the statute,

rendering them amenable to suit.

     Unlike    public     officials,       municipalities       do    not     enjoy

qualified immunity.       See Owen v. City of Independence, 445 U.S.

622, 638 (1980).      Accordingly, claims against municipalities are

measured    against     current     law,    without     regard       to     whether

municipalities’ obligations were clearly established at the time

of the alleged violations.          Id. at 634; see also Barber v. City

of Salem, 953 F.2d 232, 237-38 (6th Cir. 1992).

     For these reasons, the district court erred in dismissing

Owens’s    claims   against   the    BCPD    on   the   basis    of       qualified

immunity.     Apparently recognizing this, the BCPD does not now

contend that it has immunity.          Rather, it argues that dismissal

of the claim against it was nonetheless proper because Owens has

assertedly “failed to plead sufficient facts” to set forth a

                                      44
plausible Monell claim.            Appellees’ Br. 43.                     We turn to that

argument.

                                             B.

      Although     municipalities,           unlike         public   officials,         cannot

claim    immunity      from    suit,    the        Supreme      Court       has    expressly

cabined their liability:          under Monell, a municipality is liable

only for its own illegal acts.                     See 436 U.S. at 691 (stating

that a municipality “cannot be held liable solely because it

employs a tortfeasor” (emphasis in original)); see also Connick

v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“[Municipalities] are

not     vicariously     liable     under          § 1983       for    their       employees’

actions.”).       Pursuant to this standard, a municipality is liable

under § 1983 if it follows a custom, policy, or practice by

which     local    officials      violate         a    plaintiff’s          constitutional

rights.       Monell,    436   U.S.     at    694.           Only    if    a   municipality

subscribes to a custom, policy, or practice can it be said to

have committed an independent act, the sine qua non of Monell

liability.

      Here,    Owens    alleges    that       the      BCPD     violated       his      federal

constitutional rights pursuant to a municipal custom, policy, or

practice.         Specifically,        he    alleges          that    “[a]t       all    times

relevant to this case,” the BCPD “maintained a custom, policy,

and/or     practice”      of     condoning            its     officers’        conduct       in

“knowingly,       consciously,         and        repeatedly         with[holding]          and

                                             45
suppress[ing]”       exculpatory          evidence.          Owens’s      complaint       thus

alleges a theory of custom “by condonation.”                          Spell v. McDaniel,

824 F.2d 1380, 1390 (4th Cir. 1987).                              Under this theory of

liability, a city violates § 1983 if municipal policymakers fail

“to   put    a     stop   to     or       correct       a    widespread         pattern     of

unconstitutional conduct.”                Id. at 1389.            Owens alleges that by

failing     to    correct      its    officers’           pervasive       suppression       of

evidence, the BCPD injured him, committing an independent act

that renders it liable under § 1983.

      Prevailing      under     such       a    theory       is    no    easy     task.      A

plaintiff must point to a “persistent and widespread practice[]

of municipal officials,” the “duration and frequency” of which

indicate     that    policymakers          (1)      had      actual      or     constructive

knowledge of the conduct, and (2) failed to correct it due to

their “deliberate indifference.”                     Id. at 1386–91 (alterations

omitted).        Both knowledge and indifference can be inferred from

the “extent” of employees’ misconduct.                        Id. at 1391.          Sporadic

or isolated violations of rights will not give rise to Monell

liability; only “widespread or flagrant” violations will.                                  Id.

at 1387.

      Although      prevailing       on    the      merits    of    a    Monell    claim    is

difficult,       simply   alleging        such      a   claim      is,    by    definition,

easier.     For to survive a motion to dismiss under Rule 12(b)(6),

a complaint need only allege facts which, if true, “‘state a

                                               46
claim to relief that is plausible on its face.’”                               Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 570) (emphasis added).

The recitation of facts need not be particularly detailed, and

the chance of success need not be particularly high.                           See Iqbal,

556 U.S. at 678; Twombly, 550 U.S. at 570.                       A plaintiff fails to

state a claim only when he offers “labels and conclusions” or

formulaically      recites      the     elements         of    his    § 1983        cause   of

action.    Iqbal, 556 U.S. at 678.

     In support of his claim, Owens alleges that “[r]eported and

unreported cases from the period of time before and during the

events    complained    of”     establish         that    the    BCPD    had      a   custom,

policy,    or   practice       of   knowingly       and       repeatedly       suppressing

exculpatory     evidence       in   criminal        prosecutions.              He     further

alleges that “a number of motions were filed and granted during

this time period that demonstrate that [the BCPD] maintained a

custom,    policy,   or    practice       to      allow       this    type   of       behavior

either    directly   or    .    .   .   by    condoning         it,   and/or        knowingly

turning a blind eye to it.”              The assertions as to “reported and

unreported cases” and numerous “successful motions” are factual

allegations, the veracity of which could plausibly support a

Monell    claim.       That     BCPD     officers         withheld      information         on

multiple occasions could establish a “persistent and widespread”

pattern of practice, the hallmark of an impermissible custom.

Spell, 824 F.2d at 1386.                If (but only if) the duration and

                                             47
frequency      of    this    conduct    was     widespread   and     recurrent,    the

BCPD’s    failure      to    address     it     could    qualify     as    “deliberate

indifference.”        Id. at 1391.

       Urging a different result, the BCPD contends that Owens

alleges nothing more than “unadorned, the-defendant-unlawfully-

harmed-me accusation[s].”              See Appellees’ Br. 47 (quoting Iqbal,

556 U.S. at 678).             We recognize, of course, that courts have

dismissed Monell claims when the plaintiff has alleged nothing

more than a municipality’s adherence to an impermissible custom.

But Owens has done more than that:                 Owens has alleged facts          –-

the existence of “reported and unreported cases” and numerous

“successful motions” –- which, if true, would buttress his legal

conclusion.

       Owens’s      brief,     but     non-conclusory,       allegations       closely

resemble those in Haley v. City of Boston, 657 F.3d 39 (1st Cir.

2011).        There, a defendant was convicted of murder when two

Boston police officers suppressed a witness’s statement casting

doubt on his guilt.           Id. at 45.         The defendant discovered this

Brady material, and after thirty-four years in prison, obtained

his release; he then sued the Boston Police Department under

§ 1983.        The    First     Circuit       reversed    the    district     court’s

dismissal of the claim, holding that the defendant had stated a

plausible Monell claim against the Boston Police Department in

view     of   the    “wholly     unexplained”       nature      of   its    officers’

                                           48
suppression of evidence and the alleged (but not identified in

the    opinion    or   record)     “volume    of    cases”    involving    similar

violations in the Boston Police Department.                  Id. at 53; see also

Complaint, Haley v. City of Boston, 677 F. Supp. 2d 379 (D.

Mass. 2009) (No. 1:09-cv-10197).             The Haley court concluded that

this “volume” of other cases documenting officers’ suppression

of     evidence   lent    credence    to     the    claim     that    policymakers

“encouraged, or at least tolerated” an impermissible practice.

Haley, 657 F.3d at 53.           Accordingly, “[a]lthough [the complaint

was] couched in general terms,” the court concluded that the

complaint nonetheless “contain[ed] sufficient factual content to

survive a motion to dismiss.”          Id.

       The same reasoning applies here.             Of course, to prevail on

the merits, Owens will have to do more than allege a pervasive

practice of BCPD misconduct; he must prove it.                        But at this

early stage in the proceedings, we must conclude that Owens has

pled     sufficient      factual    content    to     survive    Rule     12(b)(6)

dismissal.



                                       VI.

       For the reasons set forth above, we affirm the judgment of

district court to the extent it dismisses Owens’s claims against

the Baltimore City State’s Attorney’s Office.                        We vacate the

judgment in all other respects.                We remand the case to the

                                        49
district   court   for   further   proceedings   consistent   with   this

opinion.

                                                     AFFIRMED IN PART,
                                                      VACATED IN PART,
                                                          AND REMANDED




                                    50
TRAXLER, Chief Judge, concurring in part and dissenting in part:

     I concur in parts III, IV.A, and V of the majority opinion.

However, I respectfully dissent from parts II and IV.B.                   First,

I believe that Owens’ Brady claims were untimely because they

accrued    when   he     discovered    the     exculpatory   and     impeaching

evidence that had not been disclosed, not when the proceeding

was subsequently terminated via entry of the nolle prosequi.

Second,    I   would    conclude    that    the   district   court      correctly

determined     that    the    individual     defendants   were     entitled   to

qualified immunity because it was not clearly established in the

spring    of   1988    that   a   police    officer’s   failure    to   disclose

exculpatory evidence made the officer potentially liable for a

violation of a criminal defendant’s constitutional rights.

                                       I.

     I turn first to the question of whether Owens’ claims are

completely time-barred.           Because “[t]here is no federal statute

of limitations for § 1983 claims, . . . the state limitations

period which governs personal injury actions is applied.”                  Lewis

v. Richmond City Police Dep’t, 947 F.2d 733, 735 (4th Cir. 1991)

(per curiam); see Wallace v. Kato, 549 U.S. 384, 387 (2007).                  In

this case, we apply Maryland’s three-year limitations period for

personal injury actions.          See Md. Code Ann., Cts. & Jud. Proc. §

5-101.    This much is beyond debate.             When Owens’ § 1983 claim

accrued, however, is a more difficult question.

                                       51
     “[T]he    accrual   date   of   a    §   1983   cause    of    action   is   a

question of federal law that is not resolved by reference to

state law.”     Wallace, 549 U.S. at 388.            In addressing this very

issue, the Supreme Court stated that the “standard rule” for

determining the date a cause of action accrues is to determine

“when the plaintiff has a complete and present cause of action,

that is, when the plaintiff can file suit and obtain relief.”

Id. (internal quotation marks and citations omitted).                    Generally

speaking, a federal claim “accrues when the plaintiff knows or

has reason to know that the act providing the basis of his or

her injury has occurred,” and therefore “we typically determine

the accrual of a § 1983 action by looking to the event that

should have alerted the typical lay person to protect his or her

rights.”      D’Ambrosio v. Marino, 747 F.3d 378, 384 (6th Cir.

2014) (internal alterations and quotation marks omitted); see

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir.

1995) (en banc) (explaining that under federal law, a cause of

action accrues “when the plaintiff possesses sufficient facts

about the harm done to him that reasonable inquiry will reveal

his cause of action.”); cf. Wallace, 549 U.S. at 388 (observing

that, under the standard rule, there can be no dispute that

petitioner    could   have   filed   suit      as    soon    as    the   allegedly

wrongful arrest occurred . . . so that statute of limitations

would normally commence to run from that date”).

                                     52
       Owens’ claim is based on the defendant police officers’

failure      to    disclose    exculpatory       evidence—a     due    process   claim

that    clearly      arises    pursuant     to    Brady    v.    Maryland.       Thus,

“application          of    the     general      rule     would       indicate   that

[plaintiff’s § 1983] cause of action [based on Brady] accrued—

and    the    limitations      period   began—when        [plaintiff]     discovered

that the exculpatory evidence in question had not been disclosed

to him.”           D’Ambrosio, 747 F.3d at 384 (emphasis added); see

Julian v. Hanna, 732 F.3d 842, 849                      (7th Cir. 2013).         Owens

clearly knew about at least some of the exculpatory evidence—

specifically the fact that James Thompson gave police several

different versions of his testimony before and during trial—as

early    as       October   1989,   when   the     Maryland      Court   of   Special

Appeals recounted the shifting testimony in an opinion affirming

Owens’ conviction.            At the very latest, Owens was aware of the

exculpatory and impeachment evidence at issue in this appeal in

June 11, 2008, when his counsel filed a motion to exclude that

evidence at his retrial and detailed the evidence discovered

after the original trial.

       But this does not end the analysis.                      In determining the

accrual date of a § 1983 claim, we should consider the most

analogous common-law cause of action as a guidepost.                          Assuming

the most analogous common law tort is malicious prosecution, its

“favorable termination” requirement constitutes a “distinctive

                                           53
rule” of accrual that displaces the general rule that a claim

accrues when the plaintiff knows or has reason to know of his

injury.       See Wallace, 549 U.S. at 388.                       Because the favorable-

termination element “constitutes a prerequisite for recovery” on

a   malicious      prosecution          claim,       it    naturally          “establishes       the

time from which the claim accrues”). See Lambert v. Williams,

223 F.3d 257, 262 n.3 (4th Cir. 2000).

       I    part     ways    with       my    friends        in    the     majority         on   the

application of the “favorable termination” requirement in this

context.       The     majority         notes      that     in     order       to    satisfy     the

favorable termination element of a malicious prosecution claim,

the    plaintiff      must    demonstrate            that    the    criminal          proceedings

against him have been terminated in such a way that they cannot

be revived.          See Poventud v. City of New York, 750 F.3d 121,

130-31 (2nd Cir. 2014) (en banc) (“Under the common law any

final      termination       of    a    criminal          proceeding       in       favor   of   the

accused,      such    that        the    proceeding         cannot       be     brought      again,

qualifies as a favorable termination for purposes of a malicious

prosecution action.”).                  Following this approach, they conclude

that    the   proceedings          were      not     formally      terminated          until     the

nolle prosequi was entered.

       In my view, the majority adheres a bit too rigidly to the

common-law analogue rather than using it as a “starting point”

that “provides a useful guidepost in making sense of alleged

                                                54
constitutional injuries” for determining the contours of claims

of constitutional violations under § 1983.”                              Becker v. Kroll,

494 F.3d 904, 913-14 (10th Cir. 2007); see Heck, 512 U.S. at 493

(recognizing that the common law is a “‘starting point’ for the

analysis under § 1983” but that our analysis should never be

“slavishly    derived”        from    the    common          law)   (internal        quotation

marks omitted) (Souter, J., concurring); Carey v. Piphus, 435

U.S. 247, 258 (1978) (recognizing common-law tort rules as the

“starting point for the inquiry under § 1983”).

      Indeed,     it     is   appropriate           to       consider       the     underlying

purpose of the elements of the common law analogue to determine

whether they can be imported for accrual purposes under § 1983.

See Heck, 512 U.S. at 484 (taking into account the purpose of

the     favorable       termination          requirement).                  The     favorable

termination     requirement          is     intended          to    guard     against     “the

possibility of the claimant . . . succeeding in the tort action

after    having        been    convicted          in         the    underlying        criminal

prosecution,      in     contravention         of        a    strong     judicial        policy

against the creation of two conflicting resolutions arising out

of the same or identical transaction.”                        Kossler v. Crisanti, 564

F.3d 181, 187 (3d Cir. 2009) (en banc) (internal quotation marks

omitted).       Thus,     this       element      is         satisfied      where    a   prior

criminal case against the plaintiff has been disposed of in a

way that indicates the plaintiff’s innocence.                                See Murphy v.

                                             55
Lynn, 118 F.3d 938, 948 (2d Cir. 1997); see Restatement (Second)

of Torts § 660 cmt. a; see also Taylor v. Gregg, 36 F.3d 453,

456 (5th Cir. 1994) (per curiam); Uboh v. Reno, 141 F.3d 1000,

1004 (11th Cir. 1998).

       This    reasoning     makes    little     sense    when    considering       the

accrual date for Brady claims under § 1983.                   For a Brady claim,

the    plaintiff      need   only    demonstrate      “that   prejudice       resulted

from     the   suppression.”          Vinson,     436    F.3d     at   420.      “[A]

defendant’s right to pre-trial disclosure under Brady is not

conditioned on his ability to demonstrate that he would or even

probably would prevail at trial if the evidence were disclosed,

much less that he is in fact innocent.”                   Poventud, 750 F.3d at

133    (internal      quotation     marks    omitted).        Brady    is   meant    to

ensure    a    fair    trial;     “[t]he     remedy     for   a   Brady     claim    is

therefore a new trial, as proof of the constitutional violation

need not be at odds with [defendant’s] guilt.”                         Id.; see id.

(“[T]he remedy for a Brady violation is vacatur of the judgment

of conviction and a new trial in which the defendant now has the

Brady material available to [him].”); accord Julian, 732 F.3d at

849 (“Unlike [a] malicious prosecution claim, [a] Brady claim

may have accrued when [the criminal defendant/§ 1983 plaintiff]

was granted a new trial . . . before the charges against him

were dropped; and ordinarily a Brady claim does not accrue until

that happens.         But although [plaintiff’s] ordeal was not over

                                            56
(because he was subject to being retried), his Brady claim was

ripe.     The exculpatory evidence had been revealed; the harm the

alleged Brady violation had done could not be affected by a

retrial.” (internal citations omitted)). 1

      Accordingly,   I   would   conclude      that   the    proceedings       were

“favorably terminated” when Owens’ conviction was vacated and he

was granted a new trial on June 7, 2007.                The Brady violation

was complete; “the harm the alleged Brady violation had done

could not be affected by a retrial.”             Julian, 732 F.3d at 849

His claim was therefore ripe and, assuming he knew about the

undisclosed exculpatory evidence in question at that point, the

limitations period began running at that time.                    Alternatively,

as   previously   noted,   Owens   at    the   latest       was   aware   of   the

exculpatory evidence       by June 11, 2008, when his attorney filed

a motion to exclude that evidence at his retrial.                   Either way,

Owens’ claims are untimely.


      1
       In finding my position unfaithful to the judicial policy
against the creation of conflicting resolutions, my colleagues
incorrectly assume that if a Brady claim and a malicious
prosecution claim produce different results, they will have
produced conflicting results. But that is not so for reasons I
have already suggested.      A Brady claim under § 1983 seeks
relief, regardless of the plaintiff’s guilt or innocence, for
the deprivation of a fair trial as a result of the prosecution’s
failure   to  disclose   exculpatory  evidence.    A   malicious
prosecution claim seeks to remedy the seizure of the plaintiff
pursuant to legal process that was unsupported by probable
cause.   It would be perfectly consistent to succeed on a Brady
claim but fail on a malicious prosecution claim.

                                    57
                                         II.

      As   discussed      above,    I    believe    Owens’       claims    are   time-

barred.     But even if the claims were timely filed, I believe his

claims     against   the     individual         officers     fail    on     qualified

immunity grounds.         To satisfy the “clearly established” prong of

the qualified immunity analysis, “a right must be sufficiently

clear that every reasonable official would have understood that

what he is doing violates that right.”                Reichle v. Howards, 132

S. Ct. 2088, 2093 (2012) (alterations and internal quotation

marks omitted).        That is, “existing precedent must have placed

the   statutory      or     constitutional         question       beyond     debate.”

Ashcroft    v.   al-Kidd,    131    S.    Ct.    2074,     2083    (2011).       “This

clearly     established      standard      protects        the    balance     between

vindication of constitutional rights and government officials’

effective performance of their duties by ensuring that officials

can reasonably anticipate when their conduct may give rise to

liability for damages.”            Reichle, 132 S. Ct. at 2093 (emphasis

added) (alteration and internal quotation marks omitted).                           In

applying the “clearly established” standard, we “ordinarily need

not look beyond the decisions of the Supreme Court, this court

of appeals, and the highest court of the state in which the case

arose.     If a right is recognized in some other circuit, but not

in this one, an official will ordinarily retain the immunity

defense.”     Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th

                                          58
Cir. 1999) (internal quotation marks, alterations, and citation

omitted).     In deciding “whether the right at issue was clearly

established at the time of the officer’s conduct,” Meyers v.

Baltimore     Cnty.,      Md.,    713     F.3d       723,     731   (4th    Cir.      2013)

(emphasis     added)      (internal      quotation      marks       omitted),       we    are

interested in relevant decisions that were decided before the

conduct   currently       at   issue      occurred,         not   decisions       announced

afterward—even if those post-dated decisions involved underlying

violations that occurred prior to the alleged violations in this

case, see Fields v. Prater, 566 F.3d 381, 390 (4th Cir. 2009)

(qualified         immunity        protects           defendants           from      being

“retroactively subject to significant penalties at law for which

they did not have proper notice”).

      Owens was convicted by a jury in March 1988 and sentenced

in   April    1988.       Accordingly,         for    qualified       immunity       to    be

overcome,     it   must    have    been    clearly      established        at     least    by

early 1988 that a police officer violated a criminal defendant’s

due process rights by failing to furnish exculpatory evidence to

a prosecutor.         Cf. United States v. Smith Grading & Paving,

Inc.,   760    F.2d    527,      532    (4th    Cir.    1985)       (“No    due    process

violation occurs as long as Brady material is disclosed to a

defendant in time for its effective use at trial.”).                                 Owens

relies on a variety of decisions that both pre-date and post-

date defendants’ conduct in the spring of 1988.                             In my view,

                                           59
none of these decisions had placed the “constitutional question

beyond debate,” al-Kidd, 131 S. Ct. at 2083, by the late spring

of    1988.    Accordingly,         I   would     affirm     the    district       court’s

conclusion     that      the      individual      officers         were       entitled    to

qualified immunity.

                    A.    Decisions Pre-Dating April 1988

       Owens contends that law enforcement officers have been on

notice since this court’s 1964 decision in Barbee v. Warden, Md.

Penitentiary, 331 F.2d 842 (4th Cir. 1964), that an officer’s

failure to disclose exculpatory evidence to the prosecutor made

the officer potentially liable for a violation of a criminal

defendant’s      constitutional         rights.        In   Barbee,       we    granted    a

defendant’s habeas petition to set aside his conviction “because

the    prosecutor       failed,    either    through        lack    of    his     personal

knowledge or for some other reason, to disclose at the trial

potentially      exculpatory        evidence      in    the    possession          of    the

police.”      Id. at 843.         In doing so, the court rejected the idea

that the state’s failure to disclose exculpatory evidence was

excused when the police failed to turn such information over to

the    state’s     attorney.            Barbee     therefore        stands       for     the

proposition      that    a   police     officer’s      knowledge         of    exculpatory

evidence will be imputed to the prosecutor for Brady purposes.

See United States v. Sutton, 542 F.2d 1239, 1241 n.2 (4th Cir.

1976) (reversing conviction for failure to disclose exculpatory

                                           60
evidence despite prosecutor’s lack of knowledge because “legally

what   [the         officer]      knew    must     be   imputed           to    the     prosecutor”

(citing     Barbee,         331    F.2d    at     846)).           Barbee       simply     did    not

establish that a law enforcement officer                            violates a defendant’s

due    process         rights       by     failing       to        turn        over     potentially

exculpatory evidence to the prosecutor; see Jean v. Collins, 155

F.3d 701, 710 (4th Cir. 1998) (en banc) (“Jean I”) (explaining

that Barbee did not “impose[] a constitutional duty on police

officers to give evidence to a prosecutor” but “held simply that

the police’s knowledge of such evidence would be imputed to the

prosecutor in deciding whether the prosecutor had fulfilled his

Brady duties”), vacated on other grounds, 526 U.S. 1142 (1999).

       To   the       same     effect      is    United       States       v.     Sutton,       which

reversed      a      bank    robbery      conviction          on    direct        appeal    on    the

ground      that      the     government          failed       to     disclose          exculpatory

evidence.            See    542   F.2d     at     1240.        The        court       reached    this

conclusion even though the prosecuting attorney apparently had

no knowledge of such evidence, concluding that “legally what

[the officer] knew must be imputed to the prosecutor.”                                      Id. at

1241 n.2.           And Boone v. Paderick, also cited by the majority,

granted     habeas         relief    based       on    the    prosecution’s             failure    to

disclose        a     law    enforcement           agent’s          promise        of     favorable

treatment to a key government witness.                              See 541 F.2d 447, 448

(4th     Cir.       1976).         Boone        even    less        clearly       supports       this

                                                 61
proposition         as     the     prosecutor      testified       in   the     habeas

proceedings that he did not deny that the officer told him of

the promises and stated that he simply could not remember.

                     B.    Decisions Post-Dating April 1988

       Owens also relies on Goodwin v. Metts, a 1989 decision in

which the court let stand a jury award against a police officer

on a common law malicious prosecution cause of action.                         See 885

F.2d 157, 166-67 (4th Cir. 1989).                  Goodwin did not address any

due process claims based on Brady.                   Owens’ reliance on Goodwin

is based on the court’s statement that “[a] reasonable officer

would have known [in 1983, when the salient events occurred,]

that    a   prosecution           carried   out    without       probable    cause    or

disclosure         of     exculpatory       information      would      violate      the

constitutional rights of the criminal defendants.”                       Id. at 164.

Assuming Owens is correct that Goodwin puts officers on notice

that   they     “could       be    liable    for    their    failure    to    disclose

exculpatory evidence,” Brief of Appellant at 40, such notice was

not provided until September 1989, when Goodwin was decided.

Owens’ trial took place between February and April 1988; thus,

Goodwin would have been of no value to the defendant police

officers      in    this     case,      whose    failure    to    disclose    evidence

occurred before Goodwin was decided.

       Owens makes much of the fact that the conduct at issue in

Goodwin –      for       which    the   individual    officers     there     were    held

                                            62
liable – happened in 1983.                 But for purposes of determining

“clearly established law” in the context of qualified immunity,

the relevant precedents “can only be applied prospectively” and

“cannot be imputed retroactively to an officer in this circuit

whose    allegedly     tortious      conduct    predated”     the   decision   in

question.      Hill v. Crum, 727 F.3d 312, 322 (4th Cir. 2013).

Thus, it only matters when the case was decided, not when the

underlying conduct occurred. 2          As the next section demonstrates,

our court later was sharply divided over the value of these

cases to a plaintiff suing individual officers.

                        C.    Jean v. Collins I & II

     Both Owens and the individual defendants claim support from

the two Jean v. Collins decisions.               These decisions reveal only

that, even in 1998, this court was very much split over whether

Barbee, Goodwin and Carter established that a police officer

could    be   liable    for    his     failure     to   disclose     exculpatory

information.      In    Jean    I,    we    affirmed    the   district   court’s

conclusion that the defendant police officers were entitled to

qualified immunity because “the relevant sources of law do not

clearly establish that in 1982 police themselves labored under

     2
       Like Goodwin, Carter v. Burch, 34 F.3d 257 (4th Cir.
1994), was decided too late to be of any value to the officers
in this case. Carter upheld an award of nominal damages against
a police officer who failed to disclose exculpatory evidence in
connection with a trial occurring in March 1988; the court,
however, did not decide Carter until 1994.

                                           63
federal constitutional duties with respect to the disclosure of

evidence to the prosecution.”       155 F.3d at 712.       Of particular

relevance were the majority’s observations regarding Barbee:

     We believe that Jean misapprehends the essential
     holding of Barbee. Barbee did not require police, as
     a constitutional matter, to furnish evidence to a
     prosecutor. Instead, as this circuit later explained,
     Barbee held simply that the police’s knowledge of such
     evidence would be imputed to the prosecutor in
     deciding whether the prosecutor had fulfilled his
     Brady duties.

Id. at 710.     Regarding Goodwin and Carter, the en banc court

recognized that these decisions “now [in 1989] provide notice to

police officers that they can be subject to monetary damages

under section 1983 for failure to disclose exculpatory evidence

to the prosecutor,” but that because “[t]hese decisions . . .

postdate the events in this case . . . we do not adopt the

dissent’s theory that proper notice to defendants can be notice

after the fact.”   Id. at 710 n.3. 3

     On remand, the en banc court did not revisit the clearly

established   prong,   again   affirming,   this   time   by   an   equally

     3
        Thus, Jean I did not acknowledge that Goodwin and Carter
provided such notice with respect to conduct occurring after
1982.   Since Goodwin and Carter were decided in 1989 and 1994,
respectively, it would not be possible for those decisions to
afford notice with respect to conduct occurring prior to 1989.

     Even though Jean I was vacated and remanded, see 526 U.S.
1142 (1999), for reconsideration in light of Wilson v. Layne,
526 U.S. 603, 609 (1999), the Supreme Court did not address Jean
I’s conclusion that, as of 1982, police had no constitutional
duty to provide evidence to a prosecutor.

                                   64
divided court, the district court’s grant of summary judgment.

See Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (“Jean II”)

The    concurring      opinion        for   affirmance,        having       concluded       that

there    was    no   constitutional           violation        because       the     officer’s

failure to disclose was in good faith, took the position that

that    the    Brady     disclosure         duty   is    one       that    rests     with    the

prosecution rather than with the police .                            See id. at 660–62.

By    contrast,      the      dissenting      opinion,         arguing       for     reversal,

assumed the contrary view that officers owe an independent duty

under Brady to disclose exculpatory information.                                   See id. at

664.

       Although      judicial         unanimity         is     not        required     for     a

constitutional right to be clearly established, that the judges

of this court so fervently disagreed in 1998 and 2000 about the

existence, contours and scope of an officer’s                                constitutional

duty to disclose exculpatory evidence strongly suggests that the

right was not clearly established at the time of Owens’ trial in

1988.    See Swanson v. Powers, 937 F.2d 965, 968 (4th Cir. 1991)

(“Since qualified immunity is appropriate if reasonable officers

could    disagree        on     the    relevant     issue,          it    surely     must     be

appropriate       when        reasonable      jurists        can     do     so.”     (citation

omitted)); see also Wilson v. Layne, 526 U.S. 603, 618 (1999)

(“If judges thus disagree on a constitutional question, it is



                                              65
unfair to subject police to money damages for picking the losing

side of the controversy.”).

      In sum, I would conclude that the defendant police officers

are   entitled      to   qualified    immunity        as    it   was   not   clearly

established    at    the   time    they    failed     to    disclose    exculpatory

evidence   that     police   officers      had    a    constitutional        duty   to

disclose      exculpatory         evidence       to        criminal     defendants.

Accordingly, I respectfully dissent and vote to affirm the grant

of qualified immunity to the individual officers. 4




      4
       My friends in the majority characterize as “extraordinary”
my view that none of the decisions they cite—most notably
Barbee, Sutton, Boone and Goodwin—placed the “constitutional
question beyond debate,” al-Kidd, 131 S. Ct. at 2083, for
officers’ conduct occurring prior to the issuance of Goodwin,
the most recent of these.     Given that more than half of the
members of the en banc court in 1998 espoused this view,
including two judges currently still sitting on the court, it is
hardly a stunning or unsupportable one.     See Jean v. Collins,
155 F.3d 701 (4th Cir. 1998) (en banc) (authored by Wilkinson,
C.J., and joined by Niemeyer, J.), vacated on other grounds, 526
U.S. 1142 (1999).

                                          66
WYNN, Circuit Judge, dissenting in part:

       I agree with nearly all aspects of the thoughtful and well-

reasoned majority opinion.               The only issue on which I part ways

with    the     majority        is    whether      the    Baltimore         City      State’s

Attorney’s Office is an entity amenable to suit.                                I conclude

that it is, and I would remand for the district court to fully

consider whether the Baltimore City State’s Attorney’s Office is

entitled      to   sovereign         immunity.      Accordingly,           on   this      issue

alone, I respectfully dissent.



                                              I.

       Rule 17(b) of the Federal Rules of Civil Procedure requires

us to look to the “law of the state where the court is located”

to determine whether an entity that is not an individual or a

corporation        has   the    capacity      to   be    sued.        Fed.      R.   Civ.    P.

17(b)(3).       I agree with the majority that Maryland’s courts do

not yet appear to have determined whether the Baltimore City

State’s Attorney’s Office has the capacity to be sued.                                    But a

close    look      at    the    Maryland       Constitution          and     the     Maryland

Criminal Procedure Code convince me that it is.

       The    Maryland    Constitution         establishes       a    State’s        Attorney

for    each   county      and    for    the    City      of   Baltimore—and          it    goes

further with specific provisions that apply only to “the State’s

Attorney for Baltimore City.”                    Md. Const. art. V, § 9.                    For

                                              67
example, the Constitution provides “that the State’s Attorney

for Baltimore City shall have the power to appoint a Deputy and

such other Assistants as the Supreme Bench of Baltimore City may

authorize    or    approve[.]”       Id.         Maryland’s     Constitution      also

specifies salaries for Baltimore’s State’s Attorney, Baltimore’s

Deputy   State’s        Attorney,    and        Baltimore’s     Assistant    State’s

Attorneys.        Id.     Finally,    it    states     that   the     “expenses   for

conducting the office of the State’s Attorney . . . shall be

paid by the Mayor and City Council of Baltimore[.]”                    Id.

     Not surprisingly, then, Maryland’s Criminal Procedure Code

acknowledges      the    existence    of        the   “Office    of    the   State’s

Attorney” that the Maryland Constitution created.                     Md. Code Ann.

Crim. Proc. § 15.         Not only is Criminal Procedure Code Title 15

named “Office of the State’s Attorney,” * id., but it defines

“State’s Attorney” as “the individual holding that office under

Article V, § 7 of the Maryland Constitution[,]” id. § 15-101.


     *
       The majority opinion states that the title of the code
section “provides little assistance to courts interpreting
statutory provisions.” Ante at 25. Although this is certainly
a valid canon of construction, it has no relevance here for two
reasons.   First, we are not interpreting the Maryland Criminal
Procedure Code itself; we are determining whether a particular
thing—the   Baltimore  City   State’s  Attorney’s Office—has   a
distinct legal identity.     Second, that particular canon of
construction applies when the statute subject to interpretation
contains “some ambiguous word or phrase.” Bhd. of R.R. Trainmen
v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528–29 (1947).       The
majority points to nothing ambiguous in the statute that might
trigger the application of that canon.

                                           68
It sets forth all of the duties and powers possessed by that

Office, id. §§ 15-102–109, and it distinguishes the Office of

the State’s Attorney from the Office of the State Prosecutor,

which was established to be “an independent unit in the Office

of the Attorney General.”             Id. § 14-102(a)(2).

       Were    this    a    case   about    a    sheriff’s   department,   I,    too,

would perceive the need to “remain faithful to the [Maryland

Court of Appeals’s] analysis in Boyer.”                  Ante at 27.       But this

is a case about the Baltimore City State’s Attorney’s Office,

not a sheriff’s department.                All the Boyer court concluded was

that there is no such thing as the “Charles County ‘Sheriff’s

Department,’” which was how the plaintiff in that case named the

defendant in his complaint.             Also, with one exception, the Boyer

court consistently referred to the entity in that case as the

Charles       County       “Sheriff’s      Department”—with     quotation       marks

around “Sheriff’s Department.”                  It should come as no surprise,

then, that the Boyer court determined that the Charles County

“Sheriff’s Department” is not a legal entity; after all, the

Boyer court explained that they could find nothing “establishing

an entity known as the Charles County “‘Sheriff’s Department.’”

Boyer v. State, 594 A.2d 121, 128 n.9 (Md. 1991).                      In short,

nothing in Boyer persuades me that the Maryland Court of Appeals

used    that    case       to   set   forth      an   analytical   framework      for



                                            69
determining         whether     entities      other       than    the     Charles      County

Sheriff’s Department are amenable to suit.

      Unlike the majority, I do not read footnote 9 in Boyer to

stand for the broad assertion of Maryland state law that “absent

a statutory or constitutional provision creating a governmental

agency,      an     ‘office’     or     ‘department’        bears     no      unique       legal

identity, and thus, it cannot be sued under Maryland law.”                                 Ante

at 23.       Instead, that footnote explains why the Maryland Court

of   Appeals        determined         that     the      Charles     County         Sheriff’s

Department was not a governmental agency or a stand-alone legal

entity capable of being sued.                   In other words, the absence of

any mention of the Charles County Sheriff’s Department either in

the Maryland Constitution or in any other state statute confirms

only the legal nonexistence of that particular department.

      But even assuming for the sake of argument that footnote 9

in   Boyer    stands      for    the    broad      proposition      that      the    majority

opinion      ascribes      to    it,     I    would      still     conclude         that     the

Baltimore         City   State’s       Attorney’s        Office     is    a    governmental

agency    amenable       to     suit    for   the      reasons     stated      above.        To

reiterate,        the    Maryland      Constitution        clearly       establishes        the

Baltimore         City   State’s       Attorney’s        Office,     and      the    Maryland

Criminal     Procedure        Code     provides        additional    evidence        of     that

Office’s      existence.              Because      I     think     that       the    Maryland



                                              70
Constitution is clear, I find it outside of our purview to add

our gloss to it.

       The majority opinion suggests that the establishment of the

Office of the State’s Attorney’s Coordinator provides evidence

“[t]hat the Maryland General Assembly knew how to create such an

office, yet failed to do so with respect to the” Baltimore City

State’s      Attorney’s       Office.      Ante   at     24.         The     majority    is

persuaded that the absence of a similar statute creating the

Baltimore     City     State’s      Attorney’s    Office       “confirms”       that    the

Office “bears no unique legal identity.”                       Id.      But “[a]s one

court   has    aptly    put    it,    ‘[n]ot    every    silence       is    pregnant.’”

Burns v. United States, 501 U.S. 129, 136 (1991) (quoting Ill.

Dep’t of Pub. Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir.

1983)), abrogated on other grounds by United States v. Booker,

543    U.S.    220    (2005).         I   conclude      that     a    more    reasonable

interpretation of the fact that the Maryland General Assembly

has    not    enacted     a    statute     establishing        the     Baltimore       City

State’s Attorney’s Office is that the Maryland Constitution had

already done so.

       Finally, even if I thought that Maryland law was unclear on

this    point,    I     am    not    persuaded    that     the       majority    opinion

captures the way that the Maryland Court of Appeals would rule

on the issue.         “The highest state court is the final authority

on state law, but it is still the duty of the federal courts,

                                           71
where the state law supplies the rule of decision, to ascertain

and apply that law even though it has not been expounded by the

highest court of the State.”           Fidelity Union Trust Co. v. Field,

311 U.S. 169, 177 (1940) (citations and footnote omitted).                         When

the state law is unclear, we “must apply the law . . . as it

appears the highest court of that state would rule.”                       Brendle v.

General Tire & Rubber Co., 505 F.2d 243, 245 (4th Cir. 1974)

(emphasis added).



                                        II.

       Because     I    would   hold   that      the   Baltimore      City    State’s

Attorney’s Office is a legal entity capable of being sued, I

would   also     reach    the   question    of    whether      the   district   court

erred in determining that the Baltimore City State’s Attorney’s

Office is entitled to sovereign immunity.                 Although the Eleventh

Amendment prevents plaintiffs from suing states and “arms of the

state” in federal court, “Eleventh Amendment immunity does not

extend to counties and similar municipal corporations[,] . . .

even    if   [they]     exercise   a   slice     of    State     power.”     Cash    v.

Granville Cnty. Bd. of Educ., 242 F.3d 219, 222 (4th                       Cir. 2001)

(quotations marks and citations omitted); Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 691 (1978).

       When an entity has both state and local characteristics,

“the    entity’s       potential   legal    liability”      is    relevant    to    the

                                           72
Eleventh Amendment inquiry.                Regents of the Univ. of Cal. v.

Doe, 519 U.S. 425, 431 (1997).                       “Because the State treasury

factor     is    ‘the     most      salient        factor    in     Eleventh        Amendment

determinations,’ a finding that the State treasury will not be

affected by a judgment against the governmental entity weighs

against finding that entity immune.”                         Cash, 242 F.3d at 224

(quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48

(1994)).        If the state would not be liable for judgment, courts

consider    several        additional     factors,          including     the       amount   of

control that the state exercises over the entity, the scope of

the entity’s concerns, and the way in which state law treats the

entity to determine whether sovereign immunity bars the lawsuit.

Id.

      In his opposition to Defendants’ motion to dismiss, Owens

argued that the Baltimore City State’s Attorney’s Office is not

entitled        to     sovereign     immunity        because        it   is     a    “hybrid”

governmental unit “created by State law but funded and overseen

by a city or county government.”                     J.A. 75.        Furthermore, Owens

attached    exhibits        to     his   opposition          that    show     the     State’s

Attorney on the City of Baltimore’s organization chart and as a

line item on the City’s general fund budget.                                [J.A. 88–90.]

Owens    also        specifically    requested        the    opportunity        to    conduct

discovery on the matter.             J.A. 82.



                                              73
       But when it orally granted Defendants’ motion to dismiss,

the    district    court   failed   to   analyze   the   case   law   discussed

above or to explain why it was rejecting Owens’s arguments in

favor of Defendants’ arguments.               Further, the district court

failed to give the parties a “reasonable opportunity to present

all the material that is pertinent to the motion.”               Fed. R. Civ.

P. 12(d).         Instead, it simply declared that “based upon the

arguments as well as the case law cited in the briefs in this

case, . . . the State’s Attorneys [sic] Office is a State agency

and it certainly is entitled to [] sovereign immunity.”                   J.A.

355.

       In the end, I would reverse and remand the case to the

district court with instructions to treat Defendants’ motion to

dismiss as a motion for summary judgment and to allow Owens to

pursue reasonable discovery as to the sovereign immunity issue.

See Plante v. Shivar, 540 F.2d 1233, 1235 (4th Cir. 1976).




                                         74
